EXHIBIT 10.2
MERCEDES-BENZ USA, LLC
MAYBACH
PASSENGER CAR DEALER AGREEMENT
TABLE OF CONTENTS
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DEALER AGREEMENT PAGE
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MAYBACH STATEMENT OF COMMITMENT (i)
A. APPOINTMENT OF DEALER (ii)
B. TERM (ii)
C. ADDITIONAL PROVISIONS (ii)
D. DEALER OWNERSHIP (ii)
E. DEALER MANAGEMENT (iii)
F. DEALERSHIP FACILITIES (iii)
G. MODIFICATION OF AGREEMENT (iv)
H. EXECUTION OF AGREEMENT (iv)
I. MUTUAL RELEASE (iv)
J. CERTIFICATION (iv)
FINAL PARAGRAPH (v)
STANDARD PROVISIONS
I. ACQUISITION, DELIVERY AND INVENTORY OF MAYBACH
PASSENGER CAR PRODUCTS 1
A. PRICES AND TERMS OF SALE 1
B. AVAILABILITY AND ALLOCATION OF PRODUCTS 1
C. DELIVERY OF PRODUCTS 1
D. PASSAGE OF TITLE 1
E. RISK OF DAMAGE OR LOSS 2
F. DELAY OR FAILURE OF DELIVERY 2
G. DIVERSION AND STORAGE CHARGES 2
H. SECURITY INTEREST 2
1. Grant of Security Interest 2
2. Default in Payment 3
3. Assembly of Collateral, Payment of Costs and
Notices 3
4. Recording and Further Assurances 3
5. Records and Schedules of Inventory 4
PAGE
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I. CHANGES OF DESIGN, SPECIFICATIONS OR OPTIONS 4
J. DISCONTINUANCE OF MANUFACTURE OR
IMPORTATION 4
K. MINIMUM VEHICLE INVENTORIES 4
L. PRODUCT MODIFICATIONS 4
II. DEALER'S MARKETING AND SALES OF MAYBACH
PASSENGER CAR PRODUCTS 5
A. DEALER'S GENERAL RESPONSIBILITIES 5
B. EXPORT POLICY 5
C. DEALER ASSOCIATION 6
D. PRE-OWNED VEHICLES 6
E. AREA OF INFLUENCE 6
F. EVALUATION OF DEALER'S MARKETING AND
SALES PERFORMANCE 6
III. DEALER'S SERVICE OBLIGATIONS 7
A. CUSTOMER SERVICE STANDARDS 7
B. DEALER'S SPECIFIC SERVICE OBLIGATIONS 7
1. Pre-Delivery Inspections and Service 7
2. Warranty Repairs and Policy Service 7
3. Service Campaign Inspections and Corrections 8
4. Roadside Assistance Program 8
C. USE OF PARTS AND ACCESSORIES IN
NON-WARRANTY SERVICE 8
1. Quality Standards 8
2. Dealer's Disclosures as to Use of and
Warranties for Non-Genuine Parts and Accessories 9
D. COMPLIANCE WITH SAFETY AND EMISSION
CONTROL REQUIREMENTS 9
E. COMPLIANCE WITH CONSUMER PROTECTION
STATUTES, RULES AND REGULATIONS 10
IV. DEALER'S SERVICE AND PARTS ORGANIZATION 10
A. ORGANIZATION AND STANDARDS 10
B. SERVICE EQUIPMENT AND SPECIAL TOOLS 11
PAGE
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1. Special Tools 11
2. Service Equipment 11
C. PARTS STOCKING AND SERVICE LEVELS 11
D. AFTER HOURS DELIVERY 12
E. ASSISTANCE PROVIDED BY MBUSA 12
1. Service Manuals and Materials 12
2. Field Personnel Assistance 12
F. EVALUATION OF DEALER'S SERVICE
AND PARTS PERFORMANCE 12
G. ADDITIONAL FACILITIES OR LOCATIONS 12
V. CUSTOMER SATISFACTION RESPONSIBILITIES 13
A. DEALER'S CUSTOMER SATISFACTION
OBLIGATIONS 13
1. Dealer's Customer Satisfaction Plan 13
2. Employee Training 13
3. Customer Assistance Response System 13
B. EVALUATION OF DEALER'S CUSTOMER
SATISFACTION PERFORMANCE 13
VI. DEALERSHIP FACILITIES AND
IDENTIFICATION 14
A. LOCATION AND FACILITIES 14
B. CHANGES AND ADDITIONS 14
C. DEALER'S OPERATING HOURS 15
D. CORPORATE IDENTITY 15
E. EVALUATION OF DEALERSHIP
FACILITIES 15
F. OWNERSHIP AND USE OF MAYBACH MARKS 16
1. Validity and Exclusive Ownership of
Maybach Marks 16
2. Use by Dealer 16
3. Discontinuance of Use 16
4. Enforcement 17
VII. WARRANTIES 17
PAGE
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VIII. CAPITAL, CREDIT, RECORDS AND UNIFORM SYSTEMS 17
A. NET WORKING CAPITAL 17
B. FLOORING AND LINES OF CREDIT 18
C. PAYMENT TERMS 18
D. UNIFORM ACCOUNTING SYSTEM 18
E. RECORDS MAINTENANCE 19
F. EXAMINATION OF DEALERSHIP
ACCOUNTS AND RECORDS 19
G. TAXES 19
H. CONFIDENTIALITY 19
I. DEALER COMMUNICATIONS
SYSTEM AND PROPRIETARY MANUFACTURER
SYSTEMS 19
J. SALES REPORTING 20
IX. TRANSFERS 20
A. SALE OF ASSETS OR OWNERSHIP INTEREST 20
B. RIGHT OF FIRST REFUSAL OR OPTION TO PURCHASE 21
1. Rights Granted 21
2. Exercise of MBUSA's Rights 21
3. Right of First Refusal 22
4. Option to Purchase 22
5. Dealer's Obligations 22
X. SUCCESSION RIGHTS UPON DEATH OR INCAPACITY 23
A. SUCCESSION TO OWNERSHIP AFTER DEATH OF
OWNER 23
B. INCAPACITY OF OWNER 24
C. NOMINATION OF SUCCESSOR PRIOR TO DEATH
OR INCAPACITY OF OWNER 24
XI. TERMINATION 25
A. VOLUNTARY TERMINATION BY DEALER 25
B. TERMINATION FOR CAUSE 25
1. Immediate Termination 25
2. Termination Upon Sixty Days Notice 27
3. Termination for Failure of Performance 28
4. Termination Upon Death or Incapacity 28
PAGE
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C. TERMINATION UPON TERMINATION OF
DISTRIBUTORSHIP 28
D. TERMINATION FOR FAILURE OF MBUSA TO BE
LICENSED 28
E. TERMINATION UPON OFFERING TO ENTER INTO A
NEW OR AMENDED PASSENGER CAR DEALER
AGREEMENT 29
F. NOTICE OF TERMINATION 29
G. CONTINUANCE OF BUSINESS RELATIONS 29
H. REPURCHASE PROVISIONS 29
1. MBUSA's Obligations 29
2. Dealer's Responsibilities 30
3. Payment by MBUSA 31
XII. DEFENSE AND INDEMNIFICATION 31
A. DEFENSE AND INDEMNIFICATION BY MBUSA 31
B. DEFENSE AND INDEMNIFICATION BY DEALER 32
C. CONDITIONAL DEFENSE AND/OR
INDEMNIFICATION 33
D. THE EFFECT OF SUBSEQUENT DEVELOPMENTS 33
E. TIME TO RESPOND AND RESPONSIBILITIES
OF THE PARTIES 34
XIII. NOTICE OF BREACH OR FAILURE TO ACT IN GOOD FAITH 34
XIV. GENERAL PROVISIONS 34
A. NOTICES 34
B. NO IMPLIED WAIVERS 35
C. SOLE AGREEMENT OF THE PARTIES 35
D. DEALER NOT AN AGENT OR REPRESENTATIVE 35
E. ASSIGNMENT OF RIGHTS OR DELEGATIONS OF
DUTIES 35
F. NO FRANCHISE FEE 35
G. BENEFIT 36
H. NEW JERSEY LAW 36
XV. DEFINITIONS 36
XVI. ADDITIONAL PROVISIONS 38
MERCEDES-BENZ USA, LLC
MAYBACH PASSENGER CAR
DEALER AGREEMENT
This MAYBACH PASSENGER CAR DEALER AGREEMENT is effective as of
the day last set forth below by and between Mercedes-Benz USA, LLC ("MBUSA") and
the natural person or entity identified as "Dealer" in the Final Paragraph of
this Agreement.
MAYBACH STATEMENT OF COMMITMENT
This Agreement states the commitment of MBUSA and Dealer to each other as well
as their relationship to the owners of Maybach Passenger Car Products.
MBUSA, the exclusive distributor of Maybach Products in the United States of
America and its territories and possessions, brings to this relationship the
peerless reputation and image of Maybach. DCAG has produced automobiles longer
than any other manufacturer in the world. It has never let sheer numbers of
production, or the requirement of transportation alone, become the yardstick for
the design of its products. Its devoted craftsmen have built, and continue to
build, the finest automobiles in the world. Since 1886, DCAG has produced
automobiles that have been and continue to be the pride of discriminating owners
all over the world.
Maybach passenger car dealers are community leaders whose reputation, integrity
and expertise are essential to the sale and servicing of Maybach Passenger Cars.
They must have well-located places of business with outstanding sales, service
and parts facilities; they must be staffed by courteous and well-trained
personnel who are dedicated to serving Maybach customers during the acquisition
and ownership experience; and they must be focused on attaining the collective
long-term goals reflected herein as well as their own individual goals.
Maybach owners are loyal, devoted and proud; but they are also demanding towards
the factory as far as the product is concerned and towards the dealer as to how
it is sold and serviced. MBUSA and Dealer are committed to meeting and, where
possible, exceeding those high expectations.
By executing this Agreement, and pursuant to its terms, MBUSA and its Maybach
Passenger Car dealers dedicate themselves jointly to serving and satisfying the
past, present and future owners of Maybach Passenger Car Products.
-(i)-
A. APPOINTMENT OF DEALER
MBUSA hereby appoints Dealer and grants it the non-exclusive right to
buy and resell Maybach Passenger Car Products. Dealer accepts such
appointment and understands that its appointment as a Dealer (i) does
not grant it an exclusive right to sell Maybach Passenger Car Products
in its Area of Influence or in any other geographic area, and (ii) does
not grant it any right to buy or resell vehicles or other products that
are not Maybach Passenger Car Products.
B. TERM
This Agreement shall have a term commencing on its effective date and
continuing until the date set forth in the Final Paragraph.
C. ADDITIONAL PROVISIONS
The accompanying Maybach Passenger Car Dealer Agreement Standard
Provisions, Dealer AOI Space Analysis Addendum, Dealer Operating
Requirements Addendum, Dealer Area of Influence Addendum, Dealer
Improvement Addendum (if applicable), other facility addenda (if
applicable) as identified in Paragraph F, and Communications Guidelines
and Graphic Standards are hereby incorporated into and made a part of
this Agreement. Dealer further agrees to be bound by and comply with
the Warranty Manual, Dealership Facility Planning & Corporate
Identification Manual, and all other manuals, bulletins, instructions
and directives issued to Dealer by MBUSA.
D. DEALER OWNERSHIP
This is a personal service agreement. MBUSA is entering into this
Agreement in reliance upon the personal qualifications, reputation,
integrity and expertise of Owners and upon their representation that
they are committed to achieving the purposes and goals of this
Agreement. Dealer agrees that there will be no change in the identity
of Owner or in Dealer's ownership, name, identity, business
organization or structure without the prior written consent of MBUSA,
which consent shall not be unreasonably withheld; provided, however,
that anything herein to the contrary notwithstanding, Dealer agrees
that it shall not sell or transfer Dealer's principal assets or any
ownership interest of Owner relating to the conduct of Dealership
Operations hereunder separate and apart from the assets or ownership
interest relating to the conduct of "Dealership Operations" under the
Mercedes-Benz Passenger Car Dealer Agreement and the Mercedes-Benz
Light Truck Dealer Agreement. If Dealer is a corporation, Dealer agrees
to notify MBUSA in writing of any change in the identity of its
officers or directors.
