TITAN MOTORCYCLE CO. OF AMERICA(R)
AUTHORIZED DEALER SALES AND SERVICE
AGREEMENT
1. PARTIES TO AGREEMENT
This Agreement is made by and between TITAN Motorcycle Co. of America(R), 2222
West Peoria Avenue, Phoenix, AZ 85029, an Arizona corporation hereinafter called
TITAN and PUJOL MOTORCYCLE COMPANY, LLC hereinafter called "DEALER". The purpose
of this Agreement is to appoint DEALER during the continuance of this Agreement
as an authorized independent dealer for TITAN brand products as hereinafter
designated and to establish the basic rules which will govern the relationship
between TITAN and DEALER.
2. DURATION OF AGREEMENT
This Agreement shall be in effect from the date of execution by TITAN to and
including December 31, 2000, unless sooner terminated as hereinafter provided.
No act by either party to this Agreement shall be construed as an extension or
renewal of this Agreement, except renewals or extensions in writing and signed
by both parties.
3. GRANTING OF DEALERSHIP
A. TITAN hereby grants to DEALER, during the continuance of this Agreement, the
non-exclusive privilege of purchasing for DEALER's own account for resale to
retail purchasers solely at DEALER's place(s) of business in the city or cities
and at the address or addresses indicated in Paragraph 1 above, those Titan
brand products specified in Appendix "A" to this Agreement and related parts and
accessories (hereinafter collectively called "Products") which are supplied by
TITAN. No obligation exists on the part of TITAN to sell any other of TITAN
products to DEALER
B. DEALER will not move its place(s) of business to any new or different
location other than that specified in Paragraph 1, or establish any additional
place o places of business for the sale, servicing or display of Products
without the prior written consent of Titan.
C. DEALER will not establish, directly or indirectly, an associate dealer or a
sub-dealer for the safe or service of new or used Products, or permit someone
else to act on DEALER's behalf or perform DEALER's obligations under this
Agreement in connection with the sale or service of new or used Products without
the prior written consent of an executive officer of TITAN.
4. AREA OF PRIMARY RESPONSIBILITY
A. TITAN and DEALER agree that DEALER's area of primary responsibility for the
sales and service of the Products shall be a twenty-five (25) mile radius of
DEALER's place(s) of business as specified in Paragraph 1 of this agreement.
B. TITAN reserves the unrestricted right to sell the Products and grant the
privilege of using it's name and trademarks to other dealers or persons whether
located in DEALER's area of primary responsibility or elsewhere.
5. SALES PERFORMANCE
DEALER agrees, at its own cost and expense, to use its best efforts and due
diligence to energetically and aggressively develop and promote the sale of
Products, including each model and type thereof. DEALER and TITAN agree that
TITAN shall evaluate DEALER's development and promotion of the sale of Products,
both as a whole and separately for each model based on such reasonable criteria
as TITAN may determine from time to time, which may include but not be limited
to: (a) fair and reasonable sales objectives which may be established from time
to time by TITAN for DEALER after review with DEALER; (b) the ratio of sales of
Products by DEALER to sales of other makes of similar products as compared with
(i) such ratio on a local, state, and/or nationwide bases; (ii) the average
ratio for all TITAN dealers appointed by TITAN; (c) the development of DEALER's
sales performance over a reasonable period of time; and (d) particular
conditions in DEALER's area of primary responsibility, if any. affecting such
performance or potential sales performance. DEALER acknowledges and agrees to a
minimum sales objective of new TITAN motorcycles as indicated in Appendix C
throughout the term of this agreement.
6. OWNERSHIP AND MANAGEMENT
To induce TITAN to enter into this Agreement, DEALER represents that the
person(s) identified in Appendix "B" to this Agreement, are all of the owners
and persons executing managerial authority on behalf of DEALER. TITAN is
entering into this Agreement in reliance upon these representations. DEALER
agrees there will be no change in DEALER's owners or general managers without
TITAN's prior written consent.
