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EXHIBIT 10.40
BUICK MOTOR DIVISION
DEALER SALES AND SERVICE AGREEMENT
This Agreement, effective DECEMBER 16, 1996, is between Buick Motor Division of
General Motors Corporation, a Delaware corporation, located at 902 East
Hamilton Avenue, Flint, Michigan 48550 ("Buick") and JAY PONTIAC-BUICK-GMC,
INC., a
[X] GEORGIA corporation, incorporated on DECEMBER 27, 1983;
[ ] proprietorship;
[ ] partnership;
[ ] other - specify ____________________________________________________________
doing business at 1408 VETERANS PKWY., COLUMBUS, GEORGIA 31901-2128 ("Dealer").
PREAMBLE
The Buick mission is to market Premium American Motorcars known for
substantial, distinctive, powerful and mature character and value. Buick
intends to fulfill that mission through mutual commitment with Buick dealers.
Buick and Dealer acknowledge that the public expects, and customers of Buick
Products demand quality, professionalism and respect from Buick and Dealer.
Buick and Dealer commit to the satisfaction of Buick customers and recognize
that achieving that objective will facilitate attainment of our mutual business
success.
This Agreement is intended to strengthen the business relationship that exists
between Buick and Buick dealers. Buick and Dealer recognize the critical need
for open and candid communications enabling each party to not only meet, but
exceed, our mutual expectations. As in any mutually beneficial business
relationship, an equitable distribution of responsibility and accountability
must be present to assure continuous improvement in that relationship. Our
future depends on establishing and meeting heightened standards of excellence
that are reasonable, measurable and attainable. This Agreement sets forth those
standards.
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First
COMMUNICATION
Buick and Dealer recognize the need for enhanced communication to facilitate our
mutual business and marketing planning, as well as Buick's and Dealer's
respective ongoing operations. Buick has established three groups of dealer
representatives to counsel with Buick pertaining to our mutual concerns, goals
and objectives. They are:
National Dealer Council
The mission and responsibility of the National Dealer Council is to consult
with Buick regularly about the concerns of Buick dealers regarding the
relationship between Buick and Buick dealers and to work as liaison between
Buick and Buick dealers. The National Dealer Council consists of Buick dealers,
elected by Buick dealers, representing the various geographical regions of the
United States including members that represent large and small volume dealers
as well as multiple-line and single-line dealers. The National Automobile
Dealers Association Buick Line Chairman is also a guest member of the National
Dealer Council.
The National Dealer Council will meet with Buick periodically to express the
concerns, comments and suggestions of Buick dealers and to permit Buick to
respond. Much progress and improvement has been made over the years as a
result of National Dealer Council input, and Buick is committed to ensuring
that this avenue of communication continues.
Business Advisory Board
The mission and responsibility of the Business Advisory Board is to consult
with Buick regularly for the purpose of advising Buick about how Buick conducts
business with the dealer body. Buick will consult with the Business Advisory
Board to discuss the merits of proposed modifications to the Agreement that
would affect the performance required of Dealer prior to making a final
decision.
The Business Advisory Board consists of dealers appointed by Buick. It is
intended that the Business Advisory Board meet with Buick no less than twice
nor more than four times annually, to review current planning. The Chairman of
the National Dealer Council and National Automobile Dealers Association Buick
Line Chairman will be invited to attend all Business Advisory Board meetings.
Marketing Advisory Board
The mission and responsibility of the Marketing Advisory Board is to consult
with Buick regularly for the purpose of advising Buick regarding matters
affecting how the public may perceive Buick, Buick Products and Buick dealers.
The Marketing Advisory Board consists of dealers appointed by Buick. It is
intended that the Marketing Advisory Board meet with Buick no less than twice
nor more than four times annually, to review current planning. The Chairman of
the National Dealer Council and the National Automobile Dealers Association
Buick Line Chairman will be invited to attend all Marketing Advisory Board
meetings.
Commitment To Participate
Dealer acknowledges that to ensure success of the joint effort of Buick and its
dealers, Dealer participation is required. Dealer agrees to permit Dealer
Operator to serve when requested on the National Dealer Council, Business
Advisory Board or Marketing Advisory Board. This participation may require
travel and expenditures of time. Buick agrees to involve the appropriate
management in meetings with these dealer groups to maximize the effectiveness
of the joint process.
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Second
CUSTOMER ENTHUSIASM
Buick and Dealer recognize that it is our mutual obligation to deliver Products
and services that will be of such value that they provide life-cycle customer
enthusiasm exceeding buyer's expectations throughout the consideration,
purchase, ownership, service and repurchase process. By taking advantage of each
opportunity to listen to our customers and satisfy their expectations, customers
will be encouraged to purchase our Products and services, and will encourage
others to do the same. Buick and Dealer commit to actively seek out customer
comments and complaints and follow established guidelines for resolution,
thereby providing for continuous improvement in customer relationships.
