ASSET PURCHASE AGREEMENT
THIS
ASSET PURCHASE AGREEMENT
(this
“Agreement”) is made as of this 26th
day of
September, 2006, between
I-4 LAND HOLDING LIMITED COMPANY, a
Florida
limited liability company (the “Buyer”), and LAZY
DAYS’ R.V. CENTER, INC.,
a
Florida corporation (the “Seller”).
RECITALS
A. The
Seller is the owner of certain buildings and structures now located on, and
other improvements not owned by the Buyer on, the land described in that certain
Ground Lease dated as of July 15, 1999 between the Buyer and the Seller, as
described in Exhibit
A
to this
Agreement (the “Purchased Assets”); and
B. The
Buyer
desires to purchase, and the Seller desires to sell, the Purchased Assets upon
the terms and conditions set forth in this Agreement.
In
consideration of these premises and subject to the representations, warranties
and conditions contained in this Agreement and for the consideration provided
in
this Agreement, the parties agree as follows:
1. AGREEMENT
TO PURCHASE AND SELL ASSETS.
In
accordance with the terms and subject to the conditions set forth in this
Agreement, at the Closing (as hereinafter defined), the Seller will sell,
convey, transfer, assign and deliver to the Buyer the Purchased
Assets.
2. CONSIDERATION.
On the
Closing Date, as payment for the purchase of the Purchased Assets, the Buyer
shall pay to the Seller $11,600,000.00 in cash or other immediately available
funds (the “Purchase Price”).
3. CLOSING. The
purchase and sale of the Purchased Assets provided for in this Agreement (the
“Closing”) will take place at the office of Buyer’s counsel at Xxx Xxxxxxxx
Xxxxx, 00xx
Xxxxx,
Xxxxx, Xxxxxxx 00000 at 10:00 am on October 12, 2006 or such other place, time
and date as the parties may mutually agree. The date on which the Closing shall
take place will be referred to in this Agreement as the “Closing
Date”.
-1-
4. REPRESENTATIONS
AND WARRANTIES OF THE SELLER.
The
Seller represents and warrants to the Buyer as follows:
4.1 Organization.
The
Seller is a corporation duly formed, validly existing and in good standing
under
the laws of the State of Florida.
4.2 Corporate
Action.
All
corporate and other proceedings required to be taken by or on the part of the
Seller to authorize it to execute, deliver and carry out this Agreement have
been duly and properly taken. Neither the execution and delivery of this
Agreement by the Seller, nor compliance with its terms, results in the breach
or
violation of the Seller’s articles or bylaws, or any agreement, instrument,
judgment or decree to which the Seller is a party or may otherwise be subject.
There is no violation or breach of, or default under, any of the foregoing
that
materially and adversely affects, or that may materially and adversely affect,
the Purchased Assets. The Seller is not a party to any agreement, instrument,
judgment or decree that materially and adversely affects the Purchased
Assets.
4.3 Title.
The
Seller
is
the sole and legal owner of all right, title and interest in, and has good,
indefeasible, insurable and marketable title to, all of the Purchased Assets,
free and clear of any liens, claims or encumbrances, other than existing
indebtedness, matters of record and taxes not yet due and payable, and no other
person has any ownership rights or interest in any of the Purchased Assets.
The
Seller
will convey to the Buyer on the Closing Date all of the Purchased Assets, free
and clear of any liens, claims or encumbrances.
4.4 No
Litigation.
There
is no litigation or other administrative or judicial proceedings pending or
threatened that might endanger the Seller’s right to sell the Purchased Assets
to the Buyer. There are no judgments pending against the Seller.
4.5 Authority;
No Conflict.
(a) This
Agreement constitutes the legal, valid and binding obligations of the Seller,
enforceable against the Seller in accordance with its terms. The Seller has
corporate power and authority to execute and deliver this Agreement and to
perform its obligations under this Agreement.
(b) Neither
the execution and delivery of this Agreement by the Seller nor the consummation
of the sale of the Purchased Assets by the Seller will give any person the
right
to prevent, delay or otherwise interfere in each case in all material respects
with the sale of the Purchased Assets pursuant to:
(i) Any
legal
requirement or order to which the Seller may be subject; or
(ii) Any
contract to which the Seller is a party or by which the Seller may be
bound.
(c) The
Seller is not and will not be required to obtain any consent from any person
in
connection with the execution and delivery of this Agreement or the consummation
of the sale of the Purchased Assets, other than those consents that will be
obtained prior to the Closing Date.
