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EXHIBIT 10.18
BIKERS DREAM, INC.
DEALER AGREEMENT
ARTICLE I
PARTIES AND RECITALS
1.1 EFFECTIVE DATE; PARTIES. This Dealer Agreement (this "Agreement") is
made, entered into and effective as of __________________, 199__, by and between
Bikers Dream, Inc., a California corporation ("Bikers Dream"), and
_______________________________________________________________________________
(the "Dealer"). The purpose of this Agreement is to set forth the relationship
of the parties.
1.2 BIKERS DREAM BUSINESS SYSTEM. Bikers Dream has developed a
distinctive business concept for selling, customizing and repairing
previously-owned Harley-Davidson(R) motorcycles and for selling motorcycle
products, merchandise, collectibles, clothing, jewelry and accessories in
retail stores located in stand-alone buildings or strip shopping malls under
the name "Bikers Dream(R)" (the "Bikers Dream Business System" or "Business
System").
1.3 TRADEMARKS AND SERVICE MARKS. Bikers Dream has the right and
authority to license the use of the name "Bikers Dream(R)" and certain other
trademarks, service marks, slogans, logos, and commercial symbols (the "Marks")
for use with the Business System to selected persons, businesses, and entities
who will comply with the uniformity requirements and quality standards
established by Bikers Dream.
1.4 BIKERS DREAM MOTORCYCLE DEALERSHIP. The Dealer desires, upon the
terms and conditions set forth herein, to obtain a license to operate a retail
Bikers Dream business which will utilize the Marks and the Business System (the
"Business", the "Dealership" or the "Bikers Dream Motorcycle Dealership") in
conformity with the uniformity requirements and quality standards established
by Bikers Dream. The Dealer acknowledges that to maintain high quality
standards and to preserve the integrity of the Marks and the goodwill of Bikers
Dream, each Bikers Dream dealer must maintain and adhere to certain uniform
standards, procedures and policies prescribed by Bikers Dream.
ARTICLE 2
GRANT OF DEALERSHIP RIGHTS; EXCLUSIVE TERRITORY
2.1 PREMISES. Bikers Dream hereby grants the Dealer a nonexclusive license
to operate one (1) Bikers Dream Motorcycle Dealership utilizing the Business
System and the Marks at the following single location:
____________________________________________________________________________
__________________________________________________________ (the "Premises").
2.2 NONEXCLUSIVE LICENSE; EXCLUSIVE TERRITORY. The Dealer will have a
nonexclusive license to operate one (1) Bikers Dream Motorcycle Dealership
pursuant to the Business System at the Premises. Nonexclusive, for the purposes
of this provision, means that Bikers Dream has or will grant Bikers Dream
dealerships to other dealers authorizing them to operate Bikers Dream motorcycle
dealerships in conformity with the Business System using the name "Bikers
Dream(R)" and the other Marks. Except as set forth in Article 2.3, the Dealer
will have an exclusive territory equal to the area within a _________________
(_) mile radius of the Premises (the "Exclusive Territory"). The Exclusive
Territory is exclusive to the extent that, during the term of this Agreement,
Bikers Dream
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will not own, operate or grant to any other person or entity the right to own
and operate a Bikers Dream motorcycle dealership at a retail location located
within the Exclusive Territory. Bikers Dream will have the absolute right to
own, operate or license other Bikers Dream motorcycle dealerships outside of
the Exclusive Territory. Bikers Dream will also have the right to conduct
promotional events and to participate in promotional activities anywhere,
including within the Exclusive Territory, which may include, but will not be
limited to, participation by Bikers Dream in motorcycle and automotive events,
trade shows, rallies and technical seminars.
2.3 SALE OF PROPRIETARY PRODUCTS. Bikers Dream and its affiliates will
have the right to directly or indirectly sell proprietary or other products or
merchandise under the name "Bikers Dream(R)", "Dream Wheels", or any other name
that has been or may be developed or acquired by Bikers Dream (hereinafter
referred to as "Bikers Dream Branded Products") to other persons, businesses or
entities through other methods of distribution including, but not limited to,
direct sales at national motorcycle and automotive events, rallies and trade
shows, mail order, catalog sales and telemarketing, anywhere in the world,
including the Exclusive Territory. Except for T-shirts, hats, jackets, scarfs,
sweatshirts and other clothing, novelties and jewelry, Bikers Dream will not
sell any Bikers Dream Branded Products to any motorcycle retail store located
within the Exclusive Territory that will re-sell these products to retail
customers. Bikers Dream and its affiliates will have the absolute right to use
and exploit the Marks in connection with other business concepts, including
restaurant services, anywhere in the world, including the Exclusive Territory.