Buick commits to advise selected dealers, at least quarterly, regarding the
results of customer enthusiasm surveys, including a comparison of the customer
enthusiasm index for Dealer to the average customer enthusiasm index of Buick
dealers in the nation and local area. In the event that the customer enthusiasm
index for Dealer is significantly lower than the average customer enthusiasm
index for other dealers in the nation or local area for a period in excess of
one year, Dealer shall, upon the request of Buick, cooperate in a comprehensive
review of Dealer's customer enthusiasm performance and participate in a
customer enthusiasm improvement program designed by Dealer and Buick.
Third
DEALER OPERATOR
Dealer agrees that the following Dealer Operator will provide personal services
in accordance with Article 2 of the Standard Provisions:
JAMES G. STELZENMULLER, III
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Fourth
REVIEW OF DEALER SALES PERFORMANCE
The decision by Buick to enter into this Agreement with Dealer is based, in
part, on Dealer's commitment to effectively sell and promote the purchase, lease
and use of Buick vehicles by consumers in Dealer's Area of Primary
Responsibility. Indeed, the success of Buick and Dealer is dependent on taking
full advantage of the sales opportunities available and obtaining a maximum
share of those segments of the automobile market in which ??? participate. To
assist Dealer to achieve this commitment, Buick commits to regularly review the
sales effectiveness of Dealer and provide to Dealer, at least once a year, a
written report on Dealer sales performance so that Dealer may take prompt
action, if necessary, to achieve satisfactory sales performance. Any written
comments on a sales performance report received from Dealer will become part of
the report.
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Fourth
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The sales performance report will describe the retail sales opportunities
available in Dealer's Area of Primary Responsibility by taking Buick national
average retail penetration in each segment, multiplied by total industry retail
registrations in each appropriate segment for Dealer's Area of Primary
Responsibility. The sum of the appropriate segment's results will become the
number of retail units that Buick reasonably expects to be registered in
Dealer's Area of Primary Responsibility. This number will also be expressed as
a percentage of total retail sales opportunities. Dealer's retail sales will
then be compared to those expected registrations to determine Dealer's sales
effectiveness. Other factors, such as sales to fleet customers and significant
local conditions that may have affected Dealer's performance, will also be
considered in the overall sales performance review.
If, in some cases, relevant information, such as registration data, is not
available, Buick may rely on other data which it believes most reasonably
depict the purchases of new motor vehicles by customers located in Dealer's
Area of Primary Responsibility.
Buick will provide Dealer a detailed explanation of the sales performance
review process and advise Dealer of any refinements or modifications to the
process that may occur during the term of the Agreement. Buick will consult
with the Business Advisory Board to discuss the merits of any proposed
modifications prior to making a final decision.
Fifth
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REVIEW OF DEALER'S SERVICE PERFORMANCE
Buick commits to regularly evaluate the service performance of Dealer and
provide to Dealer, at least once a year, a written report on Dealer's
performance of its responsibilities for service in areas such as service
management and operating procedures, personnel, facilities, new vehicle
pre-delivery service, parts operations and shop tools and equipment. Buick will
provide Dealer a detailed explanation of the service performance review
process, including any tool and equipment requirements, and advise Dealer of
any refinements or modifications to the process or requirements that may occur
during the term of the Agreement. Buick will consult with the Business Advisory
Board to discuss the merits of any proposed modifications to the service
performance review process prior to making a final decision.
Sixth
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DEALER FACILITY APPEARANCE & USE
Buick has invested extensive resources and effort to develop and promote an
image and identity for Buick Products in the marketplace. This effort creates
customer expectations concerning Buick, its Products, and its dealers. As the
point of customer contact with Buick Products, the appearance and quality of
dealership facilities play a significant role in determining whether a
customer's sales and service experience is consistent with these expectations.
Dealer and Buick recognize that to capitalize fully on Buick's investments, and
to be consistent with Buick's overall marketing strategy, it is essential that
Buick's image and identity be reinforced at the dealership level. Dealer,
therefore, agrees to provide facilities which are consistent in appearance and
environment with Buick's reasonable requirements. To assist Dealer, Buick
agrees to counsel and advise Dealer concerning facility appearance, and will
make available counsel and advice on facility design. Buick will consult with
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Sixth
the Business Advisory Board to discuss the merits of overall dealership
appearance and facility requirements prior to making a final decision.
Buick and Dealer recognize the importance of fully promoting Buick Products. As
a result, Dealer agrees to provide prominent display of Buick Products in new
vehicle display and storage areas and conspicuously display Buick literature,
signage and logos throughout the dealership facility.
