Agreement to Provide Services for Certification
This agreement (the "Agreement") is entered into this
28th day of September, 1999, by and between LPC of
New York, Inc., a New York corporation ("LPC"), and
Nostalgia Motor Cars, Inc., a Nevada corporation
("NMCI") under the terms, covenants and conditions
set forth below.
WHEREAS, NMCI intends to manufacture/assemble, import
and sell into the United States new "old style"
Volkswagen Beetles manufactures in Mexico
("Vehicles"), and to do no in required by law to
conform the vehicles to National Highway Traffic
Safety Administration ("NHTSA") standards and further
obtain both Environmental Protection Agency ("EPA")
and California Air Resources Board (CARB)
Certificates of Conformance, and,
WHEREAS, LPC provides vehicle certification services
and operates a vehicle emissions testing laboratory
recognized by EPA and CARB as capable of performing
the necessary tests in accordance with respective
agency requirements.
NOW, THEREPORE, in consideration of terms, covenants
and conditions set forth below, as well as other good
and valuable consideration,, the adequacy and receipt
of which are hereby acknowledged, the parties hereto
agree as follows:
1. Governmental Compliance. LPC will submit
application for NMCI to obtain a Small Volume
Manufacturer's Status ("SVM"), allowing NMCI to
import into the United States up to 10,000 Vehicles
per year for retail sale and distribution. LPC
agrees to advise NMCI on such procedures as are
necessary for NMCI to obtain Certificates of
Conformance so that new "old style" Volkswagen
Beetles manufactured outside the United States can be
imported by NMCI as conforming vehicles, meeting the
safety standards of NHTSA and tailpipe emission
standards of EPA and CARB. At the completion of
compliance, all data, reports, analysis etc. will be
provided to NMCI to engage a facility or factory to
incorporate the parts, devices etc., that may be
necessary to incorporate into the base vehicle at a
cost not to exceed $1,600.00, so that the Vehicles
may enter the United States as conforming vehicles
for resale into the retail market complying with
current EPA, CARB and NHTSA standards.
2. Certification of Compliance with United States
Environmental Protection Agency and the California
Air Resources Board. LPC will conduct such testing
as are necessary to obtain a Certificate of
Conformance for Vehicles to meet EPA and CARB
requirements, including application necessary for
NMCI to obtain a SVM status, allowing NMCI to import
into the United States up to 10,000 Vehicles per year
for retail sale and distribution.
3. Vehicle Requirements from NMCI. NMCI will
provide LPC with at least, but not limited to, six
(6) Vehicles. LPC will schedule and supervise the
crash worthiness testing at a recognized independent
testing facility to ensure compliance with all
applicable federal motor vehicle safety standards.
Additional Vehicle(s), if necessary, will have less
than a total of 200 accumulated miles; Vehicle(s)
will be for the purposes of evaluating the base
Vehicle and its ability to be conformed to CARB and
EPA tail pipe emission standards.
4. Engineering and Emission Testing. LPC will
evaluate the Vehicle's emission and safety components
and provide scheduling and witnessing of the crash
worthiness of the Vehicle. The expense associated
with crash worthiness testing, and the Vehicles
required, are the sole responsibility of NMCI. If
engineering changes are required to comply the
Vehicle with NHTSA, EPA and CARB, the installation of
the engineering revisions to the Vehicles will solely
be the responsibility of NMCI. At the completion of
this evaluation phase, LPC will provide NMCI with all
engineering studies, data, and reports necessary to
fully describe the emissions systems so that the
Vehicles can be sold in the United States as
certified vehicles.
5. Mileage Accumulation (if necessary). It may be
required to perform mileage accumulation to obtain
Deterioration Factors ("DFa") to demonstrate the
durability of the emission control components used in
controlling tailpipe emissions. The mileage
accumulation may consist of emission testing at 5,000
mile intervals up to 120,000 miles. LPC will conduct
mileage accumulation and interval testing for an
additional fee. Such costs, if necessary, are not
included in the sums to be paid by NMCI pursuant to
Section 9 below.
6. Administrative Assistance by LPC. For a period
of one (1) year after the receipt of SVM status, and
Certificates of Conformance, if required, in writing
by NMCI, LPC shall provide. a necessary assistance in
data handling and administrative functions to assist
NMCI, in:
(a) Obtaining required recall and warranty insurance
contracts.
(b) In contracting with any necessary service
centers, all for the purpose of meeting CARB
requirements.
(c) Obtaining proper manufacturing liability
insurance.
(d) EPA Emission Warranties, to the extent
required by all applicable governments.
(e) The purchase of NHTSA safety warranties, to
the extent required by all applicable state and
federal governments, if necessary are not included in
the sums to be. paid by NMCI pursuant to Section 9
below.
7. Exclusivity Agreement. In consideration of
the payments to LPC of the amounts set forth
throughout this Agreement, LPC, agrees that neither
it, nor any affiliate, sister company, or any company
under common control (either wholly or in part) will
provide any testing, engineering, or certification
procedures relating to new "old style" Volkswagen
Beetles to be imported from outside the United States
by NMCI for any person or entity other than NMCI,
with NMCI's written consent ,which consent NMCI may
grant or withhold in its sole and absolute
discretion.
