EX-10
Exhibit 10.12.2 Suzuki Standard Provisions
EXHIBIT 10.12.2
SUZUKI DEALER SALES AND SERVICE AGREEMENT
STANDARD PROVISIONS
The following standard Provisions have been made a part of, and are
incorporated by reference, in the American Suzuki Motor Corporation dealer
Sales and Service Agreement and shall apply to and govern the transactions,
dealings, and relations between SUZUKI and DEALER.
1.00 DEFINITIONS
For the purpose of this Agreement the following terms set forth below
shall be defined as indicated:
(a) "Accessories": All accessories for Suzuki Vehicles as defined in
(o) herein below, distributed in the United States by SUZUKI.
(b) "Agreement": This Agreement and the Dealer Application, Facility
Standards Addendum, Dealer Minimum Standards Addendum and Dealer Updates as
may be issued from time to time.
(c) "Dealership": The business of the DEALER located at the
designated Dealer Premises.
(d) "Dealer Application": The signed application of the DEALER
presented to SUZUKI which will become part of this Agreement when approved by
SUZUKI.
(e) "Dealer Minimum Standards Addendum": The written requirements
executed by DEALER and SUZUKI, as amended from time to time by SUZUKI,
setting forth the minimum qualifications required by SUZUKI for appointment
as a Suzuki Dealer and DEALER's representations as to its fulfillment of
those qualifications relied upon SUZUKI for DEALER's appointment as an
authorized Suzuki Dealer. In conjunction with the Facility Standards
Addendum, it constitutes the criteria by which SUZUKI shall evaluate DEALER's
performance to determine whether DEALER qualifies for renewal(s) of its
Suzuki Dealership. The Dealer Minimum Standards Addendum has been
incorporated by reference and is part of this Agreement as though set forth
in full herein.
(f) "Dealer Premises": The specific premises approved for the
Dealership by SUZUKI.
(g) "Dealer Prices": The prices in effect at the time of delivery of
Suzuki Products as set forth in the Dealer Price Lists that will be charged
by SUZUKI to the DEALER exclusive of any charges for transportation, taxes or
any other charges.
(h) "Dealer Price Lists": The price lists issued by SUZUKI for
Suzuki Products as defined in (n) herein below, as amended from time to time
by SUZUKI.
(i) "Dealer Updates": Addendums to the Agreement pursuant to the
terms of this Agreement, issued from time to time by SUZUKI to clarify and
explain procedures and programs to be followed by the DEALER in the operation
of the Suzuki Dealership. The Updates shall be incorporated as part of this
Agreement as they are issued.
(j) "Facility Standards Addendum": The written standards for
facilities, as amended from time to time by SUZUKI, setting forth the
criteria with respect to the physical facilities which DEALER is required to
establish and maintain and which was relied upon by SUZUKI in its appointment
of DEALER as an authorized Suzuki Dealer. The Facility Standards Addendum,
in conjunction with the Dealer Minimum Standards Addendum constitutes the
criteria by which SUZUKI shall evaluate DEALER's performance to determine
whether DEALER qualifies for renewal(s) of its Suzuki Dealership. Said
Facility Standards Addendum shall become part of this Agreement upon
execution of the Agreement by SUZUKI.
(k) "Manufacturer's Suggested Retail Price": Any suggested retail
price for any Suzuki Product as issued by SUZUKI from time to time.
(l) "Owner(s)": The beneficial owner(s) of the Dealership, listed in
this Agreement.
(m) "Parts": All parts of the Four Wheel Vehicles, which are the
subject of this Agreement, and/or accessories therefor distributed in the
United States by SUZUKI.
(n) "Suzuki Products": Suzuki Four Wheel vehicles manufactured for
highway use by Suzuki Motor Co., Ltd. including automobiles, trucks, vans,
and four wheel drive vehicles and their successors and the parts and
accessories therefor distributed in the United States (except Hawaii) by
SUZUKI. Whenever the term "Suzuki Products" is used in this Agreement, it
shall be construed as defined herein.
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(o) "Suzuki Vehicles": All suzuki automobiles, trucks, vans and four
wheel drive vehicles for highway use and their successors manufactured by
Suzuki Motor Co., Ltd. and distributed in the United States (except Hawaii)
by SUZUKI. This term specifically excludes all ATV recreational vehicles
manufactured and distributed by SUZUKI. Whenever the term "Suzuki Vehicles"
is used in this Agreement, it shall be construed as defined herein.
(p) "Suzuki Warranty": The warranty issued from time to time by
SUZUKI with respect to Suzuki Products and any revisions or supplements
thereto.
2.00 PLACE OF BUSINESS
2.01 Location. The DEALER shall be responsible for selling, leasing
and servicing at retail the Suzuki Products, but only at the Dealer Premises
described in this Agreement by the Facility Standards Addendum and the Dealer
Minimum Standards Addendum. If the DEALER desires to change the location of
the Dealership, or any part of its operation, prior written approval from
SUZUKI must be obtained. Failure to obtain such prior approval shall be a
material breach of this Agreement and shall constitute grounds for its
termination.