Seventh
ADVERTISING AND PROMOTIONAL ACTIVITIES
Buick and Dealer recognize the need to employ ethical business practices in
order to enhance the reputation of Buick, Buick Products and Buick dealers.
Buick and Dealer agree to safeguard and promote the reputation of Buick
Products in the conduct of their respective businesses and to avoid business
practices that may detract from that reputation. Buick and Dealer shall strive
to promote activities that may enhance that reputation and be consistent with
the public interest, and to expose and promote that image and reputation
through the appropriate media.
Buick and Dealer recognize the need to maintain uniformly high standards of
ethical advertising consistent with the reputation of Buick, Buick Products and
Buick dealers. Neither Buick nor Dealer will use advertising or merchandising
programs that mislead the public or impair the image or reputation of Buick,
Buick Products, or Buick dealers.
Buick believes Dealer Marketing Groups have proven to be extraordinarily
beneficial to dealer members and Buick through the use of collective resources
to advertise and promote the sale of Buick Products. Buick encourages Dealer to
support and participate in Dealer's local Dealer Marketing Group.
Eighth
TRAINING
Buick will consult with the Business Advisory Board to discuss the merits of
requiring additional training courses or programs prior to making a final
decision.
Ninth
BUICK DISPUTE RESOLUTION PROCESS
The purpose of the Buick Dispute Resolution Process ("Process") is to provide a
fair, speedy and inexpensive process for dealers to resolve disputes with
decisions made by Buick under this Agreement. Buick agrees to consult with the
Business Advisory Board prior to making revisions to the Process. The process
is and will be funded jointly and equally by Buick and its dealers under the
auspices of the Buick National Dealer Council.
Dealer agrees to attempt to resolve any dispute that it may have with Buick
arising out of the Agreement pursuant to the procedures set forth in this
Process prior to resorting to any other remedies Dealer may have under federal,
state or local laws.
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Ninth
The Process is available for use by current Buick dealers (not terminated or
prospective dealers or any third party) to resolve any dispute under the
Agreement except terminations for insolvency, seven-day closing, license
revocation, fraud or felony convictions. Standing to bring disputes or protests
to the Process will be the same as state law in the jurisdiction of the
proposed action. Should there be no state law to determine standing, standing
will be determined by the Administrator of the Process after consulting with
the provider of independent facilitators to the Process.
In the event that Dealer refers a dispute to this Process, Buick will take no
further action relative to the dispute until the Process is completed. Should
there be more than one dealer protesting or disputing a proposed action, the
dealers requesting mediation will have a consolidated mediation panel hearing.
Step One - Management Review
If a dispute is not resolved by the Branch or Zone Manager to Dealer's
satisfaction, Dealer may request management review. To obtain management
review, Dealer must submit a written request to the Area Assistant General
Sales Manager (or appropriate similar position) responsible for the
geographical area in which Dealer is located, with a description of the
dispute and a request for meeting, if desired. The request must be
submitted within 60 days after Dealer receives the Buick decision that is
the cause of the dispute.
The meeting, if requested, or review by Area Assistant General Sales
Manager (or similar appropriate position) will be provided to Dealer within
30 days of the receipt of the request for review.
Step Two - Mediation
In the event that the dispute is not resolved by management review, Dealer
may submit a written request for mediation to the General Sales and Service
Manager within 30 days. The General Sales and Service Manager may then
resolve the dispute in favor of the Dealer or refer the matter to the
Mediation Review Board.
Selection of Mediation Review Board
The Mediation Review Board will consist of Buick and Buick dealer members,
plus an independent facilitator who will assist in administration of the
Process. The dealer members will be elected periodically as necessary by
Buick dealers, from voluntary candidates representing each Zone and Dealer
Assistance Center, East and West. The only requirement for election as a
dealer board member is to have been a Buick Dealer Operator for a minimum
of three years.
Buick board members will be eight to twelve senior management Buick
employees designated by the General Sales and Service Manager. Buick and
dealer board members will attend training provided by the facilitator in
consensus decision making and dispute resolution procedures. The
facilitator will be chosen by Buick after consultation with the Business
Advisory Board.
Selection of Mediation Review Board Panel
Upon receipt of notice of a dispute referred to the Mediation Review Board,
the facilitator will randomly select three dealer board members and notify
Dealer. Dealer shall dismiss one dealer board member.
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Ninth
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The facilitator will also provide Dealer with the list of Buick board
members. Dealer shall select three Buick board members, and Buick
shall dismiss one.
The Mediation Review Board Panel that will conduct the mediation will
consist of two dealer and two Buick board members, together with the
facilitator. The facilitator shall have no decision-making authority
with respect to the dispute, but will assist the panel with conducting
the mediation process in accordance with the procedure agreed to by
the panel.
