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EXHIBIT 10.43
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MAZDA DEALER AGREEMENT
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SCHEDULE
OF
DOCUMENTS
TABLE OF CONTENTS
PAGE
BASIC AGREEMENT BASIC AGREEMENT ............................. 1
I. SALES AND SERVICE OBLIGATIONS
OF MAZDA AND DEALER ................... 1
1. MAZDA's Obligations ................ 1
2. DEALER's Obligations ............... 1
II. MAZDA IMAGE ........................... 2
III. CUSTOMER SATISFACTION ................. 2
1. Acknowledgement .................... 2
2. MAZDA's Obligations ................ 2
3. DEALER's Obligations ............... 3
IV. ESSENTIAL MAZDA PROGRAMS .............. 3
V. MAZDA INFORMATION SYSTEMS ............. 3
1. Establishment and Purpose .......... 3
2. DEALER Utilization ................. 3
3. Electronic Systems ................. 3
4. Accurate Information ............... 4
VI. REASONABLE EXPECTATIONS
OF DEALER AND MAZDA ................... 4
1. Business Expectations .............. 4
2. Acknowledgements ................... 4
3. DEALER's Representations ........... 5
VII. COMMUNICATIONS AND REVIEW PROCEDURES .. 5
1. Periodic Review .................... 5
2. Responsibility of MAZDA
Representatives .................... 5
3. DEALER's General Manager ........... 5
VIII. ADDITIONAL PROVISIONS ................. 5
1. Components of MAZDA Dealer
Agreement .......................... 5
2. Definition of Terms ................ 6
3. Amendments ......................... 6
IX. TERM .................................. 6
X. DEALER ACKNOWLEDGEMENT ................ 6
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TABLE OF CONTENTS
(continued)
ADDITIONAL PAGE
AGREEMENTS GENERAL TERMS AND CONDITIONS.........................7
I. DEFINITIONS......................................7
1. DEALER.......................................7
2. DEALER's Approved Location...................7
3. DEALER's Business............................7
4. Manufacturer.................................7
5. MAZDA........................................7
6. MAZDA Dealers................................7
7. MAZDA Dealer Representations.................7
8. MAZDA Parts and Accessories..................7
9. MAZDA Products...............................7
10. MAZDA Vehicles...............................7
11. MAZDA Trademarks.............................7
II. GENERAL PROVISIONS...............................7
1. Relationship Between DEALER and MAZDA........7
2. Good Faith...................................8
3. Inability to Perform.........................8
4. No Implied Waivers...........................8
5. Notices......................................8
6. Maintenance and Inspection of Records........8
7. Local Taxes..................................8
8. Compliance with Law..........................8
9. Assignment and Delegation....................9
10. Severability.................................9
11. Titles.......................................9
12. Interpretation...............................9
13. Entire Agreement.............................9
PURCHASE TERMS AND CONDITIONS.......................10
1. Orders......................................10
2. Changes in MAZDA Products...................10
3. Delivery....................................10
4. MAZDA Product Supply........................10
5. Prices......................................11
6. Taxes.......................................11
7. Reshipment and Diversion....................11
8. Payment.....................................11
9. Financial Resources.........................11
DEALERSHIP LOCATION.................................12
Dealer Review and Action Plan.......................13
1. Purpose.....................................13
2. Information From DEALER.....................13
3. Individualized Annual Action Plan...........13
4. Voluntary Nature of Compliance..............13
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TABLE OF CONTENTS
(continued)
PAGE
MAZDA IMAGE.....................................................14
1. Use of MAZDA Trademarks...............................14
2. Ownership and Protection of MAZDA Trademarks..........14
3. DEALER Facilities.....................................14
4. Signs.................................................14
5. Advertising...........................................14
RENEWAL AND TERMINATION.........................................15
I. RENEWAL....................................................15
II. TERMINATION................................................15
1. Termination by Mutual Consent.........................15
2. New Form of Dealer Agreement..........................15
3. Termination by DEALER.................................15
4. Termination for Cause by MAZDA........................15
5. Notices...............................................16
III. EFFECT OF EXPIRATION OR TERMINATION........................17
1. General...............................................17
2. Further Transactions..................................17
3. Signs, Trademarks and Names...........................17
4. Repurchase by MAZDA...................................17
5. Inventory and Inspection..............................17
6. Delivery..............................................18
7. Payment...............................................18
8. Customer Records......................................18
IV. MUTUAL RELEASES............................................18
V. OTHER ACTIONS..............................................18
OWNERSHIP AND TRANSFER..........................................19
I. GENERAL....................................................19
II. RIGHTS OF SPOUSES AND CHILDREN.............................19
III. TRANSFER TO OTHER NOMINEES.................................19
DISPUTE RESOLUTION..............................................21
I. NON-JUDICIAL RESOLUTION....................................21
1. Acknowledgment........................................21
2. Management Review.....................................21
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TABLE OF CONTENTS
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PAGE
II. THIRD PARTY NON-JUDICIAL RESOLUTION ....... 21
1. Stipulation as to Facts and
Issues in Dispute ...................... 21
2. Third Party Resolution ................. 21
3. Binding Arbitration .................... 22
4. Confidentiality of Proceedings ......... 22
5. Costs and Expenses ..................... 22
III. JUDICIAL RESOLUTION.........................22
1. Acknowledgement ........................ 22
2. Court Litigation ....................... 22
3. Costs and Expenses ..................... 22
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[MAZDA LOGO]
BASIC AGREEMENT
The purpose of the MAZDA Dealer Agreement is to provide for the sale and
service of MAZDA Products in a manner that will promote: (i) the mutual
interests of MAZDA and DEALER while maintaining high levels of satisfied
customers of MAZDA Products; (ii) the image, reputation and goodwill of DEALER,
MAZDA, MAZDA Products and all MAZDA Dealers generally; and (iii) an effective
and efficient distribution system for MAZDA Products. MAZDA and DEALER
recognize that the relationship between them requires effective communications
and reasonable cooperation.
DEALER also recognizes that the successful sale and service of MAZDA Products
on a national basis requires that DEALER and all other MAZDA Dealers enter into
standardized forms of agreements offered by MAZDA, participate in programs
offered by MAZDA and comply with obligations that apply to MAZDA Dealers
generally. Accordingly, MAZDA and DEALER agree to deal in good faith with
each other and with customers of MAZDA Products. MAZDA and DEALER further agree:
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1. SALES AND SERVICE OBLIGATIONS OF MAZDA AND DEALER
1. MAZDA'S OBLIGATIONS.
MAZDA agrees to establish programs supporting an effective and efficient
distribution system for MAZDA Products, MAZDA Dealers generally, and DEALER's
efforts to promote, sell and service MAZDA Products at DEALER's Approved
Location. Accordingly, and without limitation, MAZDA shall perform the
following obligations in addition to those provided elsewhere in the MAZDA
Dealer Agreement:
(a) review and evaluate DEALER's facilities, as well as the sales, service,
parts and other authorized operations of DEALER, based on: (i) DEALER's
inventories and demonstrated sales performance; (ii) MAZDA Vehicles in use
and DEALER's potential for selling MAZDA Products in the local area where
DEALER is located; and (iii) the type of full-service facilities reasonably
necessary for maintaining the image and competitive position of MAZDA
Products in the local area where DEALER does business,
(b) offer MAZDA Products to DEALER from the supply which is available to MAZDA,
(c) employ qualified and trained personnel to visit DEALER's facilities on a
periodic basis to review and discuss sales, service, parts and general
management matters,
(d) advertise in national and regional media selected by MAZDA and assist
dealer advertising associations,
(e) participate in regional auto shows and product exhibitions,
(f) prepare and offer retail sales promotion materials for DEALER's use, such
as catalogs, banners, product information centers and other point-of-sale
materials,
(g) prepare and offer aids for use by DEALER's sales, service and parts
personnel,
(h) establish and offer incentive programs for DEALER's sales, service, parts
and administrative personnel,
(i) conduct training programs for DEALER's sales, service, parts,
administrative and management personnel, and
(j) offer special tools, manuals and equipment for DEALER's personnel.
2. DEALER's OBLIGATIONS.
DEALER agrees to energetically and effectively promote, sell and service MAZDA
Products at DEALER's Approved Location. Accordingly, and without limitation,
DEALER shall perform the following obligations in addition to those provided
elsewhere in the MAZDA Dealer Agreement:
(a) maintain dealership facilities for sales, service, parts and other
operations with reference to MAZDA's evaluation of DEALER, including but
not necessarily limited to showroom, sales, business office, outside
vehicle display, vehicle storage, service, parts and customer parking
facilities,
(b) maintain and display an adequate inventory of MAZDA Products which are
offered to DEALER by MAZDA,
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BASIC AGREEMENT
(continued)
(c) employ qualified and trained personnel for the sale and service of
MAZDA Products,
(d) advertise MAZDA Products and services in the local area where DEALER is
located, using media selected by DEALER,
(e) participate in local auto shows and product exhibitions,
(f) use retail sales promotion materials prepared by MAZDA for use by MAZDA
Dealers, such as catalogs, banners, product information centers and
other point-of-sale materials,
(g) use sales aids prepared by MAZDA for use by sales, service and parts
personnel of MAZDA Dealers,
(h) encourage DEALER's sales, service, parts and administrative personnel
to participate in incentive programs offered by MAZDA,
(i) cause DEALER's eligible employees to fully participate in training
programs conducted by MAZDA for sales, service, parts administrative
and management personnel of MAZDA Dealers, and
(j) acquire, maintain and use special tools, manuals and equipment offered
by MAZDA for use by DEALER's personnel.