2.02 Identification and Signs. Subject to applicable government
statutes, ordinances, rules and regulations, DEALER shall buy from SUZUKI, or
from sources designated by SUZUKI, and erect and maintain in good working
order on the Dealership Premises, entirely at DEALER's expense, authorized
sales and service signs conforming to the requirements established and
approved by SUZUKI. DEALER shall obtain and maintain any licenses or permits
necessary to erect and maintain such signs. Failure to obtain, erect,
maintain, repair, illuminate and prominently display such signs in a manner
approved by SUZUKI shall constitute grounds for termination of this Agreement.
2.03 Business Hours. The DEALER shall operate the Dealership in an
efficient and businesslike manner during the retail and service hours
customary for the DEALER's trade and the area in which the Dealership is
located.
3.00 RETAIL SALES
3.01 Suzuki Products and Tradenames. Subject to and in accordance
with the terms and conditions of this Agreement, the DEALER shall have the
nonexclusive right to:
(a) Purchase from SUZUKI, for sale at retail only, Suzuki Products;
and
(b) Identify itself as an authorized Suzuki Dealer by displaying the
various tradenames, trademarks and service marks and any other word or design
marks that SUZUKI uses in connection with or with respect to the Suzuki
Products.
3.02 Personnel. The DEALER shall at all times employ competent and
adequate personnel to sell and service the Suzuki Products in a manner
satisfactory to SUZUKI. Upon request to do so by SUZUKI, the DEALER, at its
own expense, shall send its personnel to any training seminars organized and
carried out by SUZUKI.
3.03 Inventory Responsibility. The DEALER shall maintain at all times
an adequate stock of new, undamaged, and marketable Suzuki Products for
display, demonstration, sale and servicing. Further, the DEALER shall
maintain an adequate supply of tools for servicing the Suzuki Products.
3.04 Standard Accounting System. It is mutually beneficial to DEALER
and SUZUKI that DEALER keep and maintain standard accounting systems and
practices. Therefore, DEALER agrees to maintain its records based upon
commonly accepted accounting principles and to establish and maintain a
standard accounting system and practices in accordance with the Suzuki
Automotive Standard accounting System established and designated by SUZUKI
for use by all Suzuki Dealers, as the same may from time to time be amended,
revised or supplemented. DEALER further agrees to provide to SUZUKI by the
tenth (10th) day of each month, in the manner and form prescribed by SUZUKI,
complete and accurate financial and operating statements covering the
preceding month and showing calendar year-to-date operations of the Suzuki
Dealership.
3.05 Sales Records and Reports. DEALER shall keep an accurate record
of its sales of Suzuki Products, in conformity with any statutory and
regulatory requirements.
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3.06 Retail Delivery Report. DEALER shall immediately upon delivery
of a Suzuki Vehicle to a retail purchaser complete and transmit to SUZUKI a
report of the retail sale called the "Retail Delivery Report" and furnish
SUZUKI with other reports or records as may be reasonably required by SUZUKI
in its sole discretion.
3.07 Dealer Reports. DEALER shall furnish reprots of its sales and
inventory at intervals no greater than ten (10) days each for each calendar
month on the forms provided by SUZUKI. DEALER shall also furnish such
reports concerning its financial condition as SUZUKI may reasonably request,
including mnthly financial statements, accurately reflecting Suzuki
Dealership operations.
3.08 Electronic Data Processing Requirements. In order to promote
prompt and accurate reporting of relevant dealership operational and
financial information as SUZUKI may require hereunder, DEALER agrees to
install and maintain electronic data processing equipment which is compatible
with SUZUKI's computer network as it may from time to time be modified,
updated or supplemented.
3.09 Dealer Directives. DEALER shall faithfully comply with SUZUKI's
existing and future directives, bulletins and manuals pertaining to the sale
and servicing of Suzuki Products.
3.10 Promotions. To further expose and popularize the name "Suzuki"
and the "Suzuki" Vehicles, SUZUKI may from time to time sell Suzuki Products
directly to non-dealers for use in promotions of unrelated merchandise
through "give away", "premium", and other forms of promotional programs or in
payment for media advertising. DEALER shall cooperate by rendering
pre-delivery inspections, delivery and warranty services in connection with
such sales, for which DEALER will be compensated at the rates established
therefor by SUZUKI.
3.11 Suzuki Product Orders. All orders for suzuki Products shall be
submitted in writing by the DEALER to SUZUKI in accordance with Suzuki
directives and on the forms that SUZUKI shall supply. All orders are subject
to acceptance by SUZUKI's home office in whole or in part. All orders
submitted by DEALER shall be binding upon DEALER unless and until they are
rejected in writing by SUZUKI; provided, however, that in the event of a
partial acceptance by SUZUKI, it is understood that DEALER shall no longer be
bound in respect to the part of the order not accepted. SUZUKI will attempt
to fill all pre-sold retail orders but cannot be held responsible for its
failure to do so, nor for any lost profits or loss of business experienced by
DEALER from SUZUKI's inability to supply any pre-sold order.
