Exhibit 10.1
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
This agreement ("Agreement") is made as of the date on which the last of the
parties to this Agreement executes it, as shown on the final page of this
Agreement, ("Agreement Date") at Bakersfield, California, among Venture Out RV
Centers, Inc., a California corporation ("Buyer"), and Holiday RV Superstores
West, Inc. a California corporation, ("Seller") and for the purpose of making
certain representations and warranties, Holiday RV Superstores, Inc., a
Delaware corporation ("Parent").
RECITALS
A. Seller is the owner and operator of a recreational vehicle
sales and service business ("Business") located at 0000 Xxxx Xxxx Xxxxx xx
Xxxxxxxxxxx, Xxxxxxxxxx ("Premises") and currently does business under the name
"Recreation USA".
B. Buyer wishes to buy and Seller wishes to sell to Buyer
certain of the assets of the Business.
C. Parent owns all of the issued and outstanding stock of
Seller.
ARTICLE 1: PURCHASE AND SALE OF ASSETS
1.1. Subject to the terms and conditions set forth in this
Agreement, Seller will sell, convey, transfer, assign, and deliver to Buyer,
and Buyer will purchase from Seller, those assets of the Business described on
Exhibit A to this Agreement (collectively "Assets").
1.2. Buyer agrees to pay to Seller as consideration for the
transfer of the Assets the aggregate amount of the following ("Purchase
Price"):
1.2.1. $775,000; plus
1.2.2. The invoice price plus freight plus outstanding RO's
(PAC not included) of all new vehicle inventory as of the Closing Date (defined
in Section 8.1), net of floorplan notes outstanding. Inventory transferred from
Seller's Roseville dealership will be excluded; plus
1.2.3 The book value of all used vehicle inventory (PAC
not included) as of the Closing Date at the total amount shown on Schedule A-1
as adjusted pursuant to the provision of Section 4.5 net of floorplan notes
outstanding; plus
1.2.4. The book value of all Parts and Accessory Inventory
as of the 11/30/02 physical inventory (adjusted to actual inventory as of the
Closing Date) valued as follows: if less than 361 days old, then at 100% of
original invoice cost; if less than 721 days old but greater than 360 days old,
then at 50% of original invoice; if greater than 720 days old then at 10% of
original invoice. Special order parts will be valued at 100% of
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original invoice if less than 91 days old, those over 90 days, valued at 10% of
original invoice. Inventory transferred from Seller's Roseville dealership will
be excluded; plus
1.2.5. The book value (net of all depreciation) of the
Fixed assets of Seller as shown on Seller's October 31, 2002 balance sheet.
1.2.6. The assumption of selected Seller's obligations as
set forth on Exhibit D.
1.2.7. An adjustment for outstanding customer deposits,
utility deposits, proration of Premises rent, Premises security deposit (less
November rent), proration of real property taxes and utility charges.
1.3. The Purchase Price shall be paid as follows:
1.3.1. Within two business days from the Agreement Date,
Buyer shall deposit with Commercial Escrow Services, 0000 Xxxxxxx Xxxxxx, xxxxx
0000, Xxxxxxxx Hill, Ca., 94523 ("Escrow Holder") as a credit to the Purchase
Price $100,000 ("Deposit"),
1.3.2. At closing, the Purchase Price less the Deposit,
1.4. Buyer will assume liability only for those obligations and
equipment leases listed in Exhibit D. It is expressly understood and agreed
that Buyer will not be liable for any of the obligations or liabilities of
Seller of any kind other than those listed on Exhibit D.
1.5 Seller will pay all sales and use taxes arising from the
transfer of the Assets and will pay its portion, prorated as of the Closing
Date, of state and local real and personal property taxes attributable to the
Assets or the Business. Buyer will not be responsible for any business,
occupation, withholding, or similar tax, or any taxes of any kind related to
any period before the Closing Date.
ARTICLE 2: WARRANTIES OF SELLER AND PARENT
Seller and Parent, jointly and severally warrant that:
2.1. Seller is a corporation duly organized, validly existing, and
in good standing under the laws of California. Parent is duly organized,
validly existing, and in good standing under the laws of Delaware.
