Exhibit 8
Form 10-KSB
Reddi Brake Supply Corporation, Inc.
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is made and
entered into as of April 29, 1997, by and among REDDIBRAKE SUPPLY
COMPANY, INC., a California corporation located at 0000 Xxxxxx
Xxxxxx, Xxxxxxx, XX. 00000 ("Seller") and EXPRESS PARTS WAREHOUSE,
INC., a North Carolina corporation located 0000 Xxxxxxx Xxxxx,
Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000 ("Buyer").
WITNESSETH
WHEREAS, Seller has been engaged in the business of supplying
brake systems, chassis components and other automobile
undercarriage parts primarily to automobile repair facilities
through various outlets throughout the United States (the
"Business");
WHEREAS, Seller is a debtor and debtor in possession in a
case under Chapter 11 of Title 11 of the United States Code,
pending in the United States Bankruptcy Court for the Central
District of California, at Santa Barbara, CA. (the "Bankruptcy
Court") and assigned Case No. ND 97-11349-RR;
WHEREAS, Seller now desires to sell to the Buyer and Buyer
wishes to purchase substantially all of the Assets of the Seller
utilized in the Business (the "Assets," as defined in Section 1.1.
hereof), on the terms and conditions hereinafter set forth (the
"Sale");
WHEREAS, the consummation of the Sale shall be subject to the
entry of an Order of the Bankruptcy Court, as set forth in
Sections 7.3. and 8.3. below, authorizing the Sale of the Assets
by the Seller to the Buyer free and clear of all liens and
encumbrances pursuant to Section 363 of the Bankruptcy Code and
the assumption and assignment to the Buyer of the "Real Estate
Leases", as such term is hereinafter defined, pursuant to Section
365 of the Bankruptcy Code (the "Sale and Lease Assumption
Order"); and
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein and for other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.1. Transfer of Assets. Upon the terms and subject to the
conditions contained herein, on the "Closing Date" (as defined in
Article III below), Buyer shall purchase and acquire from Seller
and Seller shall sell, convey, assign and transfer to Buyer all of
the assets utilized by the Seller in
E-34
the operation of the Business described below, except the
"Excluded Assets" as such term is defined in Section 1.2. below,
which are owned or held by the Seller on the Closing Date. The
Assets subject to the Sale are as follows:
1.1.a. all of the accounts receivable (gross) of the Seller
arising from the ordinary course of the Business existing on the
Seller's books and records as of the Closing Date (the "Accounts
Receivable");
1.1.b. all of the inventory owned by the Seller as of the
Closing Date (the "Inventory");
1.1.c. all of the real property leases held by the Seller
listed in Schedule 1.1.c.1. attached hereto and made a part hereof
(the "Assumed Leases"), except for those real property leases
listed in Schedule 1.1.c.2. attached hereto and made a part hereof
(the "Excluded Leases");
1.1.d. all computer equipment and systems, telephone
equipment and systems, machinery and equipment, motor vehicles and
furniture and furnishings owned by the Seller;
1.1.e. certain items of machinery and equipment or computers
which the Seller holds subject to leases, as listed on Schedule
1.l.e. which will be attached hereto and made a part hereof prior
to May 20, 1997 (the "Leased Equipment") ;
1.1.f. all names, copyrights, logos, trademarks, computer
software, goodwill and other intellectual property rights owned by
the Seller; including but not limited to the trade style
"ReddiBrake";
1.1.g. those intellectual property rights, licenses and other
rights and assets held by the Seller which are subject to licenses
or other agreements as listed in Schedule 1.1.g. which will be
attached hereto and made a part hereof prior to May 20, 1997 (the
"Licensed Rights");
1. 1.h. all personal properties, supplies, tools, post office
box, telephone numbers, supplier, sales and vendor records of
Seller;
1.1.i. all rights of the Seller to that certain promissory
note of Xxxxx X. Xxxxxxx to Seller; (the "Xxxxxxx Note");
1.1.j. all deposits and prepayments with (i) landlords with
respect to the Assumed Leases and (ii) utilities with respect to
the Assumed Leases (the '"Included Deposits); and
1.1.k. all rebates, credits, cooperative advertising or
promotional monies due to Seller from any vendors with respect to
the Assets (the "Vendor Credits") which are not contested by the
vendors or subject to any setoff, recoupment or other claims or
counterclaims of any vendors against Seller arising out of the
bankruptcy proceedings or otherwise, provided that, in the event
Seller has scheduled any claim by the vendor or the vendor has
filed a proof of claim for any monies due such vendor from Seller,
all rights to any Vendor Credits with respect to such vendor shall
remain with Seller.
E-35
1.2. Excluded Assets. Notwithstanding anything contained in
Section 1.1. hereof to the contrary, Seller is not selling, and
Buyer is not purchasing, pursuant to this Agreement, any asset of
Seller not identified as an Asset, including without limitation
the following, all of which shall be retained by Seller:
1.2.a. the Excluded Leases and all other real or personal
property leases of Seller not listed in Schedules 1.1.c.1 or
1.1.e., respectively;
1.2.b. all cash, cash equivalents or similar type investments
of Seller, such as certificates of deposit, Treasury bills and
other marketable securities on hand and/or in banks, bank
accounts, security or other deposits of the Seller on the Closing
Date, except for the Included Deposits;
1.2.c. Seller's corporate seal, minute books, charter
documents, corporate stock record books and such other books and
records as pertain to the organization, existence or share
capitalization of Seller and duplicate copies of such accounting
and other records as Seller deems advisable to file its tax
returns and reports and for other corporate purposes;
1.2.d. all refunds, rebates or other monies due to or held by
or on behalf of the Seller arising out of any income, sales,
property, value added, franchise, excise or any tax whatsoever
from any governmental taxing authority;
1.2.e. all pension, profit sharing or cash or deferred
(Section 401(k)) plans and trusts and the assets thereof and any
other employee benefit plan or arrangement and the assets thereof,
if any maintained by Seller;
1.2.f. all contracts of insurance and all insurance proceeds
or claims previously made by Seller or which may be asserted in
the future relating to assets, property, liabilities, rights or
claims arising on behalf of the Seller prior to the Closing Date
irrespective of when such claims are actually asserted;
1.2.g. any claims, causes of action and claims for relief
whether or not asserted prior to the Closing Date which are
asserted by Seller in any litigation involving Seller including
without limitation claims arising under Xxxxx 00, Xxxxxx Xxxxxx
Code, but not any claims (i) arising out of breaches of express or
implied warranties relating to any of the Assets or (ii) relating
to the Accounts Receivable;
1.2.h. any books and records relating to any of the
foregoing, except to the extent that Buyer wishes to make, at its
expense, a duplicate copy of such materials in order to facilitate
its operation of the Business;
1.2.i. all rights of the Seller to those certain promissory
notes of Hi-Lo Automotive, Inc. to Seller; and
1.2.j. all Vendor Credits and rights with respect thereto
which are not included in the Assets pursuant to Section 1.1.k.