3.12 Distribution and Delivery. SUZUKI shall endeavor, to the extent
practicable, to deliver the new Suzuki Products ordered by DEALER and
required in the fulfillment of DEALER's responsibilities under this
Agreement. DEALER acknowledges that SUZUKI also has an obligation to
endeavor to deliver to Suzuki Products to other Suzuki Dealers who are also
required by SUZUKI to fulfill their responsibilities under their Dealer
Agreements with SUZUKI. Because of numerous factors that affect the
distribution of the Suzuki Products and the relevance of such factors at any
given time, SUZUKI does hereby reserve to itself discretion in applying such
factors and in processing orders for Suzuki Products from its authorized
Dealers. The judgment and decisions of SUZUKI, therefore, shall be final in
all matters relating to the distribution and delivery of Suzuki Products to
DEALER.
3.13 Force Majeure. SUZUKI shall not be liable for failure to process
or for any delay in processing orders for any suzuki Products where such
failure or delay is due, in whole or in part, to any of the following: 1)
labor, material, transportation or utility shortage or curtailment; 2)
Japanese or United States governmental regulation; 3) any import or export
restriction; 4) discontinuance of sale by SUZUKI of the Suzuki Products
ordered; 5) any labor trouble in the plants of Suzuki Motor co., Ltd., or its
suppliers or the transportation and distribution system used by SUZUKI; 6)
any curtailment of production due to economic or trade conditions; or 7) any
cause beyond the control of, or without the fault or negligence of, SUZUKI.
3.14 Suggested Retail Prices. SUZUKI's Dealer Price Lists will set
forth Suggested Retail Prices for the Suzuki Products. The DEALER is under
no obligation to accept these Suggested Retail Prices and may sell for a
different retail price. If DEALER sells at prices less than, or more than,
those suggested, those sales will not affect its business relations with
SUZUKI or any other person over whom SUZUKI has control or influence.
3.15 Title. Title to suzuki Products shall pass to the DEALER from
SUZUKI only upon payment in full for the Suzuki Products shipped to DEALER.
Until payment in full for Suzuki Products is made, SUZUKI retains all right,
title, and a security interest in the Suzuki Products.
3.16 Security Interest. DEALER grants to SUZUKI a security interest
in all Suzuki Products delivered to DEALER to secure repayment of any
indebtedness owing from DEALER to SUZUKI. SUZUKI shall have all the rights
of a secured creditor under the Uniform Commercial Code, including the right
to take possession of Suzuki Products, without the necessity of legal
process, to satisfy outstanding indebtedness. DEALER shall execute all
documents and notices as may be required to perfect the security interest of
SUZUKI under applicable laws.
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3.17 Termination. Upon termination of this Agreement, SUZUKI may
cancel any or all pending orders of DEALER for Suzuki Products, whether or
not previously accepted by SUZUKI.
4.00 SERVICE
4.01 Service Records. DEALER shall keep an accurate record of its
servicing, in conformity with any requirements in the Suzuki Warranty Manual,
Dealer Updates and any statutory and regulatory requirements.
4.02 Recommended Service Procedures. DEALER shall faithfully comply
with SUZUKI's existing and future directives, bulletins and manuals
pertaining to the sale and servicing of Suzuki Products.
4.03 Records and Manuals. DEALER shall maintain and keep updated all
manuals, bulletins and records received from SUZUKI. DEALER and its service
personnel will have available and be familiar with all service and
maintenance manuals provided by SUZUKI.
4.04 Service Schools. DEALER will send Dealer personnel to and
participate in, service training classes, service schools, seminars and other
dealer employee training courses as provided by SUZUKI from time to time.
DEALER acknowledges the need for such school and training to keep current on
all Suzuki Products for the protection of DEALER's customers.
4.05 Service Personnel. Service personnel in the Dealership will be
competent and adequate to handle all service work on the DEALER's customers.
DEALER accepts the responsibility to provide fast, efficient and accurate
service work to its customers. From time to time, SUZUKI will make
suggestions regarding the improvement and upgrading of DEALER's Service
Department and personnel; however, DEALER is solely responsible for all work
performed in its Service Department by its service personnel.
4.06 Recall Procedures. If at any time DEALER receives from SUZUKI a
notification of certain procedures that DEALER is to follow concerning a
recall of any Suzuki Product in conformance with the requirements of the
National Highway Traffic Safety act or Consumer Product Safety Commission or
any other governmental agency, DEALER shall comply with it. If for any
reason DEALER fails or refuses to comply with the procedures outlined in any
Suzuki recall notice, DEALER shall be in violation of this Agreement. DEALER
acknowledges the necessity of complying with recall notices to insure the
protection of the consumer and to comply with government laws, rules and
regulations.