II. MAZDA IMAGE
MAZDA and DEALER acknowledge that the following are essential purposes of
the MAZDA Dealer Agreement:
(a) to safeguard and promote the image, goodwill and reputation of the
MAZDA Trademarks, MAZDA Products, MAZDA, DEALER and MAZDA Dealers
generally, and
(b) to avoid any and all deceptive, misleading, illegal, unethical and
discourteous practices by the parties and their personnel.
Accordingly, MAZDA and DEALER agree to conduct all activities between
them and others in such manner as is consistent with and in furtherance of
these essential purposes, and to take any action reasonably required to
correct a situation having an adverse effect on the MAZDA image.
III. CUSTOMER SATISFACTION
1. ACKNOWLEDGEMENT.
MAZDA and DEALER acknowledge that, in maintaining and preserving the
image, reputation and goodwill of the MAZDA Trademarks, MAZDA Products,
DEALER, MAZDA and MAZDA Dealers generally, the highest priority shall be
given to ensuring that customers are continually informed about and
satisfied with MAZDA Products and services provided by MAZDA and DEALER.
MAZDA and DEALER further acknowledge that the principal contact with
customers will be DEALER, that DEALER shall have the primary responsibility
for handling customer satisfaction matters, and that MAZDA shall support
DEALER's efforts by providing technical information and assistance
regarding MAZDA Products. Accordingly, in addition to their other
obligations under the MAZDA Dealer Agreement, MAZDA and DEALER agree to the
following provisions.
2. MAZDA's OBLIGATIONS.
MAZDA shall:
(a) cause qualified personnel to visit DEALER's facilities on a periodic
basis to discuss customer satisfaction matters,
(b) designate a person having the principal responsibility and authority on
behalf of MAZDA to handle and resolve customer satisfaction matters
with customers and DEALER,
(c) prepare and offer to DEALER consumer materials about MAZDA Products and
services,
(d) establish consumer communications programs,
(e) keep DEALER promptly and fully advised with respect to customer matters
involving DEALER, and timely respond to notices from DEALER in
situations involving claims of defects in MAZDA Products, and
(f) provide suitable information to permit DEALER to respond to customers,
consumer organizations and government agencies in a timely and
courteous fashion in customer satisfaction matters involving DEALER.
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BASIC AGREEMENT (continued)
3. DEALER'S OBLIGATIONS.
DEALER shall:
(a) ensure proper training in customer satisfaction matters for sales, service,
parts and administrative personnel, and cause DEALER's personnel at all
times to treat customers in a prompt, courteous and professional manner,
(b) designate a person having the principal responsibility and authority on
behalf of DEALER to handle and resolve customer satisfaction matters with
customers and MAZDA,
(c) provide to customers materials prepared by MAZDA about MAZDA Products and
services,
(d) participate in consumer communications programs established by MAZDA,
(e) keep MAZDA promptly and fully advised with respect to claims of defects in
MAZDA Products and other customer matters in which MAZDA has expressed an
interest, and
(f) cooperate with consumer organizations and government agencies in customer
satisfaction matters involving DEALER, and use its best efforts to resolve
customer satisfaction matters in a fair and honest manner which will
maintain the goodwill of customers and the image and reputation of MAZDA
Products.
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IV. ESSENTIAL MAZDA PROGRAMS
MAZDA shall develop and offer programs for the benefit of (i) customers, (ii)
MAZDA Dealers or (iii) MAZDA concerning, without limitation, advertising,
sales, data processing, consumer information and service and training. MAZDA's
general manager may reasonably deem participation by MAZDA Dealers generally in
certain programs to be essential for maintaining an effective and efficient
distribution system for MAZDA Products.
Accordingly, DEALER shall participate in these essential programs pursuant to
their terms and conditions as part of the performance by DEALER of its
obligations under the MAZDA Dealer Agreement. MAZDA reserves the right to limit
DEALER's participation in other programs of MAZDA if DEALER fails or refuses to
participate in an essential program.
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V. MAZDA INFORMATION SYSTEMS
1. ESTABLISHMENT AND PURPOSE.
MAZDA shall establish, from time to time, information systems for use by MAZDA
Dealers generally and MAZDA to maintain an effective and efficient distribution
system for MAZDA Products, to facilitate the efficient and timely performance
of their obligations to one another, and to enhance the competitive position of
MAZDA Products in the marketplace. These systems shall, without limitation,
relate to:
(a) distribution, sales and inventories of MAZDA Products,
(b) warranty claims,
(c) consumer communications,
(d) product quality assurance,
(e) DEALER financial information, and
(f) transportation claims.
2. DEALER UTILIZATION.
DEALER shall utilize these information systems, in accordance with policies and
procedures applicable to MAZDA Dealers generally and established by MAZDA from
time to time. As part of such utilization, DEALER shall report, update and
verify information as may be required by MAZDA for processing and maintaining
information under such systems.
3. ELECTRONIC SYSTEMS.
MAZDA and DEALER acknowledge that effective and efficient communication of
information between them is increasingly likely to require DEALER to utilize
electronic communication and data processing hardware and software which can
communicate with and is otherwise compatible with MAZDA's hardware and
software. Accordingly, DEALER shall acquire and maintain hardware and software
deemed by MAZDA to be necessary for this purpose. DEALER shall implement
necessary changes and modifications in its hardware and software as may be
required by MAZDA for this purpose upon MAZDA's giving at least three months'
advance written notice to DEALER of such changes.
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BASIC AGREEMENT
(continued)
4. ACCURATE INFORMATION.
DEALER acknowledges that maintaining accurate information regarding DEALER's
Business on a current basis is important for the management and evaluation of
DEALER's Business and also to permit MAZDA to identify and develop programs and
services for the benefit of MAZDA Dealers and customers generally. Accordingly,
DEALER agrees that all information submitted to MAZDA shall be complete and
accurate and submitted in the form and at the times requested by MAZDA. DEALER
will verify the accuracy of all information prior to its being submitted to
MAZDA so that no information will be false or misleading. In addition to any
other remedies available to MAZDA under the MAZDA Dealer Agreement, DEALER
agrees to fully compensate MAZDA for all costs incurred by MAZDA in identifying
and correcting false or misleading information problems.
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VI. REASONABLE EXPECTATIONS OF DEALER AND MAZDA
1. BUSINESS EXPECTATIONS.
The reasonable expectations of DEALER and MAZDA are to deal in good faith with
each other in pursuit of their respective interests and the intents and
purposes of the MAZDA Dealer Agreement. Each party acknowledges that meeting
its goals and objectives for the business relationship contemplated hereby is
and will continue to be dependent upon its own conduct, business judgement and
performance hereunder. DEALER and MAZDA further acknowledge: (i) that by
entering into the MAZDA Dealer Agreement, each party is and will continue to be
involved in an inherently speculative business venture that requires each
party to assume significant business risks; (ii) that the success or failure of
the business contemplated hereby is uncertain; and (iii) that no profit or
specific level of profitability is represented or can be assured to either
party. The MAZDA Dealer Agreement is not intended to eliminate the business
risks, but is intended to fairly and reasonably allocate the business risks
between DEALER and MAZDA. Accordingly, except as expressly set forth in the
MAZDA Dealer Agreement, DEALER makes no representations or warranties to MAZDA,
including without limitation any representation or warranty that DEALER will
sell a particular number of MAZDA Vehicles, meet any specific sales objective
for MAZDA Products, or otherwise achieve any particular level of market
penetration in any area served from DEALER's Approved Location. Similarly,
except as expressly set forth in the MAZDA Dealer Agreement, MAZDA makes no
representations or warranties to DEALER, including without limitation any
representation or warranty with respect to the future success or profitability
of the business contemplated hereby, or that MAZDA will be able to satisfy
DEALER's requirements for MAZDA Products when and as they arise from time to
time.
2. ACKNOWLEDGMENTS.
DEALER and MAZDA acknowledge that they may not fulfill their respective
expectations for the business contemplated by the MAZDA Dealer Agreement and
agree that in such event the parties may take any one or more of the following
actions, consistent with applicable law; (i) DEALER or MAZDA may elect to
terminate or not renew the MAZDA Dealer Agreement as provided herein; (ii)
DEALER may elect to utilize some of its resources to engage in businesses
involving the promotion, sale and service of products other than MAZDA
Products, including those which may be competitive with MAZDA Products; or
(iii) if MAZDA determines it would be in the best interests of customers or
MAZDA to do so, MAZDA may elect to appoint another dealer to promote, sell and
service MAZDA Products near DEALER's Approved Location. DEALER and MAZDA shall
give each other at least sixty days' written notice prior to taking any of the
foregoing actions, for the purpose of enabling the parties to discuss whether
there exist any mutually agreeable alternatives to the proposed action. To the
extent any consent is required from a party, such party will not unreasonably
withhold its consent to any of the foregoing actions by the other.