-(ii)-
E. DEALER MANAGEMENT
MBUSA and Dealer agree that qualified dealership management is critical
to the successful operation of the Dealer. Dealer agrees, and MBUSA
enters into this Agreement on the condition, that at least one Owner,
the Dealer Operator, shall have full managerial authority for
Dealership Operations, shall continually provide his or her personal
services in operating the Dealership, and shall be physically present
at the Dealership Facilities on a full-time basis. Dealer further
agrees that the Dealer Operator hereunder shall be the same person as
the "Dealer Operator" under the Mercedes-Benz Passenger Car Dealer
Agreement and the Mercedes-Benz Light Truck Dealer Agreement. If the
Dealer Operator has or in the future acquires an ownership interest in
another Maybach Passenger Car dealer where he or she desires to serve
temporarily as the Dealer Operator, MBUSA shall give Dealer and the
other dealer a reasonable period of time within which to designate a
separate and distinct Dealer Operator satisfactory to MBUSA for each
such dealer. Dealer agrees that there will be no change in the identity
of the Dealer Operator without the prior written consent of MBUSA,
which consent shall not be unreasonably withheld.
F. DEALERSHIP FACILITIES
Dealer agrees that the Dealership Facilities shall satisfy all
applicable provisions of this Agreement, including the facility, space,
appearance, layout, equipment and corporate identification requirements
in the Dealer AOI Space Analysis Addendum and Dealership Facility
Planning & Corporate Identification Manual. In addition, Dealer agrees
to acquire and maintain the Maybach Environment as outlined in the
Maybach Dealer Franchise Guide. Unless otherwise provided in the Dealer
AOI Space Analysis Addendum, MBUSA hereby approves the location(s) of
the Dealership Facilities identified in the Final Paragraph for the
exclusive purpose of: (i) showroom and sales facility for Maybach
Passenger Cars; (ii) service and parts facility for Maybach Passenger
Cars; (iii) facilities for display and sale of pre-owned Maybach
vehicles; and (iv) if applicable, other facilities for such other
purpose(s) as may be identified in the Final Paragraph. Additional
facilities will operate pursuant to the terms of the Maybach Passenger
Car Dealer Agreement herein and the following Dealer Agreement Addenda
if applicable: Service Center Addendum, Pre-Owned & Service Center
Addendum, and Service Annex Addendum. Dealer shall not move, relocate
or change the designated usage or function of the Approved Location(s)
or any of the Dealership Facilities without the prior written consent
of MBUSA. At all times, Dealer shall conduct Dealership Operations
hereunder in conjunction with, and at the "Approved Location(s)" and
"Dealership Facilities" for, its "Dealership Operations" under the
Mercedes-Benz Passenger Car and Light Truck Dealer Agreement, Dealer
shall not add sales, service or parts operations for any other line of
vehicles to the Dealership Facilities or at the Approved Location(s)
without the prior written consent of MBUSA.
-(iii)-
G. MODIFICATION OF AGREEMENT
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 MBUSA unless approved in writing by the President or a Vice
President of MBUSA.
H. EXECUTION OF AGREEMENT
This Agreement shall not become effective until signed by a duly
authorized officer of Dealer, if a corporation or limited liability
company, or by one of the general partners of Dealer, if a partnership,
or by the named individual if a sole proprietorship, and countersigned
by the President or a Vice President of MBUSA.
I. MUTUAL RELEASE
Each party hereby releases the other from any and all claims and causes
of action that it may have against the other for money damages arising
from any event occurring up to and including the effective date of this
Agreement, except for any accounts payable by one party to the other
reflected on the MBUSA Consolidated Statement or adjustments to any
prior payment, credit or other benefit arising from any audit or other
examination conducted by MBUSA with respect thereto. This mutual
release does not extend to claims that either party does not know or
reasonably suspect to exist in its favor as of the effective date of
this Agreement or that arise under Section XII of the Standard
Provisions to this Agreement.
J. CERTIFICATION
By their signatures below, the parties certify that they have read and
understand this Agreement, including all of the additional provisions
incorporated herein, and agree to be bound by and comply with all of
its terms and conditions.
-(iv)-
FINAL PARAGRAPH
Dealer is_______________________________________, a (an)________________________
incorporated or formed under the laws of the State of___________________________
doing business as_______________________________________________________________
("Dealer"). Dealer is located in ______________, _______________________________
City State
The Owners of Dealer (including all shareholders, general and limited partners,
and other owners) are as follows:
PERCENTAGE
NAME RESIDENCE INTEREST
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The Dealer Operator of Dealer is as follows:
NAME RESIDENCE
- -------------------- ---------------------
Showroom and Sales Facility for Maybach Passenger Cars located at:
Service and Parts Facility for Maybach Passenger Cars located at:
Facilities for the display and sale of pre-owned Maybach Vehicles located at:
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement effective as of the _____day of ___________, ____ at Montvale, New
Jersey. This Agreement shall have a term commencing on its effective date and
continuing until _____________, _______.
DEALER: MERCEDES-BENZ USA, LLC
By________________________________ By _____________________________________
Signature Vice President
__________________________________ Attested by: ___________________________
Type Name and Title
Attested by:_____________________
-(v)-
MERCEDES-BENZ USA, LLC
MAYBACH PASSENGER CAR DEALER AGREEMENT
STANDARD PROVISIONS
I. ACQUISITION, DELIVERY AND INVENTORY OF MAYBACH PASSENGER
CAR PRODUCTS
A. PRICES AND TERMS OF SALE
MBUSA shall offer to sell to Dealer and Dealer shall have the
right to purchase from MBUSA Maybach Passenger Car Products in
accordance with the provisions of this Agreement and the
prices and other terms of sale that MBUSA shall establish and
revise from time to time. Such revised prices or terms shall
apply to any Maybach Product not invoiced to Dealer by MBUSA
at the time the notice of such change is given to Dealer (in
the case of Maybach Passenger Cars), or upon issuance of a new
or modified parts price list or through change notices,
letters, bulletins or revision sheets (in the case of Genuine
Maybach Parts and Accessories), or at such other times as may
be designated in writing by MBUSA.
B. AVAILABILITY AND ALLOCATION OF PRODUCTS
MBUSA will allocate Maybach Passenger Car Products among its
passenger car dealers in a fair and equitable manner. MBUSA
will, upon Dealer's request, explain the considerations and
method used to allocate Maybach Passenger Car Products to
Dealer.
C. DELIVERY OF PRODUCTS
MBUSA will ship Maybach Passenger Car Products to Dealer by
whatever mode of transportation, by whatever route, and from
whatever point MBUSA may select. Dealer shall pay MBUSA such
charges as MBUSA in its sole discretion establishes for such
transportation services.
D. PASSAGE OF TITLE
Title to each Maybach Passenger Car Product shall pass from
MBUSA to Dealer, or to the financial institution designated by
Dealer, upon MBUSA's receipt of payment for said Product and
upon delivery of said Product to Dealer or to a carrier for
transportation to Dealer.
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E. RISK OF DAMAGE OR LOSS
Dealer shall bear the risk of damage to or loss of Maybach
Passenger Car Products during transportation from the point of
shipment; however, MBUSA will, if requested by Dealer in such
manner and within such time as MBUSA may specify, prosecute
claims for damage to or loss of Maybach Passenger Cars during
said transportation against the responsible carrier for and on
behalf of Dealer. To the extent required by law, Dealer shall
notify the purchaser of a vehicle of any damage sustained by
such vehicle prior to sale.
F. DELAY OR FAILURE OF DELIVERY
MBUSA shall not be liable for delay or failure to deliver
Maybach Passenger Car Products that it has previously agreed
to deliver, where such delay or failure to deliver is the
result of any event beyond the control of MBUSA, including but
not limited to any law or regulation of any governmental
entity, acts of God, foreign or civil wars, riots,
interruptions of navigation, shipwrecks, fires, floods,
storms, strikes, lockouts, or other labor troubles, embargoes,
blockades, or delay or failure of DCAG to deliver Maybach
Passenger Car Products.
G. DIVERSION AND STORAGE CHARGES
Dealer shall be responsible for and shall pay all charges for
demurrage, storage and other expense accruing after shipment
to Dealer or to a carrier for transportation to Dealer. If
diversions of shipments are made upon Dealer's request or are
made by MBUSA as a result of Dealer's failure or refusal to
accept shipments made pursuant to Dealer's orders, Dealer
shall pay all additional charges and expenses incident to such
diversions.
H. SECURITY INTEREST
1. GRANT OF SECURITY INTEREST
As security for the full payment of all sums from
time to time owed by Dealer to MBUSA under this
Agreement, whether such sums are now or hereafter
become due and owing, Dealer hereby grants to MBUSA a
security interest in the following items for which
MBUSA has not received payment (collectively referred
to as "Collateral"):
(i) All Genuine Maybach Passenger Car Products
and other related items delivered by MBUSA
to Dealer hereunder on account (all such
inventory hereinafter referred to
collectively as "Inventory" and individually
as "Item of Inventory"); and
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(ii) All proceeds from any of the foregoing,
including without limitation, insurance
payable by reason of the loss, damage or
destruction of any Item of Inventory; and
all accounts and chattel paper of Dealer
arising from its sale, lease or other
disposition of Inventory now existing or
hereafter arising, and all liens.
securities, guarantees, remedies and
privileges pertaining thereto, together with
all rights and liens of Dealer relating
thereto.
2. DEFAULT IN PAYMENT
Dealer shall be in default of this Section I.H if:
(i) Dealer shall fail to pay any amounts secured
hereby when due or fail to perform any obligations
under this Section I in a timely manner; (ii) Dealer
shall fail to pay any amounts secured pursuant to
Section I of the Mercedes-Benz Passenger Car and
Light Truck Dealer Agreements when due or fail to
perform any obligations under that Section I in a
timely manner; (iii) there shall occur any material
adverse change in the financial condition of Dealer;
or (iv) Dealer shall dissolve or become insolvent or
bankrupt; and, in any such case, MBUSA may declare
all sums secured by this Section I.H immediately due
and payable and MBUSA shall have all the rights and
remedies afforded to a secured party after default
under the Uniform Commercial Code or other applicable
law in effect on the date of this Agreement.
3. ASSEMBLY OF COLLATERAL, PAYMENT OF COSTS AND NOTICES
Dealer shall, if requested by MBUSA upon the
occurrence of any default under Section I.H.2,
assemble the Collateral and make it available to
MBUSA at a place or places designated by MBUSA.
Dealer also shall pay all costs of MBUSA, including
without limitation, attorneys fees incurred with
respect to the enforcement of any of MBUSA's rights
under this Section I.H.
4. RECORDING AND FURTHER ASSURANCES
Dealer shall provide any assistance necessary in the
preparation of financing statements and such other
instruments or documents and take any other action as
MBUSA may request in order to create or maintain the
security interest intended to be created by this
Section I.H, or to enable MBUSA to exercise and
enforce its rights hereunder. A carbon, photographic
or other reproduction of this Agreement shall be
sufficient as a financing statement and may be filed
in lieu of a financing statement in any and all
jurisdictions which accept such reproductions.
-3-
5. RECORDS AND SCHEDULES OF INVENTORY
Dealer shall keep accurate records itemizing and
describing the kind, type and quantity of Inventory
and shall furnish to MBUSA within five (5) days of
receipt of MBUSA's request therefor, a current
schedule of inventory in form and substance
satisfactory to MBUSA ("Schedule of Inventory"),
which shall be true and accurate in all respects. A
physical inventory shall be conducted no less than
annually in connection with preparation of year-end
financial statements of Dealer and, at MBUSA's
request, a report of such inventory shall be promptly
provided to MBUSA.