2.2. Seller has previously delivered to Buyer financial statements
("Financial Statements") for the Business for fiscal years 2000, 2001 and the
first eleven months of 2002. The Financial Statements were prepared in
accordance with generally accepted accounting principles consistently followed
by Seller throughout the periods covered by the Financial Statements and fairly
present the financial position of the Business as of the respective dates of
the Financial Statements and the results of the Business's operations for the
respective periods indicated.
2.3 There has not been any change in the financial condition or
operations of the Business as reflected in the Financial Statements, except
changes in the ordinary course of business, which have not in the aggregate
been materially adverse.
2.4 Since September 30,2002, the last date of the Financial
Statement for the
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first eleven months of the 2002 fiscal year of the Seller, there has not been
with respect to the Business any:
(1) Transaction by Seller except in the ordinary course
of business as conducted on that date;
(2) Capital expenditure by Seller exceeding $500;
(3) Destruction, damage, or loss of any asset of Seller
(insured or uninsured) that materially and adversely affects the financial
condition, business, or prospects of Seller.
(4) Increase in the salary or other compensation payable
or to become payable by Seller to any of the Employees (defined in Section
2.10).
(5) Sale or transfer of any asset of Seller, except in
the ordinary course of business;
(6) Amendment or termination of any contract, agreement,
or license affecting the Business to which Seller is a party, except in the
ordinary course of business;
(7) Mortgage, pledge, or other encumbrance of any Asset;
(8) Commencement or notice or threat of commencement of
any civil litigation, including any bankruptcy or insolvency proceeding, or any
governmental proceeding against or investigation of Seller or Parent or the
affairs of either of them;
(9) Labor trouble or claim of wrongful discharge or
other unlawful labor practice or action;
(10) Agreement by Seller to do any of the things
described in the preceding clauses (1) through (9); or
(11) Other event or condition of any character that has
or might reasonably have a material adverse effect on the Business or the
ability of Seller to perform its obligations under this Agreement.
2.5. Within the times and in the manner prescribed by law, Seller
has filed all federal, state, and local tax returns required by law and has
paid all taxes, assessments, and penalties due and payable. There are no
present disputes about taxes of any nature payable by Seller.
2.6. The obligations of Seller listed on Exhibit D are all of the
outstanding and unpaid obligations of Seller.
2.7 Seller has not received notice of the commencement of, any
proceeding that would affect the present zoning classification of the Premises.
2.8. Seller has not installed or caused to be installed any
underground storage tanks on the Premises, any asbestos-containing materials in
or about the Premises, nor equipment containing PCBs.
2.9. All the Assets are free and clear of restrictions on or
conditions to transfer or assignment, and of mortgages, liens, pledges,
charges, encumbrances, equities, claims, easements, rights of way, covenants,
conditions, or restrictions, except for (1) the lien of Seller's "flooring"
lender on new and used vehicle inventory and (2) the lien of current
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taxes not yet due and payable. Seller is not in default or in arrears in any
material respect under any lease. All real property and tangible personal
property of Seller are in good operating condition and repair, ordinary wear
and tear excepted.
2.10. Exhibit E to this Agreement is a list of all employees
("Employees") employed by Seller exclusively for purposes of operating the
Business. None of the Employees is covered by a collective bargaining agreement
or employed pursuant to any employment contract, written or oral. All Employees
may be terminated "at will" of Seller. Seller has paid all pension, bonus,
profit-sharing, stock option, or other agreements or arrangements providing for
employee remuneration or benefits to which any Employee is entitled. There is
no pending or, to Seller's knowledge, threatened labor organizing activity,
labor dispute, strike, or work stoppage affecting the Business. Seller has
complied with all applicable laws for each of their respective employee benefit
plans, including the provisions of the Employee Retirement Income Security Act
(ERISA) if and to the extent applicable. There are no threatened or pending
claims by or on behalf of any such benefit plan, or any employee covered under
any such plan, that allege a breach of fiduciary duties or violation of other
applicable state or federal law, nor is there, to Seller's knowledge, any basis
for such a claim. Seller has not entered into any severance or similar
arrangement in respect of any present or former employee that will result in
any absolute or contingent obligation of Buyer to make any payment to any
present or former employee following termination of employment.