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BASIC AGREEMENT
(continued)
3. DEALER's REPRESENTATIONS.
DEALER represents and warrants and MAZDA enters into the MAZDA Dealer
Agreement in reliance upon DEALER's representation that the information
contained in the MAZDA Dealer Representations made to MAZDA by DEALER are
true, complete and not misleading.
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VII. COMMUNICATIONS AND REVIEW PROCEDURES
1. PERIODIC REVIEW.
From time to time one or more designated representatives from MAZDA and
DEALER shall meet to review the past performance under the MAZDA Dealer
Agreement, anticipated sales, service, parts and other matters affecting
the past, present and future conduct of DEALER's Business and DEALER's
relationship with MAZDA. Both parties shall make every effort towards
continuing frank, open and constructive discussions to best promote the
continuing and successful performance of MAZDA and DEALER under the MAZDA
Dealer Agreement and to enhance the relationship between the parties.
2. RESPONSIBILITY OF MAZDA REPRESENTATIVES.
DEALER acknowledges that designated field representatives of MAZDA having
responsibility for communications with DEALER on behalf of MAZDA with
respect to day-to-day operational matters do not have authority to
represent MAZDA or make commitments on behalf of MAZDA concerning matters
of interpretation of the MAZDA Dealer Agreement or matters of policy
affecting the relationship of DEALER and MAZDA, including without
limitation matters involving: (i) methods of allocation for MAZDA Products;
(ii) the determination by MAZDA of essential MAZDA programs necessary for
DEALER to perform its obligations under the MAZDA Dealer Agreement; (iii)
whether MAZDA has fulfilled its reasonable expectations for the business
contemplated by the MAZDA Dealer Agreement; (iv) the appointment of another
Dealer near DEALER's Approved Location; or (v) the termination or renewal
of the MAZDA Dealer Agreement. Accordingly, DEALER may not rely on any such
field representative of MAZDA with respect to such matters. If DEALER has
any questions concerning matters of interpretation of the MAZDA Dealer
Agreement or other policy matters, DEALER shall consult with an appropriate
officer of MAZDA having executive responsibility for the matter in
question, including MAZDA's general manager.
3. DEALER'S GENERAL MANAGER.
DEALER agrees to employ at all times qualified and competent personnel to
manage DEALER's business, including one individual who shall act as
DEALER's General Manager. Such General Manager shall have principal
responsibility for the overall management of DEALER's Business, shall have
full authority to make decisions and act on DEALER's behalf, and shall
devote his or her full time and attention to serving in that capacity. If
DEALER is an individual, DEALER shall act as such General Manager. If
DEALER is not an individual, DEALER shall inform MAZDA in writing in
advance and on a continuing basis of the name and qualifications of each
individual employee who is designated by DEALER from time to time to act
as such General Manager. DEALER acknowledges that any such designation
shall not relieve DEALER of its responsibilities under the MAZDA Dealer
Agreement even though MAZDA may rely upon such individual to act on
DEALER's behalf.
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VIII. ADDITIONAL PROVISIONS
1. COMPONENTS OF MAZDA DEALER AGREEMENT.
DEALER and MAZDA acknowledge that the business relationship between them
involves many matters requiring detailed terms and conditions governing
their respective contractual rights and obligations, and that the terms and
conditions of their relationship may be changed or supplemented because
of changes in market conditions and other relevant factors. Accordingly,
MAZDA and DEALER agree to the following additional provisions, which are
incorporated by this reference into and made a part of the MAZDA Dealer
Agreement:
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MAZDA
Basic Agreement
(continued)
(a) those provisions which are set forth in the additional agreements
attached hereto,
(b) those provisions which currently are set forth in written instructions
issued by MAZDA to MAZDA Dealers generally, as amended from time to
time, including but limited to MAZDA warranty policies and procedures,
MAZDA transportation claims policies and procedures, MAZDA parts
bulletins, MAZDA parts policies and procedures, the MAZDA service
organization and facilities guide and the MAZDA Dealer identification
policies,
(c) those provisions which are set forth in other additional agreements or
written instructions which are issued by MAZDA in the future to be
generally applicable to all MAZDA Dealers, it being understood and
agreed by DEALER that the conduct of DEALER's business is to be
governed by requirements established by MAZDA as applicable to all
MAZDA Dealers generally.
2. DEFINITION OF TERMS.
All terms which are defined in the additional provisions, when so used in
the MAZDA Dealer Agreement, shall have the same meaning as set forth
therein.
3. AMENDMENTS.
MAZDA may amend the MAZDA Dealer Agreement (including any of the above
referenced additional provisions) or issue a new Dealer Agreement, without
further consideration, provided that MAZDA takes any such action with
respect to all MAZDA Dealers generally.
IX. TERM
The MAZDA Dealer Agreement and all additional provisions incorporated by
reference under Section VIII shall be in effect with respect to DEALER for
the term stated on the signature page of the MAZDA Dealer Agreement unless
terminated sooner pursuant to the additional agreement entitled "Renewal
and Termination."
X. DEALER ACKNOWLEDGEMENT
DEALER has read and understands the terms and conditions of the MAZDA
Dealer Agreement, including the Basic Agreement and all additional
provisions incorporated by reference under Section VIII of the Basic
Agreement, and is fully aware of the obligations of DEALER and MAZDA,
DEALER and MAZDA each acknowledge that they are entering into the MAZDA
Dealer Agreement as their free and voluntary act in order to pursue their
independent business interests and in the expectation that their business
relationship will be to their mutual economic benefit. In so doing DEALER
and MAZDA are relying upon their own judgement and the counsel of their
advisors.
DEALER INITIALS: ______________________
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GENERAL TERMS AND CONDITIONS
This General Terms and Conditions document is an additional agreement under the
MAZDA Dealer Agreement between MAZDA and DEALER, and as such is incorporated by
reference into the MAZDA Dealer Agreement and is binding upon MAZDA and DEALER
as if executed by each of them.
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I. DEFINITIONS
As used in the MAZDA Dealer Agreement the following terms shall have the
following meanings:
1. "DEALER" means the business entity identified as dealer on the signature
page of the MAZDA Dealer Agreement.
2. "DEALER's Approved Location" means the address of DEALER set forth on the
signature page of the MAZDA Dealer Agreement.
3. "DEALER's Business" means all activities of DEALER relating to the
promotion, sale and service of MAZDA Products and all other activities of
DEALER under the MAZDA Dealer Agreement.
4. "Manufacturer" means MAZDA Motor Corporation, a corporation, or any other
corporation which manufactures MAZDA Vehicles.
5. "MAZDA" means the business entity identified as Mazda on the signature of
the MAZDA Dealer Agreement.
6. "MAZDA Dealers" means others who promote, sell and service MAZDA Products
pursuant to an agreement with MAZDA authorizing them to engage in business
under the MAZDA Trademarks and to participate in the distribution system
established by MAZDA for MAZDA Products.
7. "MAZDA Dealer Representations" means the application, related documents and
information, and representations previously submitted or made by DEALER to
MAZDA for the purpose of enabling MAZDA to evaluate DEALER and to determine
whether to enter into or renew the MAZDA Dealer Agreement with DEALER including
but not limited to the information set forth on any attachment hereto entitled
MAZDA Dealer Representations, which is incorporated herein by reference.
8. "MAZDA Parts and Accessories" means new parts and accessories designed for
use on MAZDA Vehicles and marketed by MAZDA, or other parts and accessories
specifically designated by MAZDA in writing as MAZDA Parts and Accessories.
9. "MAZDA Products" means MAZDA Vehicles and MAZDA Parts and Accessories.
10. "MAZDA Vehicles" means new cars and trucks which bear the trademark MAZDA
and are sold by MAZDA to MAZDA Dealers.
11. "MAZDA Trademarks" means the various trademarks, service marks, names,
logos and designs (including the name "MAZDA"), and all registrations thereof,
now or hereafter owned, claimed adopted, acquired or used by Manufacturer,
MAZDA or any other company involved in the chain of distribution for MAZDA
Products.
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II. GENERAL PROVISIONS
1. RELATIONSHIP BETWEEN DEALER AND MAZDA.
DEALER and MAZDA acknowledge that the MAZDA Dealer Agreement does not make
either party the agent, partner, or legal representative of the other for any
purpose, and that neither party has any power or authority to act as agent for
the other or assume or create any obligation on behalf of or in the name of the
other, or bind such party in any manner. DEALER and MAZDA further acknowledge
that all dealings between them shall be at arm's length, and that the business
relationship between them does not create any franchise, special trust,
confidential or other fiduciary relationship, or any duties arising from such
relationship. Each party shall be solely responsible for any and all
expenditures and liabilities incurred by it in connection with the MAZDA Dealer
Agreement or the performance of obligations hereunder. DEALER has not paid to
MAZDA and MAZDA has not received any fee or charge for the right to enter into
the MAZDA Dealer Agreement or engage in any of the business activities contem-
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[MAZDA LOGO]
GENERAL TERMS AND CONDITIONS
(continued)
plated hereby. DEALER shall perform all customer sales and service
functions under the MAZDA Dealer Agreement as an independent contractor and
not as the agent of MAZDA or any other company involved in the chain of
distribution for MAZDA Products.
