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EXHIBIT 10.34
ISUZU DEALER SALES
AND
SERVICE AGREEMENT
AGREEMENT effective the 23rd day of April, 1990.
by and between
AMERICAN ISUZU MOTORS INC.,
a California corporation (hereinafter called "Distributor")
and
(an individual) (partnership formed in the State of Robertson Oldsmobile Cadillac Inc. )
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(corporation incorporated in the State of Georgia )
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(doing business as Moss Robertson Isuzu )
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whose business location is 2355 Browns Bridge Rd.
Gainesville, GA 30501
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(hereinafter called "Dealer").
PURPOSE
The purpose of this Agreement is to set forth the basic rights, duties and
procedures that apply to the relationship and business transactions between
Distributor and Dealer, and to provide for the sale and servicing of Isuzu
Products in a manner that will best serve the interests of Distributor, Dealer,
and owners and purchasers of Isuzu Products. This Agreement sets forth the
rights which Dealer will enjoy as an Authorized Isuzu Dealer; the
responsibilities which Dealer assumes in consideration of these rights; and the
respective rights and obligations of Distributor and Dealer to each other. The
parties recognize that the success of Distributor and Dealer depends upon
mutual understanding and cooperation between Distributor and Dealer and how well
they each fulfill their respective responsibilities.
Distributor's basic responsibility is to promote and market Isuzu Products in
the United States and to endeavor to establish a sales network of dealers that
can provide effective sales and service efforts at the retail level. Dealer's
basic responsibility is to actively and effectively promote the retail sale of
Isuzu Products and to provide courteous and efficient service of Isuzu
Products. Distributor and Dealer will endeavor to fulfill their respective
responsibilities through aggressive, sound, ethical selling practices and
through conscientious regard for customer service.
Distributor and Dealer shall refrain from engaging in conduct or activities
which might be detrimental to or reflect adversely upon the reputation of
Distributor, Manufacturer, Dealer or Isuzu Products and shall engage in no
discourteous, deceptive, misleading or unethical practices or activities.
NOW THEREFORE, in consideration of the foregoing and the promises and
agreements herein contained, it is hereby mutually agreed between the parties
hereto as follows:
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SECTION 1. APPOINTMENT OF DEALER
Subject to the conditions and provisions set forth in this Agreement,
Distributor hereby:
(1) appoints Dealer as an Authorized Isuzu Dealer;
(2) grants Dealer the non-exclusive right to buy Isuzu Cars, Isuzu Trucks and
Isuzu Parts and Accessories from Distribution for resale at or from
Dealer's Dealership Location; and
(3) grants Dealer a non-exclusive right, subject to and in accordance with the
provisions of this Agreement, to identify itself as an Isuzu Dealer and to
use and to display, in the conduct of its dealership operations, the
various trademarks, tradenames, service marks and other word and design
marks that Distributor uses or will use in connection with the promotion or
sale of or are or will be applied to Isuzu Products.
SECTION 2. ACCEPTANCE BY DEALER
Dealer hereby accepts said appointment and grants and acknowledges that:
(1) Except as otherwise provided by applicable laws, Distributor shall have the
absolute right to appoint other persons to conduct dealership operations in
connection with Isuzu Products and to contract with such persons in
connection therewith;
(2) Except as expressly provided in this Agreement or with the prior written
consent of Distributor (which consent shall not be unreasonably withheld),
neither said appointment, said grants nor this Agreement may be
transferred, assigned or sold to any third party, whether separately or in
connection with any sale of the assets of or ownership interests in Dealer,
by Dealer or its management or owners;
(3) No fee or other monetary consideration has been paid by Dealer to
Distributor for said appointment or grants or as consideration for
Distributor's entering into this Agreement and no property right or
interest, direct or indirect, is sold, conveyed or transferred to Dealer by
this Agreement.
SECTION 3. ASSUMPTION OF RESPONSIBILITY BY DEALER
In consideration of said appointment and grants and subject to the conditions
and provisions of this Agreement, Dealer agrees to:
(1) establish and maintain at Dealer's Dealership Location the Dealership
Facilities described in this Agreement in the manner set forth in this
Agreement;
(2) actively and effectively promote the sale at retail (and, if Dealer elects,
the leasing and rental) of Isuzu Products at and from Dealer's Dealership
Location in accordance with the provisions of this Agreement;
(3) conduct quality service for Isuzu Vehicles in accordance with the
provisions of this Agreement;
(4) perform all additional responsibilities specified in this Agreement; and
(5) secure and maintain all licenses required for the conduct of an Isuzu
dealership at and from Dealer's Dealership Location and to furnish
Distributor with written notice of securing such licenses. This Agreement
will not be valid until and unless Dealer shall have furnished Distributor
with written notice specifying the date and the identifying number, if any,
of each such license secured by Dealer. Dealer shall notify Distributor
immediately in writing if Dealer shall fail to secure any such license or
if any such license shall expire and Dealer shall fail to obtain a renewal
thereof or if any such license is suspended or revoked, specifying the
effective date of any such expiration, suspension or revocation.
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SECTION 4. OWNERSHIP AND MANAGEMENT
(a) This Agreement has been entered into by Distributor in reliance upon:
(i) Dealer's representation and agreement that the following named persons
are all of the persons who have an ownership interest in Dealer:
Percentage Interest.