2.11. Except for certain manufacturer and dealer sales agreements
listed on Exhibit F ("Sales Agreements"), Seller is not a party to any
distributor's or manufacturer's representative or agency agreement; any output
or requirements agreement. There is no default or event that, with notice or
lapse of time or both, would constitute a default by any party to any of these
Sales Agreements. Seller has not received notice that any party to any of these
Sales Agreements intends to cancel or terminate any of these
Manufacturer/Dealer Sales.
2.12. Seller has not received notice of any violation of any
applicable federal, state, or local statute, law, or regulation (including any
applicable building, zoning, environmental protection, or other law, ordinance,
or regulation) affecting the Business or Assets; and to the best of the
knowledge of the Seller, there are no such violations.
2.13. There is no pending, or, to the best knowledge of Seller,
threatened, suit, action, arbitration, or legal, administrative, or other
proceeding, or governmental investigation against or affecting Seller or the
Business. Neither Parent or Seller is contemplating or presently subject to any
Federal Bankruptcy or state insolvency proceeding.
2.14. The consummation of the transactions contemplated by this
Agreement will not result in or constitute any of the following: (1) a breach
of any term or provision of this Agreement; (2) a default or an event that,
with notice, lapse of time, or both, would be a default, breach, or violation
of the articles of incorporation or bylaws of Seller or any lease, license,
promissory note, conditional sales contract, commitment, indenture, mortgage,
deed of trust, or other agreement, instrument, or arrangement to which Seller,
is a party or by which it or the property is bound; (3) an event that would
permit any party to terminate any agreement or to accelerate the maturity of
any indebtedness or other obligation of Seller; or (4) the creation or
imposition of any lien, charge, or
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encumbrance on any of the properties of Seller.
2.15. Seller has the right, power, legal capacity, and authority to
enter into and perform their respective obligations under this Agreement, and
no approvals or consents of any persons other than Seller are necessary in
connection with it. The execution and delivery of this Agreement by Seller have
been duly authorized by all necessary corporate action on the part of Seller
and Parent.
2.16. None of the warranties and representations made by Seller and
Parent, or made in any certificate or memorandum furnished or to be furnished
by Seller or Parent or on their behalf, contains or will contain any untrue
statement of a material fact, or omits to state a material fact necessary to
prevent the statements from being misleading.
ARTICLE 3: BUYER'S WARRANTIES
Buyer warrants that:
3.1 Buyer is a corporation duly organized, existing, and in good
standing under the laws of California. The execution and delivery of this
Agreement and the consummation of this transaction by Buyer have been duly
authorized, and no further corporate authorization is necessary on the part of
Buyer.
3.2 Except for Buyer obtaining a license from the California
Department of Motor Vehicles ("DMV"), no consent, approval, or authorization
of, or declaration, filing, or registration with, any United States federal or
state governmental or regulatory authority 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 by this
Agreement.
ARTICLE 4: SELLER'S OBLIGATIONS BEFORE CLOSING
4.1 Seller and Parent warrant that from the date of this
Agreement until the Closing:
4.1.1. Seller will furnish or cause to be furnished to
Buyer and its representatives all data and information concerning the Business
that may reasonably be requested.
4.1.2 Seller will conduct the Business diligently and in
substantially the same manner as it previously have been conducted.
4.1.3 Seller will use its best efforts to preserve the
Business intact, to keep available to Seller its present employees, and to
preserve its present relationships with suppliers, manufacturers, customers,
and others having business relationships with it.
4.1.4. Seller will continue to carry its existing
insurance, subject to variations in amounts required by the ordinary operations
of the Businesses.
4.1.5 Seller will not do, or agree to do, either of the
following acts: (1) make any change in compensation payable or to become
payable by it to any Employee or (2) make any change in benefits payable to any
Employee under any bonus or pension
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plan or other contract or commitment.
4.1.6. Seller will not, without Buyer's written consent, do
or agree to do any of the following acts:
4.1.6.1. Enter into any contract, commitment, or
transaction not in the usual course of its business;
4.1.6.2. Make any capital expenditures in excess of
$500 for any single item or $1000 in the aggregate, or enter into any leases of
capital equipment or property;
4.1.6.3 Sell or dispose of any capital assets with
a net book value exceeding $500, individually, or $1,000 in the aggregate;
4.1.6.4. Modify, amend, cancel, assign or terminate
any of its Sales Agreements, or agree to do any of those acts.