2. GOOD FAITH.
DEALER and MAZDA agree that the term "good faith" as used in the MAZDA
Dealer Agreement shall have the meaning set forth in Section 2-103 of the
Uniform Commercial Code, and all cases interpreting that Section. DEALER
and MAZDA further agree that any failure to act in good faith under the
MAZDA Dealer Agreement shall not give rise to a cause of action under the
tort law of the state having jurisdiction over the MAZDA Dealer Agreement.
3. INABILITY TO PERFORM.
Neither DEALER nor MAZDA shall be liable for failure to perform any
obligation under the MAZDA Dealer Agreement due to fire, flood, other Acts
of God, accident, strike or other labor dispute, riot, insurrection, war,
governmental act or regulation, or act or failure to act of Manufacturer or
any other company involved in the chain of distribution for MAZDA Products.
4. NO IMPLIED WAIVERS.
The failure of either DEALER or MAZDA to require any performance under the
MAZDA Dealer Agreement shall not affect the right to require such
performance at any time thereafter. The waiver by either party of any
rights upon a breach of the MAZDA Dealer Agreement shall not constitute a
waiver of those rights upon any subsequent breach. The election by either
party of a particular remedy shall not be exclusive of any other remedy,
and all rights and remedies of the parties shall be cumulative.
5. NOTICES.
Unless otherwise specified, any notice required to be given by either
DEALER or MAZDA to the other under or in connection with the MAZDA Dealer
Agreement shall be in writing and delivered by hand or by mail to the other
party at its address as set forth on the signature page of the MAZDA Dealer
Agreement or as DEALER or MAZDA may designate to the other in writing.
6. MAINTENANCE AND INSPECTION OF RECORDS.
DEALER agrees to maintain and retain books and records pertaining to
DEALER's Business of the type and for the periods of time as may be
required by MAZDA. MAZDA may inspect and copy DEALER's books and records
during normal business hours for the purpose of verifying any information
relating to the MAZDA Dealer Agreement, and may audit from time to time all
of DEALER's customer, sales, service and warranty files and records.
7. LOCAL TAXES.
Except as may be indicated by DEALER to the contrary, DEALER warrants that
all MAZDA products purchased from MAZDA shall be purchased for resale in
the regular course of DEALER's Business. DEALER has furnished and agrees to
furnish to MAZDA all applicable resale certificates relating to the resale
transactions, in the form required by law. DEALER has obtained and agrees
to maintain all permits and licenses required to collect sales, use and
similar taxes imposed upon the resale or use by DEALER of MAZDA Products,
and DEALER shall timely collect, report and pay all of the taxes. DEALER
agrees to pay and hold MAZDA harmless from all sales, use or similar taxes,
and all claims or demands made by tax authorities with respect to such
taxes, relating to the sale of MAZDA Products by MAZDA to DEALER or by
DEALER to others, or the use of MAZDA products by DEALER.
8. COMPLIANCE WITH LAW.
Each party agrees to comply with all applicable laws and regulations in the
conduct of their respective businesses, including but not limited to laws
relating to automobile emissions controls, automobile safety, maintenance
and repair service, and disclosure of information to retail customers. Each
party agrees to hold the other harmless from any damages or liabilities
resulting from any failure on its part to comply fully with such laws or
regulations. Each party agrees to provide to the other such information and
assistance as may be reasonably requested in connection with compliance
with such laws.
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[MAZDA LOGO]
GENERAL TERMS AND CONDITIONS (continued)
9. ASSIGNMENT AND DELEGATION.
MAZDA may at its option assign any or all of its rights or delegate any or all
of its obligations hereunder to other parties chosen by it. Notwithstanding the
foregoing MAZDA shall at all times be responsible for the performance of its
obligations hereunder except that, in the event it delegates all of its
obligations hereunder to another party, such other party shall be solely
responsible for the performance of those obligations. DEALER may not assign any
or all of its rights and may not delegate any or all of its obligations
hereunder without the prior written approval of MAZDA. Ownership interests in
DEALER may be transferred under certain conditions as set forth in the
additional agreement entitled "Ownership and Transfer."
10. SEVERABILITY.
If any provision of the MAZDA Dealer Agreement is held to invalid or
unenforceable under the law of any jurisdiction, or inconsistent with the law of
any jurisdiction, the provision shall be severable from the MAZDA Dealer
Agreement and the provision shall in that jurisdiction be modified as required
to conform with law, or, if not possible, be deleted from the MAZDA Dealer
Agreement. The remainder of the MAZDA Dealer Agreement shall continue to be
valid and binding.
11. TITLES.
The titles appearing in the MAZDA Dealer Agreement are for convenience only,
and shall not affect the construction or interpretation of any provisions of
the MAZDA Dealer Agreement.
12. INTERPRETATION.
The various terms and conditions of the MAZDA Dealer Agreement shall be read and
interpreted in harmony with each other and consistent with the intents and
purposes of the MAZDA Dealer Agreement. The parties acknowledge that the MAZDA
Dealer Agreement consists of the Basic Agreement, as well as the additional
agreements and written instructions issued by MAZDA to MAZDA Dealers generally
as identified in Section VIII of the Basic Agreement. If there is a conflict
between them, provisions set forth in the Basic Agreement shall govern over the
additional agreements, which shall govern over the written instructions. If
DEALER has a question with respect to a matter involving a potentially
conflicting interpretation of the provisions of the MAZDA Dealer Agreement,
DEALER shall consult with the appropriate officer of MAZDA having executive
responsibility for the matter in question, including MAZDA's general manager.
13. ENTIRE AGREEMENT.
The MAZDA Dealer Agreement, including all additional provisions described in
SECTION VIII of the Basic Agreement, constitutes the entire agreement and
understanding between DEALER and MAZDA with respect to the subject matter
hereof and supersedes all prior or present agreements and understandings,
written or oral, between the parties with respect to the subject matter hereof.
The MAZDA Dealer Agreement may be amended, modified, supplemented or
interpreted only by a written instrument signed by DEALER and the President or
any of the Vice Presidents of MAZDA.
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[MAZDA LOGO]
PURCHASE TERMS AND CONDITIONS
This Purchase Terms and Conditions document is an additional agreement
under the MAZDA Dealer Agreement between MAZDA and DEALER, and as such is
incorporated by reference into the MAZDA Dealer Agreement and is binding
upon MAZDA and DEALER as if executed by each of them.
PURCHASE TERMS AND CONDITIONS
1. ORDERS.
DEALER agrees to submit orders for MAZDA Products to MAZDA in such form and
under such terms and conditions as may be required by MAZDA from time to
time. Any such orders are subject to acceptance by MAZDA, and may be
accepted in whole or in part. Orders may be accepted by notice to DEALER or
by shipment of the MAZDA Products ordered. Orders shall be irrevocable for
120 days after submission to MAZDA, and shall be irrevocable after shipment
to DEALER of the MAZDA Products ordered.
2. CHANGES IN MAZDA PRODUCTS.
MAZDA may fill DEALER orders with MAZDA Products incorporating the most
recent improvements or changes, including those made after an order is
placed, without any obligation to make the same or similar changes on MAZDA
Products previously purchased by or shipped to DEALER. MAZDA may install
any equipment required by applicable law to be installed on any MAZDA
Products ordered by DEALER, whether or not such item of equipment is
included in DEALER's order for the MAZDA Products. MAZDA may at any time,
without incurring liability to DEALER, discontinue sales or shipments of
any model or type of MAZDA Products. MAZDA may act under the provisions of
this paragraph without notice and without any obligation to DEALER by
reason of DEALER's previous purchases.
3. DELIVERY.
MAZDA shall endeavor to deliver MAZDA Products to DEALER as soon as
practicable after acceptance of DEALER's order. MAZDA shall not be liable
for delay or nondelivery of MAZDA products, nor shall MAZDA be obligated
to deliver to DEALER any particular quantity or mix of MAZDA Products.
MAZDA may deliver MAZDA Products by any means or carrier. MAZDA Products
may be shipped to DEALER at DEALER's Approved Location or at the nearest
practicable unloading point to DEALER's Approved Location. Upon delivery of
the MAZDA Products to the first carrier or the DEALER, whichever occurs
first, risk of loss of the MAZDA Products shall pass to DEALER or to the
financing institution previously designated by DEALER in writing to MAZDA.
Title to the MAZDA Vehicles shall pass to DEALER upon payment in full
therefor, while title to MAZDA Parts and Accessories shall pass upon
delivery as set forth in the previous sentence. MAZDA shall retain a lien
on the MAZDA Products securing payment for the MAZDA Products until paid
for in full. DEALER shall make written claim for any shortage or damage in
any shipment of MAZDA Products within the time and in the manner as may be
required by MAZDA.
4. MAZDA PRODUCT SUPPLY.
DEALER AND MAZDA acknowledge that the supply of MAZDA Products to MAZDA can
vary from time to time for many reasons beyond the control of MAZDA.
