Exhibit 10.41
ASSET PURCHASE AGREEMENT
THIS AGREEMENT, made and entered into as of March 7, 2003 by and
between HOLIDAY RV SUPERSTORES OF SOUTH CAROLINA, INC., a South Carolina
corporation ("Seller"), and HOLIDAY XXXXXX COMPANY OF COLUMBIA, INC., a South
Carolina corporation (the "Buyer").
WITNESSETH:
WHEREAS, Seller desires to sell to Buyer and Buyer desires to purchase
from Seller inventory and certain intangible assets of Seller relating to
Seller's recreation vehicle dealership located in Spartanburg, South Carolina
(the "Business") and Seller desires to lease to Buyer and Buyer desires to
lease from Seller the real estate where the Business operates and the tangible
personal property (excluding the inventory) used in the operation of the
Business and located in Spartanburg, South Carolina, all as provided in this
Agreement,
NOW, THEREFORE, in consideration of these premises and of the
covenants, conditions, promises and for One and no/100 dollars ($1.00) and
other good and valuable consideration, the receipt and sufficiency whereof are
hereby acknowledged, the parties hereto mutually agree as follows:
SECTION 1
PURCHASE AND SALE OF ASSETS; ASSUMPTION OF ASSUMED CONTRACTS
1.1 Agreement of Sale and Purchase of Certain Assets. Subject to
the terms and conditions set forth in this Agreement, Seller hereby agrees to
sell, bargain, assign, transfer and convey to Buyer and Buyer hereby agrees to
purchase and acquire the following assets used in the Business (the "Assets")
on the terms and conditions set forth in this Agreement for the purchase price
set forth below which shall be payable as provided in Section 5.3 below:
(a) New Recreation Vehicles. The new, unused and
undamaged recreation vehicles in Seller's inventory as of the close of
business on the date immediately preceding the Closing Date as defined
in Section 5.1 (the "New RV Vehicle Inventory"). The purchase price
for all 2003 model year recreation vehicles included in the New RV
Vehicle Inventory shall be an amount equal to the manufacturer's
invoice cost (including freight), less the manufacturer's holdback,
rebates, or other allowances or credits (including financing
allowances or interest credits) in respect to such vehicles unless
such amounts have not been received by Seller in which case Seller
shall assign its rights to receive such amounts to Buyer (the "Net
Invoice Cost"), plus Seller's cost of pre-delivery inspection to the
extent not theretofore reimbursed by the manufacturer if the unit has
been in inventory for less than 180 days. The purchase price for any
2002 model year recreation vehicles shall be 90% of Net Invoice Cost.
The purchase price for any 2001 model year recreation vehicles shall
be 85% of Net Invoice Cost. The purchase price for any 2000 model year
or older recreation vehicles shall be 80% of Net Invoice Cost
(b) Used Recreation Vehicles. All used recreation
vehicles in Seller's inventory as of the close of business on the date
immediately preceding the Closing Date (the "Used RV Vehicle
Inventory"). The purchase price for the Used RV Vehicle Inventory
shall be the market value as mutually agreed by Seller and Buyer.
(c) Parts and Accessories. All new undamaged and usable
parts and accessories in Seller's inventory on the date immediately
preceding the Closing Date (the "Parts and Accessories Inventory").
The purchase price for the Parts and Accessories Inventory shall be
(i) 90% of book value as of the Closing Date for parts and accessories
that have been in inventory for less than one year, (ii) 50% of book
value as of the Closing Date for parts and accessories that have been
in inventory for one year or more but less than two years, and (iii)
10% of book value as of the Closing Date for parts and accessories
that have been in inventory for two years or more.
(d) Current Accounts Receivable. The open accounts
receivable and warranty receivables that are less than sixty (60) days
past invoice date (the "Current Accounts Receivable"). The purchase
price for the Current Accounts Receivable shall be the face amount of
the Current Accounts Receivable less any discounts, allowances or
credits available against the Current Accounts Receivable and less a
reasonable amount for bad debts; provided that Buyer may exclude for
credit reasons any accounts receivable from the Current Accounts
Receivable that Buyer is purchasing.
(e) Supplies. All new tires, gasoline, oil and grease,
propane, and all unopened or unused paint and shop supplies in
Seller's inventory on the date immediately preceding the Closing Date
and which have not been held by Seller in its inventory for more than
three (3) months (the "Other Inventories"). The Other Inventories
shall be priced at an amount equal to 90% of Seller's book value;
provided that the purchase price for the Other Inventories shall not
exceed $5,000 in the aggregate.
(f) Work in Process. All partially completed service,
warranty and body shop orders in process on the date immediately prior
to the Closing Date (the "Work in Process"). The Work in Process shall
be priced at an amount equal to the cost of original parts and
accessories plus Seller's actual labor costs. All sublet repairs, if
any, shall be priced at net cost to Seller to be based upon an audit
of the repair orders as of such date.
(g) Intangible Assets and Seller's Records, Customer
Lists and Files, Relinquishment of Franchise. The following intangible
assets of Seller arising from or used in connection with the conduct
of Seller's Business: (i) all trade names and logos used by Seller in
the conduct of the Business other than those containing the name
"Holiday RV Superstores" and "Recreation USA," (ii) all goodwill of
the Business; (iii) all transferable rights, permits and licenses of
Seller necessary for the continued conduct of the Business by Buyer;
(iv) such books and records other than financial records necessary for
the continued conduct of the Business by Buyer, including, without
limitation, registration lists for new vehicles, owner's follow-up
lists, names and addresses of all
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service customers, copies of all customers new and used vehicle sales
files, all warranty repair and claim records, all service files and
used "hard" copies of shop repair orders for vehicles; (v) telephone
and facsimile numbers of the Business at the Premises (excluding any
toll-free numbers for Seller and its affiliates), (vi) all of Seller's
rights in promotional literature, advertising materials, signage and
other similar materials relating to the Business and the promotion of
the Business; and (vii) all of Seller's rights, to the extent
transferable, in and to Seller's agreements with the manufacturers of
the new recreation vehicles sold at the Business (collectively, the
"Intangible Assets"). The purchase price for the Intangible Assets
shall be $100,000.
(h) Contract Rights. The contract rights (the "Contract
Rights") of Seller under the leases, licenses, agreements or other
contracts listed on Schedule 1.1(h) attached hereto (the "Assumed
Contracts"), true, correct and complete copies of which are included
in Schedule 1.1(h) attached hereto, that Seller uses in the ordinary
conduct of the Business, in consideration for Buyer assuming the
obligations of Seller thereunder arising from and after the Closing
Date; provided further that Buyer shall not be required to assume any
of the Assumed Contracts for which a consent or approval of the other
party is required for such assumption if such consent or approval has
not been obtained and the other party under such lease, license or
contract does not provide the goods or services to be provided
thereunder to Buyer. Buyer shall cooperate with Seller in getting
Seller released from any obligations under the Assumed Contracts.
