Full opinion text
ORDER DENYING PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION, DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT, AND GRANTING PARTIAL SUMMARY JUDGEMENT TO THE DEFENDANT McMAHON, District Judge. Underlying this application for a preliminary injunction is a dispute between Subaru Distributors Corporation (“SDC”) and Subaru of America, Inc. (“SOA”) over cer--tain terms of the parties’ Distributor Agreement (the “DA” or “Agreement”), entered into in January 1975. SDC is the exclusive wholesale distributor of Subaru vehicles for New York and northern New Jersey. SOA is the exclusive United States importer and national distributor of Subaru vehicles. SDC believes that SOA is about to terminate its distributorship. It therefore asks this Court to intervene. The matter comes before the Court in an unusual posture. Ordinarily, an automobile franchisee comes to court after receiving a notice of termination (which, under New York’s Franchised Motor Vehicle Dealer Act, N.Y. Veh. & Traf. Law § 463(d)(1), must provide the franchisee with 90 days notice). The franchisee seeks a declaration that the noticed termination is wrongful and an injunction preventing the franchisor from exercising its power to terminate on the basis asserted. The court decides whether the termination is consonant with the parties’ contractual rights. If it is, the application for a preliminary injunction is denied; if not, the application is granted. Here, there has been no notice of termination. Instead, SOA, the franchisor, has repeatedly threatened to terminate the franchise of SDC, one of its distributors. Under the DA, every time SDC orders its monthly quota of cars from SOA, it is required to post a domestic irrevocable letter of credit (“LC”) on terms “acceptable to [SOA].” (DA, Section 7(3).) In recent months, SOA has demanded that, to be “acceptable,” SDC’s letters of credit must: (1) expressly permit SOA to make partial draw downs based on partial shipments of SDC’s total order; (2) be payable to SOA upon issuance in an amount sufficient to cover the full cost of the cars ordered; (3) expire no sooner than the end of the fourth month after the month in which the relevant purchase order was submitted; (4) be transferable; (5) contain no term that assesses transfer charges to SOA; (6) contain no language that prevents draw down unless SOA delivers precisely the models and colors of cars ordered by SDC or that requires SDC’s inspection of the vehicles as a condition precedent to draw down; (7) be payable on presentation of documents to SDC’s bank, without delivery of documents to SDC or approval of draw downs by SDC; and (8) be issued by a bank acceptable to SOA (such as The Chase Manhattan Bank, which for some years has provided SDC with its financing). See July 28, 1998 Letter of Lewis A. Noonberg to Dale A. Schreiber, as amended (the “Noonberg Letter”), attached as Exh. 10 to Plaintiffs Memorandum in Support of Its Application For A Temporary Restraining Order, Preliminary Injunction and Partial Summary Judgment (“Pl.’s Br.”). SDC comes before this Court seeking an injunction that would require SOA to accept a letter of credit from SDC in a form acceptable to SDC. Such a letter of credit, needless to say, differs radically from the form of a letter of credit acceptable to SOA. Most significantly, SDC wants SOA to accept a letter of credit with terms: (1) ensuring that SDC has the right to inspect delivered vehicles prior to any draw down on the letters of credit, to verify that deliveries match the model codes and colors of cars ordered by SDC; (2) requiring SOA, before draw down, to deliver a written notice to SDC stating the vehicle identification number (VIN) or vehicle order number (VON) for each vehicle ordered and a commercial invoice identifying each vehicle by model code, color and price; (3) requiring SOA to present to SDC’s bank, as draw down documents, vehicle title certificates, a bill of sale conveying title to each vehicle and commercial invoices identifying all vehicles by model code, color and price; (4) prohibiting the draw down of any letter of credit until the first day of the second month following its posting (i.e., if the letter of credit is posted in January, it cannot be drawn down until March 1) and providing that each letter of credit will automatically expire at the end of the second month following its posting (i.e., if posted in January, then expiring at the end of the day on March 31); and (5) allowing SDC to charge SOA for any costs SDC incurs if SOA transfers its rights as beneficiary under a letter of credit. In the alternative, SDC asserts that SOA should be enjoined from insisting on the LC terms proposed in the Noonberg Letter, and from terminating SDC’s franchise if it refuses to include such terms in the letters of credit it posts, because SOA’s proposed terms conflict with the requirements of the DA. The parties are also fighting about most of the other aspects of their mutually profitable but always acrimonious relationship. As long as it is here, SDC also asks the Court to enjoin SOA from doing a number of other things, including: (1) compelling SDC to accept delivery of, or pay for, any vehicle that does not conform to SDC’s accepted monthly quota purchase order; (2) demanding that SDC submit its next purchase order before the oldest outstanding letter of credit in favor of SOA has either been completely drawn down or has expired by its terms; (3) refusing to accept or reject an SDC purchase order later than four days before the date on which SDC must submit its next quota purchase order; and (4) demanding that SDC order any cars under its annual quota during the months of October, November and December each year, or prior to the later of January 7 of the following year or the date upon which any quota for the subsequent calendar year has been determined. SDC also prays for an injunction that would prevent SOA from actually terminating SDC’s exclusive distributorship based on SDC’s failure to comply with any of the above letter of credit or other demands. Finally, SDC seeks partial summary judgment declaring that it is not required to order vehicles during the fourth quarter of each calendar year. What has happened here is quite clear. After dealing with each other for 24 years, under a contract that provides for an exclusive franchise in perpetuity, SDC and SOA are at loggerheads over almost every aspect of their relationship. The DA— which both sides agree was inartfully drawn many years ago in contemplation of a much simpler commercial relationship— has very little to do with how the parties have done business for the better part of two decades. However, as relations have deteriorated, SDC has begun to insist that the parties conduct their affairs by the letter of the DA (and, perhaps, by some letters that do not actually appear in the DA). This has led SOA to advance its own, utterly inconsistent reading of the relevant provisions of the DA — many of which the parties prudently jettisoned fifteen or twenty years ago. The result is predictable: in a situation where a mutually rewarding commercial relationship demands a certain amount of “wiggle room,” the parties have come to this Court and in effect asked that I explain to them the legal parameters of their relationship. Both sides have been warned that this course might well eliminate the “wiggle room” that has allowed them to deal with each other for the past two decades against the backdrop of an admittedly inadequate and out-of-date contract. Regrettably, neither side has blinked. Therefore, it appears that I must rule on SDC’s application for a preliminary injunction. Background 1. The DA SOA, a New Jersey corporation, is a wholly-owned subsidiary of Fuji Heavy Industries Ltd. of Japan, the manufacturer of Subaru automotive products. SOA is the exclusive United States importer and national distributor for Subaru. For many years, it conducted its affairs by maintaining franchise agreements with a group of thirteen regionally-based distributors. These agreements offered each regional distributor an exclusive franchise in perpetuity, assuming the franchisee complied with the terms of its Distributor Agreement. At present, there are only two remaining regional distributorships, SOA having taken over the rest. In January 1975, SOA awarded one of its regional distributorships to Plaintiff SDC, a New York corporation with its principal place of business in Orangeburg, New York. SDC sells Subaru vehicles through a network of 65 authorized retail dealers located throughout the New York and northern New Jersey region. The DA is the contract between SOA and SDC pursuant to which SDC was licensed to sell Subaru vehicles. It contains the following key terms: a) The Agreement runs from year to year and is áutomatically renewed, subject to termination by SOA only for “cause.” (DA, Article 12(1).) b) In each contract year, SDC is required to purchase a minimum number of cars (the “quota”). (DA, Article 7(3).) Exhibit B to the DA, as amended from time to time, sets forth the quota of cars for each year. Each succeeding year’s quota is to be negotiated three months prior to the end of the then current calendar year; absent a negotiated agreement, the quota automatically increases by fifteen percent over the prior year’s number. (DA, Exh. B.) Over time, and despite the fact that there have been years when no quota was set or enforced, the number of vehicles SDC is required to purchase under the quota has grown from 1,800 to almost 16,000 per year. (See DA, Exh. B; see also Transcript of Oral Argument (“Tr.”), March 11,1999, at 2.) c) Each quota order placed by SDC must be accompanied by a domestic irrevocable letter of credit “acceptable to [SOA], in favor of [SOA].” (DA, Article 7(3).) d) A bare-bones ordering procedure is specified in the contract. (DA, Article 7(3).) Simultaneous with the execution of the DA, SDC placed an order for % of the first year’s quota of cars — with % of that order being due for delivery in each of the first three months of the initial contract year. (See Affidavit of Robert T. Butler, attached to Pl.’s Br., at ¶ 20.) The DA provides that, thereafter, “within seven days after each letter of credit becomes an acceptance [SDC] shall order for the next month of the contract year an additional of the annual minimum requirement as set forth in Exhibit ‘B’ hereof. This order shall be accompanied by a domestic, irrevocable letter of credit in favor of [SOA], This procedure shall continue throughout the contract year.” (DA, Article 7(3).) e) SOA retains the right to accept or reject SDC’s orders, in whole or in part. Acceptances are valid only if made in writing to SDC. However, SDC is bound by its order unless it is rejected in writing, or until an order is only partially accepted — in which case, the rest of the order is no longer binding on SDC. (DA, Article 9(2).) f) Delivery of the cars is to be made at a U.S. port of call chosen by SDC (currently the Port of Boston). (DA, Article 9(6), as amended.) g) Title to the cars initially passed from SOA to SDC when the cars were invoiced; in 1981, the DA was amended to provide that title passed upon invoicing and payment. (DA, Article 9(5), as amended by Letter from Robert T. Butler and Robert L. Reich, dated September 18, 1981 (“1981 Letter Agreement”), attached as Exh. 22 to Pl.’s Br.). Regardless of who held title, SOA retained the risk of loss during transit. (DA, Article 9(7).) h) SDC retains the right to place additional orders over and above the quota, and SOA has the right to accept or reject such orders. (DA, Article 9(4).) Pursuant to the choice of law clause in Article 15(12), the DA is governed by the law of Pennsylvania. Like New York, Pennsylvania has adopted the Uniform Commercial Code (the “UCC”). Where appropriate, I shall invoke its terms to give meaning to particular provisions of the DA. 2. Early Dealings Between the Parties Adherence to the literal terms of the DA stopped early on in the parties’ relationship, particularly with regard to the terms of payment. In the first few years of their arrangement, SDC accompanied each of its monthly purchase orders with a documentary letter of credit, upon which SOA drew to receive payment for the vehicles delivered. (See Declaration of Joseph T. Scharff (“Scharff Deck”), attached to Defendant’s Memorandum in Opposition To Plaintiffs Application For A Temporary Restraining Order, Preliminary Injunction and Partial Summary Judgment (“Def.’s Br.”), at ¶ 4.) This system worked relatively well as long as SOA was delivering cars to SDC once a month in lots that closely matched a single purchase order. However, by 1977, as the pace of sales to SDC increased, the documentary LC system proved to be administratively unwieldy. See Scharff Deck, at ¶ 4. All the cars in a purchase order could no longer be delivered in a single lot. This meant that SOA was making multiple drawdowns on the documentary letters of credit, which increased its transaction costs. After several years of negotiations, SOA and SDC agreed in 1981 to modify their procedure for payment. Instead of using documentary LCs as the medium of payment, SDC paid cash for the vehicles. As security, SDC posted three standby letters of credit with extended expiry dates covering, in total, three months worth of purchases. To conform to the new payment system, the parties amended the DA to provide that title to the cars would pass upon payment, not simply upon tender of an invoice. (See 1981 Letter Agreement, attached as Exh. 22 to Pl.’s Br.) In 1990, there was a further modification to the payment system. To keep fees and capital requirements down, SOA and SDC arranged that the three LCs posted by SDC would be documentary, rather than standby, letters of credit, however SDC would continue to pay for the cars in cash. A few times per year, SDC and its (then) bank would arrange for SOA to “draw down” on the letters of credit, in order to satisfy bank regulators that the letters were in fact documentary LCs. After draw down, an LC would then be reinstated in its full amount. Thus, the parties arranged a system whereby documentary letters of credit were made to function as standby letters of credit. They have operated under that system ever since. There were other discrepancies between the literal terms of the DA and the parties’ business routine as well. As a matter of practice, SDC has routinely placed an order for % of its annual quota by the seventh day of each month, rather than seven days after anything relating to its letters of credit. Additionally, while the DA prescribes a simple purchase order submission and acceptance process, the parties have engaged, as a matter of course, in various stages of “dickering” over