Accordingly, MAZDA may not at all times have an available supply of all
makes, models and colors of MAZDA Vehicles or of MAZDA Parts and
Accessories sufficient to meet the demands of all MAZDA Dealers generally
or the specific demands of DEALER or its customers; or at other times MAZDA
may have a greater supply of MAZDA Vehicles or of MAZDA Parts and
Accessories than is required by all MAZDA Dealers generally or specifically
by DEALER or its customers. In order to maintain an effective distribution
system for MAZDA Products, it may be necessary for MAZDA to allocate its
supply of MAZDA Products among all MAZDA Dealers, utilizing uniform methods
of allocation from time to time which take into consideration such factors
as MAZDA deems relevant, including without limitation the size, sales
performance, inventories and sales potential of MAZDA Dealers. Accordingly,
MAZDA has not made, and cannot make any representation or warranty to
DEALER that
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[MAZDA LOGO]
PURCHASE TERMS AND CONDITIONS (continued)
DEALER can expect to receive a particular quantity or mix of MAZDA Products,
including particular makes, models or colors of MAZDA Vehicles. DEALER
acknowledges that it is not entering into the MAZDA Dealer Agreement on the
basis of any such representation or warranty, and that it may not at all times
have such quantities of MAZDA Products available or in its inventories as it
desires or deems necessary to meet the demands therefor from prospective
customers of MAZDA Products, or to satisfy DEALER's objectives for sales of
MAZDA Products. DEALER agrees to conduct DEALER's Business in accordance with
the terms and conditions of allocation systems established by MAZDA from time
to time for all MAZDA Dealers generally. MAZDA acknowledges that DEALER is not
required to purchase any specific quantity of MAZDA Products, and that DEALER
may from time to time decline to purchase from MAZDA any or all MAZDA Products
allocated to DEALER under MAZDA's allocation system; provided DEALER
acknowledges that any refusal to purchase MAZDA Products allocated to it may
adversely affect its ability relative to other MAZDA Dealers to receive MAZDA
Products thereafter or to participate in other programs of MAZDA available to
other MAZDA Dealers. DEALER acknowledges that the allocation system presently
utilized by MAZDA for MAZDA Vehicles has been explained to and understood by
DEALER and that it is a fair and reasonable system for allocating MAZDA
Vehicles among all MAZDA Dealers generally.
5. PRICES.
DEALER agrees to purchase MAZDA Products according to the prices, charges and
terms established by MAZDA from time to time and in effect on the date of
shipment, including destination charges. MAZDA reserves the right, without
prior notice, to change prices, charges and terms for any MAZDA Products.
6. TAXES.
DEALER agrees to pay all excise or other taxes levied on MAZDA Products
purchased by DEALER or on the sale, shipment, ownership or use of the MAZDA
Products to or by DEALER.
7. RESHIPMENT AND DIVERSION.
MAZDA agrees to pay all expenses incurred by DEALER in reshipping to MAZDA any
MAZDA Products not ordered by DEALER, provided that DEALER reships the MAZDA
Products promptly as directed by MAZDA. DEALER agrees to pay any expenses
incurred by MAZDA for any diversion of MAZDA Products resulting from DEALER's
failure or refusal to accept any MAZDA Products ordered by and shipped to
DEALER or to make timely payment for any MAZDA Products.
8. PAYMENT.
DEALER agrees to pay MAZDA for MAZDA Products sold to DEALER on terms
established by MAZDA from time to time. DEALER agrees to pay MAZDA's cost of
collection (including attorneys' fees) of any amount owed by DEALER to MAZDA.
MAZDA may offset any amount owed by MAZDA to DEALER. All MAZDA Products
purchased by DEALER from MAZDA (other than MAZDA Vehicles) shall be charged to
DEALER's parts account, unless otherwise specified by MAZDA prior to the date
of purchase. If any payment of DEALER's parts account is delinquent, MAZDA may
ship MAZDA Products purchased by DEALER on a C.O.D. or prepaid basis.
9. FINANCIAL RESOURCES.
DEALER agrees to maintain and employ in DEALER's Business at all times
financial resources sufficient to enable DEALER to satisfy DEALER's obligations
under the MAZDA Dealer Agreement. These resources shall include the amounts of
working capital, new vehicle flooring, and other financial resources which
MAZDA may reasonably require; provided that no such requirement shall be deemed
to be a warranty by MAZDA of the adequacy of such financial resources for the
successful conduct of DEALER's Business.
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[MAZDA LOGO]
DEALERSHIP LOCATION
This Dealership Location document is an additional agreement under the
MAZDA Dealer Agreement between MAZDA and DEALER, and as such is
incorporated by reference into the MAZDA Dealer Agreement and is binding
upon MAZDA and DEALER as if executed by each of them.
DEALERSHIP LOCATION
DEALER'S APPROVED LOCATION.
DEALER agrees to conduct DEALER's Business at Dealer's Approved Location
and at no other location. DEALER acknowledges that DEALER's Approved
Location is an integral part of MAZDA's network of MAZDA Dealers which
promote, sell and service MAZDA Products, and the continued conduct of
DEALER's Business at DEALER's Approved Location is essential to maintain an
effective and efficient distribution system for MAZDA products.
Accordingly, MAZDA will not require DEALER to relocate its facilities to
another location unless such relocation is deemed reasonably necessary to
meet changes in sales and service requirements of customers of MAZDA
Products. In addition, DEALER shall not sell or transfer any interest of
DEALER in DEALER's facilities or the underlying property of DEALER's
Approved Location without the prior written consent of MAZDA.
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DEALER REVIEW AND ACTION PLAN
This DEALER Review and Action Plan document is an additional agreement
under the MAZDA Dealer Agreement between MAZDA and DEALER, and as such is
incorporated by reference into the MAZDA Dealer Agreement and is binding
upon MAZDA and DEALER as if executed by each of them.
DEALER REVIEW AND ACTION PLAN
1. PURPOSE.
MAZDA and DEALER acknowledge that it is desirable for MAZDA to review,
evaluate and suggest to DEALER goals related to the sales, service, parts
and other operations of DEALER which DEALER should reasonably expect to
accomplish so as to: (i) provide for high levels of satisfied customers of
MAZDA products; (ii) promote the image, reputation and goodwill of DEALER,
MAZDA, MAZDA Products, and MAZDA Dealers generally; and (iii) permit DEALER
to operate as an effective member of the nationwide distribution system for
MAZDA Products.
2. INFORMATION FROM DEALER.
DEALER acknowledges that MAZDA will require information on a continuing
basis from DEALER regarding DEALER's facilities, operations and personnel
in order for MAZDA to review and evaluate DEALER's operations. DEALER
agrees to provide such information in a prompt and helpful manner as
requested from time to time by MAZDA. MAZDA intends to utilize such
information to compile data regarding MAZDA Dealers and the local areas
where they do business as part of MAZDA's review program.
3. INDIVIDUALIZED ANNUAL ACTION PLAN.
Based on the information from DEALER and other information developed by
MAZDA, MAZDA will evaluate DEALER's representation of MAZDA in the local
area where DEALER does business. MAZDA will prepare and present to DEALER
at least annually an individualized action plan for DEALER with respect to
DEALER's operations, facilities, personnel, tools, equipment and support
services which MAZDA reasonably determines need to be improved to provide
effective representation of MAZDA under the MAZDA Dealer Agreement. MAZDA
agrees to discuss with DEALER the analysis and the goals for improvement
presented in the action plan.
4. VOLUNTARY NATURE OF COMPLIANCE.
DEALER acknowledges that the individual action plan for DEALER will be
prepared by MAZDA to benefit DEALER and MAZDA Dealers generally, and to
enhance the effectiveness and efficiency of the nationwide distribution
system for MAZDA Products. DEALER agrees to consider seriously and to use
its best efforts to accomplish within a reasonable period of time, on a
cost effective basis for DEALER, those goals for improvement which MAZDA
presents to DEALER in an action plan. MAZDA agrees to cooperate with DEALER
and help DEALER accomplish those goals. DEALER acknowledges that its
failure to make adequate progress toward accomplishing the goals suggested
by MAZDA in an action plan may mean that DEALER will not be able to provide
effective representation of MAZDA in the local area in which DEALER does
business, and that MAZDA will not be able to fulfill its reasonable
expectations for the business relationship with DEALER contemplated by the
MAZDA Dealer Agreement.
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[MAZDA LOGO]
MAZDA IMAGE
This MAZDA Image document is an additional agreement under the MAZDA Dealer
Agreement between MAZDA and DEALER, and as such is incorporated by reference
into the MAZDA Dealer Agreement and is binding upon MAZDA and DEALER as if
executed by each of them.
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MAZDA IMAGE
1. USE OF MAZDA TRADEMARKS.
In connection with DEALER's performance of its obligations under the MAZDA
Dealer Agreement, DEALER may use the MAZDA Trademarks as authorized by MAZDA.
DEALER shall not use any MAZDA Trademarks, or any mark, word, symbol, trade
dress or logo similar to any MAZDA Trademark, in connection with the sale of any
property other than MAZDA Products. DEALER shall use the MAZDA Trademarks only
in the color, size, form and style required or approved by MAZDA from time to
time. No MAZDA Trademark or mark, name or word similar thereto may be used in
any trademark registration by DEALER. Except as provided below, DEALER shall use
the word "MAZDA" in its assumed business name, and shall not use the word in
DEALER's legal name. The word "MAZDA" may be used in DEALER's legal name only
when required by law or when DEALER may not legally utilize an assumed business
name containing the word "MAZDA". DEALER's use of the word "MAZDA" in its
assumed business name or in its legal name shall be made only with the prior
written approval of MAZDA and upon such terms and conditions as MAZDA may
specify from time to time. No company owned by or affiliated with DEALER or any
person who is an owner of DEALER may use the MAZDA Trademarks or other marks,
names or words similar thereto without the prior written permission of MAZDA. At
MAZDA's request, DEALER agrees to discontinue or change the manner in which
DEALER uses any MAZDA Trademarks.