2.4 NO PAYMENTS. The Dealer will not be required to make any payments
to Bikers Dream in connection with the grant of this Dealership to the Dealer.
2.5 PURCHASES OF PRODUCT. The Dealer will have the right, but not the
obligation, to purchase products, goods and services sold by Bikers Dream upon
such terms and conditions as may be established by Bikers Dream from time to
time. Bikers Dream will not have any obligation to repurchase any products,
goods or services purchased by the Dealer.
2.6 Conditions. The Dealer acknowledges that this Dealership is granted
only for the purpose of permitting the Dealer to offer the products and
services of the Business System to customers of the Dealer's Bikers Dream
Motorcycle Dealership in the manner prescribed in this Agreement and in strict
accordance with the Business System.
2.7 PERSONAL LICENSE. The Dealer will not have the right to license or
sublicense its rights under this Agreement. The Dealer will not have the
right to assign or transfer this Agreement or its rights under this Agreement,
except as specifically provided for herein.
ARTICLE 3
TERM OF AGREEMENT
3.1 TERM. The term of this Agreement will be for (___) years, commencing
on the date set forth in Article 1.1 of this Agreement. This Agreement will not
be enforceable until it has been signed by both the Dealer and the President of
Bikers Dream, and until a fully signed copy of this Agreement has been delivered
to the Dealer.
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ARTICLE 4
ADVERTISING AND MARKETING
4.1 OBLIGATIONS OF DEALER. The Dealer will be solely responsible for
creating, developing and implementing all programs and plans necessary to
market, advertise and promote the Dealership's business to the Dealer's
customers including the creation, development and implementation of all
newspaper, direct mail, Internet, telemarketing, print, radio, television and
other media advertising and promotion.
4.2 ADVERTISING. Each calendar year during the term of this Agreement,
the Dealer will spend at least four percent (4%) of its Gross Sales for
advertising, marketing, public relations, telemarketing and/or promotional
programs for the Dealer's Bikers Dream Motorcycle Dealership in the Dealer's
market area. For purposes of this provision, "Gross Sales" will mean the
aggregate gross amount of all revenues which arise from or are derived by the
Dealer from the operation of the Dealership.
4.3 TELEPHONE DIRECTORY LISTINGS. The Dealer will, at its expense,
continually advertise in the Yellow Pages in the market area where the Dealer's
Bikers Dream Motorcycle Dealership is located under the listings "Motorcycles &
Motor Scooters - Dealers", "Motorcycles & Motor Scooters - Accessories" or in
such other directories and listings as may be designated by Bikers Dream in
writing. The format, size and content of the listings will conform in all
respects to the standards established by Bikers Dream from time to time.
Expenditures made by the Dealer for Yellow Pages advertising will be applied to
the Dealer's required advertising expenditures.
4.4 APPROVAL OF ADVERTISING MATERIALS. The Dealer will Submit to Bikers
Dream for its prior approval (except with respect to the prices to be charged),
samples of all marketing materials and advertising to be used by the Dealer
that have not been prepared or previously approved by Bikers Dream. If Bikers
Dream does not respond to the Dealer within ten (10) business days after
Bikers Dream's receipt of the materials, then the submitted advertising and
marketing materials will be deemed to be approved by Bikers Dream.
ARTICLE 5
MARKS
5.1 USE OF MARKS. Bikers Dream hereby grants to the Dealer the
nonexclusive personal right to use the Marks in accordance with the provisions
of this Agreement. The Dealer expressly acknowledges that Bikers Dream is the
sole and exclusive licensor of the Marks and will not represent in any manner
that the Dealer has acquired any ownership rights in the Marks. The Dealer
will not to use any of the Marks or any marks, names, logos or indicia which
are or may be confusingly similar in its own corporate or business name except
as authorized by this Agreement. All goodwill associated with the Business
System and identified by the Marks will inure directly and exclusively to the
benefit of Bikers Dream and upon the expiration or termination of this
Agreement for any reason, no monetary amount will be assigned or attributable
to any goodwill associated with the Dealer's use of the Marks.
5.2 INFRINGEMENT. The Dealer's use of the Marks, other than as expressly
authorized by this Agreement, without Bikers Dream's prior written consent will
constitute an infringement of Bikers Dream's rights, and the Dealer's right
to use the Marks will not extend beyond the termination or expiration of this
Agreement. The Dealer will not, directly or indirectly, commit any act of
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infringement or contest (or aid others in contesting) the validity of Bikers
Dream's rights to the Marks or take any other action in derogation thereof.