I. CHANGES OF DESIGN, SPECIFICATIONS OR OPTIONS
MBUSA may change the design or specifications of any Maybach
Passenger Car Product or the options in any Maybach Passenger
Car Product and shall be under no obligation to provide notice
of same or to make any similar change to Maybach Passenger Car
Products previously purchased by or shipped to Dealer. No
change shall be considered a model year change unless so
specified by MBUSA.
J. DISCONTINUANCE OF MANUFACTURE OR IMPORTATION
DCAG and/or MBUSA may discontinue the manufacture, importation
or distribution of all or part of any Maybach Passenger Car
Product, whether passenger car parts, options or accessories,
including any model, series or body style of any Maybach
Passenger Car at any time without any obligation or liability
to Dealer by reason thereof.
K. MINIMUM VEHICLE INVENTORIES
Dealer agrees that it shall, at all times, maintain in
showroom ready condition at least the minimum inventory of
Maybach Passenger Cars that may be established by MBUSA from
time to time.
L. PRODUCT MODIFICATIONS
Dealer agrees that it will not install aftermarket accessories
or make any modifications to Maybach Passenger Cars that may
impair or adversely affect their safety, emissions, structural
integrity or performance.
-4-
II. DEALER'S MARKETING AND SALES OF MAYBACH PASSENGER CAR PRODUCTS
A. DEALER'S GENERAL RESPONSIBILITIES
Dealer recognizes that customer satisfaction and the
successful promotion and sale of Maybach Passenger Car
Products are significantly dependent on Dealer's advertising
and sales promotion activities. Therefore, Dealer at all times
shall:
1. Actively and effectively promote and sell new Maybach
Passenger Car Products to customers located within
its Area of Influence;
2. Advertise and merchandise Maybach Passenger Car
Products, and use current Maybach showroom displays,
sales materials and other promotional media;
3. Organize a complete sales organization of the highest
quality, ensure that its sale personnel meet the
educational and management standards established by
MBUSA, and, at Dealer's expense, have such personnel
as are appropriate attend all training courses
prescribed by MBUSA;
4. Comply with the Communications Guidelines and Graphic
Standards, maintain a high standard of ethics in
advertising, promoting and selling Maybach Passenger
Car Products, and avoid engaging in any
misrepresentation or unfair or deceptive practices.
Dealer shall discontinue any advertising that MBUSA
considers injurious to MBUSA's business or reputation
or to the Maybach Marks, or that are likely to be
violative of applicable laws or regulations; and
5. Accurately represent to customers the total selling
price of Maybach Passenger Car Products. Dealer
agrees to explain to customers of Maybach Passenger
Car Products the items that make up the total selling
price and to give the customers itemized invoices and
all other information required by law. Dealer
understands and hereby acknowledges that it may sell
Maybach Passenger Car Products at whatever price
Dealer desires.
B. EXPORT POLICY
Dealer is authorized to sell Maybach Passenger Cars only to
customers residing in the United States of America and its
territories (Guam, Puerto Rico, and Virgin Islands). Dealer
agrees that it will not sell Maybach Passenger Cars for resale
or use outside the United States of America or its
territories. Dealer agrees to be bound by and comply with any
export policy established by MBUSA.
-5-
C. DEALER ASSOCIATION
MBUSA considers participation by Maybach Passenger Car dealers
in Dealer Advertising Associations to be a fundamental part of
an overall marketing strategy for their businesses and Maybach
Passenger Car Products. MBUSA urges Dealer to cooperate in the
establishment of such an association and to fund its fair
share of advertising and merchandising programs undertaken by
the association.
D. PRE-OWNED VEHICLES
Dealer agrees to display and sell pre-owned Maybach vehicles
at the Approved Location(s). Dealer shall participate in
programs as specified by MBUSA for the sale of such vehicles,
and shall maintain the minimum reasonable inventory
established by MBUSA from time to time for such operations.
Dealer shall conduct its pre-owned Maybach vehicle operations
in conformance with all standards set forth in this Agreement.
E. AREA OF INFLUENCE
MBUSA will assign to Dealer a geographic area consisting of a
collection of zip codes or census tracts that is called an
Area of Influence ("AOI"). MBUSA may alter or adjust Dealer's
AOI at any time. The AOI is a tool used by MBUSA to evaluate
Dealer's performance of its primary obligations hereunder.
Dealer agrees that it has no right or interest in any AOI and
that MBUSA may add new dealers to or relocate dealers into
Dealer's AOI. Any such addition or relocation of a dealer will
result in an alteration or adjustment of Dealer's AOI.
F. EVALUATION OF DEALER'S MARKETING AND SALES PERFORMANCE
MBUSA will periodically evaluate Dealer's sales and marketing
performance under this Agreement. Dealer's evaluation will be
based on such reasonable criteria as MBUSA may establish,
including without limitation: (i) Dealer's reasonable sales
objectives that may be established by MBUSA; (ii) Dealer's
sales of Maybach Passenger Cars as a percentage of
registrations of Maybach Passenger Cars or Competitive
Vehicles in Dealer's AOI; (iii) the registrations of Maybach
Passenger Cars as a percentage of registrations of Competitive
Vehicles in Dealer's AOI; (iv) Dealer's sales or registrations
of Maybach Passenger Cars as compared to sales or
registrations of Maybach Passenger Cars by authorized Maybach
Passenger Car dealers in other areas, including but not
limited to the metropolitan area, market and/or region in
which Dealer is located; and (v) Dealer's performance in
building and maintaining consumer satisfaction with Dealer and
Maybach Passenger Car Products. MBUSA will review such
evaluations with Dealer, and Dealer shall take prompt
corrective action, if required, to improve its performance.
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III. DEALER'S SERVICE OBLIGATIONS
A. CUSTOMER SERVICE STANDARDS
Dealer and MBUSA agree that customer satisfaction and the
future growth of their respective businesses is substantially
dependent upon the ability of owners of Maybach Passenger Cars
to obtain high-quality servicing from Dealer. Therefore,
Dealer agrees to:
1. Provide prompt, efficient and courteous service of
the highest quality for all Maybach Passenger Cars,
regardless of where purchased and whether or not
under warranty;
2. Accurately diagnose and advise customers of the
necessary repairs, and obtain their consent prior to
the initiation of such repairs;
3. Professionally perform the necessary repairs; and
4. Treat customers fairly at all times.
B. DEALER'S SPECIFIC SERVICE OBLIGATIONS
1. PRE-DELIVERY INSPECTIONS AND SERVICE
Dealer shall perform pre-delivery inspections and
service on each Maybach Passenger Car prior to sale
and delivery thereof by Dealer in accordance with the
Warranty Manual.
2. WARRANTY REPAIRS AND POLICY SERVICE
Dealer shall promptly, courteously and efficiently
perform (i) warranty repairs on each Maybach
Passenger Car Product that qualifies for such repairs
under the provisions of any warranty furnished
therewith by MBUSA or DCAG, and (ii) such other
inspections, repairs or corrections on Maybach
Passenger Car Products as may be approved or
authorized by MBUSA to be made at MBUSA's expense
(hereinafter "policy service"). Dealer shall perform
such repairs and service on each such Maybach
Passenger Car Product as and when requested by the
owner or user (or in the case of policy service when
requested by MBUSA), without regard to where such
Maybach Passenger Car Product was purchased and in
accordance with the Warranty Manual. MBUSA agrees to
compensate Dealer for all warranty repairs and policy
service, including labor, diagnosis and Genuine
Maybach Passenger Car Parts and Accessories, in
accordance with procedures and at rates to be
established from time to time by MBUSA. Unless
otherwise approved in advance by MBUSA,
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Dealer shall use only Genuine Maybach Passenger Car
Parts and Accessories when performing Maybach
warranty repairs and policy service. Warranty repairs
and policy service are provided for the benefit of
customers, and Dealer agrees that the customer shall
not be obligated to pay any charges for such work or
any other services for which Dealer is reimbursed by
MBUSA, except as required by law.
3. SERVICE CAMPAIGN INSPECTIONS AND CORRECTIONS
Dealer agrees to perform service campaign inspections
and/or corrections for owners or users of all Maybach
Passenger Car Products that qualify for such
inspections and/or corrections in accordance with
MBUSA's directives and the applicable procedures in
the Warranty Manual. MBUSA agrees to reimburse Dealer
for all replacement parts and/or other materials
required and used in connection with such work and
for labor according to such directives and the
applicable provisions of the Warranty Manual.
4. ROADSIDE ASSISTANCE PROGRAM
Dealer agrees to participate in the Mercedes-Benz
Roadside Assistance Program as specified by MBUSA.
C. USE OF PARTS AND ACCESSORIES IN NON-WARRANTY SERVICE
Subject to the provisions of Sections I.L and III.B.2, Dealer
has the right to sell, install or use for making non-warranty
repairs products that are not Genuine Maybach Passenger Car
Parts and Accessories.
1. QUALITY STANDARDS
Dealer acknowledges, however, that its customers
expect that any parts or accessories that Dealer
sells, installs or uses in the sale, repair or
servicing of Maybach Passenger Cars are, or meet the
high quality standards of, Genuine Maybach Passenger
Car Parts and Accessories. Dealer agrees that in
sales, repairs or servicing where Dealer does not use
Genuine Maybach Passenger Car Parts and Accessories,
Dealer will utilize only such other parts or
accessories as:
1. Will not adversely affect the mechanical
operation of the Maybach Passenger Car being
sold, repaired or serviced; and
2. Are equivalent in quality and design to
Genuine Maybach Passenger Car Parts and
Accessories.
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Dealer further agrees that it will not offer to sell
any parts or accessories that for reasons of quality
or image are reasonably objected to by MBUSA.
2. DEALER'S DISCLOSURES AS TO USE OF AND WARRANTIES FOR
NON-GENUINE PARTS AND ACCESSORIES
In order to avoid confusion and to minimize potential
customer dissatisfaction, in any non-warranty
instance where Dealer sells, installs or uses
non-Genuine Maybach Passenger Car Parts or
Accessories, Dealer shall disclose such fact to the
customer and shall advise the customer that the item
is not included in warranties furnished by MBUSA or
DCAG. Such disclosure shall be written, conspicuous
and stated on the customer's copy of the service or
repair order or sale document. In addition, Dealer
will clearly explain to the customer the extent of
any warranty covering the parts or accessories
involved and will deliver a copy of the warranty to
the customer.
D. COMPLIANCE WITH SAFETY AND EMISSION CONTROL REQUIREMENTS
Dealer agrees to comply and operate consistently with all
applicable provisions of the National Traffic and Motor
Vehicle Safety Act of 1966, and the Federal Clean Air Act, as
amended, including applicable rules and regulations issued
from time to time thereunder, and all other applicable
federal, state, and local motor vehicle safety and emission
control statutes, rules, and regulations.
In the event that the laws of the state in which Dealer is
located require motor vehicle dealers or distributors to
install in new or used motor vehicles, prior to their sale,
any safety devices or other equipment not installed or
supplied as standard equipment by DCAG, then Dealer, prior to
the sale of any Maybach Passenger Car on which such
installations are required, shall properly install such
devices or equipment on such Maybach Passenger Cars. Dealer
shall comply with state and local laws pertaining to the
installation and reporting of such equipment.
In the interest of motor vehicle safety and emission control,
MBUSA and Dealer agree to provide to each other such
information and assistance as may reasonably be requested by
the other in connection with the performance of obligations
imposed on either party by the National Traffic and Motor
Vehicle Safety Act of 1966, and the Federal Clean Air Act, as
amended, and their rules and regulations, and all other
applicable federal, state and local motor vehicle safety and
emission control statutes, rules and regulations.