4.07 Dealer Distributed Literature. If the sate in which the DEALER
is franchised institutes programs which require distribution of material such
as Lemon Law disclosures, Consumer Rights brochures or general notices, the
DEALER shall in accordance with SUZUKI instructions complete, execute and
deliver said material.
4.08 Notice of Complaints. If at any time the DEALER receives any
customer complaints which apply to any consumer protection laws, rules or
regulations, the DEALER agrees to provide prompt notice to SUZUKI of such
complaints and take steps that SUZUKI may reasonably require. The DEALER
agrees to perform in a manner that will not adversely affect SUZUKI's rights
under such laws, rules and regulations.
5.00 CAPITALIZATION
5.01 Net Working Capital. Dealer agrees to establish and maintain
actual net working capital which in SUZUKI's judgment is sufficient to allow
the DEALER to effectively perform his obligations under the Agreement.
5.02 Flooring and Lines of Credit. At all times during the term of
this Agreement, it is DEALER's sole responsibility, which DEALER hereby
accepts and to which he agrees, to obtain and maintain adequate flooring
arrangements and lines of credit with a reputable financial institution
acceptable to SUZUKI to ensure the availability of sufficient funds to meet
DEALER's needs for payment of Suzuki Products ordered by DEALER from SUZUKI.
6.00 CREDIT, FINANCE AND PAYMENTS
6.01 Sales. All sales to DEALER will be at Dealer Prices published by
SUZUKI in the Dealer Price Lists.
6.02 Payment for Suzuki Vehicles. Unless financing is arranged with
respect to a particular shipment in advance, all payments for Suzuki vehicles
shall be made in full at the time of shipment.
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6.03 Open Account. Dealer may order Suzuki Products, promotional and
miscellaneous items, other than Suzuki Vehicles, on open account, so long as
SUZUKI determines DEALER is credit qualified. DEALER agrees to pay for all
items billed to its open account per monthly itemized statements. DEALER
agrees to pay all late charges, interest, attorneys' fees, court costs and
expenses that may be incurred as a result of default on DEALER's open account
obligations. Upon default, SUZUKI may suspend or terminate DEALER's open
account. SUZUKI may offset any credits due DEALER against debits for sums
due SUZUKI.
6.04 Security Interest. DEALER grants to SUZUKI a security interest
in all Suzuki Products delivered to DEALER to secure repayment of any
indebtedness owing from DEALER to SUZUKI. SUZUKI shall have all the rights
of a secured creditor under the Uniform Commercial Code, including the right
to take possession of Suzuki Products, without the necessity of legal
process, to satisfy outstanding indebtedness. DEALER shall execute all
documents and notices as may be required to perfect the security interest of
SUZUKI under applicable laws.
6.05 Title. Title to Suzuki Products passes to DEALER from SUZUKI
only upon payment in full for the Suzuki Products shipped to DEALER.
6.06 Costs of Return. In the event DEALER's inventory of Suzuki
Products is repossessed or returned to SUZUKI or to a financial institution
for repurchase by SUZUKI, DEALER agrees to pay reasonable handling costs
incurred by SUZUKI according to SUZUKI policy in effect at the time of the
return.
6.07 Effect of Termination. Termination of this Agreement, in
whatever manner, shall not release DEALER from any obligations or
indebtedness owing to SUZUKI.
7.00 ADVERTISING
7.01 Advertising Standards. SUZUKI and DEALER recognize the need to
maintain at all times the highest ethical standards in advertising and which
evoke an image consistent with the quality and reputation that SUZUKI and
Suzuki Products enjoy in order to maintain public confidence in, and respect
for, DEALER, SUZUKI and Suzuki Products. Accordingly, DEALER shall not
publish, nor cause or permit to be published, advertising relating to Suzuki
Products which is not in compliance with all federal, state and local laws,
ordinances, rules and regulations or that is likely to mislead or deceive the
public or impair the goodwill, good name and reputation of SUZUKI, Suzuki
Motor Co., Ltd. or Suzuki Products. If SUZUKI, in its sole judgment,
determines that any of the DEALER's advertising is inappropriate or which may
be injurious to SUZUKI's reputation or to the business of SUZUKI or DEALER,
it shall so advice DEALER. Upon receipt of such notice, DEALER agrees to
immediately discontinue all such inappropriate advertising.
7.02 Participation. DEALER shall participate in any existing or
future cooperative advertising program with SUZUKI. DEALER shall use its
best efforts to promote and sell Suzuki Products. In that regard, DEALER
shall also maintain an effective advertising program aimed at enhancing the
sale of Suzuki Products.
7.03 Voluntary Dealer Cooperative Advertising Association. SUZUKI and
DEALER recognize the benefits which may be derived from a comprehensive, join
advertising effort by Suzuki Dealers. Accordingly, DEALER may, if DEALER
elects to do so on a completely voluntary basis, participate in the formation
and effective operation of a voluntary cooperative dealer advertising
association. Each Suzuki Dealer Advertising Association will finance its
advertising programs through the voluntary assessment of a fixed charge of no
less than 2% or $150.00 of the total dealer price per vehicle, excluding
freight, for each new Suzuki Vehicle purchased by Suzuki Dealers who
voluntarily choose to participate as members of an advertising association.