4.2. All warranties and representations of Seller and Parent will
also be true and correct as of the Closing Date as if made on that date.
4.3. Seller shall deliver to Buyer within two days from the
Agreement Date insurance loss runs for "open lot", casualty, "garage keepers"
and workmen's compensation for the calendar years 1999, 2000, 2001 and 2002;
4.4. On the day preceding the Closing Date, Seller shall terminate
the employment of all the Employees and pay to the Employees all salaries,
accrued vacation, and other benefits to which they or any of them may be
entitled as of and through the date of termination and pay any and all amounts
due, as of the date of and through the date of termination for all federal,
state and local employment and withholding taxes.
4.5. Seller shall notify Buyer of the values it has assigned to
any used vehicles it intends to acquire prior to Closing. Buyer shall have 24
hours from notice of the proposed value to approve or disapprove the proposed
value. If Buyer disapproves, Seller may complete the acquisition but Buyer
shall only be obligated to pay to Seller the value determined by Buyer. Buyer's
failure to approve or disapprove within the time period stated shall be deemed
approval.
4.6 Seller and Parent shall deliver to Buyer by November 27,
2002, copies of the resolutions of the Boards of Directors of both Seller and
Parent, certified by the Secretary of each of Seller and Parent as true and
accurate copies of each such resolution, authorizing each of Seller and Parent
to enter into and consummate this Agreement and to authorize their respective
officers to do any and all acts on behalf of each of them to consummate the
transaction contemplated by this Agreement in accordance with the terms of this
Agreement. Such corporate resolutions shall be substantially in the form of
Exhibits G-1 and G-2 attached hereto.
ARTICLE 5: BUYER'S OBLIGATIONS BEFORE CLOSING
5.1. Unless and until the closing has been consummated and except
as may be necessary for Buyer to obtain acquisition and floor plan, financing,
assignment of the Sales Agreements, permits and insurance, Buyer will hold in
strict confidence all data and information with respect to the business of
Seller obtained in connection with this
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transaction or Agreement.
5.2 Buyer will furnish any resale certificate or other documents
reasonably requested by Seller to comply with the provisions of the sales and
use tax laws of the State of California.
5.3. Buyer will have given notice, in compliance with Division 6
of the California Commercial Code, of the bulk transfer contemplated by this
Agreement. Seller will furnish Buyer with the information necessary to prepare
this notice, including all names and business addresses used by it within the
last three years and the location of all the assets to be transferred under
this Agreement, at least 15 days before the Closing Date.
ARTICLE 6: CONDITIONS PRECEDENT TO BUYER'S PERFORMANCE
The obligations of Buyer to purchase the Assets under this Agreement are
subject to the satisfaction, at or before the dates stated, of all the
conditions set out below in this Article 6. Buyer may waive any or all of these
conditions in whole or in part without prior notice; provided, however, that no
such waiver of a condition constitutes a waiver by Buyer of any of its other
rights or remedies, at law or in equity, if Seller is in default of any of
their representations, warranties, or covenants under this Agreement.
6.1 Buyer's approval by November 22, 2002, of the used vehicle
inventory values shown on Exhibit A-1.
6.2. Seller furnishing to Buyer by Closing, evidence satisfactory
to Buyer in its reasonable discretion that all Seller's creditors and other
parties whose consent to the sale of the Business and Assets that must be
obtained by Seller have been obtained.
6.3 Buyer's approval by November 22, 2002, which approval may be
given or withheld in its sole discretion, of its "due diligence" review of the
Business and the Assets.
6.4. Buyer obtaining on or before Closing a license from the DMV
to operate the Business. Buyer shall exercise its best efforts to obtain such
license.
6.5. Except as otherwise permitted by this Agreement, all
warranties and representations by Parent and Seller in this Agreement, or in
any written statement that will be delivered to Buyer by any of them under this
Agreement, must be true on the Closing Date as though made at that time.
6.6. On or before the Closing Date, Seller will have performed,
satisfied, and complied with all covenants, agreements, and conditions required
of any of them by this Agreement.