Dealer further agrees that should MBUSA place any new Maybach
Passenger Cars in Dealer's stock on retail hold pending the
resolution of any federal or state regulatory compliance
issue, MBUSA may, but shall not be required to, elect to
repurchase said retail held Maybach Passenger Cars. Should
MBUSA so elect,
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Dealer agrees that it shall immediately sell the Maybach
Passenger Cars back to MBUSA and withhold from retail sale all
such Maybach Passenger Cars still in its inventory at the time
of said election as MBUSA may reasonably determine. In the
event of such a repurchase, the price to be paid by MBUSA to
Dealer shall be only the price paid by the Dealer to MBUSA for
said Maybach Passenger Car. MBUSA shall not be obligated to
reimburse any other costs to Dealer with respect to Dealer's
purchase or MBUSA's repurchase of the Maybach Passenger Cars.
MBUSA shall make payment to the Dealer immediately upon
transfer of title to the Maybach Passenger Car to MBUSA.
During the period from MBUSA's repurchase of Maybach Passenger
Cars until the Maybach Passenger Cars resale to Dealer, the
subject Maybach Passenger Cars shall remain in the possession,
custody and control of Dealer as bailee of MBUSA. Upon the
occurrence of the resolution of the event requiring the
issuance of the retail hold and Maybach Passenger Car
repurchase via the issuance of appropriate repair instructions
to the Dealer, MBUSA shall resell those Maybach Passenger Cars
to Dealer and Dealer hereby agrees to accept those Maybach
Passenger Cars and further agree that it will only retail sell
the Maybach Passenger Cars upon completion of the work by
dealer required to bring the Maybach Passenger Car into
regulatory compliance."
E. COMPLIANCE WITH CONSUMER PROTECTION STATUTES, RULES AND
REGULATIONS
Dealer agrees to comply and operate consistently with all
applicable provisions of consumer protection statutes, rules
and regulations (hereinafter "consumer protection laws").
Because certain customer complaints may impose liability upon
MBUSA under consumer protection laws, Dealer agrees to provide
prompt notice to MBUSA of such complaints and take such other
steps as MBUSA may require. Dealer also agrees to provide
applicable required customer notifications and disclosures as
prescribed by consumer protection laws. Dealer will do nothing
to affect adversely MBUSA's rights under consumer protection
laws.
IV. DEALER'S SERVICE AND PARTS ORGANIZATION
A. ORGANIZATION AND STANDARDS
Dealer agrees to organize and maintain a complete service and
parts organization of the highest quality, including
diagnostic specialists, technicians and a sufficient
complement of qualified service and parts personnel as
recommended by MBUSA. Dealer's personnel will meet the
educational, management and technical training standards
reasonably established by MBUSA and, at Dealer's expense, will
complete all service, parts and customer satisfaction
training courses prescribed by MBUSA.
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B. SERVICE EQUIPMENT AND SPECIAL TOOLS
Anything herein to the contrary notwithstanding, if MBUSA
determines that Dealer requires Special Tools and Service
Equipment to service a model of Maybach Passenger Cars, dealer
acknowledges that it has no right to purchase such model from
MBUSA unless and until it has acquired all such Special Tools
and Service Equipment and completed all related training
courses prescribed by MBUSA.
1. SPECIAL TOOLS
Dealer agrees to purchase from MBUSA all Special
Tools of Category A and B ("Category A and B Tools")
as may be reasonably required by MBUSA and which are
the minimum required for the service, maintenance,
and repair of Maybach Passenger Cars regardless of
size. Delivery of Category A and B Tools by MBUSA to
Dealer will be automatic and via a timetable
determined appropriate by MBUSA in its reasonable
discretion. Dealer may also acquire, at their own
discretion, Special Tools of Category C for larger
scale repairs.
Dealer agrees to maintain all Special Tools in
operational condition and in calibration as
designated by MBUSA. Dealer will manage the inventory
of Special Tools using a storage and inventory
management system specified by MBUSA. Dealer agrees
that such inventory will be subject to periodic
inspection by MBUSA.
In the event a dealer utilizes its own body shop,
dealer agrees to acquire Special Tools of Category K
for use in the repair of Maybach Passenger Cars as
specified by the repair procedure. Dealers that
sublet body shop repairs shall use its best efforts
to monitor, advise, and assure these locations are
equipped with the necessary tools, repair
instructions, and training support to perform the
repairs.
2. SERVICE EQUIPMENT
Dealer agrees to acquire approved Service Equipment
designated as Basic Equipment ("BE") pursuant to the
MBUSA Standard Service Equipment Program. Dealer
agrees to maintain this equipment in operational
condition and in calibration as designated by MBUSA.
C. PARTS STOCKING AND SERVICE LEVELS
Dealer agrees to maintain its parts stock at minimum stocking
and service levels reasonably established by MBUSA.
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D. AFTER-HOURS DELIVERY
Dealer agrees to provide MBUSA, upon request, access to a
secure area for after-hours parts or passenger car delivery.
E. ASSISTANCE PROVIDED BY MBUSA
1. SERVICE MANUALS AND MATERIALS
MBUSA agrees to make available to Dealer copies of
such service manuals and bulletins, publications,
computer software and technical data as MBUSA shall
deem to be necessary for the needs of Dealer's
service and parts organization. Dealer shall be
responsible for keeping such manuals and materials
current and available for consultation by its
employees.
2. FIELD PERSONNEL ASSISTANCE
To assist Dealer in handling its responsibilities
under this Agreement, MBUSA agrees to make available
qualified field personnel who will, from time to
time, advise and counsel Dealer on service-related
subjects, including service policies, product and
technical adjustments, repair and replacement of
product components, customer relations, warranty
administration, service and parts merchandising, and
personnel/management training.
F. EVALUATION OF DEALER'S SERVICE AND PARTS PERFORMANCE
MBUSA will periodically evaluate Dealer's: (i) service
performance in areas such as dealer's service of Maybach
Passenger Cars as a percentage of registrations of Maybach
Passenger Cars in Dealer's AOI, customer satisfaction,
warranty administration, service repairs, service management,
facilities, operating procedures and new vehicle pre-delivery
service; and (ii) parts purchases, sales, operations,
facilities, tools and equipment. MBUSA will review such
evaluations with Dealer, and Dealer shall take prompt action
to improve the service and parts performance to satisfactory
levels as MBUSA may require. Such action shall, if requested
by MBUSA, include an action plan by Dealer for improvement of
service and parts performance within a specific time period
approved by MBUSA, including but not limited to the
establishment of additional space, facilities or locations for
such operations.
G. ADDITIONAL FACILITIES OR LOCATIONS
If, with MBUSA's prior written consent, Dealer establishes
additional facilities or locations for its service and parts
operations, Dealer shall meet the facilities,
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identification, organizational, equipment, parts stocking and
other standards reasonably established by MBUSA from time to
time for such facilities or locations.
V. CUSTOMER SATISFACTION RESPONSIBILITIES
The Maybach Mark is the symbol of automotive excellence. In furtherance
of that image and reputation, MBUSA and Dealer agree to conduct their
respective businesses in a manner that achieves the highest levels of
customer satisfaction by marketing the finest products and providing
the best service in the automotive industry.
A. DEALER'S CUSTOMER SATISFACTION OBLIGATIONS
Dealer will be responsible for satisfying Maybach customers in
all matters except those that are directly related to product
design and manufacturing. Dealer will take all reasonable
steps to ensure that each customer is completely satisfied
with Maybach Passenger Car Products and the services and
practices of Dealer. Dealer will not engage in any practice or
method of operation if its nature or quality may impair the
reputation of MBUSA or Maybach Passenger Car Products.
1. DEALER'S CUSTOMER SATISFACTION PLAN
Upon MBUSA's request, Dealer shall provide a detailed
plan of Dealer's customer satisfaction program to
MBUSA and shall implement such program on a
continuous basis. This plan shall include an ongoing
system for emphasizing customer satisfaction to all
Dealer's employees, for training Dealer employees and
for conveying to customers that Dealer is committed
to the highest possible level of customer
satisfaction.
2. EMPLOYEE TRAINING
Dealer agrees to participate and to have its
employees participate, at Dealer's expense, in
Maybach customer satisfaction training as required
by MBUSA.
3. CUSTOMER ASSISTANCE RESPONSE SYSTEM
Dealer agrees to implement a system, approved by
MBUSA, that will respond immediately to requests for
customer assistance from MBUSA.
B. EVALUATION OF DEALER'S CUSTOMER SATISFACTION PERFORMANCE
MBUSA periodically will evaluate Dealer's customer
satisfaction performance based on the following considerations
and efforts by Dealer.
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1. MBUSA will provide Dealer with Customer Relationship
Index ("CRI") reports or such other equivalent data
as will permit Dealer to assess its performance and
maintain the highest level of customer satisfaction.
Dealer agrees to review with its employees on a
regular basis the results of the customer
satisfaction reports or other data it receives.
2. Dealer shall continuously develop and implement
specific action plans to improve its customer
satisfaction performance and results. The plans are
to be reviewed with MBUSA on a basis that MBUSA deems
appropriate. Dealer will respond on a timely basis to
requests from MBUSA to take action on unsatisfactory
customer satisfaction matters and to commit necessary
resources to remedy deficiencies reasonably specified
by MBUSA.
VI. DEALERSHIP FACILITIES AND IDENTIFICATION
A. LOCATION AND FACILITIES
Dealer shall provide Dealership Facilities at the Approved
Location(s) that (i) will enable Dealer to effectively perform
its responsibilities under this Agreement, (ii) are
satisfactory in space, appearance, layout, equipment and
corporate identification, and (iii) are otherwise
substantially in accordance with the Dealer AOI Space Analysis
Addendum, Dealership Facility Planning & Corporate
Identification Manual, and such other standards as MBUSA may
establish from time to time. In addition, Dealer agrees to
acquire and maintain the Maybach Environment as outlined in
the Maybach Dealer Franchise Guide. Dealer shall conduct its
Dealership Operations only from the Approved Location(s). If
the Approved Location(s) is comprised of more than one place
of business, Dealer shall use each such place of business only
for the purposes specified therefor in Paragraph F and the
Final Paragraph of this Agreement, and, if applicable, in the
Dealer AOI Space Analysis Addendum.
B. CHANGES AND ADDITIONS
Dealer shall not move, relocate or change the designated usage
or function of the Approved Location(s) or any of the
Dealership Facilities, or substantially modify any of the
Dealership Facilities, nor shall Dealer or any person named in
the Final Paragraph of this Agreement directly or indirectly
establish or operate any other locations or facilities for the
sale or servicing of Maybach Passenger Car Products or for the
conduct of any other of the Dealership Operations contemplated
by this Agreement, without the prior written consent of
MBUSA. Any changes in the Approved Location(s) or the
Dealership Facilities that may be agreed to by MBUSA and
Dealer may be reflected in a new Agreement or in a new Dealer
AOI Space Analysis Addendum.
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Dealer agrees that it shall conduct Dealership Operations only from
location(s) and dealership facilities that are "Approved Location(s)"
and "Dealership Facilities" under the Mercedes-Benz Passenger Car
Dealer Agreement and Mercedes-Benz Light Truck Dealer Agreement.
Dealer acknowledges that the addition of sales, service or parts
operations for another line of vehicles to the Dealership Facilities or
at the Approved Location(s) could adversely affect Dealer's sales,
service and parts performance with respect to Maybach Passenger Car
Products. Accordingly, to give MBUSA an adequate opportunity to
evaluate the effect of such a proposed addition and to determine
whether or not to consent thereto, Dealer agrees to notify MBUSA in
writing at least sixty (60) days before Dealer enters into any
agreement or letter of intent with respect to the addition of such
sales, service or parts operations to the Dealership Facilities or at
the Approved Location(s).
C. DEALER'S OPERATING HOURS
Dealer agrees to conduct Dealership Operations during all days and
hours that are customary and lawful for such operations in the
community or locality in which Dealer is located and in accordance with
industry standards. In addition, when necessary to accommodate customer
needs, Dealer shall extend its operating hours.