-2-
5. REPRESENTATIONS
AND WARRANTIES OF THE BUYER. The
Buyer
hereby represents and warrants to the Seller as follows:
5.1 Organization.
The
Buyer is a limited liability company duly organized, validly existing and in
good standing under the laws of the State of Florida.
5.2 Authority.
The
Buyer has the right, power and authority to execute and deliver this Agreement
and to perform its obligations under this Agreement.
5.3 No
Litigation.
There
is no litigation or other administrative or judicial proceedings pending or
threatened that might endanger the Buyer’s right to purchase the Purchased
Assets from the Seller. There are no judgments pending against the
Buyer.
5.4 Authority;
No Conflict.
(a) This
Agreement constitutes the legal, valid and binding obligations of the Buyer,
enforceable against the Buyer in accordance with its terms. The Buyer has
corporate power and authority to execute and deliver this Agreement and to
perform its obligations under this Agreement.
(b) Neither
the execution and delivery of this Agreement by the Buyer nor the consummation
of the purchase of the Purchased Assets by the Buyer will give any person the
right to prevent, delay or otherwise interfere in each case in all material
respects with the purchase of the Purchased Assets pursuant to:
(i) Any
legal
requirement or order to which the Buyer may be subject; or
(ii) Any
contract to which the Buyer is a party or by which the Buyer may be
bound.
(c) The
Buyer
is not and will not be required to obtain any consent from any person in
connection with the execution and delivery of this Agreement or the consummation
of the purchase of the Purchased Assets, other than those consents that will
be
obtained prior to the Closing.
-3-
6. COVENANTS
OF SELLER PRIOR TO CLOSING.
From
the date hereof through the Closing Date, the Seller shall maintain the
Purchased Assets in substantially the same working order, ordinary wear and
tear
exempted, as existed on the date hereof.
7. COVENANTS
OF BUYER PRIOR TO CLOSING.
The
Buyer agrees that (i) promptly after the execution of this Agreement, it will
contact its lender to request that the lender consent to the transactions
contemplated by this Agreement, the Second Amendment to Ground Lease and the
First Amendment to Exclusive Consignment Contract and (ii) it will use its
best
efforts to obtain such consent from its lender, provided that the Buyer shall
not be obligated to expend any funds to obtain such consent.
8. CONDITIONS
PRECEDENT TO THE BUYER’S OBLIGATIONS.
The
obligation of the Buyer to consummate the transactions contemplated by this
Agreement is subject to the satisfaction prior to or on the Closing Date of
each
of the following conditions, any of which may be waived by the Buyer, in its
sole discretion, in whole or in part:
8.1 Representations
and Warranties.
The
representations and warranties of the Seller contained in this Agreement shall
be true and correct in all material respects at and as of the Closing
Date.
8.2 No
Proceedings.
No
action, suit or proceeding shall be pending or threatened before any
governmental body that would prevent, delay, make illegal or otherwise interfere
with any of the transactions contemplated by this Agreement.
8.3 Amendment
to Lease.
The
Seller shall have executed and delivered the Second Amendment to Ground Lease
between the Buyer and the Seller and the First Amendment to Exclusive
Consignment Contract.
8.4 Consent
of Lenders.
The
Buyer and the Seller shall have obtained any necessary consents from their
lenders in connection with the transactions contemplated by this
Agreement.
9. CONDITIONS
PRECEDENT TO THE SELLER’S OBLIGATIONS.
The
obligation of the Seller to consummate the transactions contemplated by this
Agreement is subject to the satisfaction prior to or on the Closing Date of
each
of the following conditions, any of which may be waived by the Seller, in its
sole discretion, in whole or in part:
9.1 Representations
and Warranties.
The
representations and warranties of the Buyer contained in this Agreement shall
be
true and correct in all material respects at and as of the Closing
Date.
9.2 No
Proceedings.
No
action, suit or proceeding shall be pending or threatened before any
governmental body that would prevent, delay, make illegal or otherwise interfere
with any of the transactions contemplated by this Agreement.
9.3 Amendment
to Lease.
The
Buyer shall have executed and delivered the Second Amendment to Ground Lease
between the Buyer and the Seller and the First Amendment to Exclusive
Consignment Contract.
9.4 Consent
of Lenders.
The
Buyer and the Seller shall have obtained any necessary conents from their
lenders in connection with the transactions contemplated by this
Agreement.
-4-
10. CLOSING
DELIVERIES.