(i) Orders and Customer Advances. The undelivered
customer orders and advances related to the Seller's Business ("Sales
Orders") outstanding on the date immediately preceding the Closing
Date; provided that Buyer shall have the right to either refuse to
take any customer order that involves a trade-in unless Buyer is
satisfied with the amount of the allowance for the trade-in or Buyer
and Seller mutually agree to a reduction in the purchase price payable
by Buyer to Seller under this Agreement to take into account the
carrying costs, selling expenses and actual market value of the
trade-in (in comparison with the allowance under the Sales Order) (the
"Trade-in Adjustment"). At Closing, Seller shall provide to Buyer
Schedule 1.1(i) which shall list all of the Sales Orders and the
corresponding liabilities, including customer deposit and trade-in,
related thereto as exist at the Closing. Buyer shall make deliveries
to Seller's customers of vehicles ordered pursuant to the Sales Orders
and consummate the transactions according to the terms of the Sales
Orders; provided that such Sales Orders were entered into in the
ordinary course of business upon commercially reasonable terms. Buyer
shall also receive a credit against the purchase price for the amount
of any deposits on Sales Orders received by Seller prior to the
Closing which in the case of a deposit in cash shall be the amount of
the cash and in the case of a deposit in kind (such as a trade-in)
shall be the amount of the allowance provided in the Sales Order.
(j) Land Rover. The 2003 Land Rover, vehicle
identification no. XXXXX00000X000000 for assumption of the remaining
amount financed against the vehicle which Buyer will pay off within 30
days after the Closing, plus a cash payment of $14,050.00.
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1.2 Excluded Assets. Seller shall specifically retain the
following assets (the "Excluded Assets"):
(a) Cash. All cash on hand, including undeposited
receipts, or on deposit in Seller's accounts and all contracts in
transit.
(b) Real Property and Tangible Personal Property. The
real property where the Business operates (the "Premises") will be
leased by Seller to Buyer pursuant to the lease attached hereto as
Exhibit A (the "Real Property Lease") and the tangible personal
property (other than the inventories sold to Buyer), such as furniture
and equipment, that is used in the Business (the "Fixed Assets") will
be leased by Seller to Buyer pursuant to the lease attached hereto as
Exhibit B (the "Personal Property Lease").
(c) Tax Refunds. All claims for tax refunds.
(d) Life Insurance. All life insurance.
(e) Prepaid Insurance. All prepaid insurance.
(f) Cash Incentives. Any rights to receive cash
incentives from the manufacturers for vehicles sold prior to Closing.
1.3 Allocation of Purchase Price. The purchase price for the
Assets shall be allocated to each of the Assets as set forth in Section 1.1
hereof. Buyer and Seller agree that the foregoing allocations of the purchase
price represent the fair market value allocable to each of the Assets to be
purchased by Buyer hereunder, were arrived at by arm's length negotiations and
shall be used by each party in reporting the transaction contemplated by this
Agreement for federal income tax purposes.
SECTION 2
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER
Seller represents and warrants to Buyer that each of the following
representations and warranties are true, correct and complete as of the date
hereof and as of the Closing, and Seller covenants and agrees for the benefit
of Buyer as follows:
2.1 Corporate Authority, Corporate Existence and Binding
Agreement. Seller has the corporate power and authority to enter into, and
perform its obligations under, this Agreement. Seller (i) is a corporation
organized, validly existing and in good standing under the laws of the State of
South Carolina, and (ii) has the corporate power to own or lease its properties
and to carry on its businesses as now being conducted. Seller has taken all
necessary and proper corporate action to authorize and approve this Agreement
and to consummate the transactions contemplated hereby. This Agreement is valid
and binding upon Seller and enforceable against Seller in accordance with its
terms.
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2.2 Consents or Approvals Required. No filing with or consent or
approval of any third party is required or necessary to effect the transfer,
assignment or lease of the assets and properties of Seller to be transferred,
assigned or leased to Buyer hereunder or the assignment of the Assumed
Contracts by Seller to Buyer, except for the consents or approvals listed on
Schedule 2.2 attached hereto (collectively, the "Requisite Consents"). There is
no charter, bylaw, lease, mortgage, agreement, instrument or other restriction
of any kind or character or order, judgment or decree binding upon Seller or to
which any of the Assets is subject which would be breached by or would prevent
the consummation of the sale of the Assets by Seller to Buyer pursuant to this
Agreement and the transactions contemplated hereby assuming the Requisite
Consents are obtained.
2.3 Title to Assets. Seller, at the Closing, will transfer valid,
good and marketable title to all of the Assets being sold, transferred or
assigned hereunder by Seller to Buyer, free and clear of any and all liens,
claims, restrictions or other encumbrances (collectively "Liens"), except the
Assumed Contracts will be subject to the respective terms thereof and except
for any Liens that Buyer elects to assume pursuant to Section 5.3.
2.4 Litigation. Except as set forth on Schedule 2.4 attached
hereto, there is no action, suit, litigation, arbitration, proceeding or, to
the knowledge of Seller, investigation pending, or to the knowledge of Seller
threatened, against Seller, the Business or the Assets.
2.5 Employee Handbook and Benefit Plans. Seller has provided
Buyer with true, correct and complete copies of its employee handbook, the
summary plan descriptions and other descriptions of its benefit plans,
including vacation and sick leave policy, and the medical, life insurance and
disability benefits that are currently provided to persons employed in the
Business.
2.6 Taxes. Seller has timely filed all material tax returns
related to the Business and has paid all taxes and other charges shown due on
such tax returns. No tax deficiency is proposed or threatened against Seller,
there are no tax liens upon any of the Assets, and all taxes and other
assessments and levies that Seller was required by law to withhold or collect
have been duly withheld and collected, and have been paid over to the proper
governmental entity or are being held by Seller for such payment.
2.7 Sufficiency of Assets and Status of Assumed Contracts. Except
for the Assets, the Assumed Contracts, the Premises and the Fixed Assets,
Seller has no knowledge of any assets or contracts which are material to the
Business as conducted by Seller. Each Assumed Contract is in full force and
effect and enforceable against the parties thereto in accordance with its
terms, (ii) no event has occurred or circumstance exists which, with the giving
of notice or the lapse of time or both, would constitute a material default or
an event of material default by Seller thereunder, (iii) no event has occurred
or circumstance exists that, with the giving of notice or the lapse of time or
both, would constitute a default or an event of default under any such contract
by any other party thereto, and (iv) all rentals and other amounts due and
owing by Seller or by any other party under any such contract have been paid in
full, and Seller has not accepted any prepayments of any amounts owing to
Seller under any such contract.
2.8 Absence of Conflicts. The execution and delivery by Seller of
this Agreement and any other instruments or documents required to be executed
and delivered in connection herewith,
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the transfers and assignments of the Assets and the Assumed Contracts, and the
consummation of the other transactions contemplated hereby by Seller (i) have
been, or will have been by the date of Closing, authorized by such authorities
or by such court of competent jurisdiction, if any, as may be required by any
law applicable to Seller, (ii) will not violate any statute, law, ordinance,
rule, regulation, judgment, decree, order, permit, approval or certification of
any governmental, legislative, judicial, regulatory or administrative body,
board or agency which may be applicable to Seller, the Business or any of the
Assets, and (iii) will not conflict with any provision of the certificate of
incorporation or bylaws of Seller or (with or without the giving of notice, the
lapse of time, or both) result in the breach of any term or provision of, or
constitute a default under, or result in the creation of any Lien against any
of the Assets pursuant to any indenture, mortgage, deed of trust, contract,
lease, agreement or other instrument to which Seller is a party or by which any
of its properties or assets are or may be bound; provided, however, that there
may be Requisite Consents that Seller is unable to obtain and will result in a
technical default under such contract, but such default will not have a
material adverse effect on the Business or Assets.