5.3 UNAUTHORIZED USE; DEFENSE OR ENFORCEMENT OF RIGHTS. The Dealer will
have no right to and will not undertake to defend or enforce any rights
associated with the Marks or the Business System in any Court or other
proceedings for or against imitation, infringement, prior use or for any other
claim or allegation. The Dealer will promptly notify Bikers Dream in writing
of any claim, demand or cause of action that Bikers Dream may have based upon
or arising from any unauthorized attempt by any person or legal entity to use
the Marks or the Business System, any colorable variation thereof, or any
other xxxx, name or indicia which Bikers Dream has or claims a proprietary
interest and all other claims or complaints made against, associated with or
relating to the Marks and the Business System. The Dealer will assist Bikers
Dream, upon request and without the Dealer being compensated for its time or
effort, in taking such action, if any, as Bikers Dream may deem appropriate to
defend against or halt such activities, and the Dealer will take no action nor
incur any expenses on Bikers Dream's behalf without Bikers Dream's prior
written approval. If Bikers Dream undertakes the defense or prosecution of any
litigation relating to the Marks or the Business System, the Dealer agrees to
execute any and all documents and to do such acts and things as may, in the
opinion of Bikers Dream's legal counsel, be reasonably necessary to carry out
such defense or prosecution.
5.4 TENDER OF DEFENSE. If the Dealer is named as a defendant or party in
any action involving the Marks or the Business System solely because the
plaintiff or claimant is alleging that the Dealer does not have the right to
use the Marks or the Business System, then the Dealer will have the right to
tender the defense of the action to Bikers Dream within ten (10) days after
receiving service of the Summons and Complaint in the action, and Bikers Dream
will, at its expense, defend the Dealer in the action.
5.5 CONDITIONS TO LICENSE. The Dealer further agrees and covenants: (A)
to operate and advertise the Business only under the name or names from time to
time designated by Bikers Dream for use by similar Bikers Dream dealers; (B)
to adopt and use the Marks solely in the manner prescribed by Bikers Dream;
(C) to refrain from using the Marks to perform any activity or to incur any
obligation or indebtedness in such a manner as may, in any way, subject Bikers
Dream to liability therefor; (D) to observe all laws with respect to the
registration of trade names and assumed or fictitious names and to include in
any application therefor a statement that the Dealer's use of the Marks is
limited by the terms of this Agreement; (E) to provide Bikers Dream with a copy
of any such application and other registration document(s); (F) to observe such
requirements with respect to trademark and service xxxx registrations and
copyright notices as Bikers Dream may, from time to time, require including,
without limitation, affixing "SM)," "TM" or "(R)" adjacent to all such Marks;
and (G) to utilize such other appropriate notice of ownership, registration and
copyright as may be required by Bikers Dream or applicable law.
5.6 NEW MARKS. Bikers Dream reserves the right, in its sole discretion,
to designate one or more new, modified or replacement Marks for use by all
Bikers Dream dealers and to require the use by the Dealer of any such new,
modified or replacement Marks in addition to or in lieu of any previously
designated Marks. Any expenses or costs associated with the use by the Dealer
of any such new, modified or replacement Marks will be the sole responsibility
of the Dealer.
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ARTICLE 6
SITE SELECTION; PREMISES
6.1 SITE SELECTION. The Dealer will be solely responsible for selecting
the site for the Premises and for purchasing or leasing the real estate and
constructing or remodeling the building for the Premises. Accordingly, no
provision of this Agreement will be construed or interpreted to impose any
obligation upon Bikers Dream to locate a suitable site for the Premises, to
assist the Dealer in the selection of a suitable site for the Premises, to
provide any assistance to the Dealer in the purchase or lease of the Premises,
or to assist the Dealer with the construction or remodeling of the Premises.
The Dealer acknowledges that neither Bikers Dream's review of the proposed site
for the Premises nor any assistance that may be provided by Bikers Dream in the
selection or development of the site constitutes a representation, warranty or
guaranty by Bikers Dream regarding the potential financial success of the
Dealer's Bikers Dream Motorcycle Dealership operated at that site, and the
Dealer assumes all business and economic risks associated with the site.
6.2 LEASE FOR PREMISES. If the Premises are leased by the Dealer, then
the Dealer will be solely responsible for negotiating and obtaining a lease for
the Premises.