9.1 On
the
Closing Date, the Seller shall deliver to the Buyer:
(a) a
Xxxx of
Sale in the form attached as Exhibit
B
to this
Agreement; and
(b) a
Quitclaim Deed in the form attached as Exhibit
C
to this
Agreement.
(c) a
certified copy of the resolutions of the Seller’s board of directors authorizing
the transactions contemplated by this Agreement.
9.2 On
the
Closing Date, the Buyer shall deliver the Purchase Price to the
Seller.
11. INDEMNIFICATION.
From
and
after the Closing Date, the Seller shall indemnify, defend and hold harmless
the
Buyer and its members and officers, and their successors and assigns, from
and
against any and all losses, damages, costs, obligations, liabilities, penalties
and expenses of any kind (including reasonable attorney fees and costs,
including at the trial and appellate levels) arising from or relating to any
breach of any representation or warranty of the Seller set forth in this
Agreement.
12. FEES
AND EXPENSES.
Each
party shall bear its own fees and expenses (including, without limitation,
legal, accounting, consulting and other professional fees and expenses) incurred
in connection with the consummation of this Agreement and the transactions
contemplated in this Agreement, regardless of whether such consummation occurs;
provided,
however, the Seller shall pay any documentary stamp or transfer taxes payable
in
connection with the transfer of the Purchased Assets.
-5-
13. NOTICES.
All
notices and other communications under this Agreement shall be in writing and
shall be deemed to have been given if delivered in person or sent by overnight
delivery, confirmed telecopy or prepaid first class registered or certified
mail, return receipt requested, to the following addresses, or such other
addresses as are given to other parties in the manner set forth in this
Agreement:
|
(a)
|
If
to the Buyer, to:
|
I-4
LAND HOLDING LIMITED COMPANY
|
c/o
J.
Xxxxxxx Xxxxxx, C.P.A.
Xxxxx,
Xxxxx & Xxxxxx, CPA’s, P.A.
0000
Xxxx
Xxxxxx Xxxxxx
Xxxxx,
Xxxxxxx 00000
Telephone: (000)
000-0000, ext. 114
Telecopier: (000)
000-0000
with
a
copy to: Xxxxxx
Xxxxxx, Xx., P.A.
Broad
and
Xxxxxx
One
Biscayne Tower, 21st
Floor
0
Xxxxx
Xxxxxxxx Xxxxxxxxx
Xxxxx,
XX
00000
Telephone:
(000)
000-0000
Telephone:
(000)
000-0000
(b) If
to the
Seller, to: LAZY
DAYS’ R.V. CENTER, INC.
0000
Xxxx
Xxxx Xxxxxxxxx
Xxxxxxx,
Xxxxxxx 00000
Attention:
Xxxx Xxxxxx
Telephone: (000)
000-0000
Telecopier: (000)
000-0000
with
a
copy to: Xxx
Xxxxxx
Xxxxxxxx
& Xxxxx LLP
000
Xxxx
00xx
Xxxxxx
Xxx
Xxxx,
XX 00000
Telephone: (000)
000-0000
Any
such
notices shall be effective when delivered in person or sent by telecopy, one
business day after being sent by overnight delivery or three business days
after
being sent by registered or certified mail. Any of the foregoing addresses
may
be changed by giving notice of such change in the foregoing manner, except
that
notices for changes of address shall be effective only upon
receipt.
-6-
14. MISCELLANEOUS
14.1 Time.
Time is
of the essence.
14.2 Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties with respect
to
the subject matter of this Agreement. It supersedes all prior negotiations,
letters and understandings relating to the subject matter of this
Agreement.
14.3 Termination.
In the
event the Closing is not consummated on or prior to October 12, 2006, either
the
Buyer or the Seller will have the right to terminate this Agreement and this
Agreement shall forthwith become null and void (except with respect to Section
12 hereof) and there shall be no liability or obligation on the part of any
party hereto.
14.4 Amendment.
This
Agreement may not be amended, supplemented or modified in whole or in part
except by an instrument in writing signed by the party or parties against whom
enforcement of any such amendment, supplement or modification is
sought.
14.5 Assignment.
This
Agreement may not be assigned by any party without the prior written consent
of
the other party.
14.6 Choice
of Law.
This
Agreement will be interpreted, construed and enforced in accordance with the
laws of the State of Florida,
without
regard to principles of conflicts of law.
14.7 Headings.
The
section and subsection headings in this Agreement are inserted for convenience
only and shall not affect in any way the meaning or interpretation of this
Agreement.