what vehicles were going to be delivered under each purchase order, treating SDC’s initial purchase order as a “wish list” that was modified via negotiation so SOA could fairly allocate its most (and least) desirable models and features to dealers throughout the country. (See, e.g., Declaration of Gerald Lee (“Lee Deck”), attached to Def.’s Br., at ¶ 11; Tr., at 29-30 (argument of Plaintiffs counsel)). There is no allegation in this action that SOA has deprived SDC of the more desirable Subaru cars; to the contrary, SOA and SDC amended the DA in 1990. to permit SDC to purchase the popular Legacy vehicles manufactured by Subaru Isuzu Automotive, Inc. (“SIA”) in Indiana. (See Memorandum of Understanding, dated September 14, 1990 (“MU”), attached as Exh. 55 to Pl.’s Br.) 3. Disputes Over the Payment System The parties have put radically different spins on how their dispute over the terms of payment came into being and grew into the all but impossible situation facing them today. From SDC’s vantage point, SOA has been trying for many years to force it into default so its exclusive franchise could be terminated; to support its assertion, SDC points, not unpersuasively, to the fact that numerous other SOA distributors have been terminated over the last fifteen years. As far as SOA is concerned, SDC is biting the hand that fed it during the decade when Subaru sales were down and SDC likely would have gone under without relief from its quota obligation. Whatever the truth of the matter, one thing is clear: in the mid-1990s, after a serious downturn in the market for Subaru vehicles, there was a turnaround. SDC, which had operated without a quota (or without the quota being enforced) during the lean years, began ordering significantly more cars. This, of course, dramatically changed the economics of paying in cash while posting letters of credit as security. In 1996, SDC objected to the fact that the cash payment/pseudo-standby LC system the parties were operating under was causing it financial hardship, and SDC indicated that it intended to revert to the payment system written into the contract — i.e., use of documentary letters of credit to pay for vehicles ordered. It sent a proposed form of documentary letter of credit for SOA’s consideration in June 1996. The parties negotiated for almost two years without coming to any agreement about how to do business in the future. SDC insisted that the parties follow the precise (or, more accurately, the not-so-precise) terms of the DA; SOA argued that it was not obligated to accept documentary letters of credit as payment in light of over one and a half decades of contrary practice. Finally, SOA served a letter on SDC (the Noonberg Letter, attached as Exh. 92 to Pl.’s Br.), in which it agreed to accept payment by documentary letter of credit, but set forth terms for an “acceptable” letter of credit that were— predictably — unacceptable to SDC. SOA announced that, effective November 1, 1998, it would enforce its demand that SDC provide such a letter of credit with each new order if it chose not to pay for cars in cash. SDC brought this action, and negotiations continued. 4. The Instant Action SDC filed its Complaint in this action on August 5, 1998, seeking “to resolve disputes between the parties arising under SDC’s distributorship agreement....” SDC brought claims for breach of contract and for violations of the New York Franchised Motor Vehicle Dealer Act, N.Y. Veh. & Traf. Law, § 461 et seq. (the “New York Dealer Act” or “Dealer Act”), and the Federal Automobile Dealers’ Day in Court Act, 15 U.S.C. § 1221 et seq. (the “Federal Dealer Act”). In the Complaint, SDC alleged that SOA — through repeated demands that SDC sign amendments to the DA — has attempted to deprive SDC of its rights and benefits under provisions of the DA concerning such things as vehicle ordering and delivery, posting of letters of credit, and negotiation of SDC’s annual quota. SDC also claimed that SOA intends to use its demands in the Noonberg Letter as a pretext to terminate the DA upon SDC’s failure to comply. Furthermore, SDC contends that SOA’s implicit threats of termination violate both the New York Dealer Act and the Federal Dealer Act, in that they constitute coercion and failure to act in good faith as defined by those Acts. SDC seeks declaratory, injunctive and other relief against SOA. When an additional six months of negotiations over acceptable terms of a documentary letter of credit proved unavailing, SDC brought on a motion for a preliminary injunction by order to show cause, At the time the motion was brought, SDC represented to the Court that its current bank, The Chase Manhattan Bank, had concerns over increasing SDC’s line of credit in order to issue a letter of credit in the form demanded by SOA, but would do so pending a court test of the legality of SOA’s demands. When faced with the inevitable argument that SDC would suffer no. irreparable injury in light of Chase’s willingness to continue financing SDC, the Bank changed its tune, at least to the extent of saying that: (1) Implementation of SOA’s demands would “necessitate a substantial review of SDC’s credit facility by Chase ... [and][t]his review would create uncertainty concerning the willingness of Chase to continue to provide SDC with its required credit facility.” (Affidavit of Peter M. Killea (“Killea Aff.”), attached, in support of Plaintiffs Reply Memorandum In Support of Its Application For A Temporary Restraining Order, Preliminary Injunction and Partial Summary Judgment, at ¶ 21.); (2) “Chase has not committed or given any assurance that it will increase [SDC’s] credit limit.” (Killea Aff. at ¶ 22.); (3) “[I]mplementation of SOA’s ... demands — or a further deterioration of SDC’s relationship with SOA — could cause Chase to refuse to provide letters of credit to SDC.” (Killea Aff. at ¶ 23.); and (4) “[I]f SOA were to send [a termination notice], Chase would have to consider immediately terminating all extensions of credit to SDC and calling all outstanding debt....” (Kil-lea Aff., at ¶ 24.) As SDC’s counsel summed it up at oral argument, Chase is “taking it day by day.” (Tr., at 52.) SOA stands ready to terminate SDC’s distributorship the first time a month passes without SDC ordering its quota of vehicles supported by a letter of credit “acceptable to SOA.” And so we find ourselves here. Standard for Injunctive Relief 1. Likelihood of Success on the Merits The standard in this Circuit for securing preliminary injunctive relief is well established. The movant carries the heavy burden of showing (1) irreparable harm and (2) either (a) likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant’s favor. See, e.g., Genesee Brewing Co. v. Stroh Brewing Co., 124 F.3d 137, 142 (2d Cir.1997); Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 33 (2d Cir.1995); Jackson Dairy, Inc. v. H.P. Hood & Sons, 596 F.2d 70, 72 (2d Cir.1979) (per curiam). The award of a preliminary injunction is an extraordinary and drastic remedy that will not be granted absent a clear showing that the plaintiff has met its burden of proof. Beech-Nut, Inc. v. Warner-Lambert Co., 480 F.2d 801, 803 (2d Cir.1973); Kraft General Foods, Inc. v. Allied Old English, Inc., 831 F.Supp. 123, 127 (S.D.N.Y.1993). Furthermore, when the preliminary injunctive relief sought is deemed mandatory, rather than prohibitory, the Second Circuit has prescribed an even higher standard. See Tom Doherty Assocs., 60 F.3d at 33-34. To obtain mandatory injunctive relief, the plaintiff must show a clear and substantial likelihood of success on the merits. See Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir.1996) (emphasis added); see also American Society of Composers, Authors, and Publishers v. Pataki, No. 95 Civ. 9895(BSJ), 1997 WL 438849, at *3 (S.D.N.Y. Feb.27, 1997). “[A] mandatory injunction should issue only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief.” Tom Doherty Assocs., 60 F.3d at 34 (quoting Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir.1985), rev’d on other grounds). 