ARTICLE 7
SIGNS
The Bikers Dream signs used at or on the Premises (the "Signs"), must at all
times comply with Bikers Dream's current standards and specifications. The
Dealer will, at its expense, be responsible for any and all Sign costs,
installation costs, architectural fees, engineering costs, design costs,
construction costs, permits, licenses, repairs, maintenance, utilities,
insurance, taxes, assessments and levies in connection with the erection or use
of the Signs. The Dealer will not alter, remove, change, modify, or redesign
the Signs unless approved by Bikers Dream in writing.
ARTICLE 8
STANDARDS OF OPERATION
8.1 USE OF PREMISES. The Dealer will use the Premises solely for the
operation of the Business in the manner and pursuant to the standards
prescribed by Bikers Dream herein or otherwise in writing, and the Dealer will
not use the Premises for any other purpose or activity.
8.2 COMPLIANCE WITH APPLICABLE LAWS. The Dealer will, at its expense,
comply with all applicable federal, state, city, local and municipal laws,
ordinances, rules and regulations pertaining to the Premises and the operation
of the Bikers Dream Motorcycle Dealership including, but not limited to, motor
vehicle dealers laws, licensing laws, health and safety regulations, laws
relating to employees, environmental laws, discrimination laws, sexual
harassment laws and laws relating to the disabled. The Dealer will, at its
expense, be absolutely and exclusively responsible for determining the licenses,
certifications and permits required by law for the Business, for qualifying for
and obtaining all such licenses, certifications and permits, for maintaining all
such licenses, certifications and permits in force and effect at all times, and
for complying with all applicable laws.
8.3 PAYMENT OF TAXES. The Dealer will be absolutely and exclusively
responsible and liable for the prompt filing of all tax returns and the prompt
payment of all federal, state, city and local taxes including, but not limited
to, individual and corporate income taxes, sales and use taxes, franchise
taxes, gross receipts taxes, employee withholding taxes, F.I.C.A. taxes,
unemployment taxes,
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inventory taxes, personal property taxes, real estate taxes and other taxes
payable in connection with the Dealer's Bikers Dream Motorcycle Dealership
(hereinafter referred to as "Taxes"). Bikers Dream will have no liability for
the Taxes which arise or result from the Business and the Dealer will indemnify
Bikers Dream for any such Taxes that may be assessed or levied against Bikers
Dream which arise or result from the Business. It is expressly understood and
agreed by the Personal Guarantors to this Agreement that their personal
guaranty applies to the prompt filing of all returns and the prompt payment of
all Taxes which arise or result from the Business.
8.4 OPERATION OF DEALERSHIP. The Dealer will refrain from operating the
Business in any manner which adversely reflects on Bikers Dream's name,
goodwill or the Marks. Without limiting the generality of the foregoing, the
Dealer agrees to: (A) maintain a sufficient supply of merchandise, products,
inventory, materials, supplies and equipment previously approved in writing by
Bikers Dream; and (B) sell and offer for sale all merchandise, products and
services that Bikers Dream may require which meet its uniform quality standards
and specifications.
8.5 IDENTIFICATION OF BUSINESS. In all advertising displays and materials
as Bikers Dream may require for the Business and at the Premises, the Dealer
will, in such form and manner as may be specified by Bikers Dream, notify the
public that the Dealer is operating the business licensed hereunder as an
authorized Dealer of Bikers Dream.
8.6 MAINTENANCE. The Dealer will, at its expense, repair, paint and keep
in a clean and sanitary condition the interior, the exterior, signage, exterior
lighting, the Premises for the Dealer's Business, and the Dealer will replace
all floor covering, wall coverings, light fixtures, curtains, blinds, shades,
furniture, room furnishings, wall hangings, signs, fixtures and other decor
items as such items become worn-out, soiled or in disrepair.
ARTICLE 9
ASSIGNMENT
9.1 ASSIGNMENT BY BIKERS DREAM. This Agreement may be unilaterally
assigned and transferred by Bikers Dream without the approval or consent of the
Dealer, and will insure to the benefit of Bikers Dream's successors and assigns.
Bikers Dream will provide the Dealer with written notice of any such assignment
or transfer, and the assignee will be required to fully perform Bikers Dream's
obligations under this Agreement.
9.2 ASSIGNMENT UPON DEATH OR PERMANENT DISABILITY OF DEALER. if the
Dealer is an individual, then in the event of the death or permanent disability
of the Dealer, this Agreement may be assigned, transferred or bequeathed by the
Dealer to any designated person or beneficiary without first offering Bikers
Dream the right to acquire this Agreement. However, the transferee, assignee or
beneficiary of the Dealer must agree to be unconditionally bound by the terms
and conditions of this Agreement and to personally guarantee the performance of
the Dealer's obligations under this Agreement.