2.9 Intellectual Property. There have been no claims made or, to
the knowledge of Seller, threatened against Seller asserting the invalidity,
abuse, misuse or unenforceability of any of the intellectual property owned by
Seller and used in the Business, and such intellectual property and the use
thereof by Seller, to its knowledge, does not conflict with or infringe upon
the rights of others.
2.10 Labor Disputes. There is no strike, work slowdown,
grievances, claims of unfair labor practice, picketing or any other labor
dispute or disturbance pending or, to the knowledge of Seller, threatened
against Seller which would adversely affect the Assets or goodwill of the
Business. Seller has no employment agreements with any persons employed in the
Business. Schedule 2.10 attached hereto lists the employees of Seller as of the
date of this Agreement along with their basic job descriptions, salary or
hourly wage, bonus or commission plan (if applicable).
2.11 ERISA Matters. To the best of Seller's knowledge each
employee benefit plan of Seller in which any employee of Seller participates
that is subject to any provisions of the Employee Retirement Income Security
Act of 1974 and of the regulations adopted pursuant thereto (collectively
"ERISA") is being administered in all material respects accordance with the
documents and instruments governing such plans, and such documents and
instruments are consistent in all material respects with those provisions of
ERISA which are effective and operative as of the date of this Agreement. No
such plan has incurred any material accumulated funding deficiency within the
meaning of Section 302 of ERISA, whether or not waived, and Seller has not
incurred any material liability (including any material contingent liability to
the Pension Benefit Guaranty Corporation in connection with any such plan). To
Seller's knowledge, no such plan nor any trust created thereunder nor any
trustee or administrator thereof has engaged in a prohibited transaction within
the meaning of ERISA or Section 4975 of the Internal Revenue Code of 1986. To
Seller's knowledge, Seller has complied in all material respects with the
requirements of COBRA, HIPAA and all related state statutes and regulations
governing its ERISA plans. Seller makes no representation or warranty as to any
employee benefit plans relating to the Union Contract, including the union
pension plan.
2.12 Environmental Matters.
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(a) Except as set forth on Schedule 2.12 attached
hereto: (i) no Hazardous Material is currently located at, in, on, under or
about the Premises or the Assets in a manner which requires any material
cleanup or material corrective action under any Environmental Requirement; (ii)
no releasing, emitting, discharging, leaching, dumping or disposing of any
Hazardous Material in violation of law from the Premises or the Assets onto or
into any other property or from any other property onto or into the Premises or
the Assets has occurred, which has not been remediated, or is occurring; (iii)
no notice of violation, lien, complaint, investigation, suit or order of any
regulatory authority with respect to the environmental condition of the
Premises, the Fixed Assets or the Assets is outstanding; and (iv) no
underground storage tank is located on the Premises.
(b) "Hazardous Material" means any material on substance
that, whether by its nature or use, is subject to regulation under any
Environmental Requirement, including polychlorinated biphenyls, petroleum,
pesticides, herbicides and asbestos. "Environmental Requirement" means the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
the Superfund Amendments and Re-authorization Act of 1986, the Hazardous
Material Transportation Act, the Resource Conservation and Recovery Act, the
Toxic Substances Control Act, the Clean Air Act and the Federal Water Pollution
Control Act, all as presently in effect, any regulation pursuant thereto, or
any other present law, ordinance, rule regulation, order or directive
addressing environmental, health or safety issues of or by the federal
government, any state or other political subdivision thereof, exercising
executive, legislative, judicial, regulatory or administrative functions.
2.13 Compliance with Applicable Laws. Except as provided Schedule
2.13, the conduct by Seller of the Business does not violate any law, statute,
ordinance or regulation currently in effect, including, without limitation, the
Internal Revenue Code of 1986, the Occupational Safety and Health Act and the
National Environmental Policy Act, the Comprehensive Environmental Response,
Compensation and Liability Act, the Resource Conservation and Recovery Act, the
Solid Waste Disposal Act and every other environmental act or law (and the
respective regulations thereunder) currently in effect, the enforcement of
which would materially and adversely affect the Business or the value of the
Assets.
2.14 Condition of Assets and Premises. The Premises and the
tangible personal property subject to the Personal Property Lease are in good
working condition and repair in all material respects, ordinary wear and tear
excepted, and are not in need of maintenance or repairs, except for ordinary
routine maintenance.
2.15 Accounts Receivable. The accounts receivable included in the
Current Accounts Receivable arise from valid transactions, are properly due and
owing to Seller, are collectible in the ordinary course of business (except to
the extent of the bad debt allowance taken into account in computing the
Current Accounts Receivable) and are not subject to any offset, reduction or
other claim.
SECTION 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER
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Buyer represents and warrants to Seller that each of the following
representations and warranties are true and correct as of the date hereof and
will be true and correct as of the date of Closing, and Buyer covenants and
agrees for the benefit of Seller as follows:
3.1 Authority and Binding Agreement. Buyer has the power and
authority to enter into, and perform its obligations under, this Agreement.
Buyer has taken all necessary and proper action to authorize and approve this
Agreement and to consummate the transactions contemplated hereby. This
Agreement is valid and binding upon Buyer and enforceable against Buyer in
accordance with its terms.
3.2 Existence. Buyer (i) is corporation duly organized, validly
existing and in good standing under the laws of the State of South Carolina and
(ii) has the power to own or lease its properties and to carry on its business
as now being conducted.
SECTION 4
CONDITIONS PRECEDENT TO CLOSING
4.1 Buyer's Conditions. The obligation of Buyer to purchase the
Assets and otherwise consummate the transactions contemplated by this Agreement
shall be conditioned upon the following:
(a) No Misrepresentations or Breaches by Seller. Seller
shall have performed all of Seller's obligations hereunder to be
performed by it under this Agreement prior to the Closing in all
material respects. Each of the representations and warranties made by
Seller in this Agreement or in any document delivered in connection
herewith shall be true and correct on the date of the Closing in all
material respects. Seller shall provide Buyer with a certificate dated
the date of Closing to the effect that there shall have been no
material misrepresentations or breaches hereunder by Seller.
(b) Performance of Seller at Closing. Seller shall have
executed and delivered to Buyer all of the documents to be executed
and delivered by Seller, to Buyer at Closing as contemplated by
Section 5.1 hereof.
(c) No Restraints. No action or proceeding shall have
been prior to or at the Closing before any court or governmental body
or authority seeking to prevent the acquisition by Buyer of the Assets
to be transferred under this Agreement to Buyer.
(d) Pay-off Letters. Buyer shall have received from each
of the holders of Liens on the Assets a pay-off letter dated on or
immediately prior to the Closing Date that sets forth the amount of
indebtedness (including per diem interest) secured by the Liens that
is required to be paid to obtain release of the Liens (the "Pay-Off
Letters").
(e) Consents. Buyer or Seller shall have obtained, on or
before the Closing Date, all of the Requisite Consents; provided that
Buyer may in its sole discretion waive the requirement to obtain any
Requisite Consent. Notwithstanding the foregoing, a Requisite Consent
for any Assumed Contract shall not be deemed a condition precedent to
closing;
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provided that Buyer shall not be obligated to assume any such Assumed
Contract for which the other party named in such Assumed Contract does
not provide to Buyer the goods or services to be provided thereunder
by such other party.
(f) No Material Adverse Change There shall not have
occurred, in the reasonable judgment of Buyer, any material adverse
change in the Business or the Assets.
(g) Accrued Vacation Schedule. Seller shall have
delivered the Accrued Vacation Schedule described in Section 7.3(B) to
Buyer.