7. PRICES, TERMS AND CONDITIONS
A. TITAN shall invoice Products sold to DEALER under this agreement at prices
and on terms and conditions established by TITAN and that are current at the
time of shipment to DEALER. Prices, terms and conditions of sale may be changed
by TITAN from time to time without prior notice or liability from TITAN to
DEALER. Unless otherwise expressly stated by TITAN, said prices to DEALER do not
include sales, use, excise, or similar taxes. DEALER warrants that all Products
purchased from TITAN are purchased for resale only in the ordinary course of
DEALER's business, at DEALER's place(s) of business as specified in Paragraph I
of this Agreement, and that DEALER has complied with all pertinent state and
local laws pertaining to the collection and payment by DEALER of all sales, use
and like taxes applicable to such resale transactions.
B. If DEALER is delinquent in payment of any indebtedness or obligation to TITAN
or if DEALER is in default with respect to any provisions of this Agreement,
then TITAN, at its sole discretion and in addition to any other rights and
remedies it may have under this Agreement or at law, may without further notice
suspend all pending orders and shipments until said delinquency is cured or
until said default is cured, as the case may be.
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C. DEALER agrees that TITAN may apply toward the payment of any indebtedness due
TITAN by DEALER, whether under this Agreement or otherwise, any credit owing to
DEALER by TITAN. D. DEALER agrees to permit floor checking of all TITAN brand
inventory in possession of DEALER by representatives of TITAN in order to assist
TITAN in product planning, distribution and production quantities and to
determine compliance by DEALER with warranty registration requirements.
8. SHIPMENT OF PRODUCTS
A. TITAN shall ship Products purchased by DEALER during the duration of this
Agreement by whatever mode of transportation TITAN shall select from whatever
geographic point TITAN may from time to time establish. All shipments of
Products shall be at DEALER's risk and DEALER shall be responsible for and shall
pay any and all transportation and/or handling charges resulting from shipment
of Products to DEALER, unless otherwise specified in writing by TITAN.
B. TITAN will endeavor as far as practical to make deliveries to DEALER in
accordance with DEALER's orders, but if for any cause TITAN fails to make
deliveries within the time stated in the order, or cancels any of such orders,
TITAN will not be liable to DEALER for any payment whatsoever by reason of such
failure to deliver, delays in making deliveries or cancellation, nor for any
loss of profits resulting directly or indirectly therefrom.
9. DISCONTINUANCE OR UNAVAILABILITY OF PRODUCTS
A. TITAN reserves for itself the right to discontinue the manufacture or sale of
any of the Products or to make changes in design, color or appearance or to add
improvements to particular Products at anytime, all without notice to DEALER and
without incurring any obligation to DEALER either with respect to any Products
previously ordered or purchased by DEALER or otherwise.
B. In the event of a Product shortage or Product introduction, TITAN shall have
the right to allocate or apportion said available Product or Products among its
customers as TITAN, in the exercise of its discretion, deems appropriate,
without incurring any liability to DEALER.
10. EQUAL REPRESENTATION
In the event DEALER sells other brands or lines of products which are
competitive with those Products purchased by DEALER from TITAN, DEALER agrees to
provide the Products with at least an equal representation to that provided
other competitive brands or lines.
11. DEALER BUSINESS FACILITIES
A. DEALER agrees to establish, staff, equip and maintain a salesroom and service
facility for the Products which will provide a first-class display of the full
line of Products and provide adequate service for the retail customer. Each such
facility will comply with reasonable written layout, appearance and size
standards established by TITAN from time to time. DEALER understands that TITAN
shall evaluate DEALER's compliance with such standard in determining its
performance under this Agreement.
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B. In carrying out its obligations under this Agreement, DEALER agrees to
maintain posted opening and closing hours, which business hours shall not be
less than that which is customary for similar business establishments in DEALERS
area of primary responsibility.
12. DEALER IDENTIFICATION
DEALER shall purchase, display and maintain, at DEALER's expense, signage
approved by TITAN, identifying the Products in a conspicuous location visible
outside DEALER's salesroom and service facilities, to the full extent permitted
by law. In the event of a prohibition by law, DEALER shall use its good faith
efforts to obtain an exception. DEALER shall further display and maintain during
the term of this Agreement such other authorized Product and service signs and
identification as are necessary to properly advertise DEALER's business in TITAN
products and service on a basis mutually satisfactory to both TITAN and DEALER.