AS a service to the dealer association, SUZUKI will collect the agreed upon
charge, provided that the dealer association maintains control over both the
amount of the assessment and manner in which such funds will be expended.
8.00 TRANSPORTATION
8.01 Delivery. SUZUKI shall select the distribution points, carriers
and methods of transportation in effecting delivery of Suzuki Products to
DEALER. DEALER agrees to reimburse SUZUKI for any delivery, freight handling
and other charges which appear on SUZUKI's invoice to DEALER.
8.02 Refusal of Delivery. If SUZUKI is required to divert any Suzuki
Products ordered by DEALER because of DEALER's failure or refusal to accept
such product, DEALER assumes responsibility for, and will pay charges
incurred by SUZUKI as a result of such diversion. In addition, DEALER shall
pay all charges for storage and other charges related to such diversion.
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8.03 Force Majeure. Although SUZUKI will use due diligence to
promptly ship orders accepted by it, SUZUKI shall not be liable for any delay
in shipment caused by a shortage of supply, riot, war, government regulation,
willful acts of a third party, labor problems, import or export restriction,
acts of God, or any other cause beyond SUZUKI's control. It is understood
and agreed that SUZUKI will attempt to fill all orders accepted by it, but
SUZUKI takes no responsibility for failure to fill any of DEALER's orders.
8.04 Risk of Loss. Notwithstanding the reservation of title in SUZUKI
as provided in Paragraphs 3.15, 6.04 and 6.05, all risks with respect to the
Suzuki Products shall pass to and be assumed by DEALER at the time of
delivery to the DEALER, or its agents, or to the carrier of the Suzuki
Products. DEALER shall insure Suzuki Products upon delivery to DEALER
against all risks and perils at DEALER's own expense.
8.05 Product Return. SUZUKI will not accept the return of Suzuki
Products except in cases where SUZUKI has agreed in writing to do so where
required by State law. Upon receipt of such written authorization from
SUZUKI, DEALER may return Suzuki Products under the following conditions:
(a) DEALER shall pay all transportation and handling charges; and
(b) DEALER shall pay to SUZUKI a restocking charge in accordance with
the terms and conditions of SUZUKI policy in effect at the time of return.
9.00 PRODUCT WARRANTY
9.01 Warranty Records. DEALER shall keep an accurate record of its
warranty servicing of Suzuki Products, in conformity with any requirement in
the Dealer Updates, Warranty Manual and any statutory and regulatory
requirements.
9.02 Warranty Responsibility. DEALER shall diligently perform all
warranty and servicing obligations in accordance with the scale of
remuneration established by SUZUKI from time to time, whether or not the
DEALER sold the Suzuki Products to the customer requiring such servicing.
9.03 Dealer Obligation. DEALER acknowledges its obligation to, and
shall provide all warranty service, consistent with the Suzuki Limited
Warranty applicable to each Suzuki Product, regardless of the origin of
purchase of said Suzuki Product.
9.04 Warranty Service and Credit. DEALER will install any replacement
parts and make certifications or verifications, perform maintenance and
service, and do all other things that may be required under the terms of the
Suzuki Limited Warranty, or inspection, correctional, or recall campaigns.
SUZUKI will credit DEALER's account for warranty service and inspection,
corrections or recalls DEALER performs at the request of SUZUKI.
9.05 No Other Warranties. DEALER acknowledges that the Suzuki Limited
Warranty is the only warranty made or deemed to have been made by SUZUKI or
Suzuki Motor Co., Ltd. and that neither DEALER, nor its agents or employees,
are authorized to extend or enlarge upon the Suzuki Limited Warranty by any
oral or written means. DEALER further acknowledges that SUZUKI will not
assume nor authorize any person to assume on its behalf, any other obligation
of liability in regard to the Suzuki Products.
10.00 PARTS
10.01 Inventory. DEALER agrees to maintain an adequate inventory of
Suzuki Parts to fulfill customer service and warranty requirements. If, in
the sole judgment of SUZUKI, DEALER fails to maintain an adequate inventory
of Suzuki Parts to satisfy customer needs, such failure will constitute a
violation of this Agreement.
10.02 Genuine Suzuki Replacement Parts. DEALER will not sell any part
to a customer as a Suzuki part, unless it is a genuine Suzuki Part. If
DEALER does so, it shall be a violation of this Agreement.
10.03 Shipment Acceptance. DEALER will accept all shipments of suzuki
Parts ordered by it. In the event of an error in a shipment by SUZUKI, the
DEALER must submit a parts discrepancy report and receive prior written
approval of SUZUKI before returning the parts.