1. (Name) E. MOSS ROBERTSON, JR
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(Residence Address) 905 MEMORIAL DRIVE GAINESVILLE, GA 30501
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2. (Name)
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(Residence Address)
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3. (Name)
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(Residence Address)
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4. (Name)
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(Residence Address)
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5. (Name)
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(Residence Address)
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6. (Name)
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(Residence Address)
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(ii) Dealer's representation and agreement that the following named person,
and only the following named person shall be Dealer's Executive
Manager and shall have full authority and responsibility for the
operating management of Dealer in performance pursuant to this
Agreement:
(Name) E. MOSS ROBERTSON, JR Title PRESIDENT
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(Residence Address) 905 MEMORIAL DRIVE GAINESVILLE, GA 30501
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(b) This Agreement has been entered into by Distributor in reliance upon, and
in consideration of, the personal qualifications and representations with
respect thereto of the above-named persons. In view of the personal nature
of this Agreement and its objectives and purposes, this Agreement and the
rights and privileges conferred on Dealer hereunder are not assignable,
transferable or saleable by Dealer. Dealer agrees that any change in the
ownership or operating management of Dealer specified herein requires the
prior written consent of Distributor. Dealer shall give Distributor prior
notice of any proposed change in said ownership or management and immediate
notice of the death or incapacity of any Owner or Executive Manager. No
such change, and no assignment of this Agreement or of any right or
interest herein, shall be effective against Distributor unless and until
embodied in an appropriate amendment to or assignment of this Agreement, as
the case may be, duly executed and delivered by Distributor and by Dealer.
Distributor shall not unreasonably withhold its consent to any such change.
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SECTION 5. PROVISIONS
The "ISUZU DEALER SALES AND SERVICE AGREEMENT ADDITIONAL PROVISIONS" bearing
form No. , are hereby incorporated herein and made a part of this Agreement
with the same force and effect as if set forth at length herein and the term
"this Agreement" as used herein, includes said "ISUZU DEALER SALES AND SERVICE
AGREEMENT ADDITIONAL PROVISIONS". Dealer agrees to be bound by and comply with
the provisions of the Service Policies and Procedures Manual, the Parts Policies
and Procedures Manual and all other manuals heretofore or hereafter issued by
Distributor to Dealer and all amendments, revisions and supplements thereto, and
all bulletins and instructions heretofore or hereafter issued by Distributor to
Dealer.
SECTION 6. ENTIRE AGREEMENT
Unless expressly referred to and incorporated herein, this Agreement cancels,
supersedes and annuls all prior agreements, contracts and understandings between
Distributor and Dealer, and there are no representations, promises, agreements
or understandings except as described herein, all negotiations, representations
and understandings being merged herein.
SECTION 7. WAIVER OR MODIFICATION OF THIS AGREEMENT
(a) The failure of either party at any time to require performance by the other
party of any provisions hereof shall in no way affect the full right to
require such performance at any time thereafter. Nor shall the waiver by
either party of a breach of any provision hereof constitute a waiver of any
succeeding breach of the same or any other such provisions nor constitute a
waiver of the provision itself.
(b) No waiver, modification or change of any of the terms of this Agreement or
change or erasure of any printed part of this Agreement or addition to it
(except filling of blank spaces and lines) will be valid or binding on
Distributor unless approved in writing by the President or the Senior Vice
President and General Manager of Distributor.
SECTION 8. TERM
This Agreement shall have a term commencing an the effective date hereof and
shall continue in effect until terminated in accordance with the provisions of
this Agreement.
SECTION 9. APPLICABLE LAW
This Agreement shall be deemed to have been made in and shall be governed by and
construed in accordance with the laws of the State of California; provided,
however:
(a) Unless Dealer's Dealership Location is situated in California, Dealer shall
have none of the rights or duties provided for in the California Statutes
regulating the relationship between motor vehicle manufacturers,
distributors and dealers, but shall have the rights and duties provided in
the like laws, if any, of the state in which Dealer's Dealership Location
is situated; and
(b) If performance by either Distributor or Dealer of any provision of this
Agreement contravenes a law of any state or jurisdiction where such
performance is to take place, the performance of such provision shall be in
accordance with the requirements of such law to the extent, and only to the
extent, that such performance contravenes such law and only to the extent
and while such law is deemed or held to be valid and applicable to such
performance.
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SECTION 10. EXECUTION OF AGREEMENT
This Agreement, and any addendum or amendment, or notice with respect thereto,
shall be valid and binding an Distributor only when it bears the signature of
either the President or the Senior Vice President and General Manager of
Distributor. This Agreement shall bind Dealer only when signed by a duly
authorized officer of Dealer if a corporation; by one or more of the general
partners of Dealer it a partnership; or by Dealer if an individual.
IN WITNESS WHEREOF, the parties have executed this Agreement in triplicate as of
the day and year first above written at Whittier, California.
DEALER Robertson Oldsmobile Cadillac DISTRIBUTOR
DBA Moss Robertson Isuzu
AMERICAN ISUZU MOTORS INC.
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By /s/ C. MOSS ROBERTSON JR. By /s/ J.E. PULLY
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Title President Title Sr. Vice President and
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General Manager
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