DEALER agrees to place and maintain on the business premises signs and other
means of notification to the public that DEALER is an independent business
person, separate and distinct from TITAN.
13. FINANCIAL RESPONSIBILITY
A. DEALER shall at all times maintain and employ, in connection with its
business and operations under this Agreement, such working capital and net worth
together with a line of credit with a financing institution which will permit
DEALER to properly and fully carry out and perform DEALER's duties and
obligations under this Agreement, including an inventory of Products
commensurate with annually set objectives established by TITAN and DEALER. Such
working capital, net worth and/or line of credit shall be amounts not less than
minimum standards established by TITAN from time to time for dealers similarly
situated.
B. DEALER shall at all times maintain insurance coverage reasonably carried by
similarly situated dealers in such business, including without limitation,
general liability, property damage, and products liability to adequately protect
DEALER from loss resulting from the assembly, sale, service or repair of the
Products or arising out of any acts or omissions of the DEALER.
14. MODEL INVENTORY
Subject to the ability of TITAN to supply, DEALER agrees to purchase from Titan
and at all times maintain an inventory of then available models of Products,
which inventory shall at no time be less than the number of Products reasonably
established by TITAN from time to time after consultation with DEALER, such
initial minimum inventory being listed in Appendix D.
15. SERVICE PARTS
Dealer agrees to organize and maintain a complete parts department. DEALER at
all times will keep in DEALER's place(s) of business as specified in Paragraph 1
of this Agreement an inventory of service parts of an assortment and in
quantities that in TITAN's judgement is necessary to meet the current
anticipated requirements of owners of TITAN Products. DEALER agrees that it will
not sell or offer for sale or use in the repair or any Products, as a genuine
TITAN part, any part that is not in fact a genuine new TITAN part.
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16. EMPLOYEE TRAINING
DEALER wilt participate in and will make available to its employees training
courses, service schools, sales and management seminars and personnel
development programs as may be provided or required from time to time by TITAN.
DEALER agrees to have in its employ at all times during the continuance of this
Agreement at least one filly trained mechanic who has been trained in service
and repair of TITAN's Products.
17. REPORTS AND FINANCIAL INFORMATION
DEALER will provide TITAN, by the 30th day of the month following the end of
DEALER's calendar or fiscal business year, a complete and accurate financial and
operating statement covering DEALER's preceding calendar or fiscal year
operations and showing the true and accurate conditions of DEALER's business.
DEALER will also furnish to TITAN, on such forms and at such times as TITAN
reasonably may require, complete and accurate reports of DEALER's sales activity
and stock of Products then being held by DEALER.
18. ADVERTISING AND TRADE PRACTICES
A. DEALER agrees to develop, utilize and participate in various advertising and
sales promotion programs in fulfilling its responsibilities for selling,
promoting and advertising the Products. In so doing, DEALER agrees to (a)
maintain a trademark or tradename advertising listing or a display advertising
listing in the Yellow Pages of the principal telephone directory in its
marketing area; (b) make reasonable use of newspaper, direct mail, television,
radio or other appropriate advertising media as suggested by TITAN; (c)
participate in advertising or sales promotion programs offered from time to time
by TITAN and in accordance with the applicable provisions and rules thereof; and
(d) make every reasonable effort to build and maintain customer interest in
activities involving Products and confidence in DEALER, TITAN and the Products.
B. To assist DEALER in fulfilling his advertising and promotion
responsibilities, TITAN may, at its sole discretion, develop and offer from time
to time various advertising and sales promotion programs to promote the sale of
Products for the mutual benefit of TITAN and DEALER. TITAN may also provide to
DEALER from time to time advertising and sales promotion material for purchase
by DEALER. DEALER agrees to pay promptly for any such materials. TITAN may offer
other materials to DEALER from time to time at no charge.
C. DEALER agrees to at all times conduct its business in a manner that will
reflect favorably on the good name and reputation of the Products and TITAN.
DEALER expressly recognizes its obligation to avoid in every way any
discourteous, deceptive. misleading or unethical practice or advertising that is
or might be detrimental to the Products, TITAN, or the public. DEALER agrees,
when notified by TITAN of such objections, to immediately discontinue such
practice or advertising.