2. Irreparable Harm In addition to the “likelihood of success” requirement, an applicant for a preliminary injunction must demonstrate that it will suffer irreparable harm in the absence of the relief sought. The threat of irreparable harm is a sine qua non for the granting of preliminary injunctive relief, see Buffalo Forge Co. v. Ampco-Pitts burgh Corp., 638 F.2d 568, 569 (2d Cir.1981); “if there is no irreparable injury, there can be no preliminary injunction.” Markowitz Jewelry Co. v. Chapal/Zenray, Inc., 988 F.Supp. 404, 406 (S.D.N.Y.1997). In order to establish irreparable harm, the plaintiff must demonstrate “an injury that is neither remote nor speculative, but actual and imminent.” Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir.1989). Additionally, the injury “must be one not capable of being fully remedied by money damages.” NAACP v. Town of East Haven, 70 F.3d 219, 224 (2d Cir.1995) (citing Tucker, 888 F.2d at 975). Conclusions of Law SDC’s Motion for an Injunction Compelling SOA to Accept SDC’s Preferred Form of Letter of Credit is Denied. SDC’s first request is for a mandatory injunction compelling SOA to accept a documentary letter of credit in the form proposed by SDC. SDC is not entitled to such an injunction because it cannot show that it has a clear or substantial likelihood of success on the merits of its claim that it has a contractual right to dictate the letter of credit terms. Furthermore, even if the lower standard for prohibitory injunctive relief were to apply, SDC could not make the threshold likelihood of success showing. The Distributor Agreement is clear about very few things, but with respect to this particular dispute between the parties, it is crystal clear. The Agreement states that SDC’s purchase orders have to be accompanied by irrevocable letters of credit “acceptable to [SOA].” (DA, Article 7(3).) There is no other provision in the DA that discusses or relates to the terms of the letters of credit, and certainly no provision that permits SDC to dictate the terms of its LCs. As long as SOA’s terms are commercially reasonable and consonant with the parties’ rights and duties under the DA, SDC must post a letter of credit as dictated by SOA. SDC has argued, with the support of its banking expert, that the phrase “acceptable to [SOA],” as used in Article 7(3), means merely that SOA has the right to approve the issuing bank from which SDC gets the letter of credit, but not the terms of the letter of credit itself. (See Affidavit of Sandra S. Stern, attached to Pl.’s Br., at ¶¶ 4(c), 22-23.) I find this argument unpersuasive. If that was what the parties had intended, the DA could easily have read “a letter of credit from a bank acceptable to [SOA].” SOA’s expert, Dennis Noah, testified by affidavit that “acceptable to [SOA]” hs used in Article 7(3) “means not only that SOA must be satisfied with the soundness and credit rating of the bank issuing the LC, but also [with] the feasibility and technical competence of the LC.” I find that evidence far more persuasive than the testimony of Ms. Stern. (See Affidavit of Dennis L. Noah (“Noah Ml”), attached to Def.’s Br., at ¶¶ 4(a), 10-15.) As Mr. Noah states, while the soundness of the bank is certainly important to a letter of credit beneficiary, the commercial feasibility and technical competence of a letter of credit—document presentation requirements, expiry dates and the like—are at least as important, because it is those details that determine whether the beneficiary will be able to make a complying presentation and receive payment. (See Noah Aff., at ¶ 10.) Furthermore, I credit Mr. Noah’s statements that LC terms are frequently negotiated and tailored—by beneficiaries and applicants, and by applicants and their banks— to reflect the underlying transaction and to meet the needs of the parties. {See Noah Aff., at ¶¶ 13-14.) Thus, SOA has the right under the DA to have a form of letter of credit which is acceptable to it, as long as that form is commercially reasonable and consistent with the DA. SDC’s Alternative Motion for an Injunction Prohibiting SOA From Requiring Certain Terms in the Letters of Credit is Denied. SDC’s alternative request is that this Court enjoin SOA from requiring that SDC provide a letter of credit in the form SOA has demanded through the Noonberg Letter. SDC asserts that, even if the DA gives SOA the right to have a letter of credit acceptable to it, several of the terms SOA has proposed would violate SDC’s rights under the Distributor Agreement— either expressly or because they are commercially unreasonable. While I have already noted that the DA says nothing about what must appear in the letters of credit, it is possible that SDC could convince a trier of fact that inclusion of certain terms would violate SDC’s contractual rights. The UCC provides for an implied covenant of good faith in the performance or enforcement of all contracts, with “good faith” defined as “honesty in fact in the conduct or transaction concerned.” UCC §§ 1-201(19), 1-203; see also Bank of China v. Chan, 937 F.2d 780, 789 (2d Cir.1991). Furthermore, “the Second Restatement of Contracts provides that good faith performance of a contract 'emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party’ while bad faith ‘may be overt or may consist of inaction .... [T]he following types are among those which have been recognized in judicial decisions: evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party’s performance.’ ” Bank of China, 937 F.2d at 789 (citing Restatement (2d) of Contracts, § 205, comments a, d) (emphasis added). Thus, in spite of its seemingly unfettered discretion under the DA to require an LC acceptable to it, SOA must act in a commercially reasonable manner when it specifies the “acceptable” terms to be included in an LC. A fairly implied limitation on this discretion is that it may not demand terms that contravene the letter of the DA or the intention of the parties at the time they entered into that contract. See, e.g., M/A-COM Security Corp. v. Galesi, 904 F.2d 134, 136 (2d Cir.1990) (“[Cjourts employ the good faith performance doctrine to effectuate the intentions of the parties, or to protect their reasonable expectations.”) (citing Burton, Breach of Contract and the Common Law Duty to Perform in Good Faith, 94 Harv.L.Rev. 369, 371 (1980)). Accordingly, I analyze each term demanded by SOA and challenged by SDC as violative of the DA or commercially unreasonable to see if SDC is likely to prevail on the merits of that claim. With exceptions that I shall note along the way, SDC’s alternative motion is assessed under the standard for prohibitory injunctive relief, and thus SDC must demonstrate a likelihood of success on the