11.00 TERMINATION
11.01 Termination by DEALER. DEALER may terminate this Agreement be
serving thirty (30) days' written notice of termination on SUZUKI.
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11.02 Termination by SUZUKI. In the event that DEALER breaches or
violates any of the duties, obligations or responsibilities set forth herein
or any of the terms, conditions or undertakings in the Dealer Application,
Dealer Updates, the Facility Standards Addendum or the Dealer Minimum
Standards Addendum, SUZUKI may terminate this Agreement be giving the DEALER
written notice as provided below. SUZUKI need not state all grounds on which
it relies for its termination of DEALER. SUZUKI's failure to refer to
additional grounds for termination shall not constitute a waiver of its right
to rely on such grounds.
11.03 Sixty (60) Days' Notice. SUZUKI may terminate this Agreement
with sixty (60) days' notice after the occurrence of any of the following
events:
(a) A disagreement or personal difficulty between or among the
owners, partners, shareholders, officers or managers of DEALER that, in the
opinion of SUZUKI, may adversely affect the ownership, operation, management
or business of DEALER, or the presence in the management of DEALER of any
person who, in the opinion of SUZUKI, does not have or no longer has the
requisite qualifications for his position;
(b) Any change in the legal or beneficial ownership or control of
DEALER without the prior written consent of SUZUKI to such changes, or any
misrepresentation thereof;
(c) The death, incapacity, removal, resignation, withdrawal,
elimination or disassociation from DEALER of any owner, partner, shareholder,
officer or manager identified herein.
(d) Failure of DEALER to properly obtain, erect, maintain, repair and
illuminate signs and other displays in a manner approved by SUZUKI as
required under the provisions of this Agreement.
(e) DEALER's failure to honor any commitment made to SUZUKI
including, but not limited to, those made in the Facility Standards Addendum,
Dealer Minimum Standards Addendum, Dealer Updates or any other document
incorporated by reference herein;
(f) DEALER's failure to submit any reports, financial or otherwise,
required by SUZUKI hereunder, or in any Update;
(g) DEALER's financial condition becoming such that, in the opinion
of SUZUKI, DEALER is unable to carry out his obligations hereunder
satisfactorily;
(h) The failure on the part of DEALER to pay any account, including
any monies for Suzuki Satisfaction System Contracts sold, owing to SUZUKI
when due;
(i) Any agreement, understanding or contract entered into by DEALER,
oral or written, with any other Dealer or Dealers for the purpose of fixing
retail prices of Suzuki Products.
(j) The imposition of a levy against DEALER under attachment,
garnishment, execution or other similar process, except those garnishments or
executions pertaining to obligations of DEALER's employees; or
(k) Any assignment or attempted assignment of this Agreement or any
part thereof without the prior written consent of SUZUKI.
11.04 Fifteen (15) Days' Notice. SUZUKI may terminate this Agreement
with fifteen (15) days' written notice after the occurrence of any of the
following events:
(a) DEALER or any of its owners, partners, shareholders, officers or
managers engaging in any practice or conduct or being convicted of any felony
or the violation of any law that, in the opinion of SUZUKI, may adversely
affect the operation or business of the DEALER or be injurious to the
goodwill or reputation of SUZUKI, Suzuki Products or other Suzuki Dealers;
(b) The closure of the Dealership for any reason for a period in
excess of ten (10) days;
(c) Any change in the location of the Dealer Premises or any portion
of its operation without the prior written consent of SUZUKI;
(d) Any submission by DEALER of a false or fraudulent application,
and/or any supporting claim or statement to SUZUKI, for payment by SUZUKI
related to warranty repairs, special or recall adjustments performed by the
DEALER, or for any other discount, allowance, refund, or credit under any
plan, provision or program offered by SUZUKI to the DEALER whether or not the
DEALER offers or makes to SUZUKI or SUZUKI seeks or obtains from the DEALER
restitution of any payment made to the DEALER on the basis of any false or
fraudulent applications, claims or statements;
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(e) Any sale or attempted sale of Dealership by DEALER without the
prior written approval of SUZUKI;
(f) The insolvency of the DEALER, the filing of a voluntary petition
in bankruptcy by the DEALER, the filing of an involuntary petition to have
DEALER declared bankrupt, the appointment of receiver or trustee for the
DEALER, or the execution by DEALER of an assignment for the benefit of
creditors;
(g) Any bulk sale or the attempted sale of the Dealership assets; or
(h) The dissolution of the Dealership if the Dealership is a
corporation or a partnership.
11.05 Operation of the Law. Notwithstanding the provisions above, the
Agreement will terminate automatically and without notice from either party
in the event of the occurrence of any of the following:
(a) The failure of DEALER to obtain any license required for the
operation of the Dealership in any jurisdiction where this Agreement is
performed; or
(b) The failure of DEALER to secure or maintain the license or
renewal thereof, or the suspension or revocation or the license, irrespective
of the cause or reason.