6.7. During the period from the date of this Agreement to the
Closing Date, there will not have been any material adverse change in the
financial condition or the results of operations of the Business and Seller
will not have sustained any material loss or damage to its insured or uninsured
assets that materially affects its ability to conduct the Business.
6.8 No action, suit, or proceeding before any court or any
governmental body
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or authority, pertaining to the transaction contemplated by this Agreement or
to its consummation, will have been instituted or threatened on or before the
Closing Date.
6.9. Seller has furnished to Buyer corporation tax clearance
certificates as of a date not more than 30 days before the Closing Date from
the California Franchise Tax Board for Seller.
6.10. Seller has furnished to Buyer a Certificate of Release from
the California Employment Development Department stating that, as of a date not
more than 30 days before the Closing Date, no contributions, interest, or
penalties are due to the Employment Development Department from Seller.
6.11. Seller furnishing to Buyer estoppels, in the form attached
hereto as Exhibit H, executed by each of the employees of Seller and dated no
earlier than two days prior to Closing.
6.12. Seller will furnish to Buyer a clearance certificate from the
California Board of Equalization and any related certificates that Buyer may
reasonably request as evidence that all sales and use tax liabilities of Seller
accruing before the Closing Date have been fully satisfied or provided for.
6.13. All necessary agreements and consents of any parties to the
consummation of the transactions contemplated in this Agreement, or otherwise
pertaining to the matters covered by it, will have been obtained by Seller and
delivered to Buyer.
6.14. The form and substance of all certificates, instruments and
other documents delivered to Buyer under this Agreement must be satisfactory in
all reasonable respects to Buyer and its counsel.
6.15. Buyer has approved the valuations of used vehicles acquired
by Seller after the inventory date.
ARTICLE 7: CONDITIONS PRECEDENT TO SELLER'S PERFORMANCE
The obligations of Seller to sell and transfer the Assets under this Agreement
are subject to the satisfaction, at or before closing, of all the following
conditions. Seller may waive any or all of these conditions in whole or in part
without prior notice, provided, however, that no such waiver of a condition
constitutes a waiver by Seller of any of its other rights or remedies, at law
or in equity, if Buyer should be in default of any of its representations,
warranties, or covenants under this Agreement.
7.1. All warranties by Buyer contained in this Agreement or in any
written statement delivered by Buyer under this Agreement must be true on and
as of the Closing Date as though such warranties were made on and as of that
date.
7.2. Buyer will have performed and complied with all covenants and
agreements and satisfied all conditions that it is required by this Agreement
to perform, comply with, or satisfy, before or at the Closing.
7.3. The board of directors of Buyer has duly authorized and
approved the execution and delivery of this Agreement and all corporate actions
necessary or proper to fulfill the Buyer's obligations to be performed under
this Agreement on or before the Closing Date.
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7.4. No action, suit, or proceeding before any court or any
governmental body or authority, pertaining to the transaction contemplated in
this Agreement or to its consummation, will have been instituted or threatened
on or before the Closing Date.
ARTICLE 8: THE CLOSING
8.1 The transfer of the Assets by Seller to Buyer (the Closing)
will take place at the offices of Seller at 0000 Xxxx Xxxx Xxxxx, Xxxxxxxxxxx,
Xxxxxxxxxx, 9 AM local time, on November 27, 2002, or at such other time and
place as the parties may agree to in writing (the Closing Date).
8.2. At the closing, Seller must deliver or cause to be delivered
to Buyer:
8.2.1. Assignment of Seller's leasehold estate in the
Premises which assignment shall be properly executed and acknowledged by
Seller, and accompanied by the consent of the Premises lessor;
8.2.2. Instruments of assignment and transfer of all other
Assets sufficient to transfer good title to Buyer including but not limited to
certificates of title to used vehicles and manufacturers statement of origin of
new vehicles.
8.2.3. Assignment of Sales Agreements.
8.3. Simultaneously with the consummation of the transfer, Seller,
through its officers, agents, and employees, will put Buyer into full
possession and enjoyment of all properties and assets to be conveyed and
transferred by this Agreement.