merits of its claims that SOA’s proposed terms violate the DA. i. SDC Is Not Entitled to Injunctive Relief With Respect to Its Claim that SOA May Not Draw Down on the LCs Prior to Delivering a Written Notice to SDC Stating the Specific Models and Colors of Vehicles That Have Been Delivered to SDC in the Pori of Boston. (Claim 2(a)(1)(A) of the Order to Show Cause) ii. SDC Is Not Likely To Succeed On Its Claim that SOA May Not Draw Down on the LCs Before SDC Inspects the Vehicles to Determine That They Conform To The Purchase Order (Claim 2(a)(1)(B) of the Order to Show Cause) SDC’s presentation of its arguments in support of these two claims for injunctive relief is unnecessarily complicated. I am, therefore, taking the liberty of restating them. At the heart of SDC’s argument lies its belief that, under the DA, SOA is required to deliver to SDC precisely the vehicles (in terms of model, color, and various features) that are specified in the purchase orders submitted by SDC. SDC further believes that it cannot be required to pay SOA for any ears until it has adequate assurances that SOA is delivering only cars that conform to SDC’s model mix. Everything that SDC seeks to include in or exclude from the LCs that touches on delivery or the timing of payment boils down to a demand that it be allowed to inspect all vehicles tendered for delivery prior to payment, in order to ensure that they conform to its desired model mix. Until one understands that this is SDC’s agenda, its various contentions make little sense; once that becomes clear, everything falls into place. After an exhaustive review of the record, I have reached the following conclusions: First, pursuant to the New York Dealer Act, SDC cannot be compelled to take delivery of vehicles that it did not order and does not want. The New York Dealer Act makes it unlawful “for any franchisor to directly or indirectly coerce or attempt to coerce any franchised motor vehicle dealer: (a) To order or accept delivery of any motor vehicle or vehicles ... which shall not have been voluntarily ordered by the ... dealer.... ” N.Y.Veh. & Traf.Law § 463(l)(a). This Act applies to SOA, as explained in footnote three, above. This does not mean, however, that SDC has a contractual or commercial right either to inspect the vehicles prior to payment or to demand some sort of written notice of a conforming tender as a precondition to payment. In the absence of provisions in the DA that specifically address these issues (and there are none), the Dealer Act and the Uniform Commercial Code govern the parties’ rights and more than adequately protect SDC from having unwanted vehicles forced upon it. They also give SDC adequate protection in the event it pays for vehicles that are rejected upon tender as non-conforming. Therefore, SDC has failed to persuade me that it is likely to succeed on the merits of these portions of its application for an injunction, and has also failed to persuade me that it would be irreparably harmed if no injunction were to issue. Second, SDC is correct that it has the right to dictate the place of delivery of the vehicles. Article 9(6) of the DA explicitly grants SDC the right to choose the port of entry for vehicle deliveries. To the extent that Articles 9(7) and 9(9) of the DA are inconsistent with Article 9(6), the latter controls because it is the provision in the Agreement directed specifically to what port of entry will be used. Articles 9(7) and 9(9) deal, respectively, with the passing of risks and with liability for delivery of damaged products; the language “port of entry designated by [SOA]” contained in each is disregarded in favor of Article 9(6)’s clear statement that “The port of entry shall be Baltimore or any other Port location which is approved in writing by [SDC].” However, that does not mean that SDC is entitled to an injunction that would in effect compel SOA to accept from SDC an LC that contains a term requiring delivery in the Port of Boston. Nowhere in its opposition to SDC’s application for injunc-tive relief has SOA asserted that it intends to make deliveries to SDC at a port other than the Port of Boston, or that it has a right to do so. While the Noonberg Letter implied that SOA might temporarily deliver cars to a port other than the Boston port — while SOA put into effect new business procedures to meet its needs upon return to the use of documentary LCs — SOA has never indicated that it wants to include any reference to the port of entry in an SDC letter of credit. Thus, SDC’s request for an injunction that would bar SOA from getting paid if the vehicles were delivered to the wrong port is neither here nor there. Indeed, this request would be mystifying were it not coupled with SDC’s other applications relating to the overarching issue of who dictates the model mix and what, if anything, the other side can do about it. Turning then to the real issues presented by this part of the motion: SDC asserts, in effect, that a contractually compliant and commercially reasonable letter of credit — even one acceptable to SOA— would have to contain provisions that protect its right to control the model mix in order to prevent SOA from dumping unwanted cars on it. These provisions, in SDC’s view, include one that prohibits drawdown of an LC prior to inspection and acceptance of the cars by SDC and another that prohibits drawdown unless preceded by presentation of a written notice specifying exactly what cars are in the truck or on the boat. Even allowing for the unfortunate deterioration in the parties’ relationship (contributed to in no small measure by the lawyerly hystrionics of Messrs Noonberg and Schreiber), there would appear to be little basis for SDC’s fear that it will be left with only the slow sellers in Subaru’s inventory. As noted above, there is no contention in this suit that SOA has misal-located cars among its various regional distributors to SDC’s detriment. (See Tr., at 55.) However, regardless of the parties’ perceptions and their underlying validity, the bottom line is that this argument is nothing but a convoluted restatement of SDC’s first contention- — namely, that it has the right to dictate what terms should be included in the letters of credit. On that basis alone, this portion of SDC’s application should be denied. Even if I do not view SDC’s application for a “prohibitory” injunction as simply a restatement of its request for a mandatory injunction compelling SOA to accept letters of credit tailored to SDC’s specifications, I would decline to issue any preliminary injunction along the lines requested by SDC in claims 2(a)(1)(A) and (B) of the Order to Show Cause, because SDC is not likely to convince any trier of fact that it is entitled to such relief. SDC believes the inclusion of its requested terms is mandated by the DA and commercial reasonableness because those terms are needed to protect its right not to accept cars it did not order and does not believe it can sell. But that undeniable right does not give rise to an entitlement to the relief SDC seeks. In reaching this conclusion, I look first to the literal terms of the DA itself. Turning at the outset to the “delivery before payment” point, I note that nothing in that contract gives any explicit guidance about whether SOA may demand payment prior to actually tendering the vehicles for delivery: nothing specifically permits it