11.06 Termination Liability. Upon termination, DEALER shall cease to
be an authorized Suzuki Dealer and shall:
(a) Pay forthwith to SUZUKI all sums then outstanding and owing by
DEALER to SUZUKI;
(b) Allow SUZUKI to audit DEALER's records with regard to its sales
of the Suzuki Satisfaction System contracts and pay forthwith to SUZUKI all
sums due and owing for any and all Suzuki Satisfaction System contracts sold
for which monies have not been paid by DEALER. DEALER agrees that SUZUKI
shall have the right to debit DEALER's parts account for any such sums due
and owing on Suzuki Satisfaction System contracts sold by DEALER;
(c) Remove forthwith, at its own expense, all SUZUKI signs which are
displayed at Dealer's Premises;
(d) Refrain from all further use whatsoever of any tradename,
trademark, logo, service mark, or any word or design that SUZUKI has used or
uses in connection with or with respect to Suzuki Products, including in its
stationery and other printed material and, if necessary, including changing
its corporate or business name;
(e) Cease representing itself as an authorized Suzuki Dealer for
Suzuki Products; and
(f) Return to SUZUKI all technical and/or service literature,
advertising and other printed material in DEALER's possession which relate to
Suzuki Products.
11.07 SUZUKI Option to Repurchase. Upon the termination of this
Agreement, SUZUKI shall have the option to purchase from DEALER, free and
clear of all liens, charges and encumbrances, any of the follows:
(a) New, unused, unaltered, undamaged, unlicensed and marketable
current model Suzuki Vehicles, with mileage of 100 miles of less, which were
purchased by DEALER from SUZUKI, and are in DEALER's inventory, at DEALER's
vehicle price less destination charges and any voluntary advertising
associated assessments made on behalf of a Suzuki Advertising Association.
SUZUKI shall pick up said Suzuki Vehicles and pay all transportation charges
for return of said vehicles; and
(b) The new, current model Suzuki Parts and Accessories at SUZUKI's
invoice price to DEALER, less SUZUKI's prevailing restocking charge, but only
if delivered by DEALER at DEALER's expense, to SUZUKI's Parts Warehouse
located nearest DEALER provided however, that these Suzuki Parts and
Accessories must be in a new,unused,undamaged and saleable condition and in
the original package and original package quantity; provided further, that
SUZUKI will not purchase any Suzuki Parts or Accessories which SUZUKI deems
to be obsolete.
11.08 Application of Credit. If SUZUKI exercises its option to
repurchase, any indebtedness owed by DEALER to SUZUKI may be applied against
the purchase price and the balance if any, owing to DEALER shall be paid to
DEALER only after verification by SUZUKI of the inventory of purchased Suzuki
Products.
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12.00 INDEMNIFICATION
12.01 Indemnification by SUZUKI. SUZUKI agrees to assume the defense
of DEALER and to indemnify, and hold DEALER harmless in any lawsuit naming
DEALER as a defendant and involving any Suzuki Product when the lawsuit
involves allegation of:
(a) Breach of Suzuki warranty, or bodily injury or property damage
arising out of any occurrence allegedly caused solely by a defect in design,
manufacture or assembly of a Suzuki Product (except for tires), provided that
the defect could not reasonably have been discovered by DEALER during the
required pre-delivery service of the Suzuki Product.
Provided:
(b) The DEALER delivers to SUZUKI, within ten (10) days of the
service of any summons or complaint, copies of such documents, and requests
in writing a defense and/or indemnification;
(c) That the complaint does not involve allegations of DEALER
misconduct, including but not limited to, improper or unsatisfactory service
or repair, misrepresentation, or any claim of DEALER's unfair or deceptive
trade practice;
(d) That the Suzuki Product which is the subject of the lawsuit was
not altered by or for DEALER;
(e) The DEALER agrees to cooperate fully in the defense of such
action as SUZUKI may reasonably require; and
(f) The DEALER agrees that SUZUKI may offset any recovery on DEALER's
behalf against any indemnification that may be required hereunder.
12.02 Indemnification by DEALER. DEALER agrees to assume the defense
of SUZUKI and to indemnify and hold it harmless in any lawsuit naming SUZUKI
as a defendant when the lawsuit involves allegations of:
(a) DEALER's alleged failure to comply, in whole or in part, with any
obligation assumed by DEALER pursuant to this Agreement;
(b) DEALER's alleged negligent or improper repair or servicing of a
new or used Suzuki Vehicle or equipment, or such other motor vehicles or
equipment as may be sold or serviced by DEALER;
(c) DEALER's alleged breach of any contract or warranty other than
that provided by SUZUKI;
(d) DEALER's alleged misleading statements, misrepresentations, or
deceptive or unfair trade practices; and
(e) Any modification or alteration made by or on behalf of DEALER to
Suzuki Product, except those made pursuant to the express instruction or with
the express approval of SUZUKI.