(h) Due Diligence. Buyer shall have completed its due
diligence on Seller, the Assets and the Business to the Buyer's
satisfaction, in its sole discretion.
4.2 Seller's Conditions. The obligations of Seller to sell the
Assets and otherwise consummate the transaction contemplated by this Agreement
shall be conditioned upon the following:
(a) No Misrepresentation or Breaches by Buyer. Buyer
shall have performed all of Buyer's obligations hereunder to be
performed by it under this Agreement prior to the Closing in all
material respects. Each of the representations and warranties made by
Buyer in this Agreement or in any document delivered in connection
herewith or therewith shall be true and correct on the date of Closing
in all material respects. Buyer shall provide Seller with a
certificate dated the date of Closing to the effect that there shall
have been no material misrepresentations or breaches hereunder by
Buyer.
(b) Performance of Buyer at Closing. Buyer shall have
executed and delivered to Seller all of the documents to be executed
and delivered by Buyer to Seller at the Closing as contemplated in
Section 5.1 hereof and shall have paid the purchase price for the
Assets due at Closing.
(c) Consents or Approvals Required. Buyer or Seller
shall have obtained, on or before the Closing Date, all of the
Requisite Consents; provided that Buyer may in its sole discretion
waive the requirement to obtain any Requisite Consent. Notwithstanding
the foregoing, a Requisite Consent for any Assumed Contract shall not
be deemed a condition precedent to closing; provided that Buyer shall
not be obligated to assume any such Assumed Contract for which the
other party named in such Assumed Contract does not provide to Buyer
the goods or services to be provided thereunder by such other party.
(d) No Restraints. No action or proceeding shall have
been prior to or at the Closing before any court or governmental body
or authority seeking to prevent the acquisition by Buyer of the Assets
to be transferred under this Agreement to Buyer, or the transfer of
the Toyota and Volkswagen franchises to Buyer.
(e) Agreement with Xxxxx Affiliate. Seller shall have
made an agreement with an affiliate of Xxxxxxx Xxxxx for its purchase
of the current mortgage on the Premises and the subsequent transfer to
such affiliate of the ownership of the Premises (subject to the
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Real Property Lease) and the Fixed Assets (subject to the Personal
Property Lease) in exchange for the discharge of certain indebtedness
of Seller and its parent to such affiliate and other affiliates of
Xxxxxxx Xxxxx.
SECTION 5
CLOSING, APPLICATION OF PROCEEDS AND ADJUSTMENTS
5.1 Closing. Subject to compliance by the parties hereto with
their respective obligations to be performed at or prior to the Closing, the
satisfaction of the respective conditions precedent to the obligations of Buyer
and Seller to consummate the transaction contemplated hereby and the
determination of the purchase price for the Assets pursuant to Section 5.2, the
transactions contemplated by this Agreement shall be consummated (the
"Closing") shall occur on the later of (i) March 7, 2003, or (ii) within two
(2) business days after the conditions precedent to Closing under Section 4
(other than performances at Closing under Sections 4.1(b) and 4.2(b)) have been
satisfied or such other date as mutually agreed by Seller and Buyer (the
"Closing Date") at the Business or such other location as the parties mutually
agree. At the Closing, the following shall occur:
(a) Documents. Seller shall execute and deliver at the
Closing to Buyer such bills of sale, assignments, affidavits,
certificates and other instruments of transfer in a form reasonably
acceptable to Seller's and Buyer's counsel to vest in Buyer good and
marketable title to the Assets or transfer Buyer's interests under the
Assumed Contracts. Buyer will execute and deliver at the Closing to
Seller an assumption of the obligations under Assumed Contracts
arising from and after the Closing Date and the Assumed Payables.
(b) Certificates of Origin. Seller shall deliver to
Buyer Certificates of Origin or other evidences of title to the
vehicles being purchased by Buyer, together with appropriate
assignments thereof.
(c) Lease of the Premises and Tangible Personal
Property. Seller and Buyer shall execute and deliver to each other (i)
the Real Property Lease, and (b) the Personal Property Lease.
(d) UCC-3's. Seller shall deliver to Buyer such UCC-3
termination statements as may be necessary to reasonably evidence that
Seller is transferring to Buyer title to the Assets as required herein
or other arrangements therefor satisfactory to Buyer shall have been
made with respect to any Liens on the Assets.
(e) Compliance Certificates. Seller and Buyer shall
certify to the other that (i) each of its respective representations
and warranties as set forth in this Agreement were true, complete and
correct in all material respects and are true, complete and correct in
all material respects as of the Closing Date (unless expressly stated
to be as of an earlier date) and (ii) it has performed all of its
respective obligations hereunder to be performed at or prior to the
Closing in all material respects.
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(f) Certificate of Secretary. Seller and Buyer shall
deliver a Certificate of each of their respective corporate Secretary
certifying the resolutions of their respective Boards of Directors
approving the transactions contemplated by this Agreement.
5.2 Determination of Purchase Price; Conduct of Inventory;
Listings of Current Accounts Receivable and Assumed Payables. Immediately prior
to the Closing, Buyer and Seller shall take a physical count and inventory of
(or, in the case of the Parts and Accessories Inventory, update the inventory
from the physical count take on March 5, 2003 to the mutual satisfaction of the
parties) and determine the purchase price for: (i) the New RV Vehicle Inventory
and determine the purchase price thereof under Section 1.1(a); (ii) the Used RV
Vehicle Inventory and determine the purchase price thereof under Section
1.1(b); (iii) the Parts and Accessories Inventory and determine the purchase
price thereof under Section 1.1(c); (iv) the Other Inventories and determine
the purchase price thereof under Section 1.1(e); and (v) the Work in Process
and determine the purchase price thereof pursuant to Section 1.1(f). To
facilitate the continued operation of the Business, Buyer shall assume the
current account payable of the Business, whether recorded or unrecorded (the
"Assumed Payables"); provided that the aggregate amount of the recorded and
unrecorded current accounts payable as of the Closing Date shall not exceed
$80,000. Buyer shall receive a credit against the purchase price for the amount
of the recorded Assumed Payables. At the Closing, Buyer and Seller shall
mutually agree upon the schedules for the Current Accounts Receivable and the
Assumed Payables. At Closing, Buyer and Seller shall execute and deliver a
schedule that sets forth in detail the computation of the purchase price for
the Assets and the deductions, reductions and offsets in or against the
purchase price as provided in this Agreement.
5.3 Application of Proceeds from Purchase Price; Payment of
Remaining Purchase Price. Buyer shall apply such portion of the purchase price
for the Assets as is necessary either to pay directly to the holders of the
Liens on the Assets the amounts set forth in the Pay-off Letters or to assume
such amounts on such terms as Buyer and such holders may agree. After
application of the proceeds from the purchase price for the Assets as provided
in the immediately preceding sentence and any other deductions or offsets as
provided in this Agreement, Buyer shall pay Seller the remaining purchase price
for the Assets in cash at the Closing.
5.4 Proration of Expenses and Income; Payment of Closing Costs.
All liabilities, costs and expenses, including but not limited to payroll,
taxes, rent and utilities, incurred in the conduct of Seller's Business shall
be prorated to the Closing Date with Seller having the responsibility for any
such costs and expenses arising or accruing prior to the Closing Date and Buyer
having the responsibility for such costs and expenses arising or accruing on
and after the Closing Date. All income from the Business arising prior to the
Closing Date shall belong to Seller and all income from the Business arising
from and after the Closing Date shall belong to Seller. Buyer and Seller shall
each pay their own legal, accounting and other expenses incurred by such party
in connection with the transactions contemplated by this Agreement.