and nothing specifically prohibits it. Similarly, nothing in the DA addresses SDC’s alleged right to inspect tendered vehicles prior to payment, which is the ostensible reason why SDC asserts that such a provision must appear in an LC. Therefore, I must turn to the Uniform Commercial Code for guidance. Under the UCC, unless the parties have explicitly agreed otherwise, a buyer has the right to inspect goods before acceptance of those goods. UCC § 2-606(1) states: “Acceptance of goods occurs when the buyer (a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their non-conformity....” Thus, under the UCC, it would appear that SOA can load up a boat in Japan or a truck in Indiana with whatever Subaru vehicles constitute a fair and commercially reasonable allocation to SDC—even if that allocation does not conform precisely to SDC’s purchase order—and can tender delivery of those cars to SDC. When the cars arrive at the Port of Boston, SDC has the right to inspect them, and either to accept each ear or to reject it. If SOA delivers non-conforming vehicles, SDC, as provided in the Dealer Act, can reject those vehicles. In that case, they go back onto the boat or the truck—and back to SOA, which took the risk of sending them in the first place. There is nothing illegal about such an arrangement; New York’s Dealer Act does not forbid SOA from bargaining with SDC—even if it is hard bargaining—over what cars SDC will take. Such bargaining is quite commonplace, and does not amount to “coercion” under the Act. See, e.g., General Motors Corp. v. MAC Co., 247 F.Supp. 723 (D.Colo.1965) (stating that hard bargaining by manufacturer in franchise negotiation does not of itself subject manufacturer to liability, nor is manufacturer prohibited from enforcing just and reasonable contract provisions even though they may appear burdensome to dealers). Moreover, nothing in the DA prohibits it— including the express provisions concerning SOA’s right to accept or reject particular SDC purchase orders and to sell cars on such terms as SDC establishes. (See DA, Arts. 9(1) and (2).) Indeed, one might hope that the parties’ past course of dealing—negotiating, dickering and reasonably accommodating each other—would continue into the future without direction from a court of law. Thus, • SDC does indeed have a legal right to inspect the cars tendered by SOA, and a concomitant right to reject nonconforming ones. But that does not necessarily mean that it is entitled to inspection (and, hence, in its view, to delivery) prior to payment. While SDC argues that if SOA takes payment by drawdown of the LCs before it delivers the vehicles to SDC, then SDC’s right to inspect and to reject non-conforming vehicles would be vitiated, its reasoning is fallacious. SDC argues that UCC § 2-507 prohibits SOA from taking payment prior to tender of the vehicles to SDC. Section 2-507(1) states: “Tender of delivery is a condition to the buyer’s duty to accept the goods and, unless otherwise agreed, to his duty to pay for them. Tender entitles the seller to acceptance of the goods and to payment according to the contract.” (emphasis added.) Ergo, unless the parties have come to some different agreement about the time of payment, payment is not due until delivery has been tendered. However, contrary to SDC’s assertions in its long and convoluted letter brief faxed to the Court one week after oral argument, this is an “unless otherwise agreed” case. The DA, to whose literal terms SDC wishes to revert, provides for payment by draw down of documentary letters of credit, but gives SOA the rights to set the terms of those letters of credit. SOA has proposed terms that will allow it, if it chooses, to present certain documents to the issuing bank at any time during shipment and to receive payment. Since there is nothing in the DA that would constrain SOA from setting such terms, it appears to this Court that, by providing that payment will be effected through documentary letters of credit acceptable to SOA, the parties have “otherwise agreed” that SOA can call the tune — again, provided its choice of terms is commercially reasonable. There can be no doubt that payment before tender is commercially reasonable. Official Comment Two to UCC § 2-507 states that “[t]he ‘unless otherwise agreed’ provision ... is directed primarily to cases in which payment in advance has been promised or a letter of credit term has been included.” (emphasis added.) In other words, where a letter of credit is being used for payment, the UCC anticipates that the terms of the letter of credit will control the time of payment. Moreover, the UCC affords SDC adequate rights and remedies in the event it decides not to accept cars for which it has already paid. UCC § 2-512(2) provides that where a contract term — in this case, a term of a letter of credit acceptable to SOA — requires payment before inspection, “[p]ayment ... does not constitute an acceptance of goods or impair the buyer’s right to inspect or any of his remedies.” And section 2-711(1) states that “[w]here the seller fails to make delivery ... or the buy rightfully rejects ... any goods involved, ... the buyer may ... recover[ ] so much of the price as has been paid.... ” Thus, SDC has an action at law to recover the price of any rightfully rejected vehicle. Yet another provision of the UCC undercuts SDC’s argument that its right to inspect and reject non-conforming vehicles will be vitiated unless inspection precedes payment. . UCC § 2-513(3) states, in pertinent part, that “[ujnless otherwise agreed ... the buyer is not entitled to inspect the goods before payment of the price when the contract provides ... (b) for payment against documents of title.... ” This is exactly what a documentary credit is — a method of receiving payment upon presentation of documents rather than presentation of the goods. Thus, under the governing law, and where the contract is otherwise silent (as the DA is), it is presumed that payment is not contingent on the buyer’s right to inspect when payment is made by way of a draw down on a letter of credit. The reason is obvious — no bank wants to become embroiled in a dispute over whether a particular car conforms or does not conform to SOA/SDC’s underlying contract obligations. SDC cannot have it both ways: if it compels a return to the long-abandoned documentary letter of credit method of payment, it will simply have to live with certain terms that may not be to its liking. SDC’s effort to convince this Court that payment before delivery of the vehicles would force it to waive its right to inspect and abandon its right to reject under the UCC and the New York Dealer Act is unavailing. Read correctly, the UCC’s provisions reveal that payment before delivery does not waive SDC’s right to inspect and to accept or reject. Therefore, SDC has not shown a likelihood of success on the merits of its claim that its contractual and UCC rights would be violated if SOA included terms allowing it to draw down the letters of credit prior to tender of delivery and inspection of the vehicles. For much the same reasons, SDC is not entitled to a preliminary injunction that would prohibit SOA from refusing to deliver a written notice of conforming tender to SDC or from excluding such a notice from among the presentation documents. As already noted, this is really just a convoluted restatement of SDC’s request