19. PRE-DELIVERY SERVICE
DEALER expressly recognizes its obligation to effectively assemble, inspect,
service and/or prepare Products in accordance with schedules or instructions
furnished from time to time by TITAN before delivery to the retail purchaser by
DEALER. DEALER agrees to uncrate, set up, inspect and test each new TITAN
Product at DEALER's place of business as specified in this Agreement, prior to
delivery to the retail purchaser, in accordance with the written instructions
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furnished from time to time by TITAN. DEALER agrees to make all necessary
repairs to such Products after receipt of a formal authorization from TITAN and
agrees that each such Product will be received directly by the retail purchaser
at DEALER's place(s) of business as specified in Paragraph 1 of this Agreement
in safe and lawful operating condition. Upon request, DEALER will furnish
evidence to TITAN of the performance of such pre-delivery services on forms
prescribed by TITAN. DEALER will report promptly in writing, to TITAN's Chief
Executive Officer any act or failure to act on the part of TITAN or any of its
personnel which DEALER believes was not fair and equitable towards it in the
establishment or performance of pre-delivery obligations.
20. REPAIR AND MAINTENANCE SERVICE
A. DEALER expressly recognizes its obligation to obtain necessary tools, and to
effectively perform repair or maintenance services required on Products, in
accordance with TITAN's current recommendations and specifications.
B. DEALER shall develop and maintain competent, qualified and efficient service
mechanics for the service and repair of the Products and shall employ said
persons in DEALER's service and repair facilities. DEALER shall not use service
or repair facilities or personnel other than its own in connection with the
service and repair of the Products without the prior written consent of an
executive officer of TITAN. DEALER shall comply with and maintain copies of
bulletins which may fl-cm time to time be issued by TITAN pertaining to the
service or the use or operation of the Products, and to the maintenance of
requisite tools to perform service work on the Products.
C. DEALER shall perform all Product services under this Agreement, including
pre-delivery, warranty and recall service, as an independent contractor. DEALER
agrees to post his labor rates in a conspicuous manner so that they are plainly
visible to his service customers. Service provided by DEALER shall include only
those services which are specifically requested by the customer or those
services approved in advance by the customer.
21. WARRANTY
A. TITAN makes no representations or warranties, express or implied, with
respect to the Products except as may be provided in a standard written or
printed warranty offered to the retail purchaser with respect to one or more of
the Products from time to time. THE FOREGOING IS EXCLUSIVE AND IN LIEU OF ALL
OTHER WARRANTIES EXCEPT TITLE, WHETHER EXPRESS OR IMPLIED, AND TITAN MAKES NO
WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE TO DEALER. THE FULFILLING OF
THE TERMS OF THE PRINTED WARRANTY SHALL CONSTITUTE THE SOLE REMEDY OF DEALER AND
THE SOLE LIABILITY OF TITAN, WHETHER ON WARRANTY, CONTRACT OR NEGLIGENCE.
B. DEALER expressly recognizes its obligation to effectively perform warranty
work on Products whether delivered by DEALER or by another authorized dealer and
to fulfill the conditions of the warranty as applicable to particular Products
where indicated without charge to the retail purchaser. Within three (3)
business days after delivery of a new Product to a retail purchaser, DEALER
shall complete and send to TITAN a true and complete sales warranty registration
report on such Product in a manner then prescribed by TITAN, including the name
and address of the owner. TITAN may utilize the information in the extent of a
recall of a Product, and/or to provide TITAN with useful marketing information.
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C. DEALER will report promptly, in writing, to TITAN's Chief Executive Officer,
any act or failure to act on the part of TITAN or any of its personnel which
DEALER believes was not fair and equitable towards it in the performance of
warranty obligations or which resulted in DEALER not receiving reasonable and
adequate compensation for warranty labor and parts provided by DEALER.
D. DEALER shall process and dispose of warranty claims on the Products in
accordance with the procedure which may be prescribed from time to time by
TITAN, and TITAN shall have no obligation to recognize any warranty claims
unless the prescribed procedure is complied with by DEALER including, but not
limited to, the receipt by DEALER from TITAN of a written warranty work
authorization prior to the commencement of any reimbursable warranty work. In
support of DEALER's claim for warranty compensation, DEALER agrees to provide
TITAN with such supportive documents as TITAN may request.