above.
E-36
ARTICLE II
CONSIDERATION
2.1. Payment of Purchase Price for Assets. The initial
purchase price for the Assets shall be the sum of (i) $6,176,582,
plus (ii) the Real Estate Lease Assumption Payment, as such term
is hereinafter defined in Section 2.4. below, plus (iii) the
Buyer's Expense Reimbursement", as such term is defined in Section
2.5. below (items (i),(ii) and (iii) hereinafter collectively the
"Initial Purchase Price"). Said Initial Purchase Price shall be
reduced by such adjustments, if any as may be required first by
the "Receivable Adjustment", as defined in Section 2.2. below
(said resulting amount hereinafter defined as the "Adjusted
Purchase Price") and/or the "Inventory Adjustment" as defined in
Section 2.3. below. The Adjusted Purchase Price, as further
adjusted by the Inventory Adjustment shall be the "Final Purchase
Price". The Final Purchase Price shall be payable as follows:
2.1.a. Initial Deposit. Buyer shall deliver to counsel for
the Seller, Jeffer, Mangels, Xxxxxx & Xxxxxxx LLP ("JMBM") into an
interest bearing segregated account (the "Escrow Account") an
initial deposit of $50,000 upon execution of this Agreement (the
"Initial Deposit"). This Initial Deposit shall be held in escrow
by JMBM pending consummation of the Sale or termination of this
Agreement. Except as set forth in the following two sentences: (i)
interest earned on all funds in the Escrow Account and the "'BCS
Escrow Account", as hereinafter defined (the "'Escrow Interest")
shall be for the Seller's benefit and shall not serve to reduce or
be applied towards the Final Purchase Price, and (ii) the Initial
Deposit shall be non-refundable. In the event to Sale is not
consummated, the Initial Deposit and the Escrow Interest shall be
returned to the Buyer only in the event the Sale is not
consummated solely for the following reasons:
2.1.a.l. failure to obtain entry of the Sale and Lease
Assumption Order from the Bankruptcy Court on or before May 22,
1997 in form and substance acceptable to Buyer; or
2.1.a.2. breach by the Seller of its obligations hereunder.
In the event the Sale is consummated, the Escrow Interest
shall be delivered to the Buyer at the Closing as set forth in
Section 2.1.e. below.
2.1.b. Second Deposit. Buyer shall deliver to the Escrow
Account via wire transfer, cashier's check or certified check the
sum of $50,000 no later than the close of business on May 20, 1997
(the "Second Deposit") . This Second Deposit, shall be held in the
Escrow Account pending consummation of the Sale or termination of
this Agreement and shall be non-refundable to Buyer unless the
Sale is not consummated solely for the reasons set forth in
Sections 2.1.a.l. and 2.1.a.2. above, in which case it will be
returned to Buyer.
2.1.c. Final Deposit. Buyer shall deliver to its counsel,
Bode, Call & Xxxxxxx, LLP. ("BCS") into an interest bearing
segregated account (the "BCS Escrow Account") via wire transfer,
cashier's check or certified check the sum of $400,000
concurrently with and as a condition of the entry of the Sale and
Lease Assumption Order (the "Final Deposit") . This Final Deposit
shall be
E-37
held in the BCS Escrow Account pending consummation of the Sale or
termination of this Agreement and shall be non-refundable to Buyer
unless the Sale is not consummated solely for the reasons set
forth in Sections 2.1.a.l. and 2.1.a.2. above, in which case it
will be returned to Buyer.
2.1.d. Cash at Closing. Except as set forth in 2.3.b. below
with respect to the "'Inventory and Equipment Adjustments Escrow",
at the Closing, the following funds shall be deposited to a
segregated client trust account on behalf of Seller at JMBM (the
"Closing Account") via wire transfer, delivery of a certified or
bank check or other form of cash requested by Seller:
the Initial and Second Deposit;
(i) the Final Deposit;
$5,676,582 less the "Receivable Adjustment", as
hereinafter defined in Section 2.2. below (the "Closing Cash");
the "Buyer's Real Estate Lease Payment", as such term is
defined in Section 2.4. below; and
(ii) the "Buyer's Expense Reimbursement" as defined in
Section 2.5. below.
2.1.e. Application of Escrow Funds. At the Closing, JMBM with
respect to the Escrow Account and BCS with respect to the BCS
Escrow Account shall each be deemed to have the joint consent of
Buyer and Seller to, and are hereby authorized and directed to
disburse the Initial, Second and Final Deposits to the Closing
Account and disburse all Escrow Interest to the Buyer.
2.2. Accounts Receivable Adjustment. Seller shall prepare and
deliver to Buyer no later than the close of business on May 20,
1997 a schedule showing all payments made on account of the
"Opening Accounts Receivable" as set forth in Schedule 2.2.
attached hereto and made a part hereof through May 19, 1997 (the
"Receivable Payments") . For the purposes hereof the Opening
Accounts Receivable shall be deemed to be those scheduled accounts
receivable (gross) on the books and records of the Seller as of
March 17, 1997 which the parties agree aggregated to $2,314,651.