2. OWNERSHIP AND PROTECTION OF MAZDA TRADEMARKS.
DEALER shall not impair the value or contest the right of Manufacturer or MAZDA
to the exclusive ownership and use of any MAZDA Trademark. DEALER's use of any
MAZDA Trademark shall not create, or be deemed to create, any right, title or
interest in the MAZDA Trademarks in DEALER or any other party, and any such use
shall inure to the benefit of the owner of the MAZDA Trademarks. To help
protect the MAZDA Trademarks, DEALER agrees to notify MAZDA promptly whenever
DEALER learns of an infringement or misuse of MAZDA Trademarks by any person.
DEALER shall not represent as MAZDA Products any products which are not MAZDA
Products.
3. DEALER FACILITIES.
DEALER's place of business shall be satisfactory to MAZDA in appearance and
condition.
4. SIGNS.
DEALER agrees to provide identification and departmental signs required by
MAZDA. DEALER agrees to prominently display, illuminate, maintain and repair the
signs at DEALER's Approved Location, at DEALER's expense and in a manner
approved by MAZDA.
5. ADVERTISING.
DEALER agrees to actively and adequately advertise MAZDA Products in a manner
that will develop interest and confidence in MAZDA Products in the local area
where DEALER does business. DEALER shall not use any advertising which in
MAZDA's opinion tends to mislead or deceive the public. DEALER's advertising
will conform to MAZDA's advertising standards, will adequately maintain the
image, reputation and goodwill of the MAZDA Trademarks, MAZDA Products, MAZDA
and other MAZDA Dealers, and will not conflict with other national and regional
advertising for MAZDA Products. DEALER agrees to discontinue immediately any
advertising that MAZDA determines: (i) may be injurious to the image, goodwill
or reputation of the MAZDA Trademarks, MAZDA, MAZDA Products, and other MAZDA
Dealers; or (ii) may be likely to mislead or deceive the public; or (iii) which
is inconsistent with MAZDA's advertising or the requirements of this paragraph.
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[MAZDA LOGO]
RENEWAL AND TERMINATION
This Renewal and Termination document is an additional agreement under the MAZDA
Dealer Agreement between MAZDA and DEALER, and as such is incorporated by
reference into the MAZDA Dealer Agreement and is binding upon MAZDA and DEALER
as if executed by each of them.
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I. RENEWAL
MAZDA and DEALER agree to renew the MAZDA Dealer Agreement upon the expiration
of its stated period for such renewal period as MAZDA may reasonably offer to
DEALER at least ninety days prior to expiration, unless:
(a) DEALER refuses to agree to special conditions for the conduct of DEALER's
Business proposed in good faith by MAZDA, which refusal shall give MAZDA
good cause for non-renewal, or
(b) Any event or series of events has occurred during the period of the MAZDA
Dealer Agreement which gives DEALER or MAZDA the right to terminate.
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II. TERMINATION
1. TERMINATION BY MUTUAL CONSENT.
The MAZDA Dealer Agreement may be terminated at any time by the written consent
of DEALER and MAZDA. The termination shall be effective on the date specified
in the written consent. If MAZDA and DEALER fail to renew the MAZDA Dealer
Agreement pursuant to Section I, the MAZDA Dealer Agreement shall be deemed to
be terminated by mutual consent of DEALER and MAZDA.
2. NEW FORM OF DEALER AGREEMENT.
If MAZDA at any time offers a new form of MAZDA dealer agreement to MAZDA
Dealers generally, MAZDA may terminate the MAZDA Dealer Agreement by a written
notice to DEALER which offers the new form of dealer agreement to DEALER. The
termination shall be effective ninety days after DEALER receives the notice or,
if it occurs earlier, on the date upon which the new MAZDA Dealer Agreement
between MAZDA and DEALER becomes effective.
3. TERMINATION BY DEALER.
DEALER may terminate the MAZDA Dealer Agreement at any time by written notice
to MAZDA. DEALER acknowledges that MAZDA has made a significant investment in
servicing DEALER and in performing its obligations under the MAZDA Dealer
Agreement in order to maintain customer satisfaction and supply of MAZDA
Products in the local area where DEALER does business. DEALER acknowledges
further than in order to preserve and protect that investment, MAZDA requires
adequate notice in order to engage a substitute dealer in the event DEALER
wishes to terminate the relationship with MAZDA under the MAZDA Dealer
Agreement. Accordingly, the termination shall be effective sixty days after
receipt by MAZDA of the notice.
4. TERMINATION FOR CAUSE BY MAZDA.
(a) Immediate. The following events are so contrary to the spirit, nature and
purposes of the MAZDA Dealer Agreement that MAZDA shall have the right upon
the occurrence of any of them to terminate the MAZDA Dealer Agreement,
effective as of the date of the event, by sending notice to termination to
DEALER by registered or certified mail or telegram:
(i) The insolvency of DEALER; the filing by DEALER of a voluntary petition
in bankruptcy; the filing of an involuntary petition to have DEALER
declared bankrupt, if the petition is not vacated within thirty days
from the date of filing; the appointment of a receiver or trustee for
DEALER, if the appointment is not vacated within thirty days from the
date of appointment; the execution by DEALER of an assignment for the
benefit of creditors; any other act of bankruptcy by DEALER; or any of
the foregoing with respect to any partner in DEALER.
(ii) Except as provided for elsewhere in the MAZDA Dealer Agreement the
death or incapacity of DEALER to perform the obligations of DEALER
hereunder, if an
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RENEWAL AND TERMINATION (continued)
individual, or of any partner of DEALER, if a partnership, or the
dissolution or liquidation of DEALER (or the taking of any action to
dissolve or liquidate DEALER), if a partnership or corporation.
(iii) The conduct of DEALER's Business at other than DEALER's Approved Location
without the prior written approval of MAZDA.
(iv) DEALER's entering into any contract for the sale, transfer or assignment
by DEALER of any rights or privileges of DEALER under the MAZDA Dealer
Agreement, or for the transfer or delegation by DEALER of any material
obligations of DEALER under the MAZDA Dealer Agreement, unless such
contract contains a provision requiring MAZDA's written approval of the
purchaser, transferee or assignee before the closing of the transaction,
and DEALER delivers to MAZDA a copy of such contract within seven days
following DEALER's execution thereof.
(v) DEALER's entering into any contract for the sale, transfer, or assignment
of the principal assets of DEALER required for the conduct of DEALER's
Business, unless such contract contains a provision requiring MAZDA's
written determination before the closing of the transaction that the
transaction will not impair DEALER's ability to conduct DEALER's Business
at DEALER's Approved Location, and DEALER delivers to MAZDA a copy of
such contract within seven days following DEALER's execution thereof.
(vi) The conviction of DEALER or of any owner or manager of DEALER referred to
in the MAZDA Dealer Agreement of any crime which may have a material
adverse effect on DEALER's Business or the image, goodwill or reputation
of MAZDA, MAZDA Products or other MAZDA Dealers.
(vii) The failure of DEALER to be open for business at DEALER's Approved
Location for seven or more consecutive days (excluding Sundays).
(viii) The termination of MAZDA's rights to distribute MAZDA Products to DEALER.
(b) Within Sixty Days. The following events are so contrary to the spirit,
nature and purposes of the MAZDA Dealer Agreement that if any of them continue
to exist sixty days after MAZDA has sent to DEALER a written notice of the
existence of any such event listed below and MAZDA's intention to terminate if
such event is not remedied, MAZDA may terminate the MAZDA Dealer Agreement,
effective immediately, by sending final notice of termination to DEALER by
registered or certified mail or telegram:
(i) A voluntary or involuntary change in the ownership of DEALER without the
prior written approval of MAZDA.
(ii) The failure of DEALER to have any license or permit required by law for
the conduct of DEALER's Business under the MAZDA Dealer Agreement.
(iii) Any conduct of DEALER detrimental to the image, goodwill or reputation of
MAZDA, MAZDA Products or MAZDA Dealers generally.
(iv) The failure to pay any amount due MAZDA within 7 days following receipt
of notice that an amount due has not been paid.
(v) Any chronic or repeated default in reporting, record keeping, or other
business requirement of DEALER arising out of the MAZDA Dealer Agreement,
and the business contemplated hereby.
(vi) Any other material breach by DEALER of DEALER's warranties, obligations
or performance under the MAZDA Dealer Agreement.
5. NOTICES.
(a) DEALER agrees to immediately give MAZDA written notice upon the occurrence
of any of the events specified in Section II.4. If DEALER fails to give
MAZDA written notice within seven days after the occurrence of any event set
forth in Section II.4(b), the notice of intention to terminate the MAZDA
Dealer Agreement from MAZDA under Section II.4(b) shall be deemed to have
been sent to DEALER on the date of the event.