9.3 ASSIGNMENT BY DEALER. This Agreement and the rights granted to the
Dealer pursuant to this Agreement may be sold, assigned or transferred by the
Dealer only with the prior written approval of Bikers Dream, which will not be
unreasonably withheld.
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ARTICLE 10
TERMINATION
10.1 TERMINATION ON NOTICE. Bikers Dream and the Dealer will each have the
right and privilege to terminate this Agreement, with or without cause, by
providing the other party with sixty (60) days written notice of termination.
If this Agreement is terminated pursuant to this Article, then the effective
date of termination of this Agreement will be at the close of business on the
sixtieth (60th) day after the written notice of termination is received. If
the Dealer fails to timely pay any of its uncontested obligations or
liabilities due and owing to Suppliers, banks, purveyors, and other creditors,
then Bikers Dream will have the right to terminate this Agreement by giving the
Dealer fifteen (15) days written notice of termination, and specifying the
default. If the Dealer fails to correct the default specified in the written
notice within the fifteen (15) day period, then the effective date of
termination of this Agreement will be at the close of business on the fifteenth
(15th) day after the written notice of termination is received by the Dealer.
10.2 IMMEDIATE TERMINATION. Bikers Dream will have the absolute right and
privilege to immediately terminate this Agreement upon written notice to the
Dealer if: (A) the Dealer or any of its Managers, partners, Directors, officers
or majority shareholders are convicted of, or plead guilty to or no contest to
a charge of violating any law relating to the Dealer's Bikers Dream Motorcycle
Dealership, or any felony; (B) the Dealer is deemed insolvent within the
meaning of any state or federal law, any involuntary petition for bankruptcy is
filed against the Dealer, or the Dealer files for bankruptcy or is adjudicated
a bankrupt under any state or federal law; (C) the Dealer makes an assignment
for the benefit of creditors or enters into any similar arrangement for the
disposition of its assets for the benefit of creditors; (D) the Dealer
Voluntarily or otherwise abandons the Bikers Dream Motorcycle Dealership; (E)
the Dealer is involved in any act or conduct which materially impairs the
goodwill associated with Bikers Dream's Marks or the Business System and the
Dealer fails to correct the breach within twenty-four (24) hours of receipt of
written notice from Bikers Dream of the breach; (F) the Dealer fails to timely
file all federal and state tax returns or fails to timely pay all required
federal and state taxes; or (G) the Dealer fails to timely pay its open account
in accordance with the credit terms granted to the Dealer by Bikers Dream.
ARTICLE 11
POST-TERM OBLIGATIONS
11.1 DEALER'S POST-TERM OBLIGATIONS. Upon the expiration or termination of
this Agreement:
(A) the Dealer will immediately cease to be a dealer of Bikers
Dream, cease to operate the former Business under the Business
System, and the Dealer will not thereafter, directly or indirectly,
represent to the public that the former Business is or was operated or
is in any way connected with the Business System or Bikers Dream, or
hold itself out as a present or former dealer of Bikers Dream;
(B) the Dealer will pay all sums and fees owing to Bikers Dream;
such sums will include actual damages, costs and expenses incurred by
Bikers Dream as a result of a default of this Agreement;
(C) the Dealer will return to Bikers Dream all trade secrets and
confidential materials, equipment and other property owned by Bikers
Dream, and all copies thereof. The Dealer will retain no copy or
other record of any of the foregoing. The Dealer may retain its copy
of this Agreement, any correspondence between the parties and any
other documents which the Dealer reasonably needs for compliance with
any applicable laws;
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(D) the Dealer will cease to use in advertising, or in any manner
whatsoever, the name "Bikers Dream(R)", the other Marks, any methods,
procedures or techniques associated with the Business System or the
Marks, and any other symbols and indicia of operation associated with
the Business System or the Marks, and remove all trade dress and other
indications of operation under the Business System from the
Premises. The Dealer agrees that Bikers Dream or a designated agent
may enter upon the Premises at any time to make such changes at the
Dealer's sole risk and expense and without liability for trespass; and
(E) the Dealer will cancel all classified and other directory listings
under the "Bikers Dream(R)" name.
ARTICLE 12
INSURANCE
The Dealer will, at its sole cost and expense, procure and maintain in full
force and effect: (A) a general liability insurance policy with coverage of at
least One Million Dollars ($1,000,000); (B) automobile, truck and motorcycle
liability insurance with coverage of at least Five Hundred Thousand Dollars
($500,000); (C) employer's liability and workers' compensation insurance as
required by law; and (D) all other insurance required by state or federal law.
