COACH PURCHASE AGREEMENT
(DASA - 1995)
Xxxxxxx Bus Sales, Inc., a corporation
organized under the laws of the State of Delaware, U.S.A.
("Xxxxxxx"), and Xxxx Autobuses, S.A. de C.V., a
corporation organized under the laws of the United
Mexican States ("DASA"), agree as follows:
1. Purchase and Sale of Coaches. Xxxxxxx
intends to purchase certain motor coaches assembled by
DASA (including the Viaggio 1000) from DASA for resale in
the United States, and DASA intends to sell such coaches
to Xxxxxxx, each such purchase and sale being referred to
in this Coach Purchase Agreement ("Agreement") as a
"Coach Sale". Each Coach Sale will be accomplished in
accordance with the terms and conditions of this
Agreement.
2. Purchase Order and Delivery Schedules.
(a) Xxxxxxx will, from time to time, order coaches from
DASA using Xxxxxxx'x standard purchase order or other
appropriate order form ("Purchase Order"). Unless an
individual Purchase Order specifically states that this
Agreement does not apply, all of the terms and conditions
of this Agreement will be incorporated into and become a
part of the Purchase Order. In the event there is a
conflict between the terms of the Purchase Order, DASA's
acceptance of the Purchase Order and this Agreement, the
terms of this Agreement will prevail.
(b) The Purchase Order will describe the coach
or coaches being ordered by Xxxxxxx -- including detailed
specifications and options.
(c) The purchase prices of the coaches and
options will be negotiated and agreed to by DASA and
Xxxxxxx from time to time.
3. Delivery and Pre-Delivery Inspection.
(a) The delivery dates for the coaches will be
negotiated and agreed to by DASA and Xxxxxxx from time to
time.
(b) Xxxxxxx may inspect incomplete and
completed coaches at DASA's plant prior to delivery to
assure compliance with the Purchase Order. Xxxxxxx'x
inspection may include determining that the coach has
been assembled as specified, that all parts and
components are functioning properly and that the coach is
cosmetically acceptable condition for resale.
(c) Coaches will be delivered by DASA (or its
agent), at DASA's expense, to United States Customs in
Laredo, Texas, or such other location in the United
States as DASA and Xxxxxxx may agree on from time to
time.
(d) DASA will issue an invoice for each coach
when it is released from DASA's plant for delivery to
United States Customs.
4. Acceptance and Final Preparation for Sale.
(a) Notwithstanding Section 3(b) of this Agreement,
Xxxxxxx may inspect each coach at its delivery point or
may remove the coach to another inspection point.
Xxxxxxx'x inspection will include determining that the
coach has been assembled as specified (if not already
determined by Xxxxxxx at DASA's plant), that all parts
and components are functioning properly and that the
coach is in cosmetically acceptable condition for resale.
Xxxxxxx will repair any defects it discovers if it can
reasonably do so without returning the coach to DASA or
incurring unnecessarily excessive expenses. Xxxxxxx will
not do any unnecessarily expensive repairs or engineering
work in connection with repairing the coaches unless DASA
and Xxxxxxx have agreed in writing in advance that
Xxxxxxx will do such work and how Xxxxxxx will be
reimbursed.
(b) Upon Xxxxxxx'x determination in its sole
discretion that a coach has cleared United States
Customers and is acceptable for resale (and the coach has
been redelivered to Xxxxxxx, if it had been returned to
DASA or its agent for repair), Xxxxxxx will promptly
notify DASA in writing (identifying the coach by its VIN
number) that the coach has been accepted ("Acceptance").
(c) After Acceptance, Xxxxxxx will at its
expense make any final preparations (such as washing the
coach, assuring that it contains proper fluids, and
installing options such as paint schemes and destination
signs requested by Xxxxxxx'x customers) necessary to
prepare the coach for resale. Xxxxxxx will obtain and
deliver all parts, service and other manuals to be
included with the coach when it is resold.
5. Payment. (a) Xxxxxxx will pay all
undisputed portions of the invoice on the earlier of 90
days after Acceptance or within three days after the date
Xxxxxxx closes the sale of the coach to its customer.
(b) Xxxxxxx will retain all amounts it
receives upon resale in excess of the invoice price.
6. Warranty. (a) Each coach will be resold
by Xxxxxxx with a 2 year or unlimited mile warranty,
whichever comes first.
(b) Xxxxxxx will administer and pay for all
warranty claims. Xxxxxxx will promote itself to its
customers as being responsible for and administering all
warranty claims.
(c) DASA and Xxxxxxx agree that this Section 6
also applies to all Viaggio 1000 coaches sold by DASA to
Xxxxxxx prior to execution of this Agreement.
7. Termination. Either party may terminate
this Agreement effective anytime on or after July 31,
1996 by giving the other party at least 120 days advance
written notice stating the effective date of termination.
All coaches ordered prior to the giving of the notice of
termination will be assembled, sold and purchased in
accordance with this Agreement.
8. Dollars. Whenever used in this Agreement,
any attachment hereto, any Purchase Order or in the
invoice for any Coach Sale, the term "dollar", "dollars"
or "$" means U.S. dollars.
9. Choice-of-Law. This Agreement will be
governed by and construed in accordance with the laws
(except those respecting choice-of-law and the United
Nations Convention on Contracts for the International
Sale of Goods) of the State of Arizona, U.S.A. Xxxxxxx
and DASA each agree to submit to the personal
jurisdiction of the state and federal courts of the State
of Arizona, U.S.A. If any provision of this Agreement is
found by a court of competent jurisdiction to be void or
unenforceable, Xxxxxxx and DASA agree that such provision
should be modified by the court so that it becomes
enforceable and, as modified, will be enforced as any
other provision of this Agreement, all other provisions
of the Agreement continuing in full force and effect.
Such a modification, however, will be effective only in
the legal proceeding of which it is a part and only on
the facts to which it is applied; all provisions herein
will be applied as written, to the extent enforceable, in
any other legal proceeding or on any other facts.
10. Specification Changes. DASA will endeavor
to give Xxxxxxx at least 180 days advance notice of
material changes in the coach specifications.
11. Arm's-Length Agreement. Although Xxxxxxx
and DASA are affiliates through their common parent,
Consorcio G Grupo Xxxx, S.A. de C.V., Xxxxxxx and DASA
each acknowledge that this Agreement has been fairly
negotiated and is an arm's-length transaction.
Acknowledged and agreed this 1st day of August,
1995.
XXXX AUTOBUSES, S.A. DE X.X. XXXXXXX BUS SALES, INC.
/s/ Xxxx Xxxx Xxxxxx
Name: Xxxx Xxxx Xxxxxx Name: Xxxx X. Xxxx
Title: Finance Director Title: President, Chief
Operating Officer
