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EXHIBIT 10.18
[FORD MOTOR COMPANY LOGO]
Atlanta District
FORD SALES AND SERVICE AGREEMENT
AGREEMENT made as of the 12th day of August , 19 92 ,
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by and between BOOMERSHINE FORD, INC.
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(Name of Entity)
A CORPORATION IN GEORGIA
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(State whether an individual, partnership or corporation) (If the latter, show name of the state in which incorporated)
doing business as BOOMERSHINE FORD
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(Trade Name)
and with a principal place of business at 3230 SATELLITE BOULEVARD,
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(Street Address)
DULUTH GWINNETT GEORGIA 30136
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(CITY) (COUNTY) (STATE) (ZIP CODE)
(hereafter called the "Dealer") and Ford Motor Company, a Delaware corporation with its principal place of business at
Dearborn, Michigan (hereinafter called the "Company").
PREAMBLE
The purpose of this agreement is to (i) establish the Dealer as an
authorized dealer in COMPANY PRODUCTS including VEHICLES (as herein defined),
(ii) set forth the respective responsibilities of the Company in producing and
selling those products to the Dealer and of the Dealer in reselling and
providing service for them and (iii) recognize the interdependence of both
parties in achieving their mutual objectives of satisfactory sales, service and
profits by continuing to develop and retain a broad base of satisfied owners of
COMPANY PRODUCTS.
In entering into this agreement, the Company and the Dealer recognize
that the success of the Company and each of its authorized dealers depends
largely on the reputation and competitiveness of COMPANY PRODUCTS and dealer's
services, and on how well each fulfills its responsibilities under this
agreement.
It is the opinion of the Company that sales and service of COMPANY
PRODUCTS usually can best be provided to the public through a system of
independent franchised dealers, with each dealer fulfilling its
responsibilities in a given locality from properly located, adequate,
well-equipped and attractive dealerships, which are staffed by competent
personnel and provided with the necessary working capital. The Dealer
recognizes that, in such a franchise system, the Company must plan for the
establishment and maintenance of the numbers, locations and sizes of dealers
necessary for satisfactory and proper sales and service representation in each
market area as it exists and as it develops and changes. At the same time, the
Company endeavors to provide each of its dealers with a reasonable profit
opportunity based on the potential for sales and service of COMPANY PRODUCTS
within its locality.
The Company endeavors to make available to its dealers a variety of
quality products, responsive to broad wants and needs of the buying public,
which are attractively styled, of sound engineering
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design and produced on a timely basis at competitive prices. The development,
production and sale of such products require that the Company and its
manufacturing sources make large continuing investments in plants, equipment,
tools and other facilities, engineering and styling research and development,
quality control procedures, trained personnel and marketing programs. Heavy
commitments must also be made in advance for raw materials and finished parts.
For purposes of making these investments and commitments, planning production
and estimating costs for setting prices, the Company assumes in advance an
estimated volume of sales for each of it products. Within each year, it
develops production schedules from orders submitted by its franchised dealers
and its and their estimates of the market demand for COMPANY PRODUCTS.
In turn, each of the Company's franchised dealers makes important
investments or commitments in retail sales and service facilities and equipment,
in working capital, in inventories of vehicles, parts and accessories, and
trained sales and service personnel based on annual planning volumes for their
markets.
If satisfactory volumes for either the Company or a dealer are not
realized, each may suffer because of commitments already made and the cost of
manufacturing and of selling each product may be increased. Each dealer must
give the Company orders for the products needed to serve its market. The
Company seeks to adjust production schedules, to the extent feasible, to fill
dealer orders, and to allocate fairly any product in short supply, but
inevitably both the Company and its dealers suffer loss of profits to the
extent they cannot meet market demands. Thus, the automotive business is a
high risk business in which the Company, its manufacturing sources and its
dealers can succeed only through cooperative and competitive effort in their
respective areas of manufacturing, sales, service and customer satisfaction.
Because it is the dealer who deals directly with, and develops the sale of
COMPANY PRODUCTS to the consuming public, the Company substantially relies on
its dealers to provide successful sales and merchandising programs, competent
service operations and effective owner relations programs. To do this, dealers
must carry out their responsibilities of establishing and maintaining adequate
wholesale and retail finance plans, new and used vehicle sales program, parts
and service sales programs, personnel training and supportive capitalization
and working capital. To assist its dealers in these responsibilities, the
Company establishes and periodically updates standards of operation and
planning guides based on its experience and current conditions. It also offers
sales and service training courses, advice as to facilities, counseling in the
various phases of new and used vehicle merchandising, parts and service
merchandising, easing, daily rentals and facilities development. It also
conducts national advertising, promotional and other marketing programs and
assists dealers in developing complementary group and individual programs.
To enable the Company to provide such assistance, it requires dealers to
submit uniform and accurate sales, operating and financial reports from which
it can derive and disseminate analytical and comparative operating data and
advice to dealers. The Company also solicits dealers to bring to its attention
through their National Dealer Council organization any mutual dealer problems
or complaints as they arise.
Because the Company relies heavily on its dealers for success, it reserves
the right to cease doing business with any dealer who is not contributing
sufficiently to such success. Similarly, the Company recognizes that its
dealers look to it to provide competitive products and programs and that, if it
does not do so, any dealer may elect to cease doing business with the Company.
The Company has elected to enter into this agreement with the Dealer with
confidence in the Dealer's integrity and ability, its intention to carry out
its responsibilities set forth in this agreement, and its desire to provide
courteous, competent and satisfying sales and service representation to
consumers for COMPANY PRODUCTS, and in reliance upon its representations as to
the person who will participate in the ownership and management of the
dealership.