The parties agree that the Initial Purchase Price shall be reduced
dollar for dollar by the sum of the Receivable Payments (the
"Receivable Adjustment"). At the Closing or thereafter as the case
may be, Seller agrees to deliver to Buyer a any proceeds received
by it on account of the opening Accounts Receivable and not
reflected on Receivable Payment Schedule; provided, however, that
Seller need not deliver any such payments received after the
Closing more frequently than on a bi-weekly basis.
2.3. Inventory Adjustment. Subject to the limitations set
forth below, the parties agree that for the purposes of this
Agreement the Adjusted Purchase Price shall be reduced dollar for
dollar to the extent that the "Closing Inventory", as hereinafter
defined in Section 2.3.a. below, is more than $500,000 less than
the "Opening Inventory" which for the purposes hereof shall be
deemed to be $17,208,674, the gross amount of the inventories on
the books and records of the Seller as of March 17, 1997 (the
"Inventory Adjustment").
E-38
Under no circumstances shall the of the Inventory Adjustment
to the Adjusted Purchase Price exceed the amount of funds held in
the "Inventory Adjustment Escrow" as hereinafter defined in
Section 2.3.b. below.
2.3.a. Inventory Audit. Buyer agrees to "audit" the inventory
owned by Seller at the Closing as follows:
2.3.a.1. the Opening Inventory shall be "'audited" at Buyer's
sole cost and expense through an actual physical count thereof by
representatives of the Buyer. Seller's representatives may be
present at such "audit" at Seller's expense. The value of the
inventory held by the Seller on the Closing Date shall be the
average costs of the items as historically accounted for on the
Seller's books and records without regards for damage,
marketability, or obsolescence (the "Closing Inventory").
2.3.a.2. the parties agree that the audit of the Opening
Inventory held at the properties subject to Excluded Leases shall
be completed no later than the Closing Date. The audits of all
other Opening Inventory held at locations subject to Assumed
Leases shall be concluded no later than the first to occur of
either (i) 45 days after the Closing Date or (ii) as to each
particular property subject to an Assumed Lease the first to occur
of: W three business days prior to the delivery of any new
inventory purchased by the Buyer to such location; (y) the sale or
removal of Opening Inventory from such location; or (z) the
commencement of business by Buyer from such location. Buyer shall
deliver to Seller a schedule no later than 45 days after the
Closing Date of the Closing Inventory and the proposed Inventory
Adjustment, if any, necessitated thereby (the "Closing Inventory
Schedule"). Seller shall have 10 business days to object to the
Closing Inventory or it shall be deemed accepted by the Seller. In
the event Buyer fails to deliver such Closing Inventory Schedule
to Seller within 45 days of the Closing Date, the parties agree
that no Inventory Adjustment may thereafter be required and the
Seller shall be entitled immediately to withdraw all funds held in
the Inventory Adjustment Escrow. If Seller objects to the Closing
inventory Schedule in a timely manner, as provided above, and the
parties cannot agree on a Inventory Adjustment, if any, within 10
business days after the delivery of such objection, then and in
such event either party may file appropriate pleadings with the
Bankruptcy Court seeking an adjudication of this dispute, by
contested matter and not by adversary proceeding.
2.3.b. Inventory Adjustment Escrow. On the Closing Date, JMBM
shall establish a segregated interest bearing escrow account from
the Closing Cash equal to 10% of sum of (i) the Closing Cash plus
(ii) the Initial, Second and Final Deposits (the "Inventory
Adjustment Escrow") . The proceeds from the Inventory Adjustment
Escrow without interest will first be delivered to the Buyer to
cover the amounts, if any, of the Inventory Adjustment with the
balance of such proceeds delivered to the Closing Account, and all
interest earned thereon allocated with the disbursement of such
proceeds.
Buyer's Real Estate Lease Payment. Buyer agrees to pay Seller
the lesser of: (i) $200,000 or (ii) 50% of the sum of: W the
amounts actually due by Seller pursuant to the Sale and Lease
Assumption Order to cure all pre-petition and post-petition rents,
taxes and expenses on the Assumed Leases plus (y) the amounts owed
by the Seller for the aforementioned items with respect
to the Excluded Leases (the "Buyer's Real Estate Lease Payment").
E-39
Buyer's Reimbursement of Certain Expenses. From and after the
date of this Agreement through the first to occur of either the
Closing Date or the termination of the Agreement other than solely
as a result as a result of the items set forth in 2.1.a.l. or
2.1.a.2. above, Buyer agrees to pay for the following expenses:
2.5.1.a. premium payments in an amount not to exceed $8,000
per week, on those insurance policies covering the Assets set
forth in Schedule 2.5.1.a. attached hereto and made a part hereof;
2.5.1.b. all costs and expenses relating to certain overhead
items, not to exceed $15,000 per week, as expressly set forth in
Schedule 2.5.1.b. attached hereto and made a part hereof;
2.5.1.c. an amount not to exceed $8,800 per week equaling all
costs and expenses, including salary as set forth opposite the
names of those individuals listed in Schedule 2.5.1.c. attached
hereto and made a part hereof (the "'Retained Individuals"),
workers' compensation insurance and health insurance for any
Retained Individual who requests it; and
The expenses set forth in Sections 2.5.1.a., 2.1.5.1.b. and
2.5.1.c. above hereinafter collectively referred to as the
"Buyer's Expense Reimbursement". Said Buyer's Expense
Reimbursement shall be payable to Seller at the Closing or if the
Agreement is terminated for any reason other than as set forth on
Sections 2.1.a.l. and 2.1.a.2. above, immediately upon such
termination.
2.5.2. Buyer shall pay as incurred all costs and expenses of
relocating all Assets from properties subject to the Excluded
Leases.
2.5.3. Buyer agrees to assume all post-Closing Date rent and
other ongoing costs and expenses relating to those Excluded Leases
which will not be terminated on or before the Closing Date for a
period terminating upon the last to occur of the following: (i)
Buyer's abandonment of the premises; (ii) termination of any
applicable notice period with respect to the termination of such
Excluded Leases; and (iii) termination of such Excluded Leases
pursuant to an order of the Bankruptcy Court or agreements between
the landlords and Buyer (the "Excluded Lease Payments"). Buyer
shall be responsible for giving the landlords with respect to such
leases appropriate notice of the termination thereof.