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[MAZDA LOGO]
RENEWAL AND TERMINATION (continued)
(b) if DEALER is deemed to be a debtor under the Bankruptcy Code and a
Debtor-in-Possession or Trustee of DEALER has a right to accept or reject the
MAZDA Dealer Agreement, the MAZDA Dealer Agreement shall be deemed to be
rejected if it is not accepted by the Debtor-in-Possession or Trustee within
sixty days following the filing of the petition in bankruptcy.
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III. EFFECT OF EXPIRATION OR TERMINATION
1. GENERAL.
The provisions of this Section shall govern the rights and obligations of the
parties upon expiration or termination of the MAZDA Dealer Agreement. Except as
provided in this Section, DEALER shall immediately upon expiration or
termination of the MAZDA Dealer Agreement cease to be, or act as, or represent
itself to be an authorized dealer of MAZDA Products.
2. FURTHER TRANSACTIONS.
If, after the expiration or termination of the MAZDA Dealer Agreement, MAZDA
accepts any orders from DEALER or otherwise transacts business with DEALER, all
such transactions shall be governed by terms identical to those in the MAZDA
Dealer Agreement. Nevertheless, the acceptance of orders or transaction of
other business shall not waive the expiration or termination, or constitute an
extension or renewal of the MAZDA Dealer Agreement.
3. SIGNS, TRADEMARKS AND NAMES.
DEALER agrees to immediately discontinue and abandon the direct or indirect use
of all MAZDA Trademarks with the word "MAZDA," or any other words, symbols or
expressions including or resembling MAZDA Trademarks, whether appearing on
signs, posters, advertising matter or stationery, in any legal name or assumed
business name, or in any other form. If DEALER fails to comply with the
requirements of this paragraph following expiration or termination of the MAZDA
Dealer Agreement, MAZDA or Manufacturer may bring a legal action against DEALER
seeking any remedy available to MAZDA or Manufacturer, including without
limitation the issuance of an injunction against any unauthorized use of a
MAZDA Trademark, and in such case all costs, attorneys' fees and expenses
incurred in the action by MAZDA or Manufacturer shall be paid by DEALER.
4. REPURCHASE BY MAZDA.
MAZDA agrees to repurchase from DEALER, and DEALER agrees to sell to MAZDA, all
of the following property owned by DEALER:
(a) All saleable, unused and undamaged current model MAZDA Vehicles, at a price
equal to DEALER's net cost (excluding the cost of inland freight and all
parts and accessories other than MAZDA Parts and Accessories) or the price
last established by MAZDA for the sale by MAZDA to MAZDA Dealers of
identical MAZDA Vehicles, whichever is lower, less prior refunds or
allowances thereon, and less any costs required to place the MAZDA Vehicles
in new-car condition.
(b) All new, unused and undamaged MAZDA Parts and Accessories which appear on
MAZDA's then current price list and are in good and saleable condition, at
a price equal to the price established by MAZDA for the sale to MAZDA
Dealers of identical MAZDA Parts and Accessories, less MAZDA's then current
charge for the cost of handling and restocking.
(c) All tools, manuals, equipment specially designed for servicing MAZDA
Vehicles, and any other materials bearing any MAZDA Trademark which are in
good and usable condition and were purchased by DEALER from MAZDA, as well
as all authorized MAZDA signs at DEALER's Approved Location. Tools,
equipment and signs shall be sold at prices to be agreed upon by MAZDA and
DEALER or determined by a third party selected by MAZDA and DEALER.
5. INVENTORY AND INSPECTION.
Within thirty days after expiration or termination of the MAZDA Dealer
Agreement, DEALER shall deliver to MAZDA an accurate inventory in the form
required by MAZDA of all property to be repurchased by MAZDA. If DEALER fails
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[MAZDA LOGO]
RENEWAL AND TERMINATION (continued)
to timely deliver the inventory, MAZDA may enter DEALER's place of business to
prepare the inventory and DEALER shall reimburse MAZDA for the cost to MAZDA of
preparation. MAZDA may inspect the property at any time.
6. DELIVERY.
As soon as possible after MAZDA receives and reviews the inventory of property
to be repurchased, MAZDA shall furnish DEALER with shipping instructions and
DEALER agrees to make delivery of the property to be repurchased,
transportation charges prepaid, to destinations within the United States
designated by MAZDA. DEALER agrees to take action and execute and deliver
instruments as may be required by MAZDA to convey to MAZDA or its nominee good
and marketable title to the property upon delivery to MAZDA or the shipper,
comply with any applicable state law relating to bulk sales or transfers, and
satisfy and discharge any liens or encumbrances on the property prior to
delivery.
7. PAYMENT.
MAZDA agrees to pay DEALER for the property repurchased under this Section
within sixty days after delivery of the property. All or part of the payment
may be made by MAZDA, at its option, to any financing institution or other
person to discharge any lien or encumbrance on the property. The expiration or
termination of the MAZDA Dealer Agreement shall not release DEALER from any
obligation to pay any amounts which DEALER may then owe MAZDA. MAZDA may deduct
from the purchase price of any property repurchased by MAZDA under this Section
any amounts owed by DEALER to MAZDA.
8. CUSTOMER RECORDS.
Immediately upon expiration or termination of the MAZDA Dealer Agreement,
DEALER shall inform MAZDA of all unfilled orders for sale of MAZDA Products by
DEALER. Within thirty days after expiration or termination, DEALER agrees to
deliver to MAZDA copies of all DEALER's customer, service and warranty files
and records which are requested by MAZDA during the thirty-day period, provided
MAZDA agrees to pay the reasonable costs of the copies.
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IV. MUTUAL RELEASES
Effective upon (i) the renewal of the MAZDA Dealer Agreement pursuant to Section
I, (ii) ninety days after the termination of the MAZDA Dealer Agreement pursuant
to Section II, or (iii) DEALER's transfer of the principal assets of DEALER used
in DEALER's Business or the cumulative transfer of a controlling interest in
DEALER, it is the express intention of each party to release the other party and
each party shall be deemed to have released the other party from all claims,
causes of action, costs or expenses, including attorneys' fees, whether known or
unknown, as of such effective date, arising from or related to the MAZDA Dealer
Agreement, except that DEALER shall not be deemed to have released any claims
related to defects in the design or manufacture of MAZDA Products, MAZDA and
DEALER shall not be deemed to have released any claims for amounts which the
other then owes it under the MAZDA Dealer Agreement, and neither party shall be
deemed to have released any claim arising from the termination or refusal to
renew the MAZDA Dealer Agreement or any claim to enforce the provisions of this
Section IV. Upon the request of any party deemed to have been released
hereunder, the other party shall execute and deliver a written release in form
satisfactory to the releasing party.
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V. OTHER ACTIONS
DEALER acknowledges that if good cause for non-renewal or termination by MAZDA
arises under Section I or II, MAZDA will be unable to fulfill its reasonable
expectations of economic benefits from DEALER's performance under the MAZDA
Dealer Agreement. Accordingly, if MAZDA is prevented for any reason from
refusing not to renew or from terminating the MAZDA Dealer Agreement, where the
terms of the MAZDA Dealer Agreement would otherwise permit such action, MAZDA
shall be entitled to limit its obligations under the MAZDA Dealer Agreement to
those which are reasonably related to the economic benefits which MAZDA expects
to derive from DEALER's actual performance hereunder.
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[MAZDA LOGO]
OWNERSHIP AND TRANSFER
This Ownership and Transfer document is an additional agreement under the
MAZDA Dealer Agreement between MAZDA and DEALER, and as such is
incorporated by reference into the MAZDA Dealer Agreement and is binding
upon MAZDA and DEALER as if executed by each of them.
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I. GENERAL
As part of its MAZDA Dealer Representations, DEALER has stated the name,
address and percentage of ownership of each person who is an owner of
DEALER. MAZDA has entered into the MAZDA Dealer Agreement in reliance upon
this statement. DEALER agrees to give MAZDA prior written notice of any
proposed change in the persons or percentages set forth in this statement.
If such change would cause a change in the control of DEALER or would be
equivalent to a sale, transfer or assignment of substantially all of the
DEALER's Business or of any right under the MAZDA Dealer Agreement
("Ownership Change"), no such change shall be effective without the prior
written consent of MAZDA, which consent shall not be unreasonably withheld.
MAZDA will give its consent as provided in Sections II and III below.
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II. RIGHTS OF SPOUSES AND CHILDREN
Upon the death or incapacity of DEALER to perform the obligations of DEALER
hereunder (of an individual) or of any person owning an interest in DEALER
(if a partnership or corporation), MAZDA agrees to consent to the transfer
of the MAZDA Dealer Agreement or the ownership interest to the spouse of
children of the deceased or incapacitated person, if all of the following
conditions are met:
(a) Prior to his death or incapacity, the deceased or incapacitated person
shall have delivered to MAZDA, a written notice nominating as his
successor his spouse or children and specifying the proportions in
which ownership is to be transferred to each of them;
(b) Within ninety days after the death or incapacity, all of the persons
nominated shall have submitted to MAZDA a written application for the
transfer to them of the MAZDA Dealer Agreement or the ownership
interest;
(c) MAZDA shall have determined that after the transfer to them of the
MAZDA Dealer Agreement or the ownership interest, DEALER will satisfy
all of DEALER's obligations under the MAZDA Dealer Agreement, including
but not limited to the requirements set forth in the MAZDA Dealer
Representations; and
(d) DEALER and all of the persons nominated shall have provided MAZDA with
all information requested by MAZDA and shall have executed all
documents needed by MAZDA to effect the transfer.