for a mandatory injunction. Nothing in the DA compels SOA to deliver any document to SDC or to include or exclude any particular document from among those to be presented to the bank at the time of payment. SDC has no more right to prevent SOA from excluding such a term in the LC than it has to dictate the inclusion of that term. Furthermore, as the above presentation makes clear, there is nothing either illegal or commercially unreasonable about SOA’s refusal to offer such a notice prior to draw down, as the UCC and the New York Dealer Act more than adequately protect SDC in the event of an unacceptably nonconforming tender. iii. SDC Is Not Likely To Succeed On Its Claim That SOA May Not Draw Down on the LCs Before SOA Has Delivered to SDC (at least SO days before draw down) a List Containing the Vehicle Identification Number (VIN) or Vehicle Order Number (VON), Model Code and Color of Each Vehicle Ordered (Claim 2(a)(1)(C) of the Order to Show Cause) This claim by SDC is identical to the claims resolved above, in points (!) and (ii). Because SDC is not entitled to determine the model mix of vehicles that SOA delivers, and is not entitled to deny payment under the LCs for non-conformity prior to inspection and rejection, it is not entitled to demand that SOA deliver VINs, VONs, or any other vehicle-specific information as a precondition to draw down. Whether under the higher or lower standard, SDC has not demonstrated á likelihood of success on the merits of this claim. iv. SDC Is Not Likely To Succeed On Its Claim that SOA May Not Draw Down on the LCs Before SOA Has Delivered to SDC (at least five business days before draw down) Commercial Invoices For Vehicles Ordered and To Be Delivered (in the form to be presented to SDC’s bank) (Claim 2(a)(1)(D) of the Order to Show Cause) This claim, too, is indistinguishable from the claims already resolved above. The contract gives SDC no right to demand any particular documents from SOA prior to vehicle delivery or draw down; neither does the UCC. SOA will have to provide commercial invoices to SDC’s bank as draw down documents because, under the DA, title to vehicles does not pass until the cars have been invoiced and the invoices paid. Since title must pass to SDC in order for the bank to obtain its security-interest in the vehicles, no commercial lender would issue an LC that did not provide for presentation of an invoice prior to draw down. But SOA has no obligation to provide those invoices to SDC prior to delivery or prior to payment. Once again, SDC is trying to bootstrap its undeniable right to inspect and reject into a non-existent right to dictate terms that the DA permits SOA to control. SDC has not shown any likelihood of success on the merits of its claim that it can demand these documents from SOA before SOA draws down on the letters of credit. v. SDC Is Not Likely To Prevail on the Merits of Its Claim that SOA May Not Draw Dovm An LC Before the First Day or After the Last Day of the Second Month Following That LC’s Issuance. (Claim 2(a)(II) of the Order to Show Cause) SDC has argued that SOA should be enjoined from drawing down a letter of credit prior to the first day of the second month after issuance, and also that each LC ought to expire by its own terms on the last day of that same month. Thus, if an order is placed in January, supported by an LC, SDC argues that the LC cannot be drawn down prior to March 1, or after Mareh 31. In negotiations, SOA proposed that there be no earliest date for draw down and that the LCs expire no earlier than the fourth month after issuance. In other words, SOA would have the January letter of credit expire on May 31. SDC cannot demonstrate a likelihood of success on the merits of its claim that the so-called “extended expiry” term SOA seeks would violate SDC’s rights under the Distributor Agreement. The Agreement simply does not require SOA to deliver the cars within the second month after the order is placed and the LC issued. While the DA and the practice of the parties over the years suggests that an order placed in January is intended by both sides to be delivered sometime in or around March, there is no express or implied limitation on late deliveries. Indeed, Article 9(13) absolves SOA from any liability for late deliveries that are caused by almost anything, including the vagaries of the manufacturing process or late shipments from Fuji. SOA’s desire to be secured by the letters of credit during the entire period during which it is entitled to make delivery is not commercially unreasonable. SOA is entitled to be paid for all the cars it delivers to SDC, including cars delivered “late.” Therefore, if SDC wants to use a documentary LC for payment, that LC cannot expire until all the cars covered by the particular order corresponding to that particular LC have been delivered. Otherwise, SOA would have no assurance of payment for late deliveries. Similarly, SDC’s contention that an LC cannot be drawn down until the first day of the second month after issuance has no merit. There is absolutely nothing in the contract prohibiting SOA from making “early” deliveries. If SOA makes untimely deliveries that are not excused by Article 9(13), SDC has normal recourse for breach of contract. vi. SDC Is Not Likely To Prevail on the Merits of Its Claim that SOA May Not Draw Down On the LCs Before Delivering to SDC’s Bank “Such Documents Necessary to Give the Bank Reasonable Commercial Assurances that Title in the Vehicles has Passed to SDC. ” (Claim 2(a)(III) of the Order to Show Cause) SDC asserts that it would violate the DA and be commercially unreasonable for SOA to be able to draw down on an LC unless it first tenders documents that give the issuing bank reasonable commercial assurances that title to the vehicles has in fact passed from SOA to SDC. SDC insists that the following draw down documents are required for this purpose: documents of title for each vehicle; a bill of sale conveying title to each vehicle; three copies of commercial invoices identifying vehicles by model code, color and price; a list of YINs for all vehicles in such invoices; and a certificate verifying that the vehicles identified have all been delivered to SDC. SDC argues that SOA may not take payment for cars before it delivers them because SOA would then be paid for the cars while still retaining title to them (and SDC’s bank would have no security interest in the vehicles). SDC believes this would violate its rights under the contract, and asserts that it has, since 1981, been allowed to generate title documents before the cars arrive in the Port of Boston and to take title to the cars before paying for them. This claim is nothing more that SDC trying by the back door to get what it cannot get through the front door — i.e., SDC is once again trying to dictate what documents are to-be tendered under the letters of credit. As already explained, SDC cannot dictate the LC terms because the contract is silent as to what documents are to be tendered and SOA is entitled to have a letter of credit acceptable to it. The only remaining inquiry, then, is whether it violates the DA or is commercially unreasonable for SOA to take payment under the LCs without first tendering documents to SDC. It is neither. The DA provides that “[t]itle to the [vehicles] shall remain with [SOA] and [SOA] shall have the right to retake and resell the [vehicles] sold until [SOA] shall have invoiced the [vehicles] to [SDC] and shall have received good collected funds in payment of the full purchase price thereof.” (1981 Letter Agreement, amending Article 9(5), attached as Exh. 22 to PL’s Br.) Thus, amended Article 9(5) explicitly states that title passes to SDC as soon as SOA invoices the vehicles and is paid. No appropriate time for invoicing and taking payment is specified. It may happen before or concurrently with physical delivery of the cars to SDC, depending on how SOA chooses to do business under the documentary letter of credit system. But whenever SOA decides to tender the documents required under the LC and draw down its payment, SDC will take title — and SDC’s bank will have its security interest in the vehicles, wherever they may be in the delivery system. Under Article 9(7), SOA will continue to bear the risk of loss if the vehicles are in transit, even if title has passed; whether SOA wants to be in the posture of covering risks on cars it no longer owns is for it, not SDC, to decide. Therefore, SDC cannot show a likelihood of success on the merits of its claim that it would be extra-contractual and unreasonable for SOA to decline to accept an LC that, required presentation of such documents to SDC. This conclusion may appear, on first blush, to conflict with my earlier reliance on UCC § 2-513 with respect to SDC’s obligation to make payment before inspection when the contract provides for “payments against documents of title.” (emphasis added) I note, however, that this UCC provision cannot be read in isolation from related provisions or from the definitions of its terms. UCC § 1-201 states: “[I]n this Act: (15) ‘Document of title’ includes bill of lading, dock warrant, dock receipt, warehouse receipt or order for the delivery of goods, and also any other document which in the regular course of business or financing is treated as adequately evidencing that the person in possession of it is entitled to receive, hold and dispose of the document and the goods it covers.... ” The New York Court of Appeals has explicitly held that a certificate of title under the Vehicle and Traffic Law — the title document SDC wants SOA to provide, and the document SDC has told the Court is the only means by which it can actually take title in New York and New Jersey (both title states)—is not a “document of title” within the meaning of the Uniform Commercial Code. See Dairylea Co-op. Inc. v. Rossal, 64 N.Y.2d 1, 483 N.Y.S.2d 1001, 473 N.E.2d 251 (1984). Therefore, section 2-513 does not conflict with SOA’s right under the DA to draw down on SDC’s LC before presenting vehicle title certificates to SDC. UCC § 1-201 and the Dairylea case further support my earlier conclusion that SDC is unable to show a likelihood of success on the merits of its claim that its rights under the DA and the UCC will be violated if SOA includes letter of credit terms allowing it to take payment without first passing vehicle titles to SDC. SOA simply must provide the bank with whatever “documents of title”—bills of lading, commercial invoices, copies of the purchase order—are specified on the face of the letter of credit to be required for draw down of the credit. The bank is then required to examine the documents with reasonable care to ascertain that they appear on their face to comply with the terms of the credit. (See UCC § 5-109; UCP Article 7.) If they do, then SOA is paid and title passes at that time. That said, it bears noting that in 1975, when the DA was signed, both SDC and SOA contemplated that SOA would identify the vehicles it was delivering to SDC to the corresponding purchase order (or any negotiated variant of same) and would draw down on the particular letter of credit accompanying that purchase order. Indeed, UCC § 2-401 requires, as a prerequisite to the passing of title to goods, that the goods be “identified” to the contract (which in this case means to each purchase order). Unless otherwise agreed, identification to the contract occurs “when goods are shipped, marked or otherwise designated by the seller as goods to which the contract refers.” UCC § 2—501(b). Therefore, it would be commercially unreasonable and would violate the parties’ expectations if SOA limited its documentary presentation under the letters of credit to documents stating it had “delivered Subaru vehicles to SDC,” but without reference to the particular purchase order under which it was making delivery. vii. SDC Is Likely To Prevail on the Merits of Its Claim That SOA May Not Impose Liability on It For Charges Incurred Upon Transfer of SOA’s Rights As Beneficiary Under the LCs, But Is Not Entitled To An Injunction Because It Has Not Demonstrated Imminent Irreparable Harm. (Claim 2(a)(IV) of the Order to Show Cause) SDC asks the Court to enjoin SOA from demanding a letter of credit term that would impose on SDC any charges incurred if SOA chooses to transfer its rights as beneficiary under the letters of credit. (The parties do not dispute that SOA’s rights to payment under the credits are transferable.) I find that SDC has shown a likelihood of success on the merits of its claim that a provision imposing transfer costs on SDC would violate its rights under the contract. While the contract is silent as to transfer charges under letters of credit which accompany quota purchase orders, Article 9(4) explicitly shifts to SDC “all collection charges and costs of exchange, if any, incurred in connection with its payments” on non-quota orders. As the contract must be construed against the drafter, SOA, I find that the absence of such a term shifting transfer costs to SDC with respect to quota purchase orders means the parties intended those costs to fall on SOA. Further supporting this result, Article 54(d) of the UCP provides that, unless otherwise specified by the parties, the beneficiary bears charges incurred due to transfer of its rights under a letter of credit. Although SDC is likely to succeed on the merits of this claim, it faces no threat of irreparable harm, even if SOA insists on including a transfer cost term in the letters of credit. Assuming SOA were to transfer its rights sometime in the future and impose a charge on SDC, the expenditure can be remedied by money damages. It would, therefore, be improper to grant injunctive relief with respect to this issue. E. While SDC Is Not Likely To Prevail on the Merits of Its Claim That SOA Cannot Compel It to Pay for Vehicles That Do Not Conform to Its Purchase Order, It is Likely to Prevail on the Merits of its Claim That SOA Cannot Compel It to Accept Delivery of NonConforming Vehicles. (Claim 2(b) of the Order to Show Cause) SDC asserts that it is not required to accept delivery of vehicles that do not conform to its monthly quota purchase orders and it asks this Court to enjoin SOA from enforcing any demand made through the Noonberg Letter that SDC accept such non-conforming deliveries. Putting aside the fact that the Noon-berg Letter neither makes a demand that SDC accept non-conforming vehicle deliveries nor threatens it with termination if it fails to do so, I have already determined that the New York Dealer Act prohibits SOA from demanding that SDC accept delivery of cars it does not want, and that the UCC affords SDC the right to recover anything it has paid SOA in respect of a rightfully rejected car. {See UCC §§ 2-512(