2.6. Assumption of Designated Liabilities. Buyer agrees to
assume all post-closing liabilities and obligations with respect
to the Real Property Leases, the License Rights, the Leased
Equipment and the Excluded Lease Payments ("Assumed Liabilities").
Any obligation not expressly assumed by Buyer in the Agreement or
the Sale and Lease Assumption Order shall remain the obligation of
the Seller, subject to the effect of the Bankruptcy Code.
2.7. Closing Costs; Transfer Taxes. Buyer shall be
responsible for and shall defend and indemnify Seller against any
and all documentary transfer taxes and any sales, use, excise,
property or other taxes imposed by reason of the transfer of the
Assets provided hereunder and any
deficiency, interest or penalty asserted with respect thereto.
E-40
ARTICLE III
CLOSING
The Closing of the transactions contemplated herein (the
"Closing") shall be held at the offices of JMBM, 2121 Avenue of
the Stars, Xxxxx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, two
business days after the entry of the Sale and Lease Assumption
Order on or about 10:00 a.m. local time or such other place as
Seller and Buyer shall mutually agree (the "Closing Date"),
provided that all conditions to each party's obligations
hereunder, as set forth herein, have been satisfied by such date
or waived in writing by the party intended to be benefited
thereby, and further provided that this Agreement shall terminate
if the Closing Date has not occurred by the date set forth in
Section 11.1. hereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represent and warrant to Buyer as follows:
4.1. Organization of Seller. Seller is duly organized,
validly existing and in good standing under the laws of the state
of its incorporation as set forth in the first paragraph of this
Agreement.
4.2. Consents and Approvals. Except for those consents set
forth on Schedule 4.2. which will be attached hereto and made a
part hereof prior to May 20, 1997 (the "Consents"), no consent,
approval or authorization of, or declaration, filing or
registration with, any governmental or regulatory authority (other
than the Bankruptcy Court), is required to be made or obtained by
Seller in connection with the execution, delivery and performance
of this Agreement and the consummation of the transactions
contemplated hereby.
4.3. Compliance With Laws. Seller has complied with, and
Seller has not received any notice that Seller is in violation of,
applicable laws, rules, regulations that could have a material
adverse effect on Buyer's use of the Assets in the Business.
4.4. No Obligations to Repair. To the best of Seller's
knowledge, Seller has complied with any order by any governmental
agency or any written demand of any casualty insurance Seller
requiring Seller to repair, maintain or improve the condition of
any of the Real Property Leases.
4.5. Title to Assets; No Liens. Seller has good and
marketable title to and interest in the Assets, and, except with
respect to the Assumed Liabilities, upon the approval of the Sale
by the Bankruptcy Court and the satisfaction of all other
conditions to Seller's obligations hereunder, the Assets will be
acquired by Buyer free and clear of any lien or encumbrance.
4.6. Environmental Matters, Seller has no knowledge or
information of the presence of any
illegally stored or maintained toxic or hazardous materials or
environmental contamination at the properties subject to the
Assumed Leases which would materially adversely affect Buyer's use
of such properties or the Assets contained therein.
E-41
The aforementioned representations shall terminate at the
Closing and shall be of no further force or effect thereafter.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
5.1. Organization of Buyer. Buyer is duly organized, validly
existing and in good standing under the laws of the state of its
incorporation as set forth in the first paragraph of this
Agreement and has full corporate power and authority to conduct
its business as it is presently being conducted.
5.2. Authorization. Buyer has all necessary corporate power
and authority and has taken all corporate action necessary to
enter into this Agreement, to consummate the transactions
contemplated hereby and to perform its obligations hereunder. This
Agreement has been duly executed and delivered by Buyer and is a
legal, valid and binding obligation of Buyer, enforceable against
Buyer in accordance with its terms.
5.3. No Conflict or Violation. Neither the execution
and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will result in (a) a violation of
or a conflict with any provision of the Articles of Incorporation
or Bylaws of Buyer, (b) a breach of, or a default under, any term
or provision of any contract, agreement, indebtedness, lease,
commitment,. license, franchise, permit, authorization or
concession to which Buyer is a party which breach or default would
have a material adverse effect on the business or financial
condition of Buyer or its ability to consummate the transactions
contemplated hereby or (c) a violation by Buyer of any statute,
rule, regulation, ordinance, code, order, judgment, writ,
injunction, decree or award, which violation would have a material
adverse effect on the business or financial condition of Buyer or
its ability to consummate the transactions contemplated hereby.
5.4. Consents and Approvals. No consent, approval or
authorization of, or declaration, filing or registration with, any
governmental or regulatory authority (other than the Bankruptcy
Court), is required to be made or obtained by Buyer in connection
with the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby.
5.5. No Brokers. Buyer has not entered into and will not
enter into any contract, agreement, arrangement, or understanding
with any person or firm which will result in the obligation to pay
any finders' fee, brokerage commission, or similar payment in
connection with the transactions contemplated hereby.
5.6. Sophisticated Purchaser. Buyer is a sophisticated
purchaser and Buyer's offer and decision to purchase the Assets is
based upon its own independent expert review and evaluation of the
Assets and such materials as are deemed relevant by Buyer and its
agents. Except as otherwise disclosed herein in writing, Buyer has
not relied in entering into this Agreement upon any oral or
E-42
written information from Seller, or any of their respective
employees, affiliates, agents, legal counsel or other
representatives. Buyer further acknowledges that no employee,
agent, legal counsel or other representative of Seller has been
authorized to make, and Buyer has not relied upon, any statement
or representation other than those specifically set forth in this
Agreement.
5.7. Condition of Assets. Notwithstanding anything contained
herein to the contrary, Buyer represents and warrants that, as
specified in Section 5.6 hereof, Buyer has, or shall have,
inspected and conducted such tests and studies of the Assets as it
elects, and that Buyer is familiar with the general condition of
the Assets. Seller shall not have any responsibility or liability
with respect to the condition or fitness for any particular
purpose of the Assets. Buyer represents and warrants that Buyer is
acting, and will act only, upon information obtained by Buyer
directly from Buyer's own inspection of the Assets.