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III. TRANSFER TO OTHER NOMINEES
The MAZDA Dealer Agreement, any ownership interest in DEALER, and the
principal assets of DEALER required for conduct of DEALER's Business may be
transferred only with the prior written consent of MAZDA. MAZDA will have
its consent as set forth below. In the event of the death or incapacity of
DEALER to perform the obligations of DEALER hereunder (if an individual) or
of any person owning an interest in DEALER (if a partnership or
corporation), MAZDA shall consent to the transfer of the MAZDA Dealer
Agreement or the ownership interest to any persons referred to in the MAZDA
Dealer Representations and with respect to whom MAZDA has received prior
written notice as provided in the MAZDA Dealer Representations, if all of
the following conditions are met:
(a) Prior to his death or incapacity, the deceased or incapacitated person
shall have delivered to MAZDA a written notice nominating as his
successor one or more of the persons referred to in the MAZDA Dealer
Representations and specifying the proportions in which ownership is to
be transferred to each of them;
(b) Within ninety days after the death or incapacity, all of the persons
nominated shall have submitted to
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[MAZDA LOGO]
OWNERSHIP AND TRANSFER (continued)
MAZDA a written application for the transfer to them of the MAZDA Dealer
Agreement or the ownership interest;
(c) MAZDA shall have determined that after the transfer of the MAZDA Dealer
Agreement or the ownership interest, DEALER will satisfy all of DEALER's
obligations under the MAZDA Dealer Agreement, including but not limited to
the requirements set forth in the MAZDA Dealer Representations; and
(d) DEALER and all of the persons nominated shall have provided MAZDA with
all information requested by MAZDA and shall have executed all documents
needed by MAZDA to effect the transfer.
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DISPUTE RESOLUTION
This Dispute Resolution document is an additional agreement under the MAZDA
Dealer Agreement between MAZDA and DEALER, and as such is incorporated by
reference into the MAZDA Dealer Agreement and is binding upon MAZDA and DEALER
as if executed by each of them.
________________________________________________________________
I. NON-JUDICIAL RESOLUTION
1. ACKNOWLEDGMENT.
DEALER and MAZDA recognize that from time to time disputes may arise between
them involving matters affecting their business relationship and performance
under the MAZDA Dealer Agreement. DEALER and MAZDA further recognize that
frequent disputes or the continuation of unresolved disputes between them is not
consistent with the spirit of dealing in good faith between them, and may
interfere with fulfilling the various purposes of the MAZDA Dealer Agreement,
including without limitation those of maintaining high levels of customer
satisfaction, the image, reputation and goodwill of the MAZDA Trademarks, MAZDA
Products, DEALER, MAZDA and MAZDA Dealers generally, and an effective and
efficient distribution system for MAZDA Products. Accordingly, DEALER and MAZDA
agree in all circumstances to seek prompt and expeditious non-judicial
resolution of disputes between them through good faith negotiations, involving
open, frank and constructive discussions having reference to the spirit, intents
and purposes of the MAZDA Dealer Agreement.
2. MANAGEMENT REVIEW.
If requested in writing by DEALER's General Manager, MAZDA agrees to cause any
matter in dispute, including without limitation matters involving participation
in MAZDA programs, supply of MAZDA Products, interpretation of the MAZDA Dealer
Agreement and policies affecting the relationship between DEALER and MAZDA, to
be reviewed by the appropriate officer of MAZDA having management responsibility
for the matter, including MAZDA's general manager. Neither party shall be
required to be represented by legal counsel in the course of the foregoing
review process.
________________________________________________________________
II. THIRD PARTY NON-JUDICIAL RESOLUTION
1. STIPULATION AS TO FACTS AND ISSUES IN DISPUTE.
If MAZDA and DEALER have any dispute between them that has not been resolved
pursuant to section I, and if either party wishes to pursue the matter further,
the initiating party shall first give written notice to the other, which notice
shall set forth in detail every basis claimed for liability and each issue of
fact which the initiating party reasonably believes supports its claims. Within
thirty days thereafter the responding party shall inform the initiating party in
writing of (i) all factual issues as to which the responding party agrees; (ii)
all factual issues as to which it does not agree and the reasons therefor; (iii)
its statement of additional issues of fact not identified by the initiating
party but which the responding party believes are relevant to the claims and
(iv) any additional claims and supporting facts the responding party wishes to
assert against the initiating party. Within thirty days following receipt of
such response, the initiating party shall state in writing to the responding
party: (i) all facts that it agrees to; and (ii) all facts to which it does not
agree and the reasons therefor. Within thirty days thereafter, both parties
shall stipulate in a single writing: (i) all facts as to which they agree; and
(ii) all of the remaining contested issues of fact. Upon the execution of the
stipulation, either party may pursue the dispute based on those facts agreed to
or alleged in such stipulation and no others.
2. THIRD PARTY RESOLUTION.
DEALER and MAZDA agree to submit promptly the unresolved dispute to a
non-judicial third party review process where required by law, or where the
parties mutually agree such review is likely to result in a prompt resolution of
the dispute. Neither party shall be required to be represented by legal counsel
in the course of the foregoing review process.
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DISPUTE RESOLUTION (continued)
3. BINDING ARBITRATION.
If a controversy or claim arising out of or relating to the MAZDA Dealer
Agreement, the breach thereof or the business relationship between DEALER and
MAZDA under the MAZDA Dealer Agreement, cannot be resolved by a legally required
third party non-judicial review process, or where the parties cannot mutually
agree on some other third party non-judicial review process, either party may
submit the matter to binding arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and judgment upon the
award rendered by the Arbitrator may be entered in any court having jurisdiction
thereof. Any demand for arbitration under this paragraph must be filed in
writing with the American Arbitration Association within thirty days following a
written notice by DEALER or MAZDA to the other that, in the notifying party's
opinion, the controversy or claim cannot be resolved by the means specified in
the second paragraph of this Section II. The demand for arbitration shall be
filed in the city in which MAZDA's principal place of business is located.
Either party shall be entitled to appear at the arbitration proceedings and take
or give testimony by telephone.
4. CONFIDENTIALITY OF PROCEEDINGS.
DEALER and MAZDA acknowledge that the foregoing non-judicial procedures are
intended to provide a private resolution of disputes between them. Accordingly,
all documents, records, and other information relating to the dispute shall at
all times be maintained in the strictest confidence and not disclosed to any
third party except when necessary for the specific purpose of resolving the
pending dispute.
5. COSTS AND EXPENSES.
Each party shall bear its own expenses, including without limitation
professional fees and costs, incurred in connection with the non-judicial
resolution of any dispute between them. The parties shall share equally the
costs and expenses of any third party participating in a non-judicial review
process or in an arbitration proceeding.
________________________________________________________________
III. JUDICIAL RESOLUTION
1. ACKNOWLEDGMENT.
The parties acknowledge and agree that their business relationship and
performance under the MAZDA Dealer Agreement involves transactions in or
affecting interstate commerce, and that they intend and agree that all disputes
between them shall be resolved by the non-judicial procedures set forth in this
additional agreement. The foregoing obligation shall not be enforceable by
either party as to any issue in dispute when expressly prohibited by law, in
which event DEALER and MAZDA agree to seek judicial resolution of such
unresolved issue in dispute only after all reasonably available non-judicial
means have been fully explored and exhausted in accordance with Section I above,
and the procedures have been followed for the execution of the written
stipulation of facts and issues in dispute as set forth in Section II above.
2. COURT LITIGATION.
Any party who brings a judicial proceeding shall file the same in the
jurisdiction in which the principal office of the other party is located. The
complaint in such action shall include and incorporate by reference the
stipulation of facts and issues in dispute referred to in Section II above. For
the purposes of expediting the resolution of their dispute, the parties agree to
limit the litigation and discovery to the contested issues of fact contained in
the stipulation, and not litigate or take discovery with respect to any other
factual matters.
3. COSTS AND EXPENSES.
All costs, attorneys' fees and expenses incurred in a judicial proceeding by the
prevailing party shall be paid by the other.
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[MAZDA LOGO]
MAZDA DEALER AGREEMENT SIGNATURE PAGE
TERM November 28, 1995 through December 31, 1996
----------------- -----------------
DEALER DEALER's LEGAL NAME Jay Automotive Group V, Inc.
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d/b/a Jay Mazda
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DEALER's APPROVED LOCATION 2027 Box Road
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Columbus, Georgia
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By /s/ James G. Stelzenmuller, III Title President
-------------------------------- ------------
James G. Stelzenmuller, III
MAZDA MAZDA MOTOR OF AMERICA, INC. 7755 IRVINE CENTER DRIVE
IRVINE, CALIFORNIA 92718-2906
By /s/ John A. English Title Vice President
-------------------------------- -----------------
John A. English
THE MAZDA DEALER AGREEMENT SHALL BE
EFFECTIVE ONLY UPON THE WRITTEN
APPROVAL OF THE PRESIDENT OR ANY OF
THE VICE PRESIDENTS OF MAZDA.
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