14.8 Construction.
The
parties and their respective legal counsel participated in the preparation
of
this Agreement; therefore, this Agreement shall be construed neither against
nor
in favor of any of the parties, but rather in accordance with its fair
interpretation.
14.9 Effect
of Waiver.
The
failure of any party at any time or times to require performance of any
provision of this Agreement will in no manner affect the right to enforce the
same. The waiver by any party of any breach of any provision of this Agreement
will not be construed to be a waiver by any such party of any succeeding breach
of that provision or a waiver by such party of any breach of any other
provision.
14.10 Severability.
The
invalidity, illegality or unenforceability of any provision or provisions of
this Agreement will not affect any other provision of this Agreement, which
will
remain in full force and effect, nor will the invalidity, illegality or
unenforceability of a portion of any provision of this Agreement affect the
balance of such provision. In the event that any one or more of the provisions
contained in this Agreement or any portion of such provision(s) shall for any
reason be held to be invalid, illegal or unenforceable in any respect, this
Agreement shall be reformed, construed and enforced as if such invalid, illegal
or unenforceable provision had never been contained in this
Agreement.
14.11 Enforcement.
Should
it become necessary for any party to institute legal action to enforce the
terms
and conditions of this Agreement, the successful party will be awarded
reasonable attorneys’ fees, including at all trial and appellate levels,
expenses and costs. Any suit, action or proceeding with respect to this
Agreement shall be brought in the courts of Hillsborough County in the State
of
Florida or in the U.S. District Court for the Middle District of Florida. The
parties hereby accept the exclusive jurisdiction of those courts for the purpose
of any such suit, action or proceeding.
14.12 Binding
Nature.
This
Agreement will be binding upon and will inure to the benefit of any successors
or permitted assigns of the parties.
14.13 Counterparts.
This
Agreement may be executed in two or more counterparts, each of which will be
deemed an original and all of which together will constitute one and the same
instrument.
-7-
The
parties have duly executed this Agreement as of the date first above
written.
BUYER:
I-4
LAND HOLDING LIMITED COMPANY
By: /s/
Xxxxxx X.
Xxxxxxx
Name: Xxxxxx
X. Xxxxxxx
Title:
Member
SELLER:
LAZY
DAYS’ R.V. CENTER, INC.
By: /s/
Xxxx
Xxxxxx
Name: Xxxx
Xxxxxx
Title: CEO/President
Date:
September
26,
2006
-8-
EXHIBIT
A
PURCHASED
ASSETS
1. Main
sales building located at 0000 Xxxx Xxxx Xxxxxxxxx, Xxxxxxx, XX
00000.
2. The
CrownClub Sales building located at 00000 Xxxx Xxxxx Xxxxxx, Xxxxxxx, XX
00000.
3.
Campground
improvements (excluding buildings)
located at 0000 Xxxxxx Xxxx 000, Xxxxxxx, XX 00000.
4. Utility
lift station located at 00000 Xxxx Xxxxx Xxxxxx, Xxxxxxx, XX 00000.
-9-
EXHIBIT
B
XXXX
OF SALE
THIS
XXXX OF SALE
(this
“Xxxx
of Sale”)
is
made and entered into as of October __, 2006 by LAZY DAYS’ R.V. CENTER, INC., a
Florida corporation (the “Seller”),
in
favor of I-4 LAND HOLDING LIMITED COMPANY, a Florida limited liability company
(the “Buyer”).
The
Seller and the Buyer and have entered into an Asset Purchase Agreement dated
as
of September ___, 2006 (the “Purchase
Agreement”).
All
capitalized terms used but not defined in this Xxxx of Sale shall have the
meanings ascribed to them in the Purchase Agreement.
FOR
VALUABLE CONSIDERATION
as set
forth in the Purchase Agreement, the Seller hereby sells, transfers, assigns
and
delivers to the Buyer all of the Purchased Assets, upon the terms and subject
to
the conditions set forth in the Purchase Agreement.
The
Seller hereby warrants that it is the owner of and has good title to each and
all of the Purchased Assets to the extent provided in the Purchase Agreement.
The transfer of the Purchased Assets contemplated by this Xxxx of Sale shall
occur and be effective, and the Buyer shall have full ownership of and power
over all of the Purchased Assets, effective immediately upon delivery of this
Xxxx of Sale by the Seller.