D. CORPORATE IDENTITY
Subject to applicable governmental statutes, ordinances and
regulations, Dealer agrees to erect, display and maintain, at Approved
Location(s) only and at Dealer's sole expense, such standard authorized
product and service signs and other corporate identity elements as are
specified in the Dealership Facility Planning & Corporate
Identification Manual or otherwise required by MBUSA from time to time.
E. EVALUATION OF DEALERSHIP FACILITIES
MBUSA will periodically evaluate the Dealership Facilities. In making
such evaluations, MBUSA may consider, among other things: the actual
building and land provided by Dealer for the performance of its
responsibilities under this Agreement; compliance with MBUSA's current
requirements for Dealership Operations; the appearance, condition,
layout and signage of the Dealership Facilities; and such other factors
as in MBUSA's opinion may relate to Dealer's performance of its
responsibilities under this Agreement. MBUSA will discuss such
evaluations with Dealer, and Dealer shall take prompt action to comply
with MBUSA's recommendations and minimum facility standards.
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F. OWNERSHIP AND USE OF MAYBACH MARKS
1. VALIDITY AND EXCLUSIVE OWNERSHIP OF MAYBACH MARKS
Dealer acknowledges the validity and DCAG's exclusive
ownership of the Maybach Marks, and agrees not to contest the
same during the term of the Agreement or at any time
thereafter. Dealer and MBUSA agree to cooperate with each
other in preventing any acts of trademark infringement or
unfair competition with respect to any Maybach Mark, but DCAG
or MBUSA shall have sole control over all actions and legal
proceedings to redress infringement of or any unfair
competition with respect to any Maybach Mark.
2. USE BY DEALER
MBUSA grants Dealer a non-exclusive license to use the Maybach
Marks subject to the terms and conditions of the Agreement and
the Dealership Facility Planning & Corporate Identification
Manual. Dealer agrees that it will use the Maybach Marks only
in connection with the sale and servicing of Maybach Passenger
Car Products and only in such manner, at such location, to
such extent, and for such purposes as MBUSA may specify from
time to time. Dealer shall promptly change or discontinue its
use of any Maybach Marks upon MBUSA's request. Dealer shall
not use the Maybach Marks as part of its corporate or business
name without MBUSA's prior written consent.
3. DISCONTINUANCE OF USE
Upon termination of this Agreement, Dealer agrees that it
shall immediately:
a. Discontinue the use of the word Maybach and the
Maybach Marks, or any semblance of same, including
without limitation, the use of all stationery,
telephone directory listing and other printed
material referring in any way to Maybach or bearing
any Maybach Mark;
b. Discontinue the use of the word Maybach or the
Maybach Marks, or any semblance of same, as part of
its business or corporate name, and file a change or
discontinuance of such name with appropriate
authorities;
c. Remove all product signs bearing said word(s) or
Maybach Marks at Dealer's sole cost and expense;
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d. Cease representing itself as an authorized Maybach
Passenger Car dealer; and
e. Refrain from any action, including without
limitation, any advertising, stating or implying that
it is authorized to sell or distribute Maybach
Passenger Car Products.
4. ENFORCEMENT
In the event Dealer fails to comply with the terms and
conditions of this Section VI.F, MBUSA shall have the right,
in its sole discretion, to effect compliance through
litigation and/or to enter upon Dealer's premises and remove,
without liability, all such product signs and identification
bearing the word Maybach or any Maybach Mark. Dealer agrees
that it shall reimburse MBUSA for any costs and expenses
incurred in such litigation and/or removal, including
reasonable attorney fees.
VII. WARRANTIES
The only warranties of MBUSA or DCAG applicable to Maybach Passenger
Car Products shall be the New Vehicle Limited Warranty or such other
written warranties that may be expressly furnished by MBUSA or DCAG.
Except for its express limited liability under such written warranties,
MBUSA and DCAG do not assume any additional warranty obligations or
liabilities in connection with any Maybach Passenger Car Products.
Dealer is not authorized to assume any additional obligations or
liabilities on behalf of MBUSA or DCAG. Any such additional obligations
assumed by Dealer shall be the sole responsibility of Dealer.
Dealer shall expressly incorporate in full and without modification any
warranty furnished by MBUSA or DCAG with a Maybach Passenger Car as a
conspicuous part of each order form or other contract for the sale of
such a Maybach Passenger Car by Dealer to any buyer. Dealer shall make
available to the buyer of each Maybach Passenger Car Product prior to
the purchase of such Maybach Passenger Car Product, copies of such
applicable warranties as may be furnished by MBUSA or DCAG. Dealer
shall also provide to the buyer of each Maybach Passenger Car Product,
in full and without modification, any owner's manual, warranty booklet
or other owner information which MBUSA or DCAG may provide to Dealer
for delivery with such Maybach Product. Dealer agrees to abide by and
implement in all other respects MBUSA's warranty procedures then in
effect.
VIII. CAPITAL, CREDIT, RECORDS AND UNIFORM SYSTEMS
A. NET WORKING CAPITAL
Dealer agrees to establish and maintain actual net working
capital in an amount not less than the minimum net working
capital specified by MBUSA. MBUSA
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will have the right to modify the amount of net working
capital required, and Dealer agrees promptly to establish and
maintain the required amount.
B. FLOORING AND LINES OF CREDIT
Dealer agrees to obtain and maintain at all times a confirmed
and adequate flooring line with a bank or financial
institution or other method of financing acceptable to MBUSA
to enable Dealer to perform its obligations pursuant to this
Agreement.
MBUSA may increase the required amounts of flooring or lines
of credit, and Dealer agrees promptly to establish and
maintain the increased amount.
Subject to the foregoing obligations, Dealer is free to do its
financing business, wholesale, retail or both, with whomever
it chooses and to engage in retail financing activity to the
extent it desires.
C. PAYMENT TERMS
All monies or accounts due Dealer from MBUSA will be
considered net of Dealer's indebtedness to MBUSA. MBUSA may
deduct or offset any amounts due or to become due from Dealer
to MBUSA, or any amounts held by MBUSA, from or against any
sums or accounts due or to become due from MBUSA to Dealer;
provided, however, that MBUSA shall not deduct or offset such
amounts for any transaction where MBUSA has failed to provide
written notice to Dealer of the amounts due within six (6)
months of the transaction. Payments by Dealer to MBUSA shall
be made in such a manner as prescribed by MBUSA and shall be
applied against Dealer's indebtedness in accordance with
MBUSA's policies and practices. If Dealer disputes any
deduction or offset imposed by MBUSA pursuant to this Section
VIII.C, it shall provide written notice of such dispute to
MBUSA within ninety (90) days of the date on which MBUSA
imposed such deduction or offset. If Dealer fails to provide
such notice to MBUSA within that 90-day period, it shall be
deemed to have waived any right that it may have to challenge
such deduction or offset before any court, administrative
agency or governmental body.
D. UNIFORM ACCOUNTING SYSTEM
Dealer agrees to maintain its financial books and records in
accordance with the Mercedes-Benz Accounting Manual, as
amended from time to time by MBUSA. In addition, Dealer shall
furnish to MBUSA complete and accurate financial or operating
information, including without limitation, a financial and/or
operating statement covering the calendar month and calendar
year-to-date operations and showing the true and accurate
condition of Dealer's business. Dealer shall promptly furnish
to MBUSA copies of any adjusted annual statements, including
any and all adjusted, year-end statements prepared for tax
or any other purposes.
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All such information shall be furnished by Dealer to MBUSA via
MBUSA's electronic communications network and in such a format
and at such times as prescribed by MBUSA. If requested by
MBUSA, Dealer shall furnish to MBUSA an audited annual
financial statement.
E. RECORDS MAINTENANCE
Dealer agrees to keep complete, accurate and current records
regarding its sale, leasing and servicing of Maybach Passenger
Car Products for a minimum of seven (7) years, exclusive of
any retention period required by any governmental entity.
Dealer shall prepare, keep current and retain records in
support of requests for reimbursement for warranty and policy
work performed by Dealer in accordance with the Warranty
Manual.
F. EXAMINATION OF DEALERSHIP ACCOUNTS AND RECORDS
MBUSA shall have the right at all reasonable times and during
regular business hours to inspect the Dealership Facilities
and to examine, audit and reproduce all records, accounts and
supporting data relating to all dealership operations for any
line of vehicles conducted in the Dealership Facilities or at
the Approved Location(s), including without limitation, sales
reporting, service and repair of Maybach Passenger Car
Products by Dealer.
G. TAXES
Dealer shall be responsible for and duly pay all sales taxes,
use taxes, excise taxes and other governmental or municipal
charges imposed, levied or based upon the purchase or sale of
Maybach Passenger Car Products by Dealer, and shall maintain
accurate records of the same.
H. CONFIDENTIALITY
MBUSA agrees that it shall not provide any data or documents
submitted to it by Dealer to any third party unless authorized
by Dealer, required by law, or required to generate composite
or comparative data for analytical purposes. Dealer agrees to
keep confidential and not to disclose, directly or indirectly,
any information that MBUSA designates as confidential.
I. MERCEDES-BENZ DEALER COMMUNICATIONS SYSTEM AND PROPRIETARY
MANUFACTURER SYSTEMS
MBUSA has established the Mercedes-Benz Dealer Communications
System ("DCS") to retrieve information from and disseminate
information to Dealer. The DCS (which is presently called
NetStar) collects parts, warranty and financial data from
Dealer, and provides access to various reports, data bases and
administrative messages to Dealer. Dealer shall utilize the
DCS to provide such information to
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MBUSA as MBUSA shall specify from time to time. Dealer shall
acquire, install and maintain at its expense the necessary
equipment and systems compatible with the DCS, as well as
other proprietary manufacturer systems, which are deemed
necessary by MBUSA to transact business and serve customers in
the most efficient manner.
J. SALES REPORTING
Dealer agrees to accurately report to MBUSA, with such
relevant information as MBUSA may reasonably require, the
delivery of each Maybach Passenger Car and pre-owned Maybach
vehicle to an ultimate consumer by the end of the day in which
the vehicle is delivered to such ultimate consumer, and to
furnish MBUSA with such other reports as MBUSA may reasonably
require in accordance with MBUSA's Ultimate Consumer DDR
Reporting Provision or such other sales reporting requirements
(i.e. reporting of sales, customer traffic, and customer order
banks) as MBUSA may establish from time to time.
IX. TRANSFERS
A. SALE OF ASSETS OR OWNERSHIP INTEREST
This is a personal service Agreement that MBUSA has entered
into in reliance upon the personal qualifications, reputation,
integrity, expertise and commitment of Owners and Dealer
Operator. MBUSA has also entered into this Agreement in
reliance on Dealer's agreement at all times to conduct
Dealership Operations hereunder in conjunction with, and at
the "Approved Location(s)" and "Dealership Facilities" for,
its "Dealership Operations" under the Mercedes-Benz Passenger
Car and Light Truck Dealer Agreements. For these reasons,
Dealer agrees to obtain MBUSA's prior written consent to any
proposed sale or transfer of Dealer's principal assets or any
ownership interest of Owner, which consent shall not be
unreasonably withheld; provided, however, that anything herein
to the contrary notwithstanding, Dealer agrees that (i) it
shall not sell or transfer any such assets or ownership
interest relating to the conduct of Dealership Operations
hereunder separate and apart from the assets or ownership
interest relating to the conduct of "Dealership Operations"
under the Mercedes-Benz Passenger Car and Light Truck Dealer
Agreements, and that (ii) any such attempted sale or transfer
shall be void and not binding on MBUSA.
MBUSA shall not be obligated, to execute a new Agreement with
a proposed transferee of such assets or ownership interest
unless Dealer first makes arrangements acceptable to MBUSA to
satisfy any outstanding indebtedness to MBUSA.