Notwithstanding anything to the contrary contained in this
Agreement, the suitability or lack of suitability of the Assets
for the operation of the Business by Buyer or any other proposed
or intended use by Buyer shall not affect the rights or
obligations of the Buyer hereunder.
ARTICLE VI
COVENANTS OF SELLER AND BUYER
Seller and Buyer covenant with each other as follows:
6.1. Access to Assets. Seller shall allow Buyer at Buyer's
expense during regular business hours to make such inspection of
the business and properties of Seller and to inspect and make
copies of other contracts, books and records or information
requested by Buyer and necessary for or reasonably related to the
Assets, including historical financial information, concerning the
Business and operations of such facilities. All such information
shall be provided to Buyer in such form as such information may
presently exist or be readily available.
6.2. Consents and Best Efforts. As soon as practicable after
the date hereof, Buyer and Seller, as applicable, will commence
all other reasonable action required hereunder to obtain all the
Consents and to give all notices and make all filings with, any
third parties as may be necessary to authorize, approve or permit
the full and complete sale, conveyance, assignment or transfer of
the Assets by a date 'early enough to allow the sale hereunder to
be consummated by the Closing Date. Buyer shall cooperate in good
faith with Seller's efforts to obtain such Consents, including but
not limited to the prompt delivery of all agreements, information,
documents, financial data and Bankruptcy Court pleadings as may be
necessary for the Seller to obtain the Sale and Lease Assumption
Order.
6.3. Notification of Certain Matters. Seller shall give
prompt notice to Buyer, and Buyer shall give prompt notice to
Seller, of (i) the occurrence, or failure to occur, of any event
which
occurrence or failure would be likely to cause any representation
or warranty contained in this Agreement to be untrue or inaccurate
in any material respect any time from the date hereof to the
Closing Date and (ii) any material failure of Seller or Buyer, as
the case may be, to comply with or satisfy any covenant, condition
or agreement to be complied with or satisfied by it hereunder.
Seller shall give prompt notice to Buyer of any order, judgment,
writ, injunction or decree of any court,
E-43
governmental agency or entity threatened against or affecting the
Assets. Each party shall use all reasonable efforts to remedy any
material failure on its part to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied
by it hereunder.
6.4. Further Assurances. Both before and after the Closing
Date, each party will cooperate in good faith with the others and
will take all appropriate action and execute any documents,
instruments or conveyances of any kind which may be reasonably
necessary or advisable to carry out any of the transactions
contemplated hereunder. From time to time after the Closing,
Seller will execute and deliver to Buyer such instruments of sale,
transfer, conveyance, assignment and delivery, consents,
assurances, powers of attorney and other instruments as may be
reasonably requested by counsel for Buyer in order to vest in
Buyer all right, title and interest of Seller in and to the Assets
and otherwise in order to carry out the purpose and intent of this
Agreement.
6.5. Transfer of Permits. Seller shall use its best
reasonable efforts to assist Buyer in obtaining the transfer of
any existing permit previously issued to Seller by any
governmental agency permitting Seller to operate the Assets.
6.6. Post-Closing Utilization of Certain Assets By Seller.
Buyer agrees that for a period through and including December 31,
1997 (the "Asset Utilization Period"), Seller or Seller's parent
corporation, ReddiBrake Supply, Inc. (the "Parent"), may have
unlimited access to and utilize without charge by Buyer all office
related Assets including all computers and related equipment and
software, telephones, fax machines, copiers, desks, file cabinets,
books and records and office supplies located at the Seller's
address listed in this Agreement; provided that, Seller's
utilization of these Assets does not unduly interfere with Buyer's
access to and utilization of the Assets on such premises. In the
event Buyer moves such Assets to its new Western regional
headquarters or offices prior to the first to occur of: (i) the
termination of the Asset Utilization Period or (ii) both (y) the
confirmation of the Seller's Plan of Reorganization and (z)
completion of the winding-up of the Parent's affairs; then Buyer
shall provide Seller and/or Parent with the same unlimited rights
of access, up to 500 square feet of usable space, three of each of
the following: desks, chairs, telephones and computers, one
facsimile machine and one copier, all without any charge to
Seller, except a pro-rata pass through of any rent or related
charges with respect to the space occupied by the Seller and/or
the Parent pursuant hereto.
ARTICLE VII
CONDITIONS TO SELLER'S OBLIGATIONS
The obligations of Seller to consummate the Sale and the
other transactions provided for hereby are subject, in the
discretion of Seller, to the satisfaction, on or prior to the
Closing Date, of each of the following conditions:
7.1. Representations, Warranties, and Covenants. All
representations and warranties of Buyer contained in this
Agreement shall be true and correct in all material respects at
and as of the Closing Date, except as and to the extent that the
facts and conditions upon which such representations and
warranties are based are expressly required or permitted to be
changed by the
E-44
terms hereof, and Buyer shall have performed all obligations,
agreements and covenants required hereby to be performed by it
prior to or at the Closing Date.
7.2. Consents. All Consents to permit Seller to transfer the
Assets to Buyer as contemplated hereby shall have been obtained,
unless such consents, approvals, and waivers have been waived by
Seller.
7.3. Sale and Lease Assumption Order. The Bankruptcy Court
shall have entered the Sale and Lease Assumption Order in form
acceptable to Seller.
7.4. No Governmental Proceedings or Litigation. No action by
any governmental authority shall have been instituted or
threatened which questions the validity or legality of the Sale or
the other transactions contemplated hereby and which could
reasonably be expected materially and adversely to damage Seller
if the transactions contemplated hereunder are consummated.
7.5. Certificates. Buyer will furnish Seller with such
certificates of its officers and others to evidence compliance
with the conditions set forth in this Article VII as may be
reasonably requested by Seller.
7.6. Corporate Documents. Seller shall have received from
Buyer resolutions duly adopted by the board of directors of Buyer
approving this Agreement and the transactions contemplated hereby,
certified by Buyer's corporate secretary.