All insurance policies will name Bikers Dream as an additional insured.
ARTICLE 13
INDEMNIFICATION; INDEPENDENT CONTRACTOR
13.1 INDEMNIFICATION. Bikers Dream will not be obligated to any person or
entity for damages arising out of the operation of the Business that is
Conducted by the Dealer pursuant to this Agreement. The Dealer will protect,
defend, indemnify, and hold Bikers Dream and its respective Directors,
officers, agents, employees and shareholders, jointly and severally, harmless
from and against all claims, actions, proceedings, damages, costs, expenses and
other losses and liabilities, consequently, directly and indirectly incurred
(including, without limitation, attorneys' and accountants' fees) as a result
of, arising out of, or connected with the operation of the Dealer's Business.
Bikers Dream will have the right to defend any claim made against it arising as
a result of or from the Dealer's Bikers Dream Motorcycle Dealership. The
Dealer will reimburse Bikers Dream for all damages for which Bikers Dream is
held liable and for all costs reasonably incurred by Bikers Dream in the
defense of any such claim brought against it or in any action arising out of
the Business in which Bikers Dream is named as a party. In addition, the
Dealer will pay all costs and expenses incurred by Bikers Dream in enforcing
any term, condition or provision of this Agreement or in seeking to enjoin any
violation of this Agreement by the Dealer, including attorneys' fees actually
incurred by Bikers Dream. The indemnification and other obligations contained
herein will continue in full force and effect subsequent to and notwithstanding
the expiration or termination of this Agreement.
13.2 INDEPENDENT CONTRACTOR. Nothing in this Agreement is intended by the
parties to create a fiduciary relationship between them nor to make the Dealer
an agent, legal representative, subsidiary, joint venturer, partner, employee
or servant of Bikers Dream for any purpose whatsoever. It is understood and
agreed that the Dealer is an independent contractor and is in no way
authorized to make any contract, warranty or representation or to create any
obligation on behalf of Bikers Dream. In all dealings with third parties
including employees, suppliers and customers, the Dealer will disclose that it
is an independent entity licensed by Bikers Dream.
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13.3 OPERATION OR BUSINESS. The Dealer will be totally and solely
responsible for the operation of its Bikers Dream Motorcycle Dealership, and
will control, supervise and manage all of the employees, agents and independent
contractors who work for or with the Dealer. The Dealer will be responsible
for the acts of its employees, agents and independent contractors and will take
all reasonable business actions necessary to ensure that its employees, agents
and independent contractors comply with all federal, state and local laws,
rules and regulations including, but not limited to, all discrimination laws,
sexual harassment laws and laws relating to the disabled. Bikers Dream will
not have any right, obligation or responsibility to control, supervise, hire,
fire or manage the Dealer's employees, agents or independent contractors.
ARTICLE 14
WRITTEN APPROVALS, WAIVER AND AMENDMENT
14.1 WRITTEN APPROVALS. Whenever this Agreement requires Bikers Dream's
prior approval, the Dealer will make a timely written request for such
approval. Unless a different time period is specified in this Agreement,
Bikers Dream will respond with its approval or disapproval within fifteen (15)
business days after receipt of the written request.
14.2 NO WAIVERS. No failure of Bikers Dream to exercise any power reserved
to it by this Agreement and no custom or practice of the parties at variance
with the terms hereof will constitute a waiver of Bikers Dream's right to
demand exact compliance with any of the terms herein. A waiver or approval by
Bikers Dream of any particular default by the Dealer or acceptance by Bikers
Dream of any payments due hereunder will not be considered a waiver or approval
by Bikers Dream of any preceding or subsequent breach by the Dealer of any
term, covenant or condition of this Agreement.
14.3 AMENDMENT OF AGREEMENT. No amendment, change or variance from this
Agreement will be binding upon either Bikers Dream or the Dealer, except by
mutual written agreement signed by the Dealer and the President of Bikers
Dream. If an amendment to this Agreement is executed at the Dealer's request,
any legal fees or costs incurred by Bikers Dream will be paid by the Dealer.
ARTICLE 15
ENFORCEMENT
15.1 GOVERNING LAW. Except to the extent governed by the United States
Trademark Act of 1946 (Xxxxxx Act, 15 U.S.C. Section 1051 et seq.), this
Agreement and the relationship between Bikers Dream and the Dealer will be
governed by the laws of the state in which the Premises for the Business are
located. The provisions of this Agreement which conflict with or are
inconsistent with applicable governing law will be Superseded and/or modified
by Such applicable law only to the extent such provisions are inconsistent.