SECTION 6
NO ASSUMPTION OF LIABILITIES; AND INDEMNIFICATION
6.1 No Assumption of Liabilities. Buyer is not assuming and shall
not be obligated or liable for any of the expenses, liabilities, obligations,
contracts or commitments of Seller except as
11
expressly provided herein. If Buyer pays or performs any expense, liability,
obligation, contract or commitment of Seller which Buyer did not expressly
assume under this Agreement, Buyer shall be entitled to indemnification from
Seller, pursuant to Section 6.2 hereof, provided, however, that Buyer will
promptly notify Seller upon receipt of any such claim and will not pay or
perform on such claim if Seller provides Buyer with assurances which are, in
Buyer's reasonable determination, adequate to the effect that Seller will pay
or perform what is properly due to the claimant.
6.2 Indemnification of Buyer. Seller hereby indemnifies and holds
harmless Buyer and its officers, directors, shareholders, employees and agents
from, against and in respect of:
(a) Any and all losses, damages or deficiencies
resulting from any and all misrepresentations or breaches of any
warranty, covenant, provision or term by Seller made or contained in
this Agreement or any Exhibit hereto;
(b) The assertion against Buyer of any claim by any
creditor of or claimant against Seller relating to an obligation or
liability of Seller or to the operation, use or maintenance of the
Assets, the Business, the Fixed Assets or the Premises arising prior
to the Closing Date, except for (i) the Assumed Liabilities to the
extent listed on the schedule thereof agreed at Closing, and (ii)
claims for warranty service under the manufacturer's warranty for new
vehicles sold in the Business prior to the Closing Date, which
warranty service will be performed by Buyer and Buyer will seek
reimbursement from the respective manufacturers under such
manufacturer's policies; and
(c) The reasonable costs and expenses incident to any
and all actions, suits, proceedings, claims, demands, assessments or
judgments in respect of any matter for which Buyer is indemnified
under Section 6.2(a) or (b) hereof, including legal and accounting
fees and expenses.
6.3 Indemnification of Seller. Buyer does hereby indemnifies and
holds harmless Seller, its shareholders, directors, officers, employees and
agents, from, against and in respect of:
(a) Any and all losses, damages or deficiencies
resulting from any and all misrepresentations or breaches of any
warranty, covenant, provision or term by Buyer made or contained in
this Agreement or any Exhibit hereto;
(b) The assertion against Seller of any claim by any
creditor of or claimant against Buyer relating to an obligation or
liability of Buyer, including the Assumed Payables and Assumed
Vacation, or to the operation, use or maintenance of the Assets, the
Business, Fixed Assets or the Premises after the Closing Date or the
Assumed Liabilities; and
(c) The reasonable costs and expenses incident to any
and all actions, suits, proceedings, claims, demands, assessments or
judgments in respect of the matter for which Seller is indemnified
under Section 6.3(a) or (b) hereof, including legal and accounting
fees and expenses.
12
6.4 Cooperation. In the event a party hereto (the "Indemnifying
Party") is indemnifying the other party hereto (the "Indemnified Party"), the
Indemnified Party agrees to provide the Indemnifying Party such cooperation,
information or assistance as the Indemnifying Party may reasonably request.
6.5 Defense of Claims; Settlement. The Indemnifying Party shall
have the right to assume defense of and to settle any claim asserted by a third
party against the Indemnified Party with counsel reasonably acceptable to the
Indemnified Party so long as the Indemnifying Party is diligently defending
such claim; provided, however, that the Indemnified Party, at its expense, may
participate in such proceeding, and, provided further, that if there is an
actual or potential material conflict of interest (which is not waived by the
parties) of the counsel for the Indemnifying Party representing both the
Indemnifying Party and the Indemnified Party, the Indemnifying Party shall also
pay the legal expenses of the Indemnified Party for representation by separate
counsel. The Indemnifying Party shall not settle any claim without the consent
of the Indemnified Party (which consent shall not be unreasonably withheld,
conditioned or delayed), unless such settlement requires no admission of
liability on the part of the Indemnified Party and no assumption of any
obligation or monetary payment for which the Indemnified Party has not been
fully indemnified.
SECTION 7
ADDITIONAL AGREEMENTS
7.1 Obtaining Requisite Consents. Seller shall be responsible for
obtaining the other Requisite Consents and Buyer will reasonably cooperate with
Seller in Seller's efforts to obtain such consents.
7.2 Access to Records; Assistance. Seller (i) shall give to Buyer
and its attorneys, accountants or other authorized representatives, reasonable
access during normal business hours (and without interfering with Seller's
business) to Seller's employees, the Assets, the Premises, and the books,
contracts, commitments and records (excluding financial statements) relating to
Seller or the Business, (ii) shall furnish to Buyer during such period all such
information concerning Seller, the Business, the Assets, the Assumed Contracts
and the Premises as Buyer may reasonably request (excluding financial
statements), and (iii) shall provide Buyer with reasonable administrative
assistance in connection with such access and furnishing of information.
7.3 Employees.
(a) Seller's employment of all employees of Seller shall
terminate effective as of the Closing Date, except for Xxxxxxx Xxxx, a
manager of the Business, who shall remain employed by Seller and
Seller will provide the services Xx. Xxxx on a full time basis at the
location of the Business to assist in the transition of the Business
during the 30 days immediately following the Closing Date and Buyer
will reimburse Seller the sum of $3,800 at Closing as the reasonable
cost for Seller to provide such services of Xx. Xxxx. Buyer may, but
shall not be obligated to, offer to employ any such employee(s) of
Seller. For a period of two years after the Closing, Seller will not
offer employment to any employees of Seller who are terminated
pursuant to the preceding sentence and accept employment with
13
Buyer upon the Closing while such employees are employed by Buyer and
for a period of six months after termination of such employment.
(b) All wages, salaries, vacation pay, sick pay,
employee benefit contributions, post-retirement benefits and other
fringe benefits, worker's compensation claims and all other employee
benefits or employee related claims or liabilities with respect to all
employees of Seller, including those who become employees of Buyer on
the Closing Date, made, earned, accrued or arising exclusively during
any period prior to the Closing Date, whether or not vested and
whether or not reported prior thereto, shall be the responsibility and
liability of Seller. All wages, salaries, vacation pay, employee
benefit contributions, post-retirement benefits and other fringe
benefits, worker's compensation claims and all other employee benefit
or employee related claims or liabilities, with respect to employees
of Seller who become employees of Buyer on the Closing Date, made,
earned, accrued or arising at or after the Closing Date shall be the
responsibility of and shall be the obligation of Buyer. Buyer shall
have no liability or responsibility with respect to any employees of
Seller prior to the Closing Date, including without limitation, any
liability or responsibility for vacation, severance, assumption of
COBRA, HIPAA certification, or WARN Act penalties and if Buyer assumes
any such liability, Seller and Buyer shall adjust the purchase price
payable hereunder by the amount thereof. For purposes of this
Agreement, vacation and/or paid time off benefits which are subject to
an employee remaining employed through a specified date or period will
be deemed to have accrued through the Closing Date on a pro rata basis
whether or not the employee has reached the date at which such
benefits actually vest or are to be paid or allowed to or for the
benefit of the employee (the "Accrued Vacation"). At Closing, Seller
shall deliver to Buyer a schedule of the Accrued Vacation for each of
Seller's employees in the Business (the "Accrued Vacation Schedule").