7.7. Closing Deliveries. Buyer shall have delivered to Seller
all of the documents required by Section 10.2 hereof, the Final
Deposit, the Closing Cash, the Buyer's Real Estate Lease Payment
and the Buyer's Expense Reimbursement.
ARTICLE VIII
CONDITIONS TO BUYER'S OBLIGATIONS
The obligations of Buyer to consummate the transactions
provided for hereby are subject, in the discretion of Buyer, to
the satisfaction, on or prior to the Closing Date, of each of the
following conditions:
8.1. Representations, Warranties, and Covenants. All
representations and warranties of Seller and Shareholder contained
in this Agreement shall be true and correct in all material
respects at and as of the Closing Date, except as and to the
extent that the facts and conditions upon which such
representations and warranties are based are expressly required or
permitted to be changed by the terms hereof, and Seller shall have
performed all agreements and covenants required hereby to be
performed by it prior to or at the Closing Date.
8.2. Consents. All Consents to permit Seller to effectuate
the Sale and to transfer the Assets to Buyer as contemplated
hereby shall have been obtained, unless such consents, approvals,
and waivers have been waived by Buyer.
E-45
8.3. Sale and Lease Assumption. The Bankruptcy Court shall
have entered the Sale Lease Assumption Order in form and substance
acceptable to Buyer.
8.4. No Governmental Proceedings or Litigation. No action by
any governmental authority shall have been instituted or
threatened which questions the validity or legality of the Sale or
the other transactions contemplated hereby and which could
reasonably be expected materially and adversely to damage Buyer or
the Assets if the transactions contemplated hereunder are
consummated.
8.5. Certificates. Seller will furnish Buyer with such
certificates of Seller to evidence compliance with the conditions
set forth in this Article VIII as may be reasonably requested by
Buyer.
8.6. Closing Deliveries. Seller shall have delivered to Buyer
all of the documents required by Section 10.1. hereof.
8.7. Financing Contingency. Buyer shall have obtained a
commitment for financing in an amount not to exceed $8, 700, 000
(the "Financing") . Notwithstanding the foregoing, in the event
Buyer does not deliver to Seller a notice of its failure to the
Financing on or before May 16, 1997 this Financing Contingency
shall have been deemed to be satisfied and/or waived by the Buyer
without any further action on the part of the Seller.
8.8. Fixed Assets and Motor Vehicles Contingency. Attached
hereto and made a part hereof is Schedule 8.8. which Seller
believes sets forth all material items of furniture, fixtures,
machinery, equipment and motor vehicles owned by the Seller as of
the date hereof (the "Opening FF & E"). Buyer may at Buyer's sole
cost and expense "audit" the Opening FF & E through an actual
physical count thereof by representatives of Buyer (the ""FF & E
Audit"). Seller's representatives may be present at the FF & E
Audit at Seller's expense. The FF & E Audit shall be completed no
later than May 9, 1997. In the event Buyer determines that as a
result of the FF & E Audit there has been a material diminution of
the Opening FF & E, Buyer may, upon written notice (the '"FF & E
Audit Notice")to Seller setting forth the Opening FF & E located
through the audit (the "Adjusted FF & E" ), delivered on or before
the close of business on May 9, 1997, seek a mutually agreeable
adjustment to the Initial Purchase Price. In the event the parties
are unable to agree on such adjustment to the Initial Purchase
Price and/or the Adjusted FF & E on or before the close of
business on May 14, 1997, Buyer may upon notice to the Seller
immediately terminate this Agreement. If no FF & E Audit Notice is
received by Seller on or before the close of business on May 9,
1997 or, if applicable, no termination notice is received by
Seller on or before the close of business on May 14, 1997, Buyer
shall be deemed to have accepted the Opening FF & E as scheduled
and Buyer's rights pursuant to this Section shall terminate
without any further action on the part of the Seller.
ARTICLE IX
RISK OF LOSS
E-46
Prior to the Closing Date, all risk of fire or casualty loss
or damage to the Assets and solely with respect to the Adjusted FF
& E, if any, loss by theft shall be borne by Seller, thereafter
all such risks shall be borne by Buyer. If a portion of the Assets
whatsoever is destroyed or damaged by fire or any other cause
prior to the Closing Date, Seller shall promptly give notice to
Buyer of such damage or destruction and the amount of insurance,
if any, covering said personal property. Prior to the Closing
Date, in consultation with Seller, Buyer shall elect whether to
(i) have Seller repair, replace and restore any such damaged or
lost Assets to the reasonable satisfaction of Buyer, or (ii)
accept the Assets in their destroyed or damaged condition, in
which event any insurance proceeds payable to Seller with respect
to the damaged property shall be assigned to Buyer, and the full
Purchase Price payable by Buyer for the Assets shall be paid. If,
through no fault on the part of Buyer, the Assets are destroyed or
damaged and Seller refuses to satisfy its obligations set forth in
clause W or (iii) above prior to the Closing Date, then Buyer
shall have the right to terminate this Agreement and to a full
return of the Initial Deposit, the Second Deposit and/or the Final
Deposit; provided that Buyer gives Seller no less than three days
prior written notice with an opportunity to cure prior to its
termination of this Agreement pursuant to this Section.
ARTICLE X
CLOSING DELIVERIES
10.1. Deliveries by Seller. At the Closing, Seller shall
deliver or cause to be delivered to Buyer the following:
10.1.a. Bills of Sale, deeds, assignments and other good and
sufficient instruments of conveyance, transfer and assignment, all
in form and substance reasonably satisfactory to counsel for
Buyer, as shall be effective to vest in Buyer title in and to the
Assets;
10.1.b. the certificates referenced in Section 8.5. hereof;
10.l.c. an Amendment to Seller's Certificate of Incorporation
changing Seller's name, suitable for filing with the Office of the
Secretary of State of the State of California plus all other
necessary documents in order to effectuate such name change;
10.1.d. the Xxxxxxx Note; and
10.1.e. a copy of the Sale and Lease Assumption Order, filed
stamped "Entered" by the Clerk of the Bankruptcy Court.