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B. RIGHT OF FIRST REFUSAL OR OPTION TO PURCHASE
Subject to Section IX.A., the parties agree as follows:
1. RIGHTS GRANTED
If a proposal to sell Dealer's principal assets or
transfer the majority ownership interest in Dealer is
submitted by Dealer to MBUSA, or in the event of the
death of the majority Owner of Dealer, MBUSA has a
right of first refusal or option to purchase such
assets or ownership interest, including any leasehold
interest or realty. MBUSA's exercise of its right or
option under this Section IX.B supersedes Dealer's
right to transfer its interest in, or ownership of,
the dealership. MBUSA's right or option may be
assigned by it to any third party and MBUSA hereby
guarantees the full payment to Dealer of the purchase
price by such assignee. MBUSA may disclose the terms
of any pending buy/sell agreement and any other
relevant dealership performance information to any
potential assignee. MBUSA's rights under this Section
IX.B will be binding on and enforceable against any
assignee or successor in interest of Dealer or
purchaser of Dealer's assets.
Anything herein to the contrary notwithstanding,
MBUSA shall not have a right of first refusal or
option to purchase Dealer's principal assets or the
majority interest in Dealer if the proposed
transferee is the spouse or a child of an Owner and
such spouse or child meets the criteria then
currently used by MBUSA in qualifying owners of
Maybach Passenger Car dealers. If the proposed
transferee fails to meet such criteria due to
insufficient personal qualifications or expertise,
MBUSA may, in its sole discretion, approve the
transfer subject to the proposed transferee's
successful completion of such training as MBUSA may
require. If the proposed transferee fails to complete
such training successfully or otherwise fails to meet
the criteria then currently used by MBUSA in
qualifying such owners within the time period
prescribed by MBUSA, MBUSA may thereafter exercise
its right of first refusal or option to purchase
under this Section IX.B.
2. EXERCISE OF MBUSA'S RIGHTS
MBUSA shall have thirty (30) days from the following
events within which to exercise its option to
purchase or right of first refusal: (i) MBUSA's
receipt of all data and documentation customarily
required by it to evaluate a proposed transfer of
ownership; (ii) MBUSA's receipt of notice from Dealer
of the death of the majority Owner of Dealer, or
(iii) MBUSA's disapproval of any application
submitted by Owner's heirs pursuant to Section X.
MBUSA's exercise of its right of first refusal
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under this Section IX.B neither shall be dependent
upon nor require its prior refusal to approve the
proposed transfer.
3. RIGHT OF FIRST REFUSAL
If Dealer has entered into a bona fide written
buy/sell agreement for its dealership business or
assets, MBUSA's right under this Section IX.B is a
right of first refusal, enabling MBUSA to assume the
buyer's rights and obligations under such buy/sell
agreement, and to cancel this Agreement and all
rights granted Dealer. Upon MBUSA's request, Dealer
agrees to provide other documents relating to the
proposed transfer and any other information which
MBUSA deems appropriate, including, but not limited
to, those reflecting other agreements or
understandings between the parties to the buy/sell
agreement. If Dealer refuses to provide such
documentation or to state in writing that no such
documents exist, it shall be conclusively presumed
that the buy/sell agreement is not a bona fide
agreement. If Dealer withdraws its proposal in
writing within ten (10) days following Dealer's
receipt of MBUSA's notice exercising its right of
first refusal, such right shall be null and void.
If, as a result of MBUSA's exercise of its right of
first refusal, Dealer is contractually obligated to
reimburse the initial buyer for reasonable attorney's
fees, broker's fees, title searches, property
inspections, and other similar costs and fees that
the buyer incurred in connection with the buy/sell
agreement, MBUSA shall reimburse Dealer for such
costs and fees in an amount up to but not exceeding
Fifty Thousand Dollars ($50,000.00). Dealer shall
provide MBUSA with all documents substantiating such
costs and fees as MBUSA may reasonably request.
4. OPTION TO PURCHASE
In the event of the death of the majority Owner or
if Dealer submits a proposal which MBUSA determines
is not bona fide or in good faith, MBUSA has the
option to purchase the principal assets of Dealer
utilized in Dealership Operations, including real
estate and leasehold interest, and to cancel this
Agreement and the rights granted Dealer hereunder.
The purchase price of the dealership assets will be
determined by good faith negotiations between the
parties.
5. DEALER'S OBLIGATIONS
Upon MBUSA's exercise of its right or option and
tender of performance under the buy/sell agreement or
upon whatever terms may be expressed in the buy/sell
agreement, Dealer shall forthwith transfer the
affected real property by warranty deed conveying
marketable title free and clear of all liens,
claims, mortgages, encumbrances, tenancies and
occupancies. The
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warranty deed shall be in proper form for recording,
and Dealer shall deliver complete possession of the
property and deed at the time of closing. Dealer
shall also furnish to MBUSA all copies of any
easements, licenses or other documents affecting the
property or Dealership Operations and shall assign
any permits or licenses that are necessary or
desirable for the use of or appurtenant to the
property or the conduct of such operations. Dealer
also agrees to execute and deliver to MBUSA
instruments satisfactory to MBUSA conveying title to
all personal property, including leasehold interests,
involved in the transfer or sale to MBUSA. If any
personal property is subject to any lien or charge of
any kind, Dealer agrees to procure the discharge and
satisfaction thereof prior to the closing of sale of
such property to MBUSA.
X. SUCCESSION RIGHTS UPON DEATH OR INCAPACITY
A. SUCCESSION TO OWNERSHIP AFTER DEATH OF OWNER
In the event that an Owner dies and his or her interest in
Dealer passes directly to any person or persons ("Heirs") who
wish to succeed to Owner's interest, then Owner's legal
representative must notify MBUSA within sixty (60) days of the
death of Owner of such Heir's or Heirs' intent to succeed
Owner. The legal representative also must then designate a
proposed Dealer Operator for MBUSA's approval. The effect of
such notice from Owner's legal representative will be to
suspend any notice of termination provided for in Section
XI.B.4 issued hereunder.
Upon delivery of such notice, Owner's legal representative
shall immediately request any person(s) identified by it as
intending to succeed Owner and the designated candidate for
Dealer Operator to submit an application and to provide all
personal and financial information that MBUSA may reasonably
and customarily require in connection with its review of such
applications. All requested information must be provided
promptly to MBUSA and in no case later than thirty (30) days
after receipt of such request from Owner's legal
representative. MBUSA shall have sixty (60) days after its
receipt of all requested information in which to: (i) review
such application(s) pursuant to the then current criteria
generally applied by MBUSA in qualifying owners and/or dealer
operators of Maybach Passenger Car dealers, and (ii) either
approve or disapprove the application(s); provided, however,
that if MBUSA does not receive such application(s) and all
requested information within thirty (30) days of Owner's
legal representative's request therefor, MBUSA shall have no
obligation to review and approve or disapprove such
application(s). If MBUSA approves the application(s), it shall
offer to enter into a new Maybach Passenger Car Dealer
Agreement with Owner's Heir(s) in the form then currently in
use, subject to such additional conditions and for such term
as MBUSA deems appropriate; provided, however, that anything
herein to the contrary notwithstanding, MBUSA shall have no
obligation to execute a new Maybach Passenger Car Dealer
Agreement with
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Owner's Heir(s) unless MBUSA approves such Heirs' application
for, and such Heirs execute, a new Mercedes-Benz Passenger Car
and Light Truck Dealer Agreement(s).
In the event that MBUSA does not approve the designated
Heir(s) or designated candidate for Dealer Operator, or if
Owner's legal representative withdraws his or her notice of
the intent of Heir(s) to succeed as Owner(s), or if the legal
representative or any proposed Owner or Dealer Operator fails
to timely provide the required information, MBUSA may
reinstate or issue a notice of termination. This Section X.A
is subject to, and shall not be deemed to waive, MBUSA's right
to exercise its option to purchase as set forth in Section IX.
If MBUSA has notified Dealer that it does not plan to continue
to have a Maybach Passenger Car dealer in Dealer's AOI, MBUSA
shall have no obligation to execute a new Maybach Passenger
Car Dealer Agreement with Owner's Heir(s) pursuant to this
Section X.
B. INCAPACITY OF OWNER
The parties agree that, as used herein, incapacity shall refer
to any physical or mental ailment that, in MBUSA's opinion,
adversely affects an Owner's ability to meet his or her
obligations under this Agreement. MBUSA may terminate this
Agreement when an incapacitated Owner also is the Dealer
Operator identified herein.
Prior to the effective date of any notice of termination, an
incapacitated Owner who is also the Dealer Operator, or his or
her legal representative, may propose a new candidate for the
position of Dealer Operator. Such proposal shall be in writing
and shall suspend any pending notice of termination until
MBUSA advises Dealer of its approval or disapproval of the new
candidate. Upon receipt of such notice, MBUSA and Dealer shall
follow the qualification procedures set forth in Section X.A.
C. NOMINATION OF SUCCESSOR PRIOR TO DEATH OR INCAPACITY OF OWNER
An Owner owning a majority of Dealer's stock may nominate a
candidate to assume ownership and/or the position of Dealer
Operator of the dealership upon his or her death or
incapacity.
As soon as practicable after such nomination, MBUSA will
request such personal financial information from the nominated
Owner and/or Dealer Operator candidate as it reasonably and
customarily may require in evaluating such candidates. MBUSA
shall apply criteria then currently used by MBUSA in
qualifying owners and/or dealer operators of Maybach Passenger
Car dealers. Upon receipt of all requested information, MBUSA
shall either approve or
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disapprove such candidate. If MBUSA initially approves the
candidate, said approval shall be reflected in a Successor
Addendum and shall remain in effect for five (5) years if the
proposed candidate continues to comply with the then current
criteria used by MBUSA in qualifying such candidates. If MBUSA
does not initially qualify the candidate, MBUSA agrees to
review the reason(s) for its decision with Owner. Owner is
free at any time to renew its nomination. However, in such
instances, the candidate must again qualify pursuant to the
then current criteria. Owner may, by written notice, withdraw
a nomination at any time, even if MBUSA has previously
qualified said candidate.
XI. TERMINATION
A. VOLUNTARY TERMINATION BY DEALER
Dealer may voluntarily terminate this Agreement at any time by
written notice to MBUSA, such termination to be effective
thirty (30) days after receipt of the notice by MBUSA unless
otherwise mutually agreed in writing.
