SB1417ham001 96TH GENERAL ASSEMBLY

Judiciary I - Civil Law Committee

Filed: 4/29/2009

09600SB1417ham001 LRB096 07805 KTG 25757 a

AMENDMENT TO SENATE BILL 1417

AMENDMENT NO. ______. Amend Senate Bill 1417 as follows:

on page 1, line 5, after "and 9", by inserting "and by adding Section 9.5"; and

on page 14, line 8, after "thereof;", by inserting the following:

"provided, however, that, in light of all existing circumstances, (i) the motor vehicle dealer maintains a reasonable line of credit for each make or line of new motor vehicle, (ii) the new motor vehicle dealer remains in compliance with any reasonable facilities requirements of the manufacturer, (iii) no change is made in the principal management of the new motor vehicle dealer, and (iv) the addition of the make or line of new motor vehicles would be reasonable. The reasonable facilities requirement set forth in item (ii) of subsection (d)(8) shall not include any requirement that a franchisee establish or maintain exclusive facilities, personnel, or display space. Any decision by a motor vehicle dealer to sell additional makes or lines at the motor vehicle dealer's facility shall be presumed to be reasonable, and the manufacturer shall have the burden to overcome that presumption. A motor vehicle dealer must provide a written notification of its intent to add a make or line of new motor vehicles to the manufacturer. If the manufacturer does not respond to the motor vehicle dealer, in writing, objecting to the addition of the make or line within 60 days after the date that the motor vehicle dealer sends the written notification, then the manufacturer shall be deemed to have approved the addition of the make or line;"; and

on page 32 by replacing lines 19 through 20 with "18 months after the date the claim was paid or credit issued by the manufacturer or franchiser of the transactions that are subject to audit by the franchiser."; and

on page 40, by replacing lines 13 through 16 with the following:

"(2) The franchisee's cost of each new undamaged and unsold current and prior year motor vehicles that were acquired within 12 months of termination and have 500 or fewer miles recorded on the odometer that are in the franchisee's inventory at the time of nonrenewal, termination, or restriction and that were purchased or acquired from the manufacturer or from another dealer of the same line make in the ordinary course of business."; and

on page 41, line 10, by replacing "at the request" with "as a requirement"; and

on page 41, by inserting immediately below line 25 the following:

"This subsection (b) shall not apply to a non-renewal or termination that is implemented as a result of a sale of the assets or stock of the franchise."; and

on page 42, by replacing lines 2 through 4 with the following: "terminated or nonrenewed. The payments under items (b)(2) through (b)(6) are"; and

on page 42, by replacing lines 13 through 18 with the following: "subsection (c), and the Board or, if agreed to under Section 12, the arbitrator, finds the manufacturer, distributor, or wholesaler in violation of this subsection, then the manufacturer, distributor, or wholesaler shall, in addition to any other amounts due, pay the motor vehicle dealer:

(1) interest on the amount due at a rate reasonable in light of commercial practices, determined by the Board or arbitrator; and

(2) reasonable attorney's fees and costs."; and

on page 42, after line 20, by inserting the following:

"(815 ILCS 710/9.5 new)

Sec. 9.5. Termination with good cause.

(a) Anything to the contrary notwithstanding, if a manufacturer, wholesaler, distributor, or franchiser, with good cause, (i) fails to renew a franchise on terms then equally available to all of its motor vehicle dealers, (ii) terminates a franchise, or (iii) restricts the transfer of a franchise, the manufacturer, wholesaler, distributor or franchiser shall pay to the franchisee all of the following, including, but not limited to:

(1) Upon termination, cancellation, or nonrenewal of a line make or upon termination, cancellation, or nonrenewal due to a dealer's poor sales and service performance pursuant to notice provided under Section 4(d)(6) , an amount equal to the current, fair rental value of the portion of the motor vehicle dealer's established place of business that is used for motor vehicle sales and service with the manufacturer, wholesaler, distributor or franchiser for a period of one year beginning on the date of the nonrenewal, termination, or restriction on the transfer of the franchise.

(2) The franchisee's cost of each new undamaged and unsold current and prior model year motor vehicles that were acquired within 12 months of termination and have 500 or fewer miles recorded on the odometer in the franchisee's inventory at the time of nonrenewal, termination, or restriction and that were purchased or acquired from the manufacturer or from another motor vehicle dealer of the same line make in the ordinary course of business.

(3) The franchisee's cost of each new, unused, undamaged, and unsold part or accessory that is in the current parts catalogue or is identical to a part or accessory in the current parts catalogue except for a number assigned to the part or accessory due to a change in the number after the purchase of the part or accessory and that is still in the original, resalable merchandising package and in an unbroken lot, except that, in the case of sheet metal, a comparable substitute for the original package may be used if the part or accessory was purchased (i) directly from the manufacturer, distributor, wholesaler, distributor branch or division, or officer, agent, or other representative thereof or (ii) from an outgoing authorized dealer as a part of the dealer's initial inventory.

(4) The fair market value of each undamaged sign owned by the dealer that bears a trademark or trade name used or claimed by the manufacturer, distributor, wholesaler, distributor branch, or division, or officer, agent, or other representative thereof that was purchased as a requirement of the manufacturer, distributor, wholesaler, distributor branch, or division, or officer, agent, or other representative thereof.

(5) The fair market value of all special tools, data processing equipment, and automotive service equipment owned by the dealer that (i) were recommended in writing and designated as special tools and equipment, (ii) were purchased at the request of the manufacturer, distributor, wholesaler, distributor branch or division, or officer, agent, or other representative thereof, and (iii) are in usable and good condition except for reasonable wear and tear.

(b) The payment under item (a)(1) is due in 12 equal, monthly installments, beginning 30 days after the franchise is terminated or nonrenewed. The payments under items (a)(2) through (a)(5) are due no later than 90 days after the franchise is terminated or nonrenewed. As a condition of payment under items (a)(2) through (a)(5) the motor vehicle dealer must comply with all reasonable requirements provided by the manufacturer, distributor, or wholesaler regarding the return of inventory.

If a manufacturer, distributor, or wholesaler does not reimburse the motor vehicle dealer for the amounts required under items (a)(2) through (a)(6) by the deadlines under this subsection (b), then the manufacturer, distributor, or wholesaler shall, in addition to any amounts due, pay the motor vehicle dealer:

(1) interest on the amount due at a rate reasonable in light of commercial practices, determined by the Board or arbitrator; and

(2)reasonable attorney's fees and costs.

(c) This Section does not apply to a termination or nonrenewal that is implemented as a result of the sale of the assets or stock of the franchise.".