10.2. Deliveries by Buyer. At the Closing, Buyer shall
deliver or cause to be delivered to Seller the following:
10.2.a. the Final Deposit, the Closing Cash, Buyer's Real
Estate Lease Payment and Buyer's Expense Reimbursement as required
under Sections 2.1.c., 2.1.d. and 2.4. and 2.5. hereof;
10.2.b. the certificates and resolutions referenced in
Sections 7.5. and 7.6. hereof; and
E-47
10.2.c. such other documents as may be required to evidence
Buyer's assumption of the Assumed Leases pursuant to Section 6.2.
above.
ARTICLE XI
TERMINATION RIGHTS
11.1. Termination of the Agreement. If any condition
precedent to Seller's obligations hereunder is not satisfied and
such condition is not waived by such party at or prior to the
Closing Date, or if any condition precedent to Buyer's obligations
hereunder is not satisfied and such condition is not waived by it
at or prior to the Closing Date, Seller or Buyer, as the case may
be, may terminate this Agreement at its option by three business
days notice with opportunity to cure notice to the other party
hereto; provided, however, in no event shall such notice period
either (i) extend past the Bankruptcy Court hearing to approve
this Agreement and the transactions contemplated hereby; or (ii)
serve to extend the Closing Date. Except as provided in Section
2.1. above, in the event of the termination of this Agreement by
any party as above provided, or in the event the Closing Date has
not occurred by May 23, 1997, no party shall have any liability
hereunder of any nature whatsoever to the other parties, including
any liability for damages, unless any party is in default under
its obligations hereunder, in which event the party in default
shall be liable to the other parties for such default. In the
event that a condition precedent to his or its obligations is not
satisfied, nothing contained herein shall be deemed to require any
party to terminate this Agreement, rather than to waive such
condition precedent and proceed with the Closing. Notwithstanding
anything contained herein to the contrary, this Agreement shall
terminate automatically if the Closing Date has not occurred on or
prior to May 23, 1997.
11.2. Reimbursement of Buyer's Out-of-Pocket Expenses. In the
event the Agreement is terminated solely as a result of an overbid
approved by the Bankruptcy Court, Seller agrees to reimburse Buyer
up to but not in excess of an aggregate amount of $620,000 for
Buyer's actual out-of-pocket costs and expenses incurred and
payments made as follows:
11.2.1. in satisfaction of Buyer's obligations under
Section 2.5. above; and
11.2.2. in connection with the transactions contemplated by
this Agreement.
ARTICLE XII
NO WARRANTY
12.1. No Side Agreements or Representations. No person acting
on behalf of Seller is authorized to make, and by execution
hereof, Buyer acknowledges that no person has made any
representation, agreement, statement, warranty, guarantee or
promise regarding the Assets, the Sale or the transactions
contemplated herein or the zoning, construction, physical
condition or other status of the Assets except as may be expressly
set forth in this Agreement. No representation, warranty,
agreement, statement, guarantee or promise, if any, made by any
person acting on behalf of Seller which is not contained in this
Agreement will be valid or binding on Seller.
E-48
12.2. "AS IS" Condition. NOTWITHSTANDING THE LIMITED SCOPE OF
SECTION 5.7., BUYER ACKNOWLEDGES AND AGREES THAT NEITHER SELLER
HAS MADE OR DOES HEREBY MAKE ANY REPRESENTATIONS, WARRANTIES,
PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN,
PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO
(I) THE VALUE OF THE ASSETS; (II) THE INCOME TO BE DERIVED FROM
THE ASSETS; (III) THE SUITABILITY OF THE ASSETS FOR ANY AND ALL
ACTIVITIES AND USES WHICH BUYER MAY CONDUCT THEREWITH; (IV) THE
HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OF THE ASSETS; (V) THE MANNER,
QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE ASSETS; (VI) THE
NATURE, QUALITY OR CONDITION OF THE ASSETS; (VII) THE MANNER OR
QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED
INTO THE ASSETS; (VIII) THE CONTENT, COMPLETENESS OR ACCURACY OF
ANY WRITTEN INFORMATION OR PRELIMINARY REPORT REGARDING TITLE TO
OR OF THE ASSETS: AND (IX) THE CONFORMITY OF THE IMPROVEMENTS TO
ANY PLANS OR SPECIFICATIONS FOR THE ASSETS, INCLUDING ANY PLANS
AND SPECIFICATIONS THAT MAY HAVE BEEN OR MAY BE PROVIDED TO BUYER.
BUYER FURTHER ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN
THE OPPORTUNITY TO INSPECT THE ASSETS AND REVIEW INFORMATION AND
DOCUMENTATION AFFECTING THE ASSETS, BUYER IS RELYING SOLELY ON ITS
OWN INVESTIGATION OF THE ASSETS AND REVIEW OF SUCH INFORMATION AND
DOCUMENTATION, AND NOT ON ANY INFORMATION PROVIDED OR TO BE
PROVIDED BY SELLER. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT ANY
INFORMATION MADE AVAILABLE TO BUYER OR PROVIDED OR TO BE PROVIDED
BY OR ON BEHALF OF SELLER WITH RESPECT TO THE ASSETS WAS OBTAINED
FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY
INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND
MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF
SUCH INFORMATION. BUYER AGREES TO FULLY AND IRREVOCABLY RELEASE
ALL SUCH SOURCES OF INFORMATION AND PREPARERS OF INFORMATION AND
DOCUMENTATION AFFECTING THE ASSETS WHICH WERE RETAINED BY SELLER
FROM ANY AND ALL CLAIMS THAT IT MAY NOW HAVE OR HEREAFTER ACQUIRE
AGAINST SUCH SOURCES AND PREPARERS OF INFORMATION FOR ANY COSTS,
LOSSES, LIABILITIES, DAMAGES, EXPENSES, DEMANDS, ACTIONS OR CAUSES
OF ACTION ARISING FROM SUCH INFORMATION OR DOCUMENTATION.
SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR
WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO
THE ASSETS, OR THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE
BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON. BUYER FURTHER
ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY
LAW, THE SALE OF THE ASSETS AS PROVIDED FOR HEREIN IS MADE ON AN
"AS IS" CONDITION AND BASIS WITH ALL FAULTS, AND THAT SELLER HAS
NO OBLIGATION
E-49
TO MAKE REPAIRS, REPLACEMENTS OR IMPROVEMENTS EXCEPT AS MAY
OTHERWISE BE EXPRESSLY STATED HEREIN.
BUYER REPRESENTS, WARRANTS AND COVENANTS TO SELLER THAT,
EXCEPT FOR SELLER'S EXPRESS REPRESENTATIONS AND WARRANTIES
SPECIFIED IN THIS AGREEMENT, BUYER IS RELYING SOLELY UPON BUYER'S
OWN INVESTIGATION OF THE ASSETS.
NOTHING CONTAINED IN THIS SECTION 12.2. SHALL EFFECT THE
RIGHTS OF THE PARTIES HERETO PURSUANT TO SECTIONS 2.2., 2.3. AND
ARTICLE IX HEREOF.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1. Assignment. Neither this Agreement nor any of the
rights or obligations hereunder may be assigned by any party
without the prior written consent of the other parties; except,
that Buyer may, without such consent, prior to the Bankruptcy
Court hearing on the Sale and Lease Assumption Order assign all
such rights and such obligations to any "affiliate" as such term
is defined by the Federal Securities Laws; provided that such
entity shall: (y) have the financial capacity to perform Buyer's
obligations hereunder and under the Sale and Lease Assumption
Order and (z) assume all obligations and liabilities hereunder.
Subject to the foregoing, this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns, and no other person shall have any right,
benefit or obligation hereunder.
13.2. Notices. Unless otherwise provided herein, any notice,
request, instruction or other document to be given hereunder by
any party to the others shall be in writing and delivered
personally by messenger or courier, by facsimile, or if mailed by
certified or overnight express mail, postage prepaid, return
receipt requested (such mailed notice to be effective on the first
date of attempted delivery), as follows:
If to Seller, addressed to:
REDDIBRAKE SUPPLY COMPANY, INC.
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX. 00000
Attention: Xxxxxxxx X. Xxxxxxx
Interim Chief Executive Officer
Facsimile No. (000) 000-0000
With a copy to:
Jeffer, Mangels, Xxxxxx & Marmaro LLP
2121 Avenue of the Stars 00xx Xxxxx
Xxx Xxxxxxx, XX. 00000
Attention: Xxxxxx X. Xxxxxxxxx P.C.
E-50
Facsimile No. (000) 000-0000
If to Buyer, addressed to:
Express Parts Warehouse, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
President
Facsimile: (000) 000-0000
With a copy to:
Bode, Call & Xxxxxxx, LLP.
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx, Esq.
Facsimile: (000)000-0000
If to Escrow Agent, addressed to:
Jeffer, Mangels, Xxxxxx & Xxxxxxx LLP
2121 Avenue of the Stars, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx P.C.
Facsimile No. (000) 000-0000
or to such other place and with such other copies as any party may
designate as to himself or itself by written notice to the others.
13.3. Choice of Law; Jurisdiction. This Agreement shall be
construed, interpreted and the rights of the parties determined in
accordance with the laws of the State of California without giving
effect to the choice of law principles thereof. The parties
further agree that the sole and exclusive forum for the resolution
of any dispute arising out of or relating to their rights and
obligations hereunder shall be the Bankruptcy Court.
13.4. Entire Agreement; Amendments and Waivers. Except with
respect to the Sale Order
and the Lease Order the terms of which shall not be modified by
this Agreement, this Agreement, together with all Schedules and
Exhibits hereto, constitutes the entire agreement among the
parties pertaining to the subject matter hereof and supersedes all
prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties. No supplement,
modification or waiver of this Agreement shall be binding unless
executed in writing by the party to be bound thereby. No waiver of
any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver
unless otherwise expressly provided.
E-51
13.5. Multiple Counterparts. This Agreement may be executed
in one or more counterparts, by original signatures, copies or
signatures delivered by facsimile each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
13.6. Expenses. Except as set forth in Sections 2.3. and 2.5.
hereof, each party hereto shall be solely responsible for all
costs and expense incurred by it in connection with the
negotiation and preparation of this Agreement and the documents
contemplated hereby and completion of the transactions
contemplated thereby.
13.7. Invalidity. In the event that any one or more of the
provisions contained in this Agreement or in any other instrument
referred to herein, shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, then to the maximum
extent permitted by law, such invalidity, illegality or
unenforceability shall not affect any other provision of this
Agreement or any other such instrument.
13.8. Titles. The titles, captions or headings of the
Articles and Sections herein are inserted for convenience of
reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Agreement.
13.9. Attorneys' Fees. Should any party hereto institute any
action or proceeding at law or in equity to enforce any provision
of this Agreement, including an action for declaratory relief, or
for damages by reason of an alleged breach of any provision of
this Agreement, or otherwise in connection with this Agreement, or
any provision hereof, the prevailing party shall be entitled to
recover from the losing party or parties reasonable attorneys'
fees and costs for services rendered to the prevailing party in
such action or proceeding.
13.10. Incorporation by Reference. All Exhibits and Schedules
attached hereto or to be delivered in connection herewith are
incorporated herein by this reference.
13.11. No Third Party Beneficiaries. Nothing herein expressed
or implied is intended or shall be construed to confer upon or
give to any person or entity other than the parties hereto and
their successors or permitted assigns, any rights or remedies
under or by reason of this Agreement.
13.12. Rule of Construction. Each party and counsel for each
party have reviewed this Agreement. The parties hereto hereby
agree that the normal rule of construction, which requires a court
to resolve any ambiguities against the drafting party, shall not
apply in interpreting this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, either individually or on their
respective behalf by their respective officers thereunto duly
authorized, all as of the day and year first above written.
REDDIBRAKE SUPPLY COMPANY, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
Title: Interim Chief
E-52
Executive Officer
EXPRESS PARTS WAREHOUSE, INC
By: Xxxxxx Xxxxxx
Title: President
E-53