Such accrued benefits will be paid by Seller consistent with its
benefit plan. Notwithstanding the foregoing, Buyer may elect to assume
and honor the Accrued Vacation of those employees of Seller that Buyer
hires, and, if Buyer has elected to assume such obligation, shall pay
the employees for the Accrued Vacation obligation of Seller assumed by
Buyer as set forth in the Accrued Vacation; provided that Buyer shall
be entitled to a credit against the purchase price payable to Seller
for the Asset in the aggregate dollar amount of Accrued Vacation
obligations assumed by Buyer on Schedule 7.3(b) (the "Assumed Vacation
Credit"). The amount of the vacation obligation so assumed by Buyer,
based on the current pay scale at Closing, shall be a credit against
the Purchase Price.
(c) Nothing contained in this Agreement shall be deemed
to create a contract of employment between Buyer and any employee of
Seller, and no provision of this Agreement shall be deemed to be for
the benefit of any person other than the parties to this Agreement and
their respective successors and assigns.
7.4 Notices of Changes. Seller will promptly notify Buyer in the
event that Seller has knowledge that any of the representations and warranties
of Seller under Section 2 become materially in correct after the date hereof as
if such representations and warranties were made as of such date.
14
7.5 Non-competition. Seller and its parent company, Holiday RV
Superstores, Inc., a Delaware corporation (the "Parent"), hereby agree that
each will not directly or indirectly operate or have a financial interest in
any person that owns or operates a business that sells or services recreation
vehicles or parts or accessories for recreation vehicles within fifty miles of
the city limits of the cities of Spartanburg, South Carolina and Greenville,
South Carolina during the two year period commencing on the Closing Date.
SECTION 8
MISCELLANEOUS PROVISIONS
8.1 Termination. This Agreement may be terminated as follows:
(a) By the mutual written agreement of Seller and Buyer;
or
(b) By Buyer if Seller materially breaches any
representation or warranty or fails to perform any of its obligations
under this Agreement at or prior to the Closing; provided, however,
that Seller shall have ten (10) business days to remedy any such
breach or failure following written notice by Buyer to Seller
specifying such breach or failure; or
(c) By Seller if Buyer materially breaches any
representation or warranty or fails to perform any of its obligations
at or prior to the Closing obligations under this Agreement; provided,
however, that Buyer shall have ten (10) business days to remedy any
such breach or failure following written notice by Seller specifying
such breach or failure; or
(d) By Seller or Buyer if the Closing has not occurred
by March 14, 2003; provided that a party in default of its obligations
hereunder cannot terminate pursuant to this Section 8.1(d).
8.2 Survival and Further Assurances. All representations and
warranties made herein shall survive until the second anniversary of the
Closing, except that the representations in Sections 2.1, 2.4, 2.6, 2.11, 2.12,
2.13, 3.1 and 3.2 shall survive for the period of all applicable statutes of
limitations. Seller, from time to time, at the request of Buyer and without
further consideration, shall execute and deliver such instruments of transfer,
conveyance and assignment in addition to those delivered pursuant to Section 5
hereof, and take such other action as Buyer may reasonably require to more
effectively transfer, convey and assign to and vest in Buyer and to put Buyer
in possession of any asset or property, to be transferred, conveyed, assigned
and delivered hereunder to Buyer by Seller or otherwise to effect the
transactions contemplated hereby.
8.3 Waiver of Breach. The waiver by either party hereto of a
breach of any provision of this Agreement shall not operate or be construed as
a waiver of any subsequent breach by any party.
8.4 Multiple Counterparts. This Agreement may be executed in a
number of identical counterparts, each of which for all purposes is to be
deemed an original, and all of which constitute, collectively, one agreement.
In making proof of this Agreement, it shall not be necessary to produce or
account for more than one such counterpart.
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8.5 Notices. Any notice, payment, demand or communication
required or permitted to be given by the provisions of this Agreement shall be
deemed to have been effectively given and received on the date personally
delivered to the respective party to whom it is directed, or three (3) days
after the date when deposited by registered or certified mail, with postage and
charges prepaid and addressed to such party at its address below its signature
to this Agreement. Any party may change its address by delivering a written
change of address to all of the other parties in the manner set forth in this
Section 8.5.
8.6 Entire Agreement. This Agreement constitutes the entire
understanding of the parties hereto and supersedes all prior understandings,
whether written or oral, between the parties with respect to the subject matter
of this Agreement. No amendment, modification or alteration of the terms of
this Agreement shall be binding unless in writing, dated subsequent to the date
of this Agreement and duly executed by all parties.
8.7 Severability of Provisions. If any term or provision of this
Agreement is illegal or invalid for any reason, such illegality or invalidity
shall not affect the validity or enforceability of the remainder of this
Agreement.
8.8 Headings. No heading or caption contained in this Agreement
shall be considered in interpreting any of its terms or provisions.
8.9 Applicable Law. This Agreement shall be construed in
accordance with the laws of the State of Delaware.
8.10 Attorneys' Fees. If any action at law or in equity, including
an action for declaratory relief, is brought to enforce or interpret the
provisions of this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and all other costs and expenses of litigation from
the other party, which amounts may be set by the court in the trial of such
action or may be enforced in a separate action brought for that purpose, and
which amounts shall be in addition to any other relief which may be awarded.
8.11 Parties Bound. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, personal
representatives, executors, successors and assigns. Either party hereunder may
assign its rights in or under this Agreement, but no such assignment shall
relieve or release such party from its obligations hereunder.
[The remainder of this page is intentionally left blank.]
16
IN WITNESS WHEREOF, the parties have executed this Agreement, each as
of the date first above written.
SELLER: HOLIDAY RV SUPERSTORES OF SOUTH CAROLINA, INC.
By:
-------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
Address: 000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
BUYER: HOLIDAY XXXXXX COMPANY OF COLUMBIA, INC.
By:
-------------------------------------------------
Name: Xxxx Xxxxxx
Title: President
Address: 0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
PARENT: HOLIDAY RV SUPERSTORES, INC.
(as to Section
7.5)
By:
-------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer and President
Address: 000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
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INDEX OF SCHEDULES AND EXHIBITS
Schedule 1.1(h) Assumed Contracts
Schedule 1.1(i) Sales Orders
Schedule 2.2 Requisite Consents
Schedule 2.4 Litigation
Schedule 2.10 Labor Disputes
Schedule 2.12 Environmental Matters
Schedule 2.13 Compliance with Laws
Schedule 7.3(b) Assumed Accrued Vacation
Exhibit A Form of Real Property Lease
Exhibit B Form of Personal Property Lease
EXHIBIT A
TO
ASSET PURCHASE AGREEMENT
FORM OF REAL PROPERTY LEASE
LEASE AGREEMENT
By and between
HOLIDAY RV SUPERSTORES OF SOUTH CAROLINA, INC.
and
HOLIDAY XXXXXX OF COLUMBIA, INC.