8.4. Seller at any time before or after the Closing Date, will
execute, acknowledge, and deliver any further bills of sale, deeds,
assignments, conveyances, and other assurances, documents, and instruments of
transfer, reasonably requested by Buyer, and will take any other action
consistent with the terms of this Agreement that may reasonably be requested by
Buyer for the purpose of assigning, transferring, granting, conveying, and
confirming to Buyer, or reducing to possession, any or all property to be
conveyed and transferred under this Agreement.
8.5. At the Closing, Buyer must deliver to Seller the following
instruments and documents:
8.5.1. The Purchase Price, including the Deposit.
8.5.2. A release of Seller's obligations under the Premises
Lease executed by the Landlord under the Premises Lease
ARTICLE 9: SELLER' OBLIGATIONS AFTER CLOSE
9.1. Seller will indemnify, defend, and hold harmless Buyer
against and in respect of claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries, and deficiencies, including
interest, penalties, and reasonable attorney fees, that Buyer will incur or
suffer (i) that arise from any breach of, or failure by Seller to (i) perform,
any of their representations, warranties, covenants, or agreements in this
Agreement or in any schedule, certificate, exhibit, or other instrument
furnished or to be furnished by Seller under this Agreement, (ii) by reason of
any person(s) attempting to
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collect or collecting from Buyer any obligations, other than those expressly
assumed by Buyer in this Agreement, owed by or alleged to be owed by Seller to
such person(s) or (iii) by reason of any acts or omissions of Seller occurring
prior to the Closing Date. Buyer will promptly notify Seller of the existence
of any claim, demand, or other matter to which Seller's indemnification
obligations would apply, and will give it a reasonable opportunity to defend
the same at their own expense and with counsel of their own selection; provided
that Buyer will at all times also have the right to participate fully in the
defense at its own expense. If, within a reasonable time after this notice,
Seller fails to defend, Buyer will have the right, but not the obligation, to
undertake the defense of, and to compromise or settle (exercising reasonable
business judgment), the claim or other matter on behalf and at the risk of
Seller. If the claim is one that cannot by its nature be defended solely by
Seller (including any federal or state tax proceeding), Buyer will make
available all information and assistance that Seller may reasonably request.
9.2. None of Parent, Seller or any other entity in which Parent or
Seller has a controlling interest will, at any time within the two-year period
immediately following the Closing Date, directly or indirectly engage in, or
have any interest in any person, firm, corporation, or business (whether as an
employee, officer, director, agent, security holder, creditor, consultant, or
otherwise) that engages in any activity in the counties of Xxxx, Los Angeles
(other than Carson, California), San Xxxx Obispo, Santa Xxxxxxx, Ventura and
Kings California, that is the same as, similar to, or competitive with the
Business (or any successor or successors of either) in any of these counties or
cities as long as Buyer (or any successor) engages in the activity in such
county or city. The parties intend that the covenant contained in the preceding
portion of this section be construed as a series of separate covenants, one for
each county and city specified. Except for geographic coverage, each such
separate covenant will be considered identical in terms to the covenant
contained in the preceding paragraph. If, in any judicial proceeding, a court
refuses to enforce any of the separate covenants included in this paragraph,
the unenforceable covenant will be considered eliminated from these provisions
for the purpose of those proceedings to the extent necessary to permit the
remaining separate covenants to be enforced.
9.3 The parties acknowledge that the Seller has warranted certain
of its sold vehicles, labor and/or parts and accessories it has furnished to
its customers at or prior to Closing. Further, the parties acknowledge that the
Seller has sold recreational vehicles which carry a manufacturer's warranty.
The obligation of the parties as to the cost of complying with such warranties
subsequent to closing are as follows:
9.3.1. Seller's Warranty Work: After the Date of Closing,
Seller shall remain responsible for the cost of any claims made by its
customers under warranties granted by the Seller to its customers at or prior
to the Date of Closing. Subsequent to the Date of Closing, Buyer shall notify
Seller, in writing, that such warranty claims have been raised by customer and
Seller shall have the option of supplying the labor and materials under such
warranties or authorizing the Buyer, in writing, to perform such warranty work,
in which event, Seller shall pay Buyer upon demand for the cost of such work.