All other provisions of this Agreement will be enforceable as originally made
and entered into upon the execution of this Agreement by the Dealer and Bikers
Dream.
15.2 VENUE AND JURISDICTION. Unless provided by this Agreement or
applicable law to the contrary, all litigation, lawsuits, hearings, proceedings
and other actions initiated by either party against the other party will be
venued exclusively in Santa Ana, California. The Dealer, each of its officers,
Directors and shareholders, and the Personal Guarantors (do hereby agree and
submit to personal jurisdiction in the State of California for the purposes of
any suit, proceeding or hearing brought to enforce or construe the terms of
this Agreement or to resolve any dispute or controversy arising under, as a
result of, or in connection with this Agreement, the Premises or the Business,
and do
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hereby agree and stipulate that any such suits, proceedings, hearings or other
actions will be exclusively venued and held in Santa Ana, California.
15.3 BINDING AGREEMENT. This Agreement is binding upon the parties hereto
and their respective executors, administrators, heirs, assigns and successors
in interest.
15.4 JOINT AND SEVERAL LIABILITY. If the Dealer consists of more than one
individual, then the liability of all such individuals under this Agreement
will be deemed to be joint and several.
15.5 ENTIRE AGREEMENT. This Agreement supersedes and terminates all prior
Agreements, either oral or in writing, between the parties involving the
relationship between the Dealer and Bikers Dream, and therefore,
representations, inducements, promises or agreements alleged by either Bikers
Dream or the Dealer that are not contained in this Agreement will not be
enforceable. This Agreement constitutes the entire agreement of the parties,
and there are no other oral or written understandings or agreements between
Bikers Dream and the Dealer relating to the subject matter of this Agreement.
15.6 PAYMENT OF COSTS. If Bikers Dream prevails in any legal proceeding
arising out of or in connection with this Agreement or if any amounts due from
the Dealer to Bikers Dream are collected by or through an attorney or
collection agency, the Dealer will be liable to Bikers Dream for all costs and
expenses incurred by Bikers Dream including, but not limited to, court costs
and reasonable attorneys' fees.
15.7 NO ORAL MODIFICATION. No modification, change, addition, rescission,
release, amendment or waiver of this Agreement and no approval, consent or
authorization required by any provision of this Agreement may be made except by
a written agreement signed by duly authorized officers or partners of the
Dealer and the President of Bikers Dream. The Dealer and Bikers Dream will not
have the right to amend or modify this Agreement orally or verbally, and any
attempt to do so will be void and unenforceable in all respects.
15.8 SEVERABILITY. Should any part of this Agreement, for any reason, be
declared invalid by a Court of competent jurisdiction, such decision or
determination will not affect the validity of any remaining portion and such
remaining portion will remain in force and effect as if this Agreement had been
executed with the invalid portion eliminated; provided, however, that in the
event of a declaration of invalidity, the provision declared invalid will not
be invalidated in its entirety, but will be observed and performed by the
parties to the extent such provision is valid and enforceable. The parties
hereby agree that any such provision will be deemed to be altered and amended
to the extent necessary to effect such validity and enforceability.
ARTICLE 16
NOTICES
All notices required under this Agreement to Bikers Dream must be in writing
and must be delivered by personal service upon an officer of Bikers Dream or
sent by prepaid United States certified mail addressed to Bikers Dream at 0000
Xxxxxxx Xxx, Xxxxx Xxx, Xxxxxxxxxx 00000, or such other address as Bikers Dream
may designate in writing, with a copy to Rowland W. Day, II, Esq., Day &
Xxxxxxxx, 0000 Xxxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000. All notices
required under this Agreement to the Dealer must be in writing and must be
delivered by personal service upon the Dealer (or, if applicable, upon an
officer of the Dealer) or sent by prepaid United States certified
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mail addressed to the Dealer at the Premises, or such other address as the
Dealer may designate in writing. A notice delivered by a recognized overnight
delivery service such as Federal Express, UPS, and Purolator that requires a
written receipt signed by the addressee will be deemed to have been personally
served under this Agreement if the receipt is properly signed by an employee of
the addressee.