The
Seller, at any time after the date of this Xxxx of Sale, shall execute,
acknowledge and deliver any further documents or instruments of transfer
requested by the Buyer and shall take such further actions consistent with
the
terms of this Xxxx of Sale and the Purchase Agreement that may be requested
by
the Buyer for the purpose of granting and confirming to the Buyer, or reducing
to the Buyer’s possession, any or all of the Purchased Assets.
The
Seller hereby constitutes and appoints the Buyer, and its successors and
assigns, the true and lawful attorney of the Seller, with full power of
substitution, for the Seller and in the Seller’s name, place and stead by and on
behalf of and for the benefit of the Buyer, and its successors and assigns,
to
(i) demand and receive from time to time the Purchased Assets hereby assigned,
transferred and conveyed, and to give receipts and releases for and in respect
of the same and any part thereof, and (ii) to execute any instrument of
assignment necessary or advisable to accomplish the purposes of this Xxxx of
Sale. The Seller hereby declares that the appointment made and the powers hereby
granted are coupled with an interest and are and shall be irrevocable by the
Seller in any manner or for any reason.
This
Xxxx
of Sale shall be governed by and construed in accordance with the laws of the
State of Florida, without regard to any statutes or principles of conflicts
of
laws.
[SIGNATURE
ON FOLLOWING PAGE]
-10-
IN
WITNESS WHEREOF,
the
undersigned has executed this Xxxx of Sale as of the date first written
above.
SELLER:
LAZY
DAYS’ R.V. CENTER, INC.
By: ______________________
Name: Xxxx
Xxxxxx
Title: CEO/President
Date:
-11-
EXHIBIT
C
Xxxxx
X.
Xxxxxxx, P.A.
Broad
and
Xxxxxx
0000
Xxxxxx Xxxx, Xxxxx 000
Xxxx
Xxxxx, Xxxxxxx 00000
QUITCLAIM
DEED
THIS
QUITCLAIM DEED is
made
and executed this ___ day of ___________, 2006 by LAZY DAYS’ R.V. CENTER, INC.,
a Florida corporation, whose mailing address is 0000
Xxxx
Xxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000
(“Grantor”) to I-4 LAND HOLDING LIMITED COMPANY, a
Florida
limited liability company, whose mailing address is c/o Xxxxx,
Xxxxx & Xxxxxx, CPA’s, P.A.,
0000
Xxxx
Xxxxxx Xxxxxx,
Xxxxx,
Xxxxxxx 00000
(“Grantee”).
W
I T N E S S E T H:
THAT
Grantor, for good and valuable consideration, the receipt and adequacy of which
is hereby acknowledged, does hereby remise, release and quitclaim unto Grantee
forever, all the right, title, interest, claim and demand, which the Grantor
has
in and to certain property (the “Property”) located in Hillsborough
County, Florida, and more particularly described as follows:
SEE
EXHIBIT “A” ATTACHED HERETO AND MADE A PART HEREOF
TO
HAVE AND TO HOLD the
same
together with all and singular the appurtenances thereunto belonging to or
in
anywise appertaining, and all the estate, right, title, interest, lien, equity
and claim whatsoever of Grantor, either in law or equity.
Notwithstanding
the foregoing, this Quitclaim Deed shall not operate to transfer Grantor’s
leasehold interest in the Property arising under that certain Ground Lease
between Grantor, as tenant, and Grantee, as landlord, dated July 15, 1999,
as
amended (the “Ground Lease”) to Grantee. Nothing contained herein shall be
construed as a surrender, release, transfer, assignment or conveyance of
Grantor’s leasehold interest in the Property arising under the Ground
Lease.
[SIGNATURES
APPEAR ON THE FOLLOWING PAGE]
-12-
IN
WITNESS WHEREOF,
Grantor
has executed this Quitclaim Deed as of the day and year set forth
above.
Signed,
sealed and delivered
in
the
presence of:
|
WITNESSES:
______________________
Print
Name: Xxxx X. Xxxxx
______________________
Print
Name: Xxxxxx X. Xxxxxx
|
SELLER:
LAZY
DAYS’ R.V. CENTER, INC.
By: _____________________
Name: Xxxx
Xxxxxx
Title: CEO/President
Date:
|
STATE
OF
__________________
COUNTY
OF
________________
The
foregoing instrument was acknowledged before me this _____ day of ________,
2006, by _______________________, as _______________ of Lazy Days’ R.V. Center,
Inc., a Florida corporation. She/He is personally known to me or has produced
________________________ as identification.
-13-
EXHIBIT
“A”
LEGAL
DESCRIPTION