As used herein, the cost of such work to be charged to the Seller by the Buyer,
shall mean the cost to the Buyer at its internal cost rate at ninety Dollars
($90.00) per
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hour plus internal parts at internal parts cost needed to complete the job;
9.3.2. Manufacturers' Recalls: Buyer shall be responsible
for warranty work arising subsequent to the Date of Closing that is direct to
be made by manufacturers of recreational vehicles which were sold by Seller at
or prior to the date of closing. Manufacturers' recall warranty work as
provided for herein shall be done by the Buyer at Buyer's expense subject to
Buyer's reimbursement by the manufacturer;
9.3.3. Other Warranty Work: Manufacturer Directed Warranty
Work: if, subsequent to closing, Buyer is required by a manufacturer to do
warranty work on recreational vehicles sold by the Seller at or prior to the
date of closing, then the same shall be done by Buyer, at Buyer's expense,
subject to reimbursement by the manufacturer;
ARTICLE 10: BUYER'S OBLIGATIONS AFTER CLOSING
10.1 Buyer will indemnify and hold harmless Seller against, and in
respect of, claims, losses, expenses, costs, obligations, and liabilities
Seller may incur by reason of Buyer's breach of or failure to perform any of
its warranties or commitments in this Agreement, or by reason of any act or
omission of Buyer after the Closing Date, that constitutes a breach or default
under, or a failure to perform, any obligation or liability of Seller under the
Premises Lease or any equipment lease which Buyer expressly assumes.
ARTICLE 11: COSTS
11.1. Each party warrants that it has dealt with no broker or
finder in connection with any transaction contemplated by this Agreement, and,
as far as it knows, no broker or other person is entitled to any commission or
finder's fee in connection with any of these transactions. Seller and Buyer
each indemnify and hold harmless one another against any loss, liability,
damage, cost, claim, or expense incurred by reason of any brokerage commission
or finder's fee alleged to be payable because of any act, omission, or
statement of the indemnifying party.
11.2. Each party will pay all costs and expenses incurred or to be
incurred by it in negotiating and preparing this Agreement and in closing and
carrying out the transactions contemplated in this Agreement.
ARTICLE 12: REMEDIES
12.1. Buyer recognizes that the Assets will be removed from the
market during the existence of this Agreement. Buyer acknowledges that if Buyer
fails to purchase the property by reason of a default on the part of Buyer
hereunder, Seller shall be entitled to compensation for the detriment resulting
from the removal of the Assets from the market. The parties hereto agree that
the damages that Seller shall sustain as a result of such failure will be
substantial, but will be extremely difficult and impracticable to ascertain.
Therefore, the parties agree that if Buyer fails to purchase the Asset by
reason of a default on the part of Buyer, Seller shall be entitled, as Seller's
sole and exclusive remedy, to recover and retain the Deposit. This sum shall be
paid and received as liquidated
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damages and not as a penalty. Both parties acknowledge and agree that said
amount is presently a reasonable estimate of Seller's damages considering all
of the circumstances existing on the date of this Agreement, including the
relationship of the sum to the range of harm to seller that reasonably could be
anticipated and the anticipation that proof of actual damages would be
impractical or extremely difficult. In placing their initials at the places
provided, each party specifically confirms the accuracy of the statements made
above. Both parties agree that this sum stated as liquidated damages shall be
in lieu of any other monetary and/or equitable relief to which seller might
otherwise be entitled by virtue of this Agreement by operation of law and/or
equity.
--------------------------------- -----------------------------------
BUYER SELLER
(INITIALS) (INITIALS)
12.2. Seller's obligation under this Agreement is unique. If Seller
should default in its obligations under this Agreement, it acknowledges that it
would be extremely impracticable to measure the resulting damages; accordingly,
the Buyer, in addition to any other available rights or remedies, may xxx in
equity for specific performance, and Seller expressly waives the defense that a
remedy in damages will be adequate.
12.3. If any legal action, arbitration, or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged
dispute, breach, default, or misrepresentation in connection with any of the
provisions of this Agreement, the successful or prevailing party or parties
will be entitled to recover reasonable attorney fees and other costs incurred
in that action or proceeding, in addition to any other relief to which they may
be entitled.
ARTICLE 13: MISCELLANEOUS PROVISIONS
13.1. The subject headings of the paragraphs and subparagraphs of
this Agreement are included for convenience only and will not affect the
construction or interpretation of any of its provisions.