Provided:
(f) That SUZUKI delivered to DEALER, within ten (10) days of the
proper service of any summons or complaint, copies of such documents, and
requests in writing a defense and/or indemnification;
(g) That SUZUKI agrees to cooperate fully in the defense of such
action as DEALER may reasonably require; and
(h) That the complaint does not involve allegations of liability
premised upon separate SUZUKI conduct or omissions.
13.00 MISCELLANEOUS PROVISIONS
13.01 Insurance. DEALER shall maintain at its own expense adequate
insurance against all types of risk and liability, including without
limitation, personal liability insurance. Such insurance shall be with an
accredited and reputable company. DEALER shall annually furnish SUZUKI with
certification for such insurance with evidence showing that premiums have
been paid in full.
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13.02 Expenses. Except as set forth herein, SUZUKI shall not be under
any liability whatsoever for any expenditure made or expense incurred by
DEALER with respect to DEALER;s performance of its obligations pursuant to
this Agreement.
13.03 Taxes. DEALER agrees that it shall be responsible for and shall
pay any and all sales taxes, use taxes, excise taxes, and other governmental
charges whenever imposed, levied or based upon the sale of Suzuki Products by
SUZUKI to DEALER and DEALER shall keep accurate and current records of the
foregoing for reporting purposes.
13.04 Set off. In addition to any other specific rights of set off
otherwise provided in documents affecting DEALER and SUZUKI, SUZUKI shall
have the right to set off any sums or accounts due or to become due from
DEALER to SUZUKI against any sums or accounts due or to become due from
SUZUKI to DEALER.
13.05 No Assignment. This Agreement, based on mutual trust between
DEALER and SUZUKI, may not be assigned or transferred by DEALER without the
prior written consent of SUZUKI. Any purported assignment without the prior
written consent of SUZUKI is null and void.
13.06 Waiver. The waiver by either party of any breach or violation or
any provision of this Agreement shall not be deemed to be a waiver by that
party of any subsequent breach or violation of any other provisions herein.
13.07 Notice. Whenever a notice, demand or other document is required
or permitted to be given by the terms of the Agreement, or any document
incorporated by reference, it shall be deemed sufficiently given if delivered
personally or by prepaid ordinary mail at the addresses set forth for SUZUKI
and DEALER on page one (1) of this Agreement. The addresses set forth may be
changed from time to time by notice in writing. Any notice or other
document, if sent by mail, shall be deemed to have been given to, and
received by the party to whom it was sent as of the date of mailing.
13.08 Survival. The obligations of DEALER upon termination as set
forth in Section 11.00 of this Agreement shall survive the termination of
this Agreement. Any termination of this Agreement shall be without prejudice
to rights accruing hereunder, provided however, that DEALER agrees that
SUZUKI shall not be reason of any termination, be liable to DEALER for any
compensation, reimbursement, damages or expenses arising from such
termination.
13.09 Modification. Any modification or amendment to this Agreement,
other than by amendments to the Facility Standards Addendum, the dealer
Minimum Standards Addendum and Dealer Updates and transactions under which
credit is extended by SUZUKI to DEALER, must be executed in the same manner
as the Agreement itself.
13.10 Arbitration. All disputes between the parties arising out of or
in any way related to this Agreement or the business relationship between the
parties shall be subject to and resolved by binding arbitration according to
the rules and under the administration of the American Arbitration
Association. The site of the arbitration shall be in any federal judicial
district where venue would be appropriate under federal law, without regard
to the amount allegedly in controversy.
The law of the State of California shall apply; however, the arbitrator
shall not have the power to award exemplary or punitive damages. Nothing in
this Agreement to arbitrate shall be construed to prevent either party's use
of a court forum for receivership, injunction, repossession, replevin,
sequestration, seizure, attachment or other provisional remedies allowed in
law or equity. Any award shall be enforceable in any state or federal court
having jurisdiction thereof.
13.11 Partial Invalidity. If any provision of this Agreement is
invalid under or in conflict with the laws of any jurisdiction where this
Agreement is to be performed, such provision shall be deemed to be deleted
and the remaining provisions of this Agreement shall remain valid and binding.
13.12 Attorneys' Fees. If SUZUKI is required to retain an attorney to
enforce its rights under the terms of this Agreement SUZUKI shall be entitled
to reasonable attorneys' fees.
13.13 Jurisdiction. This Agreement is entered into in Brea,
California. Therefore it shall be construed according to the laws of the
State of California and shall be treated in all respects as a California
contract. The parties hereby accept and accede to the jurisdiction and venue
of the federal and state courts in and for Orange County, California to
resolve any and all disputes arising under this Agreement not subject to the
arbitration clause set forth in subsection 13.10.
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13.14 Only Agreement. This Agreement when executed by SUZUKI and
DEALER shall supersede and cancel all other agreement at that time existing
between SUZUKI and DEALER with respect to Suzuki Products.
13.15 Entire Agreement. This Agreement as it may be amended by
Updates, etc. constitutes the entire agreement between the parties relating
to the matters set forth and there is no understanding between the parties,
either oral or written, which is in conflict with this Agreement.
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