The facilitator will schedule the mediation within 30 days of request
of review in the nearest zone city to the requesting Dealer.
Representation by legal counsel is permitted, if requested by Dealer.
If Dealer chooses to be represented by legal counsel, Buick will also
be permitted to be represented by legal counsel.
The Mediation Review Board Panel will permit Buick and Dealer to
present arguments regarding the dispute and will make a consensus
decision, prior to adjourning the panel, either by resolving the
dispute in favor of Dealer or Buick, designing a compromise, or
rendering no decision. A written notice confirming the decision (or
lack thereof) will be issued by the Mediation Review Board Panel
within three working days of adjournment of the mediation.
Buick mediations are privileged and confidential proceedings.
Therefore, disputants are barred from forcing Mediation Review Panel
Members to testify or otherwise participate in any subsequent legal
proceeding of a disputed matter that was not resolved in mediation.
Effect of Mediation Review
A decision agreed upon by all members of the Mediation Review Board
Panel binds Buick if Dealer accepts the decision.
Dealer agrees to make good-faith consideration of the decision of the
Mediation Review Board Panel but is not bound to accept it.
Tenth
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TERM OF AGREEMENT
This Agreement shall expire on OCTOBER 31, 2000, or ninety (90) days after the
death or incapacity of a Dealer Operator or Dealer Owner, whichever occurs
first, unless earlier terminated. Dealer is assured the opportunity to enter
into a new Dealer Agreement with Buick at the expiration date, if Buick
determines Dealer has fulfilled its obligations under this Agreement.
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Eleventh
INCORPORATION OF STANDARD PROVISIONS
The "Standard Provisions" (Form GMMS 1013) are incorporated as a part of this
Agreement.
Twelfth
BUSINESS PLANS & ADDITIONAL AGREEMENTS
Buick and Dealer acknowledge that circumstances may arise that require
preparation of a specific business plan by Dealer which may address dealership
facilities and layout, dealer advertising activities, customer enthusiasm,
sales effectiveness, service operations, personnel requirements, training, or
merchandising programs. In the event that Buick and Dealer agree upon the need
for a business plan, Buick agrees to assist Dealer in developing such a plan.
Should there be additional agreements that modify this Agreement, they may be
incorporated into this Agreement by being affixed to the Agreement under the
heading:
"BUICK/DEALER ADDITIONAL AGREEMENT(S) TO BUICK AGREEMENT"
_____ Additional agreements affixed, consisting of
_____ pages.
_____ There are no additional agreements.
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Thirteenth
EXECUTION OF AGREEMENT
This Agreement and related agreements are valid only if signed:
(a) on behalf of the Dealer by its duly authorized representative and, in
the case of this Agreement, by its Dealer Operator; and
(b) this Agreement as set forth below, on behalf of Buick by its General
Sales and Services Manager and his authorized representative. All
related agreements will be executed by the General Sales and Service
Manager or his authorized representative.
If Dealer is an authorized dealer for more than one division of
General Motors, PONTIAC-GMC DIVISION will be primarily responsible
for administering the provisions of the Dealer Agreements relating to
the Dealer Statement of Ownership, Dealership Location and Premises
Addendum, and Capital Standard Addendum, and will execute or extend
those documents on behalf of all divisions.
JAY PONTIAC-BUICK-GMC, INC.
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Dealer Firm Name
BUICK MOTOR DIVISION
General Motors Corporation
By /s/ James G. Stelzenmuller, III 12/16/96 By /s/ ????
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Dealer Operator Date General Sales and Service Manager
By /s/ ???? 12/16/96
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Authorized Representative Date
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BUICK MOTOR DIVISION
MOTOR VEHICLE ADDENDUM
TO
GENERAL MOTORS CORPORATION
DEALER SALES AND SERVICE AGREEMENT
JAY PONTIAC-BUICK-GMC, INC.
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Dealer Firm Name
COLUMBUS, GEORGIA
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City, State
Effective DECEMBER 16, 1996, Dealer, as an authorized Buick dealer, has a
non-exclusive right to buy the following new Motor Vehicles marketed by Buick
Motor Division of General Motors Corporation:
CENTURY, LESABRE, PARK AVENUE, REGAL, RIVIERA,
ROADMASTER ESTATE WAGON, ROADMASTER SEDAN, SKYLARK
This Motor Vehicle Addendum shall remain in effect unless and until superseded
by a new Motor Vehicle Addendum furnished Dealer by Buick. This Motor Vehicle
Addendum cancels and supersedes any previous Motor Vehicle Addendum furnished
Dealer by Buick.
BUICK MOTOR DIVISION
General Motors Corporation
By ??????????????????????? 12/16/96
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ZONE/BRANCH MANAGER Date
(Dealer should file this Motor Vehicle Addendum with Dealer's
current Dealer Agreement.)