8. Scheduling for Phases. LPC will perform its
services under this Agreement pursuant to the
following schedule, providing the Agreement is
executed and the Nostalgia ehicles are provided by
the first week of October 1999:
Phase Description of Work to Be Performed Completion
Dates
Phase I Such administrative functions as are On or before
necessary to file for SVM status with Oct 31, 1999
the respective agencies
Phase II Such administrative functions as are On or before
necessary to proceed with the Oct 31, 1999
Certificates procedures
Phase III Complete emission testing for EPA and
CARB On or before
Nov 30, 1999
9. Payment Terms. Nostalgia shall pay LPC for its
work leading up to the completion of Phase III as
described above as follows:
(a) $75,000.00 within 72 hours of this
Agreement.
(b) $100,000.00 upon completion of Phase I and
II.
(c) Balance of $200,000 upon issuance of EPA and
CARB issuance of Certificate of Conformity.
(d) Although the parties hereto acknowledge
that the original crash tests on the Vehicles are
still available and valid, updated crash tests might
have to be conducted, which would entail an
additional cost to Nostalgia under this Agreement of
up to $175,000.
10. Representations of LPC. LPC hereby represents
and warrants to Nostalgia the following in order to
induce Nostalgia to enter into this Agreement:
(a) LPC is a New York corporation in good standing
and with full corporate authority to perform its
obligations under this Agreement.
(b) Neither the execution, delivery or
performance by LPC of this Agreement, conflicts with
or contravenes, or will conflict with or contravene,
any law, rule, regulation, judgment, order or decree
of any government, governmental instrumentality or
court, domestic or foreign, having jurisdiction over
LPC or LPC's activities or properties, or conflict
with, or result in any default under any agreement or
instrument of any kind to which LPC is a party or by
which LPC or LPC's properties may be bound or
affected;
(c) This Agreement has been duly executed and
delivered by LPC and constitutes a legal, valid and
binding obligation of LPC enforceable against LPC in
accordance with its terms;
(d) There is no action, litigation or other
proceeding pending or, to LPC's best knowledge,
threatened against LPC before any court, arbitrator
or administrative agency, domestic or foreign, except
for the Lawsuit which may have an adverse effect on
LPC's assets, businesses, or financial condition or
which would prevent, hinder or jeopardize LPC's
performance under this Agreement; and,
(e) LPC is not a party to any contract,
agreement, indenture or instrument or subject to any
restriction which individually or in the aggregate
which might adversely affect LPC's financial
condition or businesses, or which would in any way
jeopardize the ability of LPC to perform hereunder.
(f) LPC is certified and recognized by the United
States Environmental Protection Agency and the
California Air Resources Board to perform various
emissions testing to the respective agencies'
standards.
(g) LPC has successfully provided vehicle
certification services for the past two decades to
vehicle manufacturers to meet the standards of the
NHTSA, the EPA and CARB, and its engineering work
related to its performance under this Agreement shall
meet the highest standards of its industry.
11. Modification of Units. The cost, not to exceed
$1600.00 per car, of the Structural Modifications and
the Emissions Modifications necessary to meet all
regulatory requirements, shall include the cost of
all parts, including, but not limited to the
following:
(a) Bumper modifications (If necessary)
(b) O.B. II Computer System
(c) Emission Vapor Canister
(d) Required temperature and pressure sensors
(e) Modified speedometer
(f) Warning lights and buzzers for seat belts,
parking brakes, etc.
(g) Proper labeling
(h) Door beams (If necessary)
(i) Dual air bags
12. Option to purchase LPC. Nostalgia will have the
irrevocable option to purchase 100% of LPC and its
related companies, for a period of six (6) months
from the date of this Agreement, on terms to be
mutually agreed upon.
13. Notices . All notices, waivers, demands,
requests and other communications required or
permitted by this Agreement (collectively,
"Notices"), to be effective, shall be in writing and
shall be given as follows by (a) personal delivery,
(b) established overnight commercial courier with
delivery charges prepaid or duly charged, (c)
registered or certified mail, return receipt
requested, first class postage prepaid, or (d) by
confirmed telefacsimile, confirming the date, time
and content of the transmittal:
if to Nostalgia: Xxxx Xxxxxxxx, President
Nostalgia Motorcars, Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
with a copy to: G. Xxxxx Xxxxxx, Esq.
Xxxxxx & Short, P.C.
00 Xxxxx Xxxxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
if to LPC: Xxxxx XxXxxxxxxx
LPC of New York, Inc.
00 Xxxxx Xxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
or to any other address or addressee as any party
entitled to receive notice under this Agreement shall
designate, from time to time, by Notice given to the
others in the manner provided in this Article.
Notices thus given by personal delivery and by
confirmed telefacsimile shall be deemed to have been
received upon tender to the respective address set
forth above. Notices thus given by overnight courier
shall be deemed to have been received the next
business day after delivery to such overnight
commercial courier. Notices given by certified or
registered mail shall be deemed to have been received
on the third day after deposit into the United States
mail.