ARTICLE 17
ACKNOWLEDGMENTS
17.1 No INCOME OR REFUND. Bikers Dream will not: (A) warrant or guarantee
that the Dealer will derive income or profit from the Business; (B) refund all
or part of any fees paid to Bikers Dream for services rendered or repurchase
any of the inventory, furniture, fixtures, products, equiprnent or supplies
supplied or sold by Bikers Dream if the Dealer is unsatisfied with its Bikers
Dream Dealership; (C) warrant or guarantee that the location or site selected
by the Dealer for the Dealership will be economically or financially
successful; or (D) provide the Dealer with business plans, marketing programs
or plans, sales programs or plans, advertising materials, or advertising or
strategic plans.
17.2 OPPORTUITY TO CONSULT ADVISORS. The Dealer acknowledges that it has
had ample opportunity to consult with its attorneys, accountants and other
advisors and that tile attorneys for Bikers Dream have not advised or
represented the Dealer with respect to this Agreement or the relationship
thereby created.
17.3 DISCLAIMER BY BIKERS DREAM. Bikers Dream expressly disclaims the making
of any express or implied representations or warranties regarding the revenues,
earnings, income, profits, Gross Sales, Motorcycle Sales, expenses, business or
financial success, or value of the Dealership Business.
IN WITNESS WHEREOF, Bikers Dream, the Dealer and the Dealer's shareholders have
respectively signed and sealed this Agreement effective as of the day and year
first above written.
"DEALER" "BIKERS DREAM"
______________________________ Bikers Dream, Inc.
By ___________________________ By ________________________________
Its __________________________ Its _______________________________
X-00
00
XXXXXXXX, XXXXXXXX AND AGREEMENT TO BE BOUND
PERSONALLY BY THE TERMS AND CONDITIONS
OF THE BIKERS DREAM DEALER AGREEEMT
In consideration of the execution of this Agreement by Bikers Dream, and for
other good and valuable consideration, the undersigned, for themselves, their
heirs, successors, and assigns, do jointly, individually and severally hereby
become surety and guaranty for the payment of all amounts and the performance
of the covenants, terms and conditions in this Agreement, to be paid, kept and
performed by the Dealer.
Further, the undersigned, individually and jointly, hereby agree to be
personally bound by each and every condition and term contained in this
Agreement and agree that this Personal Guaranty should be construed as though
the undersigned and each of them executed an agreement containing the identical
terms and conditions of this Agreement.
If any default should at any time be made therein by the Dealer, then the
undersigned, their heirs, successors and assigns, do hereby, individually,
jointly and severally, promise and agree to pay to Bikers Dream all monies due
and payable to Bikers Dream under the terms and conditions of this Agreement. In
addition, if the Dealer fails to comply with any other terms and conditions of
this Agreement, then the undersigned, their heirs, successors and assigns, do
hereby, individually, jointly and severally, promise and agree to comply with
the terms and conditions of this Agreement for and on behalf of the Dealer.
In addition, should the Dealer at any time be in default on any obligation to
pay monies to Bikers Dream or any subsidiary or affiliate of Bikers Dream,
whether for merchandise, products, supplies, furniture, fixtures, equipment or
other goods purchased by the Dealer from Bikers Dream or any subsidiary or
affiliate of Bikers Dream, or for any other indebtedness of the Dealer to
Bikers Dream or any subsidiary or affiliate of Bikers Dream, then the
undersigned, their heirs, successors and assigns, do hereby, individually,
jointly and severally, promise and agree to pay all such monies due and payable
from the Dealer to Bikers Dream or any subsidiary or affiliate of Bikers Dream
upon default by the Dealer.
It is further understood and agreed by the undersigned that the provisions,
covenants and conditions of this Personal Guaranty will inure to the benefit of
the successors and assigns of Bikers Dream.
PERSONAL GUARANTORS
__________________________________ _________________________________
Individually Individually
__________________________________ _________________________________
Address Address
__________________________________ _________________________________
City State Zip Code City State Zip Code
__________________________________ _________________________________
Telephone Telephone
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SCHEDULE OF BIKERS DREAM DEALERS
Bikers Dream Tampa Bay
0000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Bikers Dream Scottsdale
0000 X. Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Bikers Dream of Joliet
00000 Xxx Xxxxx Xxxx
Xxxxxx, XX 00000
Bikers Dream of Albuquerque
000 Xxxxxx Xx. XX
Xxxxxxxxxxx, XX 00000
Bikers Dream of Atlanta
0000 Xxxxxxx 0
Xxxxxxxxxx, XX 00000
Bikers Dream of Utah
0000 X. 0000 Xxxxx
Xxxx Xxxxxx, XX 00000
Bikers Dream of Korea
000-00 Xxxxxxxx-Xxxx
Xxxxxxx Xxxx, Xxxxx