B. TERMINATION FOR CAUSE
1. IMMEDIATE TERMINATION
Dealer and MBUSA agree that the following conduct is
within Dealer's control and is so contrary to the
goals, purposes and objectives of this Agreement as
to warrant its immediate termination. Accordingly,
Dealer agrees that if it engages in any of the
following types of conduct, MBUSA shall have the
right to terminate this Agreement immediately:
a. Any conduct that warrants the termination of
the Mercedes-Benz Passenger Car and/or Light
Truck Dealer Agreement(s);
b. Any attempted or actual sale, transfer or
assignment by Dealer of this Agreement or any
of the rights granted Dealer hereunder, or
any attempted or actual transfer, assignment
or delegation by Dealer of any of the
responsibilities assumed by it under this
Agreement, without the prior written consent
of MBUSA, including but not limited to any
attempted or actual sale, transfer or
assignment of Dealer's principal assets or
any ownership interest of Owner relating to
the conduct of Dealership Operations
hereunder separate and apart from the assets
or ownership interest relating to the conduct
of "Dealership Operations" under the
Mercedes-Benz Passenger Car and/or Light
Truck Dealer Agreement(s);
c. Subject to the provisions of Section IX, a
change by operation of law or otherwise in
the direct or indirect ownership of Dealer,
whether voluntary or involuntary, from that
set forth in the Final
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Paragraph of this Agreement, except as
expressly permitted herein, without the prior
written consent of MBUSA;
d. Removal, resignation, withdrawal or
elimination from Dealer for any reason of the
Dealer Operator; provided, however, MBUSA
shall give Dealer a reasonable period of time
within which to replace such person with a
Dealer Operator satisfactory to MBUSA;
e. The failure of Dealer to conduct all
Dealership Operations required by this
Agreement during and for not less than the
customary and lawful hours for five (5)
consecutive business days, except in the
event such closure or cessation of operation
is caused by some physical event beyond the
control of the Dealer, such as strikes, civil
war, riots, fires, floods, earthquakes, or
other acts of God;
f. Any undertaking by Dealer to conduct,
directly or indirectly, any of the Dealership
Operations at a location or facility other
than those specified in Paragraph F and the
Final Paragraph of this Agreement for that
Dealership Operation;
g. Insolvency of Dealer; voluntary institution
by Dealer of any proceeding under the federal
bankruptcy laws or under any state insolvency
law; institution against Dealer of any
proceeding under the federal bankruptcy laws
or under any state insolvency law which is
not vacated within thirty (30) days from the
institution thereof; appointment of a
receiver, trustee or other officer having
similar powers for Dealer or Dealer's
business, provided such appointment is not
vacated within thirty (30) days of the date
of such appointment; execution by Dealer of
an assignment for the benefit of creditors;
or any levy under attachment, foreclosure,
execution or similar process whereby a third
party acquires rights to a significant
portion of the assets of Dealer necessary for
the performance of Dealer's responsibilities
under this Agreement or to the operation or
ownership of Dealer, which is not within
thirty (30) days from the date of such levy
vacated or removed by payment or bonding;
h. Any material misrepresentation by Dealer or
any person named in the Final Paragraph of
this Agreement as to any fact relied on by
MBUSA in entering into, amending or
continuing with this Agreement, including
without limitation any representation
concerning the ownership, management or
capitalization of the Dealer;
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i. The conviction in a court of original
jurisdiction of Dealer or Owner of a crime
affecting the Dealership Operations or of any
felony, or any willful failure of Dealer to
comply with the provisions of any laws,
ordinances, rules, regulations or orders
relating to the conduct of Dealership
Operations;
j. Submission by Dealer to MBUSA of: (i) a
knowingly false or fraudulent report or
statement; (ii) a knowingly false or
fraudulent claim (or statement in support
thereof) for payment, reimbursement or for
any discount, allowance, refund, rebate,
credit or other incentive under any plan that
may be offered by MBUSA, whether or not
Dealer offers or makes restitution; (iii)
false financial information; (iv) false sales
reporting data; or (v) any false report or
statement relating to pre-delivery
inspection, testing, warranties, service,
repair or maintenance required to be
performed by Dealer; or
k. The failure of Dealer to obtain or maintain
any license, permit or authorization
necessary for the conduct by Dealer of
Dealership Operations pursuant to this
Agreement, or the suspension or revocation of
such license, permit or authorization.
2. TERMINATION UPON SIXTY DAYS NOTICE
The following conduct violates the terms and
conditions of this Agreement and, if Dealer engages
in such conduct, MBUSA shall have the right to
terminate this Agreement upon sixty (60) days notice
if Dealer fails to cure such conduct within the
sixty-day period provided in such notice:
a. Failure of Dealer to pay MBUSA for any
Maybach Passenger Car Products;
b. Failure of Dealer to establish or maintain
the required net working capital or adequate
flooring and lines of credit;
c. Any dispute, disagreement or controversy
among managers, officers or Owners of Dealer
that, in the reasonable opinion of MBUSA,
adversely affects the ownership, operation,
management, business, reputation or interests
of Dealer or MBUSA;
d. Impairment of the reputation or financial
standing of Dealer subsequent to the
execution of this Agreement;
e. Refusal to permit MBUSA to examine or audit
Dealer's accounting records as provided
herein upon receipt by Dealer from MBUSA of
written notice requesting such permission or
information;
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f. Failure of Dealer to timely furnish accurate
sales or financial information and related
supporting data; or
g. Breach or violation by Dealer of any other
term or provision of this Agreement.
3. TERMINATION FOR FAILURE OF PERFORMANCE
If, upon evaluation of Dealer's performance pursuant
to Sections II.E, IV.F, V.B or VI.E herein, MBUSA
concludes that Dealer has failed to perform
adequately its marketing and sales, service or
customer satisfaction responsibilities or to provide
adequate dealership facilities, MBUSA shall issue to
Dealer a Dealer Improvement Addendum notifying it of
such failure(s). MBUSA will endeavor to review
promptly with Dealer the nature and extent of such
failure(s) and will grant Dealer one hundred eighty
(180) days or such other period as may be required by
law to correct such failure(s). If Dealer fails or
refuses to correct such failure(s) or has not made
substantial progress towards remedying such
failure(s) at the expiration of such period, MBUSA
may terminate this Agreement upon sixty (60) days
notice or such other notice as may be required by
law.
4. TERMINATION UPON DEATH OR INCAPACITY
Subject to certain exceptions identified in Section
X, MBUSA may terminate this Agreement in the event of
the death of an Owner or upon the incapacity of any
Owner who is also the Dealer Operator, upon written
notice to Dealer and such Owner's legal
representative. Termination upon either of these
events shall be effective ninety (90) days from the
date of such notice.
C. TERMINATION UPON TERMINATION OF DISTRIBUTORSHIP
MBUSA may terminate this Agreement at any time by written
notice to Dealer, such termination to be effective thirty (30)
days after receipt of notice by Dealer unless otherwise
mutually agreed in writing, if any licensing or distribution
agreement pursuant to which MBUSA is distributor for Maybach
Passenger Car Products in the United States of America shall
terminate or be terminated.
D. TERMINATION FOR FAILURE OF MBUSA TO BE LICENSED
If MBUSA fails to obtain or maintain any license, permit or
authorization necessary for MBUSA's performance of its
obligations under this Agreement or if such license, permit or
authorization is suspended or revoked, and such
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suspension or revocation continues for a period of five (5)
days, either party may immediately terminate this Agreement by
giving notice to the other party.
E. TERMINATION UPON OFFERING TO ENTER INTO A NEW OR AMENDED
PASSENGER CAR DEALER AGREEMENT
MBUSA may terminate this Agreement at any time by giving
Dealer ninety (90) days prior notice thereof and offering to
enter into a new or amended form of Maybach Passenger Car
Dealer Agreement with Dealer in a form being offered generally
to Maybach Passenger Car dealers.
F. NOTICE OF TERMINATION
Any notice of termination under this Agreement shall be in
writing and shall be mailed to the person(s) designated to
receive such notice, via overnight mail, or shall be delivered
in person. Such notice shall be effective upon the date of
receipt. MBUSA shall state the grounds on which it relies in
its termination of Dealer, and shall have the right to amend
such notice as appropriate. MBUSA's failure to refer to
additional grounds for termination shall not constitute a
waiver of its right later to rely upon such grounds.
G. CONTINUANCE OF BUSINESS RELATIONS
Upon receipt of any notice of termination, Dealer agrees to
conduct itself and its operation until the effective date of
termination in a manner that will not injure the reputation or
goodwill of the Maybach Marks or MBUSA.
H. REPURCHASE PROVISIONS
1. MBUSA's Obligations
Upon the termination of this Agreement, MBUSA shall
have the right to cancel any and all shipments of
Maybach Passenger Car Products scheduled for delivery
to Dealer, and MBUSA shall repurchase from Dealer the
following:
a. New, unused, unmodified and undamaged Maybach
Passenger Cars then unsold in Dealer's
inventory that are of the then current or
prior model year. The prices of such
passenger cars shall be the same as those at
which they were originally purchased by
Dealer, less all prior refunds or other
allowances made by MBUSA to Dealer with
respect thereto.
b. New, unused and undamaged Genuine Maybach
Passenger Car Parts and Accessories then
unsold in Dealer's inventory that are in good
and saleable condition and are listed in the
current parts
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catalog. The prices for such parts and
accessories shall be the prices last
established by MBUSA for the sale of
identical parts or accessories to Maybach
Passenger Car dealers in the area in which
Dealer is located.
c. Special service tools recommended by MBUSA
and then owned by Dealer and that are
especially designed for servicing Maybach
Passenger Cars. The prices for such special
service tools will be the price paid by
Dealer less depreciation calculated on a
straight-line basis over a three-year period,
or such other price as the parties may
negotiate.
d. Signs that MBUSA has recommended for
identification of Dealer. The price of such
signs shall be the price paid by Dealer less
appropriate depreciation calculated on a
straight-line basis over a three-year period,
or such other price as the parties may
negotiate.
2. DEALER'S RESPONSIBILITIES
MBUSA's obligations to repurchase the items set forth
in this Section XI.H are contingent upon Dealer
fulfilling all of the following obligations:
a. Within thirty (30) days after the effective
date of termination of this Agreement, Dealer
shall deliver or mail to MBUSA a detailed
inventory of all items referred to in this
Section XI.H that it requests MBUSA
repurchase and shall certify that such list
is true and accurate.
b. Dealer shall be entitled to request
repurchase of only those items that it
purchased from MBUSA, unless MBUSA agrees
otherwise.
c. Dealer will deliver to MBUSA at MBUSA's place
of business and at Dealer's expense all
Maybach Passenger Car Products and special
service tools to be repurchased by MBUSA. If
Dealer fails to do so, MBUSA may transfer
such items and deduct the cost therefor from
the repurchase price.
d. Dealer will execute and deliver to MBUSA
instruments satisfactory to MBUSA conveying
good and marketable title to the aforesaid
items to MBUSA. If such items are subject to
any lien or charge of any kind, Dealer will
procure the discharge in satisfaction thereof
prior to their repurchase by MBUSA. Dealer
will comply with the requirements of any
state or federal laws that relate to the
repurchase, including bulk sales or transfer
laws.
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e. Dealer will provide to MBUSA in writing the
names and addresses of all of its Maybach
Passenger Car service customers.
f. Dealer will deliver to MBUSA at MBUSA's place
of business or to a third person designated
by MBUSA and at Dealer`s expense any and all
sales instruction manuals, promotional
materials, technical or service literature,
advertising and other printed material,
computer hardware and software or other media
relating to Maybach Passenger Car Products
then in Dealer's possession and that were
acquired or obtained by Dealer from MBUSA.
g. Dealer will remove, at its own expense, all
signage and corporate identification from
Dealer's Approved Location(s), including all
Maybach Marks, before it is eligible for
payment hereunder.
3. Payment by MBUSA
MBUSA will pay Dealer for such items as Dealer may
request be repurchased and that qualify hereunder as
soon as practicable upon Dealer's compliance with all
of the obligations set forth herein and upon
computation of any outstanding indebtedness of Dealer
to MBUSA.
MBUSA shall have the right to offset from any amounts
due to Dealer hereunder the total sum of Dealer's
outstanding indebtedness to MBUSA.
If Dealer disagrees with MBUSA's valuation of any
item herein, and Dealer and MBUSA have not resolved
their disagreement within ninety (90) days of the
effective date of termination of this Agreement,
MBUSA shall pay to Dealer the amount to which it
reasonably believes Dealer is entitled.
XII. DEFENSE AND INDEMNIFICATION
A. DEFENSE AND INDEMNIFICATION BY MBUSA
MBUSA agrees to assume the defense of Dealer and to indemnify
and hold Dealer harmless in any lawsuit naming Dealer as a
defendant and involving any Maybach Passenger Car Product when
the lawsuit also involves allegations of:
1. Bodily injury or property damage arising out of an
occurrence allegedly caused solely by a defect or
failure to warn of a defect in design, manufacture or
assembly of a Maybach Passenger Car Product, provided
that the defect could not reasonably have been
discovered by Dealer during the pre-delivery
inspections and service of the Maybach Passenger Car
Product or otherwise;
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2. Any misrepresentation or misleading statement or
unfair or deceptive trade practice of MBUSA; or
3. Any substantial damage to a Maybach Passenger Car
Product purchased by Dealer from MBUSA that was
repaired by MBUSA and where Dealer had not been
notified of such damage in writing prior to the
delivery of the subject passenger car, part or
accessory to a retail customer; and
Provided:
4. That Dealer delivers to MBUSA, in a manner to be
designated by MBUSA, within twenty (20) days of the
service of any summons or complaint, copies of such
documents and requests in writing a defense and/or
indemnification therein (except as provided in
Section XII.D below);
5. That the complaint does not involve allegations of
Dealer misconduct, including but not limited to,
improper or unsatisfactory service or repair,
misrepresentation, or any claim of Dealer's unfair or
deceptive trade practice;
6. That the Maybach Passenger Car Product which is the
subject of the lawsuit was not altered by or for
Dealer;
7. That Dealer agrees to cooperate fully in the defense
of such action as MBUSA may reasonably require; and
8. That Dealer agrees that MBUSA may offset any recovery
on Dealer's behalf against any indemnification that
may be required hereunder.