E. DEALER expressly warrants that should any of the Products be modified by
DEALER or at DEALER's request, DEALER will attach to the Product prior to retail
sale a conspicuous statement which wilt clearly disclose the extent or nature of
the modification and the resultant warranty coverage, if any, which will then
apply to the Products.
F. DEALER expressly acknowledges that DEALER is performing warranty work on the
Products as an independent contractor and may be compensated for such services
separate and apart from the purchase price of the Products.
22. TRADEMARKS AND TRADE NAMES
TITAN and its related companies are exclusively entitled to the use of the
trademark "TITAN Motorcycle Company of America" and to the use of all trade
names and trademarks used in connection with the Products and the goodwill
attached thereto in the United States of America (thereinafter collectively
called the "Marks"). TITAN grants DEALER the non exclusive permission to
advertise and otherwise inform the general public of the fact that DEALER sells
the Products and is a "TITAN Motorcycle Company of America Dealer" at the
locations specified in Paragraph 1 of this Agreement, including the use of
outdoor signs, signs on buildings and other means of identification for such
specified location. DEALER will not use, or permit the use of the Marks either
as part of any corporate title, firm name or trade name unless TITAN shall first
consent thereto in writing. On termination of this Agreement, DEALER agrees to
immediately discontinue all use of the Marks and other means of identification
that might make it appear or imply that DEALER is still an authorized
representative of the Products including, without limitation. removal of any
listing in any telephone directory, display advertising or outdoor sign. TITAN
shall have the right, but not the obligation, to acquire any or all such signs
in possession of DEALER on date of termination at a price that is not in excess
of the price, if any, originally paid by DEALER. DEALER further agrees to
discontinue any use of the Marks or any semblance of same, as a part of its
business or corporate name and, if appropriate, file a change or discontinuance
of such name with the appropriate authorities. In the event DEALER fails to
comply with the terms and conditions of this Paragraph, TITAN shall have the
right to enter upon DEALER's premises and remove all such signs bearing the
TITAN designation or Marks without liability of TITAN to DEALER. DEALER agrees
to reimburse TITAN for all Costs and expenses, including without limitation,
attorneys' fees, incurred by TITAN in effecting or enforcing compliance with
this Paragraph. The provisions of this Paragraph shall survive after termination
of this Agreement.
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23. INDEPENDENT PERSON
DEALER is an independent business and the conduct of its business is within the
sole discretion of DEALER. This Agreement does not create the relationship of
principal and agent, master and servant, or employer and employee between TITAN
and DEALER. Nothing herein contained shall be construed or interpreted to grant
any authority to DEALER to commit or bind TITAN in any manner to any person.
DEALER shall be solely responsible for all the acts and omissions of DEALER, its
agents and employees. This Agreement is not intended to govern, control or
manage the day-to-day business activities of DEALER. DEALER agrees to defend,
indemnify and save TITAN and its suppliers harmless from any claim, demand,
damage, liability, cost or expense, including attorneys' fees and expenses
arising out of any acts or omissions of DEALER, its agents or employees.
24. SALE OF DEALER'S BUSINESS
A. DEALER may not sell, transfer or assign the whole or any part of DEALER's
rights or obligations under this Agreement, without TITAN's prior written
consent. DEALER shall give Titan at least thirty (30) days' prior written notice
of any such proposed sale, transfer, or assignment. TITAN's failure to object to
the proposed sale, transfer, or assignment following notice from DEALER shall
not constitute TITAN's consent.
B. Provided that this Agreement is still in effect, and provided further that
notice of termination or notice of nonrenewal has not been provided to DEALER
and is not then in effect between DEALER and TITAN, TITAN agrees to not
unreasonably refuse to enter into a new Sales and Service Agreement for the
remainder of the term provided in Paragraph 2 of this Agreement with a person
contracting to purchase DEALER's business as pertains to the Products, provided
that said purchaser as of the date of sale meets all then current requirements
established by TITAN for the appointment of new dealers.
25. EARLY TERMINATION OF AGREEMENT
A. This Agreement maybe terminated in its entirety or with respect to any of the
Products at any time without notice by mutual consent of DEALER and TITAN.