14. Right to Waive Conditions . Either party may
waive any of the terms or conditions of this
Agreement made for such party's benefit, provided
that such waiver is in a writing signed by the
waiving party. No waiver by any party of any
default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall
be deemed to apply or extend to any prior or
subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way
any rights arising by virtue of any prior or
subsequent such occurrence.
15. Binding Effect . This Agreement shall be
binding upon, and inure to the benefit of, the
parties hereto and their respective heirs, legal
representatives, successors and assigns.
16. Partial Invalidity . If any term, covenant or
condition of this Agreement, or the application
thereof, to any person or circumstance shall be
invalid or unenforceable at any time or to any
extent, then the remainder of this Agreement, or the
application of such term, covenant or condition to
persons or circumstances other than those as to which
it is invalid or unenforceable, shall not be affected
thereby. Each term, covenant and condition of this
Agreement shall be valid and enforced to the fullest
extent permitted by law.
17. Entire Agreement . This Agreement contains the
entire agreement between the parties with respect to
the Assets and there are no promises, agreements,
conditions, undertakings, understandings, warranties,
covenants or representations, oral or written,
express or implied, between them with respect to the
Assets, this Agreement, or the transaction described
in this Agreement, other than as set forth in this
Agreement. This Agreement supersedes any other
agreement entered into between the parties, including
that certain "Agreement of LPC Inc. to Provide
Services for Certification" previously executed
between the parties (the "Prior Agreement"), which
the parties hereby agree is of no further force or
effect. The parties hereto hereby release any party
or persons from, and waive, any claims they may have
arising out of the Prior Agreement.
18. Modifications. This Agreement may not be
modified orally or in any manner other than by an
agreement in writing signed by all the parties or
their respective successors in interest.
19. Further Assurances. In addition to the
respective obligations required to be performed under
this Agreement, Seller and Buyer shall each perform
from time to time hereafter, such other acts, and
shall execute, acknowledge and/or deliver such other
instruments, documents and other materials, as may be
reasonably required in order to perform their
respective obligations under this Agreement. It is
understood and agreed that the foregoing provisions
shall not be deemed to require either party to
perform any of the obligations of the other.
20. No Third Party Beneficiaries. There shall be
no third party beneficiaries to this Agreement.
21. Headings. The headings used in this Agreement
are for reference and convenience only, and shall not
be considered in the interpretation of this
Agreement.
22. Plurality and Gender. Wherever in this
Agreement the singular number is used, the same shall
include the plural, and the masculine gender shall
include the feminine and neuter genders, and vice
versa, as the context shall require.
23. Governing Law. All questions with respect to
the construction of this Agreement and the rights and
liabilities of the parties under this Agreement shall
be determined in accordance with the laws of the
State of Arizona, without regard to the application
of choice of law principles, except to the extent
that such laws are superseded by federal law.
24. Time of Essence. Time is of the essence of
this Agreement.
25. Assignment. No party may assign either this
Agreement or any of its rights, interests, or
obligations hereunder without the prior written
approval of the other party.
26. Counterparts. This Agreement may be executed
in one or more counterparts, each of which shall be
deemed an original but all of which together will
constitute one and the same instrument.
27. Attorney Fees for Breach. In the event that any
of the terms, conditions, obligations restrictions,
or provisions of this contract result in litigation
or arbitration, the prevailing party shall be
entitled to reasonable costs and attorney fees as
determined by a court of competent jurisdiction.
28. Construction. The parties have participated
jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of
intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties and
no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this
Agreement. Any reference to any federal, state,
local, or foreign statute or law shall be deemed also
to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise.
The word "including" shall mean including without
limitation. The parties intend that each
representation, warranty, and covenant contained
herein shall have independent significance. If any
party has breached any representation, warranty, or
covenant contained herein in any respect, the fact
that there exists another representation, warranty,
or covenant relating to the same subject matter
(regardless of the relative levels of specificity)
which the party has not breached shall not detract
from or mitigate the fact that the party is in breach
of the first representation, warranty, or covenant.
29. No Agency. Neither the terms of this Agreement
nor the transaction contemplated hereby shall be
deemed or construed to give rise to any partnership,
joint venture, or agency relationship, and the
relationship of LPC to Nostalgia shall simply be that
of an independent contractor acting in accordance
with the terms of this Agreement. Neither party
shall have the right to bind the other to any
obligations not expressly set forth in this Agreement
nor with respect to any third parties.
30. Confidentiality. Both parties agree to keep the
terms and conditions of this agreement strictly
confidential, excepting for bonafide regulatory or
legal disclosure requirements.
In Witness Whereof, the parties have executed this
Agreement as of the first date set forth above.
Nostalgia Motorcars, Inc. LPC of New York, Inc.
By:/s/ Xxxx Xxxxxxxx By:/s/ Xxxxxx XxXxxxxxxx
Xxxx Xxxxxxxx, President Xxxxx XxXxxxxxxx, President