March 7, 2003
TABLE OF CONTENTS
ARTICLE 1 - DEMISE OF PREMISES....................................................................................1
ARTICLE 2 - TERM..................................................................................................2
ARTICLE 3 - RENT..................................................................................................2
ARTICLE 4 - TITLE AND CONDITION...................................................................................2
ARTICLE 5 - USE...................................................................................................3
ARTICLE 6 - NONTERMINABILITY......................................................................................3
ARTICLE 7 - ALTERATIONS...........................................................................................4
ARTICLE 8 - TRADE FIXTURES, TRADE.................................................................................4
ARTICLE 9 - CASUALTY AND CONDEMNATION.............................................................................4
ARTICLE 10 - MAINTENANCE AND REPAIRS..............................................................................6
ARTICLE 11 - TAXES AND COMPLIANCE WITH LAWS.......................................................................6
ARTICLE 12 - UTILITY CHARGES......................................................................................7
ARTICLE 13 - INSURANCE............................................................................................7
ARTICLE 14 - SUBORDINATION AND NON-DISTURBANCE....................................................................8
ARTICLE 15 - HOLDING OVER.........................................................................................8
ARTICLE 16 - DEFAULT BY LESSEE AND REMEDIES.......................................................................9
ARTICLE 17 - LIMITATION OF LANDLORD'S PERSONAL LIABILITY.........................................................10
2
ARTICLE 18 - RIGHT OF ENTRY......................................................................................10
ARTICLE 19 - LESSOR RELEASED FROM LIABILITY FOR DAMAGES..........................................................11
ARTICLE 20 - HOLD HARMLESS.......................................................................................11
ARTICLE 21 - SURRENDER...........................................................................................12
ARTICLE 22 - FULL NET RENT.......................................................................................12
ARTICLE 23 - SERVICE OF NOTICE...................................................................................12
ARTICLE 24 - SUCCESSORS AND ASSIGNS..............................................................................13
ARTICLE 25 - RECORDING...........................................................................................13
ARTICLE 26 - AMENDMENTS..........................................................................................13
ARTICLE 27 - ESTOPPEL CERTIFICATE................................................................................13
ARTICLE 28 - INVALIDITY OF PROVISIONS............................................................................14
ARTICLE 29 - CAPTIONS............................................................................................14
ARTICLE 30 - ENTIRE AGREEMENT....................................................................................14
ARTICLE 31 - MECHANIC'S LIENS....................................................................................14
ARTICLE 32 - WAIVER OF TRIAL BY JURY.............................................................................15
ARTICLE 33 - ENVIRONMENTAL MATTERS...............................................................................15
ARTICLE 34 - FINANCIAL STATEMENTS................................................................................17
ARTICLE 35 - QUIET ENJOYMENT.....................................................................................17
3
ARTICLE 36 - ASSIGNMENT AND SUBLETTING...........................................................................17
ARTICLE 37 - ADVANCES BY LESSOR..................................................................................18
ARTICLE 38 - NO MERGER...........................................................................................18
ARTICLE 39 - MISCELLANEOUS.......................................................................................18
4
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into as of the 7 day of March,
2003, by and between HOLIDAY RV SUPERSTORES OF SOUTH CAROLINA, INC., a South
Carolina corporation (hereinafter referred to as "Lessor"), and HOLIDAY XXXXXX
OF COLUMBIA, INC., a South Carolina corporation (hereinafter referred to as
"Lessee").
Capitalized terms not otherwise defined when they first appear are
defined in Appendix 1.
WITNESSETH:
ARTICLE 1 - DEMISE OF PREMISES
The Lessor, having full authority to make this lease and the
agreements hereinafter set forth ("this Lease"), and in consideration of the
rents herein agreed to be paid and of the covenants and agreements agreed to
herein by Lessee hereby, demises and leases to Lessee and Lessee hereby leases
from Lessor all of Lessor's right, title and interest in the premises and
property located in the City of Spartanburg, County of Spartanburg and State of
South Carolina, described as follows:
together with the building, improvements and fixtures located on said property
(collectively, the "Improvements") and all rights, easements and appurtenances
relating thereto. Said real property, Improvements, rights, easements and
appurtenances are hereinafter referred to as the "Demised Premises."
Lessee agrees that, during the term of this Lease, Lessee is obligated
to and shall perform all obligations of the owner of the Demised Premises and
pay all expenses which the owner of the Demised Premises may be required to pay
in order to be in compliance with Legal Requirements and with any reciprocal
easement agreement or any other agreement or document of record now, or of
record in the future if created or filed by or with the consent of Lessee,
affecting the Demised Premises (other than any security document filed by or
relating to Mortgage), herein referred to collectively as the "REA", and that
Lessee shall comply with all of the terms and conditions of Legal Requirements
and the REA during the term of this Lease, to the extent such obligations,
expenses, terms and conditions pertain to the Demised Premises.
ARTICLE 2 - TERM
This Lease is for a term (the "Term") of ten (10) years commencing
March 7, 2003 and ending March 7, 2013, unless sooner terminated according to
the terms and conditions of this Lease. The Lessee is attempting to sell the
business operated by the Lessee on the Demised Premises to the Lessor or an
affiliate, assignee or designee of the Lessor, and the Term shall end on the
date of consummation of such sale. In addition to the rights of the Lessor
contained in Article 16 hereof, at the option of the Lessor, the Lessor may
elect to terminate the Term in the event of a Change of Control, in the event
Lessee ceases to use the Demised Premises for the purpose set forth in Article
5, or if Lessee abandons the Demised Premises.
ARTICLE 3 - RENT
Lessee shall pay to Lessor annual base rent for the Demised Premises
(the "Basic Rent") in the amount of Two Hundred Thirty Three Thousand Eight
Hundred Eighty Dollars ($233,880) payable in equal monthly installments of
Nineteen Thousand Four Hundred Ninety Dollars ($19,490). Rent shall be paid in
advance on the first day of each and every calendar month during the term of
this Lease. Basic Rent and Additional Rent as set forth in this Lease
(collectively, the "Rent") shall be payable at the address of Lessor as set
forth in Article 23 hereof, or at such other place of which Lessor shall have
given Lessee written notice in accordance with Article 23 hereof. Rent for the
month of March, 2003 shall be pro rated from the date on which Lessor acquires
the Demised Premises. Rent shall be prepaid on the date of execution hereof so
that the next monthly installment of rent shall be due on April 1, 2003.
If any installment of Basic Rent is not paid within five (5) days
after written notice is given by Lessor to Lessee that the same is overdue,
Lessee shall pay to Lessor, on demand, as Additional Rent, an administrative
late charge (the "Late Charge") equal to three percent (3%) on such overdue
installment of Basic Rent. In addition, any amount payable pursuant to the
terms of this Lease, as Basic Rent or otherwise, shall bear interest thereon
from the date due until the date paid at five percent (5%) in excess of the
"prime rate" as such rate is announced from time to time in the West Coast
edition of the Wall Street Journal.
ARTICLE 4 - TITLE AND CONDITION
The Demised Premises is demised and let to Lessee subject to (i) the
Permitted Encumbrances, (ii) all Legal Requirements, including any existing
violations; and (iii) the condition of the Demised Premises as of the
commencement of the Term, without representation or warranty by Lessor except
that Lessor represents and warrants title against the lawful claims of others
arising from the acts of Lessor (other than the lien and security interest of
the Mortgage where the Mortgagee has executed an SNDA Agreement with Lessee).
Lessee acknowledges and agrees that Lessee has examined the title to
the Demised Premises prior to the execution and delivery of this Lease and has
found such title to be satisfactory for the purposes contemplated by this
Lease.