B. Either party may terminate this Agreement in its entirety or with respect to
any of the Products prior to the expiration date provided in Paragraph 2 hereof,
without cause, on a minimum of sixty (60) days' prior written notice from one
party to the other. If applicable State law should require notice of termination
of a fixed period of time greater than that provided by this Agreement for a
stated reason, then such required notice in the form prescribed shall be given
by the terminating party.
C. TITAN may immediately terminate this Agreement in its entirely or with
respect to any of the Products by written notice given to DEALER in the event of
any of the following: (1) death, incapacity, removal or resignation of DEALER or
any person in the employment thereof and in reliance upon whom this Agreement
was entered into by TITAN; (2) any sale or transfer of any substantial interest
in the managerial control and/or ownership of DEALER without TITAN's prior
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written consent; (3) an unauthorized change made by DEALER in the location of
DEALER's place(s) of business as specified in this Agreement or the addition of
any place of business for Products; (4) discontinuance of the operation of
DEALER's business for a period of five (5) consecutive days, unless such
discontinuance is the result of a natural disaster; (5) the appointment of an
assignee, referee, receiver, or trustee for DEALER or upon its adjudication in
bankruptcy or the liquidation of DEALER; (6) any dispute, disagreement or
controversy between or among partners, managers, officers, or shareholders of
DEALER which, in the opinion of TITAN, adversely affects the operation,
management or business of DEALER or TITAN and is not resolved within thirty (30)
days after notice is given to DEALER by TITAN; (7) submission by DEALER to TITAN
of a fraudulent report, statement claim for reimbursement, refund or credit or
falsification of warranty claim or registration or of DEALER's retail labor rate
or providing of fraudulent statements relating to pre-delivery preparation,
testing, servicing, repairing or maintenance of the Products; (8) failure to
maintain DEALER's account on a current basis and in accordance with TITAN's
terms and conditions of sale; (9) failure by DEALER, within five (5) days
following notification by TITAN, to replace with cash or cashier's check any
check provided TITAN by DEALER which has been returned from the bank on which
the check was drawn without payment to; (10) conviction in any court of
competent jurisdiction of DEALER, or any principal officer or manger of DEALER,
of any crime tending to affect adversely the ownership, operation, management,
business or interest of the DEALER or TITAN; or (11) failure of DEALER to obtain
or maintain any license required by law.
D. The date of notice of termination shall be the date of mailing of such
notice. If any period of notice of the termination required hereunder is less
than that required by applicable laws, such period of notice shall be increased
and be deemed to be the minimum period required by such laws.
E. DEALER hereby acknowledges and agrees that in the event of a discontinuance
of the operation of DEALER's business for a period often (10) consecutive days,
for any reason whatsoever other than a natural disaster, such discontinuance
shall constitute a voluntary termination of this Agreement by DEALER. Upon
receipt of such notice, DEALER shall cooperate with TITAN, including without
limitation, executing such other documents as may be reasonably required by
TITAN, to effectuate the voluntary termination of this Agreement and DEALER's
business in TITAN's Products.
26. PROCEDURE ON TERMINATION
A. Upon termination or expiration and nonrenewal of this Agreement, DEALER will
immediately pay to TITAN all sums owing from DEALER to TITAN. Any amount due
TITAN by DEALER may be deducted from credits owing DEALER.
B. In the event of early termination or expiration and nonrenewal of this
Agreement, TITAN shall continue to fill orders from DEALER for such Products as
may be affected by the termination or nonrenewal up to the specified termination
or expiration date. TITAN shall have the right to impose reasonable limitations
on such orders for such Products during the notice period. On the specified date
of termination or expiration, all unfilled orders for such Products will be
automatically cancelled. Payment terms for such Products supplied by TITAN to
DEALER after notice of intention to terminate or upon expiration and nonrenewal
may be changed to cash, certified check or other terms determined by TITAN.
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C. After the effective date of termination of this Agreement, the acceptance of
orders from DEALER by TITAN, or the continuation of the sale by DEALER of
Products, or the referring of inquiries to DEALER by TITAN, or any business
relations either party has with the other will not be construed as a renewal of
this Agreement nor a waiver of the termination. If TITAN accepts any orders from
DEALER after termination of this Agreement, alt such transaction(s) will be
governed, unless the contrary intention appears, by the terms of this Agreement
applicable to such transactions.