B. DEFENSE AND INDEMNIFICATION BY DEALER
Dealer agrees to assume the defense of MBUSA or DCAG and to
indemnify and hold them harmless in any lawsuit naming MBUSA
or DCAG as a defendant when the lawsuit involves allegations
of:
1. Dealer's failure to comply, in whole or in part, with
any obligation assumed by Dealer under this
Agreement;
2. Dealer's negligent or improper inspection,
preparation, repair or servicing of a new or used
Maybach Passenger Car Product, or such other motor
vehicles or equipment as may be sold or serviced by
Dealer;
3. Dealer's alleged breach of any contract or warranty
other than that provided by MBUSA or DCAG;
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4. Dealer's alleged misleading statements,
misrepresentations, or deceptive or unfair trade
practices;
5. Any modification or alteration made by or on behalf
of Dealer to a Maybach Passenger Car Product, except
those made pursuant to the express written
instruction or with the express written approval of
MBUSA;
6. Any change in the employment status or in the terms
or conditions of employment of any officer, employee
or agent of Dealer or of any Owner or the Dealer
Operator, including but not limited to claims for
breach of employment contract, wrongful termination
or discharge, tortious interference with contract or
economic advantage, and similar claims; and
Provided
7. That MBUSA delivers to Dealer, within twenty (20)
days of the service of any summons or complaint,
copies of such documents, and requests in writing a
defense and/or indemnification therein (except as
provided in Section XII.D below);
8. That MBUSA agrees to cooperate fully in the defense
of such action as Dealer may reasonably require; and
9. That the complaint does not involve allegations of
liability premised upon MBUSA's separate conduct or
omissions.
C. CONDITIONAL DEFENSE AND/OR INDEMNIFICATION
In agreeing to defend and/or indemnify each other, Dealer and
MBUSA may make their agreement conditional on the continued
existence of the state of facts as then known to such party
and may provide for the withdrawal of such defense and/or
indemnification at such time as facts arise which, if known at
the time of the original request for a defense and/or
indemnification, would have caused either Dealer or MBUSA to
refuse such request.
The party withdrawing from its agreement to defend and/or
indemnify shall give timely notice of its intent to withdraw.
Such notice shall be in writing and shall be effective upon
receipt. The withdrawing party shall be responsible for all
costs and expenses of defense up to the date of receipt of its
notice of withdrawal.
D. THE EFFECT OF SUBSEQUENT DEVELOPMENTS
In the event that subsequent developments in a case make clear
that the allegations which initially preclude a request or an
acceptance of a request for a defense and/or indemnification
are no longer at issue therein or are without foundation,
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any party having a right to a defense and/or indemnification
hereunder may tender such request for a defense and
indemnification to the other party. Neither Dealer nor MBUSA
shall be required to agree to such subsequent request for a
defense and/or indemnification where that party would be
unduly prejudiced by such delay.
E. TIME TO RESPOND AND RESPONSIBILITIES OF THE PARTIES
Dealer and MBUSA shall have sixty (60) days from the receipt
of a request for a defense and/or indemnification to conduct
an investigation to determine whether or not, or under what
conditions, it may agree to defend and/or indemnify pursuant
to this Section.
If local rules require a response to the complaint in the
lawsuit prior to the time provided hereunder for a response to
such request, the requesting party shall take all steps
necessary, including obtaining counsel, to protect its own
interest in the lawsuit until Dealer or MBUSA assumes the
requested defense and/or indemnification. In the event that
Dealer or MBUSA agrees to assume the defense and/or
indemnification of a lawsuit, it shall have the right to
engage and direct counsel of its own choosing and, except in
cases where the request is made pursuant to Section XII.D
above, shall have the obligation to reimburse the requesting
party for all reasonable costs and expense, including actual
attorneys' fees, incurred prior to such assumption.
XIII. NOTICE OF BREACH OR FAILURE TO ACT IN GOOD FAITH
In the interest of maintaining a harmonious relationship between MBUSA
and Dealer, if Dealer believes that MBUSA has breached this Agreement
or has failed to act in good faith toward Dealer, Dealer shall report
its belief and the bases therefor promptly, in writing, to the
President or a Vice President of MBUSA. For the purposes of this
Section XIII, the term "good faith" shall mean MBUSA and its
representatives acting in a fair, honest, commercially reasonable,
equitable, and impartial manner toward Dealer. It is the intention of
the parties that the purpose of the requirement of such notification by
Dealer is to afford MBUSA sufficient opportunity to consider the claim
of Dealer and if, in the sole determination of MBUSA, such claim is
found to be meritorious, to undertake such measures as may be necessary
to correct the condition of which Dealer complains.
XIV. GENERAL PROVISIONS
A. NOTICES
Except as otherwise specifically provided herein, any notice
required to be given by either party to the other shall be in
writing, shall be delivered personally or by mail to the party
at its address as stated in this Agreement, and shall be
effective upon receipt by hand delivery or upon mailing.
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B. NO IMPLIED WAIVERS
The failure of either party at any time to require performance
by the other party of any provision herein shall in no way
affect the right of such party to require such performance at
any time thereafter. The waiver by any party of a breach of
any provision herein shall not constitute a waiver of any
succeeding breach of the same or any other provision or
constitute a waiver of the provision itself.
C. SOLE AGREEMENT OF THE PARTIES
This Agreement terminates and supersedes all prior agreements
between the parties relating to the subject matters covered
herein. There are no prior agreements or understandings,
either oral or written, between the parties affecting this
Agreement or relating to the sale or service of Maybach
Passenger Car Products, except as otherwise specifically
provided for or referred to in this Agreement. Dealer
acknowledges that no representations or statements other than
those expressly set forth therein were made by MBUSA or any
officer, employee, agent, or representative thereof, or were
relied upon by Dealer in entering into this Agreement.
D. DEALER NOT AN AGENT OR REPRESENTATIVE
Dealer is an independent business. This Agreement does not
constitute Dealer the agent or legal representative of MBUSA
or DCAG for any purpose whatsoever. Dealer is not granted any
express or implied right or authority to assume or create any
obligation on behalf of or in the name of MBUSA or DCAG or to
bind MBUSA or DCAG in any manner whatsoever. No fiduciary
obligations are created by this Agreement.
E. ASSIGNMENT OF RIGHTS OR DELEGATION OF DUTIES
This is a personal service agreement and may not be assigned
or sold in whole or in part, directly or indirectly,
voluntarily or by operation of law, without the prior written
consent of MBUSA. Any attempted transfer, assignment or sale
without MBUSA's prior written consent will be void and not
binding upon MBUSA.
F. NO FRANCHISE FEE
Dealer warrants that it has paid no fee, nor has it provided
any goods or services in lieu of same, to MBUSA in
consideration of entering into this Agreement. The sole
consideration for MBUSA's entering into this Agreement is
Owner's and Dealer Operator's ability, integrity, assurance of
personal services, and expressed intention to deal fairly and
equitably with MBUSA and the public.
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G. BENEFIT
This Agreement is entered into by and between MBUSA and Dealer
for their sole and mutual benefit. Neither this Agreement nor
any specific provision contained in it is intended or shall be
construed to be for the benefit of any third party.
H. NEW JERSEY LAW
This Agreement shall be deemed to have been entered into in
the State of New Jersey, and all questions concerning the
validity, interpretation, or performance of any of its terms,
or of any contractual rights or obligations of the parties
hereto, shall be governed by and resolved in accordance with
the internal laws of the State of New Jersey, including,
without limitation, its statutes of limitations.
XV. DEFINITIONS
As used in this Agreement, the parties agree that the following terms
shall be defined exclusively as set forth below.
A. DEALER: The natural person or entity that executes the
Agreement and is authorized by MBUSA to sell and service
Maybach Passenger Car Products as defined herein.
B. OWNER: The persons identified in Paragraph D and the Final
Paragraph of this Agreement.
C. DEALER OPERATOR: The person identified in Paragraph E and the
Final Paragraph of this Agreement.
D. DEALERSHIP FACILITIES: The buildings, improvements, fixtures
and equipment situated at the Approved Location(s) and
identified in Paragraph F and the Final Paragraph of this
Agreement.
E. APPROVED LOCATION(S): The location(s) and any facilities
thereon designated in Paragraph F and the Final Paragraph of
this Agreement that MBUSA has approved for the Dealership
Operation(s) specified therein.
F. DEALERSHIP OPERATIONS: All dealer functions contemplated by
this Agreement including, without limitation, sale and
servicing of Maybach Passenger Car Products, use and display
of Maybach Marks and Maybach Passenger Car Products, rental
and leasing of Maybach Passenger Cars, sale of pre-owned
Maybach vehicles, body shop work, financing or insurance
services and any other activities undertaken by Dealer in
connection with Maybach Passenger Car Products whether
conducted directly or indirectly by Dealer.
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G. DCAG: DaimlerChrysler Aktiengesellschaft, a corporation of the
Federal Republic of Germany and the owner of the Maybach
Marks, and any successor thereto.
H. MAYBACH MARKS: The various Maybach trademarks, service marks,
names, logos and designs that Dealer is authorized to use in
the sale and servicing of Maybach Passenger Car Products.
I. MAYBACH PASSENGER CARS: All new Maybach Passenger Cars that
MBUSA is authorized to sell to Maybach Passenger Car dealers
in the United States of America pursuant to a written
distribution agreement between DCAG and MBUSA, and that MBUSA,
in its sole discretion, sells to Dealer for resale.
J. GENUINE MAYBACH PASSENGER CAR PARTS AND ACCESSORIES: All
Maybach Passenger Car parts and accessories manufactured by or
on behalf of MBUSA or DCAG and such other parts and
accessories specifically approved by DCAG for use in servicing
Maybach Passenger Cars that MBUSA sells to Dealer for resale.
K. MAYBACH PASSENGER CAR PRODUCTS: All Maybach Passenger Cars and
Genuine Maybach Passenger Car Parts and Accessories that MBUSA
sells to Dealer for resale.
L. COMPETITIVE VEHICLES: Those new vehicles that are considered
by MBUSA to be directly competitive with Maybach Passenger
Cars.
M. WARRANTY MANUAL: The Mercedes-Benz Warranty Policies and
Procedures Manual.
N. MERCEDES-BENZ PASSENGER CAR DEALER AGREEMENT: The
Mercedes-Benz Passenger Car Dealer Agreement between MBUSA and
Dealer.
O. MERCEDES-BENZ LIGHT TRUCK DEALER AGREEMENT: The Mercedes-Benz
Light Truck Dealer Agreement between MBUSA and Dealer.
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XVI. ADDITIONAL PROVISIONS
In consideration of MBUSA's agreement to appoint Dealer as a Maybach
Passenger Car dealer, Dealer further agrees:
All terms and conditions in this Agreement inconsistent with the laws
and rules of the State of Florida are of no force and effect.
If any provision herein contravenes the laws or regulations of any
state or other jurisdiction wherein this agreement is to be performed,
or denies access to the procedures, forums, or remedies provided for by
such laws or regulations, such provision shall be deemed to be modified
to conform to such laws or regulations, and all other terms and
provisions shall remain in full force.
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