The Dealer has elected to enter into this agreement with the Company with
confidence in its
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integrity and ability, its intention to provide competitive products and assist
the Dealer to market them successfully, and its desire to maintain high quality
dealers.
Both parties recognize the rights of the Dealer and the Company under this
agreement are defined and limited by the terms of this agreement and applicable
law. The Company and the Dealer further acknowledge that their methods of
operation and business practices have an important effect on the reputation of
the Dealer, the Company, COMPANY PRODUCTS and other franchised dealers of the
Company. The Company and the Dealer also acknowledge that certain practices
are detrimental to their interests, such as deceptive, misleading or confusing
advertising, pricing, merchandising or business practices, or misrepresenting
the characteristics, quality, condition or origin of any item of sale.
It is the expectation of each of the parties that by entering into this
agreement, and by the full and faithful observance and performance of its
duties, a mutually satisfactory relationship will be established and maintained.
IN CONSIDERATION of the mutual agreements and acknowledgments hereinafter
made, the parties hereto agree as follows:
A. The Company hereby appoints the Dealer as an authorized dealer at
retail in VEHICLES and at retail and wholesale in other COMPANY PRODUCTS and
grants the Dealer the privilege of buying COMPANY PRODUCTS from the Company for
sale in its DEALERSHIP OPERATIONS (as herein defined). The Company also grants
to the Dealer the privilege of displaying, at approved location(s), the
Company's trademarks and trade names applicable to COMPANY PRODUCTS. The
Dealer hereby accepts such appointment.
B. Subject to and in accordance with the terms and conditions of this
agreement, the Company shall sell COMPANY PRODUCTS to the Dealer and the Dealer
shall purchase COMPANY PRODUCTS from the Company.
C. The Ford Motor Company Ford Sales and Service Agreement Standard
Provisions (Form "FD925-A"), a duplicate original of which is attached to the
Dealer's duplicate original of this agreement, have been read and agreed to by
the Company and by the Dealer, and such Standard Provisions and any duly
executed and delivered supplement or amendment thereto, are hereby made a part
of this agreement with the same force and effect as if set forth herein in full.
D. This agreement shall bind the Company when it bears the facsimile
signature of the General Manager, and the manual countersignature of the
General Sales Manager, Market Representation Manager, or a Regional or District
Sales Manager, of the Ford Division of the Company and a duplicate original
thereof is delivered personally or by mail to the Dealer or the Dealer's
principal place of business.
E. The Dealer acknowledges that (i) this agreement may be executed only
in the manner provided in paragraph D hereof, (ii) no one except the General
Manager, The General Sales Manager, or Market Representation Manager of the
Ford Division of the Company, or the Secretary or an Assistant Secretary of the
Company, is authorized to make or execute any other agreement relating to the
subject matter hereof on behalf of the Company, or in any manner to enlarge,
vary or modify the terms of this agreement, and then only by an instrument in
writing, and (iii) no one except the General Manager of the Ford Division of
the Company, or the Secretary or an Assistant Secretary of the Company, is
authorized to terminate this agreement on behalf of the Company, and then only
by an instrument in writing.
F. In view of the personal nature of this agreement and its objectives
and purposes, the Company expressly reserves to itself the right to execute a
Ford Sales and Service Agreement with individuals or other entities
specifically selected and approved by the Company. Accordingly, this agreement
and the rights and privileges conferred on the Dealer hereunder are not
transferable, assignable or salable by the Dealer and no property right or
interest, direct or indirect, is sold, conveyed or transferred to the Dealer
under this agreement. This agreement has been entered into by the
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Company with the Dealer in reliance (i) upon the representation and agreement
that the following person(s), and only the following person(s) shall be the
principal owners of the Dealer:
NAME HOME PERCENTAGE
ADDRESS OF INTEREST
Walter M. Boomershine 4636 Powers Rd., Marietta, GA 30067 100
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(ii) upon the representation and agreement that the following person(s), and
only the following person(s), shall have full managerial authority for the
operating management of the Dealer in the performance of this agreement.
NAME HOME TITLE
ADDRESS
Walter M. Boomershine 4636 Powers Rd., Marietta, GA 30067 President
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Charles Yancy 2150 Cobb Pkwy, Smyrna, GA 30080 Sec/Tres.
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and (iii) upon representation and agreement that the following person(s), and
only the following person(s), shall be the remaining owners of the Dealer
NAME HOME PERCENTAGE
ADDRESS OF INTEREST
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The Dealer shall give the Company prior notice of any proposed change in the
said ownership or managerial authority, and immediate notice of the death or
incapacity of any such person. No such change or notice, an no assignment of
this agreement or of any right or interest herein, shall be effective against
the Company unless and until embodied in an appropriate amendment to or
assignment of this agreement, as the case may be, duly executed and delivered
by the Company and by the Dealer. The Company shall not unreasonably withhold
its consent to any such change.
G. (Strike out either subparagraph (1) or (2) whichever is not applicable.)
(1) This agreement shall continue in force and effect from the date of its
execution until terminated by either party under the provisions of paragraph 17
hereof.
H. Both the Company and the Dealer assume and agree to carry out and
perform their respective responsibilities under this agreement.
The parties hereto have duly executed this agreement in duplicate as of
the day and year first above written.
[Ford Motor Company LOGO] Boomershine Ford
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(Dealer's Trade Name)
/s/
By /s/ Walter M. Boomershine, Jr.
General Manager, Ford Division ----------------------------------
Countersigned by (Title) President
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