27. COMPLIANCE WITH SAFETY, REGULATORY, AND EMISSION CONTROL REQUIREMENTS
A. DEALER agrees to comply with, and operate consistently with, all applicable
provisions of the National Traffic and Motor Vehicle Safety Act of 1966 and the
Federal Clean Air Act, as amended, including applicable rules and regulations
issued from time to time thereunder, and all other applicable federal, state and
local rules and regulations issued from time to time thereunder, and all other
applicable federal, state and local product safety, regulatory and emission
control requirements.
B. In the event that the laws of the state in which DEALER is located require
dealers of Products to install in new or used Products, prior to the retail sale
thereof, any safety devices or other equipment not installed or supplied as
standard equipment by TITAN, then DEALER, prior to its sale of any such TITAN
Product, shall properly install such equipment.
28. COMPLIANCE WITH SAFETY, REGULATORY AND EMISSION CONTROL REQUIREMENTS
DEALER hereby agrees to adopt, promote and implement safety programs developed
and provided by TITAN upon written notification from TITAN, DEALER agrees to
place and display safety notices and warnings and proper user information labels
on TITAN Products and in the dealership as appropriate, and to adhere to
established user recommendations and restrictions on the sale of TITAN Products
as directed by TITAN. DEALER agrees to promote and require safety awareness and
training of purchasers and users of TITAN Products in accordance with programs
and materials developed or provided by TITAN upon written notification by TITAN.
DEALER agrees to provide to customers safety notices and warnings and other
safety awareness materials prepared or provided by TITAN, and/or which may from
time to time be developed and provided by industry and/or safety associations,
regarding use of TITAN Products. DEALER agrees to require the reading or viewing
of such safety awareness materials by the customer in conjunction with the sale
of a TITAN Product as specified in writing by TITAN. DEALER agrees that
violation of its safety obligations described in this Paragraph constitutes
ground for TITAN action under this Agreement. TITAN retains the right, through
written notification, to amend the "DEALER SAFETY OBLIGATIONS" specified in this
Paragraph and to add such other Dealer Safety Obligations as may be necessary or
advisable.
29. DEALER'S SUCCESSOR ON DEATH OR INCAPACITY
Upon termination of this Agreement because of death or incapacity of the
principal of DEALER, TITAN will offer to a nominated successor of the principal
of DEALER acceptable to TITAN, or to spouse of the principal of DEALER,
continuation of this Agreement for the duration of the Agreement as provided in
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Paragraph 2 hereof, provided that: (i) DEALER, within fifteen (15) days of the
occurrence of such death or incapacity, gives notice to TITAN of such occurrence
and the name and qualifications of the DEALER's successor; (ii) The facilities
and capital of the dealership meet TITAN then current requirements; and, (iii)
The person to whom the continuation of the Agreement is offered provides written
notice to TITAN of acceptance within fifteen (15) days from the extension of the
offer by TITAN.
30. DISPUTE RESOLUTION
All controversies, claims and disputes arising in connection with this
Agreement, except any controversies, claims and disputes relating to amounts due
and unpaid to TITAN or relating to third party personal injury, shall be settled
by mutual consultation between the parties in good faith as promptly as
possible, but failing an amicable settlement shall be settled finally by
arbitration in accordance with the provisions of this Paragraph. Such
arbitration shall be conducted in Phoenix, Arizona in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, and the
parties hereto agree that such arbitration shall be the sole and exclusive
method of resolving any and all such controversies, claims or disputes, except
those expressly excluded above. Judgement upon such award may be entered in the
Superior Court of the State of Arizona for the County of Maricopa, if the award
is rendered against DEALER. The prevailing party shall be entitled to recover
from the nonprevailing party all costs and expenses of the arbitration,
including reasonable attorney's fees.
31. SERVICE OF NOTICE
Any notice which may be required to be served by DEALER on TITAN, or by TITAN on
DEALER, shall be in writing and Sent by certified or registered mail,
return-receipt requested, addressed to the party for whom intended at its last
known address. Each party will promptly advise the other, in writing, of any
change of address.