13.2 Unless the context clearly requires otherwise:
13.2.1. Plural and singular numbers will each be considered
to include the other;
13.2.2. The masculine, feminine, and neuter genders will
each be considered to include the others;
13.2.3. "Shall," "will," "must," "agree," and "covenants"
are each mandatory;
13.2.4. "May" is permissive;
13.2.5. "Or" is not exclusive; and
13.2.6. "Includes" and "including" are not limiting.
13.3. This Agreement constitutes the entire agreement between the
parties pertaining to the subject matter contained in it and supersedes all
prior and contemporaneous agreements, representations, and understandings of
the parties. No supplement, modification, or amendment of this agreement will
be binding unless
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executed in writing by all the parties. No waiver of any of the provisions of
this Agreement will be considered, or will constitute, a waiver of any other
provision, and no waiver will constitute a continuing waiver. No waiver will be
binding unless executed in writing by the party making the waiver.
13.4. This Agreement may be executed simultaneously in one or more
counterparts, each of which will be considered an original, but all of which
together will constitute one and the same instrument.
13.5. Nothing in this Agreement, whether express or implied, is
intended to confer any rights or remedies under or by reason of this Agreement
on any persons other than the parties to it and their respective successors and
assigns; nothing in this Agreement is intended to relieve or discharge the
obligation or liability of any third persons to any party to this Agreement;
and no provision will give any third persons any right of subrogation or action
against any party to this Agreement.
13.6. This Agreement will be binding on, and will inure to the
benefit of, the parties to it and their respective heirs, legal
representatives, successors, and assigns, provided that Buyer may not assign
any of its rights under this Agreement except to a wholly owned subsidiary
corporation of Buyer. No such assignment by Buyer to its wholly owned
subsidiary will relieve Buyer of any of its obligations or duties under this
Agreement.
13.7. All representations, warranties, covenants, and agreements of
the parties contained in this Agreement, or in any instrument, certificate,
opinion, or other writing provided for in it, will survive the Closing.
13.8 All notices and demands shall be given in writing by personal
service, by facsimile, or by certified mail, postage prepaid and return receipt
requested, or by Federal Express, Express Mail, or any other commercial
delivery service which guarantees overnight delivery (an "Overnight Service").
Notices and payments required hereunder, shall be considered given when
received whether by personal service, facsimile, United States mail, or
Overnight Service. Notices shall be addressed as appears below for the
respective parties, provided that if any party gives notice of a change in name
or address, notices to the giver of such notice shall thereafter be given as
demanded in such notice:
Buyer:
Venture Out RV Centers, Inc.
000 Xxxx Xxxxxx
Xxxxx 000, Xxx Xxxxxxxxx, Xx. 00000
Tel No: 000-000-0000
Fax No.: 000-000-0000
Seller:
Holiday RV Superstores West, Inc.
000 Xxx-Xxxxx Xxxxxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxx. 60069
Attn: Xxxxxx Xxxxxxx
Tel No.: 000-000-0000
Fax. No. 000-000-0000
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Parent:
Holiday RV Superstores, Inc
000 Xxx-Xxxxx Xxxxxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxx. 60069
Attn: Xxxxxx Xxxxxxx
Tel No.: 000-000-0000
Fax. No. 000-000-0000
13.9 This Agreement will be construed in accordance with, and
governed by, the laws of the State of California as applied to contracts that
are executed and performed entirely in California.
13.10. If any provision of this Agreement is held invalid or
unenforceable by any court of final jurisdiction, it is the intent of the
parties that all other provisions of this Agreement be construed to remain
fully valid, enforceable, and binding on the parties.
IN WITNESS WHEREOF, the parties to this Agreement have duly executed it on the
day and year first above written.
Dated. November 22, 2002 Venture Out RV Centers, Inc.
A California corporation
By:
----------------------------------------
Its: President
Dated. November 22, 2002 Holiday RV Superstores West, Inc
A California corporation
By:
----------------------------------------
Its:
---------------------------------------
Dated. November 22, 2002 Holiday RV Superstores, Inc.
By:
----------------------------------------
Its:
---------------------------------------
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