32. GENERAL PROVISIONS
DEALER agrees that it neither has nor may acquire by performance under the terms
and provisions of this Agreement, any vested right in the sales and service
responsibility assigned to it hereunder and any investments made by DEALER in
the performance hereof are made with the knowledge that this Agreement may
expire and not be renewed or be terminated as herein provided. This Agreement is
the entire agreement between the parties and terminates and supersedes all prior
agreements, verbal or written, between the parties. Neither trade usage nor
course of dealing shall serve to modify, amend or change this Agreement. This
Agreement may be altered or amended in writing only and must be signed by an
executive officer of TITAN. Both parties shall be excused from nonperformance in
the case of FORCE MAJEURE or other causes beyond the control of the parties. The
paragraph headings contained herein are for reference purposes only and shall
not affect the meaning or interpretation of this Agreement. It is understood
that this is a general form of agreement designated for use in any State. Should
any provision of this Agreement or the application thereof to any particular
person or circumstance be contrary to or prohibited by applicable laws or
regulations, such provision shall be inapplicable and deemed omitted and the
remaining provisions of this Agreement will be valid and binding and of like
effect as though such provisions were not included herein. TITAN has a right to
11
amend, modify or change this Agreement in case of legislation, government
regulation or changes in circumstances beyond the control of TITAN that might
affect materially the relationship between TITAN and DEALER. This Agreement and
the rights and obligations arising thereunder shall be governed by and construed
according to the laws of the State of Arizona.
IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate the
day and year hereinafter written.
DEALER TITAN MOTORCYCLE CO. OF AMERICA
------ -------------------------------
Signature: /s/ Barbara S. Keery Signature: /s/ Robert P. Lobban
-------------------------- -----------------------------
Position/Title: Partner Position/Title: CFO
--------------------- ------------------------
Signature: Dated: 1/4/99
-------------------------- ---------------------------------
Position/Title:
---------------------
Dated: 12/30/98
------------------------------
Circle One: Corporation Partnership Individual
This Agreement shall be executed on behalf of DEALER by the owner in case of a
sole proprietorship, by general partner in case of a partnership, or by a duly
authorized officer in case of a corporation, showing position or title of person
signing.
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APPENDIX "A"
THE DEFINITION OF PRODUCTS IN THIS AGREEMENT SHALL
INCLUDE:
MOTORCYCLE MODELS:
"SIDEWINDER" SX & RM
"ROADRUNNER" SX & RM
"ROADRUNNER SPORT" RM
"GECKO" SX & RM
"COYOTE"
APPENDIX "B"
OWNERS AND MANAGERS
1. THE FOLLOWING PERSONS ARE THE BENEFICIAL AND RECORD OWNERS OF DEALER:
IF A CORPORATION,
NUMBER AND
NAME AND ADDRESS OF EACH CLASS OF SHARES
RECORD OR BENEFICIAL OWNER OF -------------------- PERCENTAGE OWNERSHIP OF
DEALER NUMBER CLASS RECORD IN DEALER
- ----------------------------- ------ ----- -----------------------
BPF, LLC 100%
2. THE FOLLOWING PERSONS ARE DEALER'S OFFICERS:
NAME AND ADDRESS TITLE
- ---------------- -------
PATRICK KEERY PARTNER
FRANCIS KEERY PARTNER
BARBARA KEERY PARTNER
BRYANT CRAGUN PARTNER
3. THE FOLLOWING PERSONS FUNCTION AS GENERAL MANAGER OF DEALER AND, AS SUCH, ARE
AUTHORIZED TO MAKE ALL DECISIONS ON BEHALF OF DEALER WITH RESPECT TO DEALER'S
OPERATIONS:
NAME AND ADDRESS TITLE
- ---------------- -------
JEFF LIPET MANAGER
APPENDIX "C"
MINIMUM ANNUAL QUANTITY OF NEW TITAN MOTORCYCLES
TO BE PURCHASED
FROM
TITAN BY DEALER
TWENTY (20) UNIT PER YEAR
APPENDIX "D"
MINIMUM MODEL FLOOR INVENTORY OF TITAN. PRODUCTS
TO BE CONTINUOUSLY CARRIED BY DEALER
TWENTY (20) UNITS TO BE DETERMINED BY DEALER