2
ARTICLE 5 - USE
Lessee shall use the Demised Premises as a recreational vehicle sales
and service facility, uses ancillary thereto, and no other purpose. In the
event zoning or other laws or ordinances regulating the use of the Demised
Premises at any time during the initial lease term or any extension thereof
shall be modified or changed, Lessee shall use the Demised Premises only for
such purposes as comply with such laws or ordinances. Lessee agrees that it
will not permit any unlawful occupation, business or trade to be conducted on
the Demised Premises or any use to be made thereof contrary to any Legal
Requirements, the REA or the other provisions of this Lease. Lessee shall not
use or occupy or permit the Demised Premises to be used or occupied, nor do or
permit anything to be done in or on the Demised Premises or any part thereof,
in a manner that would in any way violate any certificate of occupancy
affecting the Demised Premises, or make void or voidable any insurance then in
force with respect thereto, or that may make it impossible to obtain fire or
other insurance thereon required to be furnished hereunder by Lessee, or that
will cause or be likely to cause structural injury to any of the leased
Improvements, or that will constitute a public or private nuisance or waste.
Nothing in this Lease contained and no action or inaction by Lessor shall be
deemed or construed to mean that Lessor has granted to Lessee any right, power
or permission to do any act or to make any agreement that may create, give rise
to, or be the foundation for, any right, title, interest, lien, charge or other
encumbrance upon the estate of Lessor in the Demised Premises.
ARTICLE 6 - NONTERMINABILITY; LESSOR'S RIGHT TO TERMINATE
(a) Except as otherwise expressly provided in this
Lease, this Lease shall not terminate, nor shall Lessee have any right to
terminate this Lease, nor shall Lessee be entitled to any abatement or
reduction of Rent hereunder, nor shall Lessee have the right to be released or
discharged from any obligations or liabilities hereunder for any reason,
including without limitation, any damage to or destruction of all or part of
the Demised Premises; any restriction, deprivation or prevention of, or any
interference with, any use or occupancy of the Demised Premises (or any defect
in or failure of Lessor's title to the Demised Premises other than as a result
of Lessor's intentional actions which dispossess Lessee of Lessee's possessory
interest in the Demised Premises); any condemnation, requisition or other
taking or sale of the use, occupancy or title to the Demised Premises; any
action, omission or breach on the part of Lessor under this Lease or under any
other agreement between Lessor and Lessee; the inadequacy or failure of this
Lease to lease to Lessee the property intended to be leased hereby other than
as a result of Lessor's actions; Lessee's acquisition of ownership of the
Demised Premises or any sale or other disposition of the Demised Premises; the
impossibility or illegality of performance by Lessor or Lessee or both; the
failure of Lessor to deliver possession of the Demised Premises; any action of
any court, administrative agency or other governmental authority; or any other
cause, whether similar or dissimilar to the foregoing, any present or future
law notwithstanding.
(b) Lessee will remain obligated under this Lease in
accordance with its terms, and will not take any action to terminate, rescind
or avoid this Lease for any reason, notwithstanding any bankruptcy, insolvency,
reorganization, liquidation, dissolution or other proceeding affecting Lessor,
or any assignee of Lessor, or any action with respect to this Lease which may
be taken by any receiver, trustee or liquidator, or any assignee of Lessor or
by any
3
court in any such proceeding, provided that this Lease is not rejected by or on
behalf of Lessor or any assignee of Lessor. Lessee waives all rights at any
time conferred by statute or otherwise to quit, terminate or surrender this
Lease or the Demised Premises or to any abatement or deferment of any Basic
Rent, Additional Rent or other sum payable hereunder, or for damage, loss or
expense suffered by Lessee on account of any cause referred to in this Article
or otherwise.
(c) In the event the Lessor's rights under this Lease
are assigned or transferred to an entity owned or controlled by Xxxxxxx Xxxxx,
Lessor may, thereafter, terminate this lease upon five (5) business days prior
notice to Lessee.
ARTICLE 7 - ALTERATIONS
Subject to the consent of the Lessor, which consent shall not be
unreasonably withheld provided that Lessee provides to the Lessor evidence that
such alterations, additions and improvements will be completed and paid for in
full, and subject to the consent of the Mortgagee, Lessee may, at Lessee's sole
expense, make alterations, additions and improvements to the Demised Premises
from time to time during the term of this Lease and shall have the right to
erect and install such other or additional improvements, signs, and equipment
on the Demised Premises as Lessee may deem desirable for conducting the
business permitted by the terms of Article 5 hereof (any of the foregoing being
called an "Alteration"). Lessee agrees that any Alteration shall be done in a
good and workmanlike manner and in conformity with all Legal Requirements that
materials of good quality shall be employed therein, that the structure of any
building upon the Demised Premises shall not be endangered or impaired thereby,
and that the Demised Premises will not be diminished in value thereby.
ARTICLE 8 - TRADE FIXTURES, TRADE
1. MACHINERY & TRADE EQUIPMENT
Lessee agrees that all trade fixtures, trade machinery, trade
equipment, furniture or other personal property of whatever kind and nature
kept or installed on the Demised Premises by Lessee shall be maintained and
installed so as not to damage any of the Improvements. Any such fixtures,
machinery, or equipment which have been affixed to the Improvements shall be,
at the option of Lessor, considered a part of the Improvements. At the
expiration of the term of this Lease, at the election of Lessor, Lessee shall
remove all such trade fixtures, trade machinery, trade equipment or other
property or, in the alternative, Lessor may deem such fixtures, machinery and
other property abandoned by Lessee, in which event such personal property shall
belong to Lessor.
ARTICLE 9 - CASUALTY AND CONDEMNATION
(a) As to the Demised Premises (and any part thereof),
Lessee hereby assumes all risk of loss, damage or destruction, whether by fire
or other hazard or casualty, or theft or vandalism, or by taking, condemnation,
seizure, confiscation or requisition of use or title by any governmental body
or authority or any Person legally vested with such powers. Lessee hereby
assigns to Lessor, subject to the provisions of paragraphs (b) and (d) below,
any award or insurance proceeds or other payment to which Lessee may become
entitled by reason of its
4
interest in the Demised Premises (excluding any interruption of business
proceeds, moving expenses and trade fixtures) if the Demised Premises, or any
portion thereof, is damaged, destroyed, lost or taken (i) by fire or other
casualty, or (ii) by condemnation, requisition or other taking or occupancy of
the Demised Premises on account of any actual or threatened eminent domain
proceeding or other action by any authority, civil or military, having the
power of eminent domain (any event described in such clauses (i) and (ii) being
hereafter termed a "Destruction"). Lessee waives the right to make any claim in
connection with any Destruction for Lessee's loss of leasehold estate created
hereby, goodwill or the unamortized value of any Alterations made by Lessee
after the date hereof. Lessor and the Mortgagee shall have the right, at
Lessee's expense, to appear in any such proceeding or other action and
negotiate, adjust and settle awards, settlements and recoveries without
Lessee's approval; otherwise, Lessee shall at its cost and expense, in the name
and behalf of Lessor, or Lessee, appear in any such proceeding or other action,
to negotiate, accept and prosecute any claim for any award, compensation,
insurance proceeds or other payment on account of any such Destruction and,
subject to paragraph (b) below, to cause the same to be paid to the Mortgagee,
if any pursuant to the terms of the Mortgage, and otherwise to Lessor.
(b) If there shall be a Destruction affecting the
Demised Premises or any part thereof, then Lessee shall give prompt written
notice of such Destruction to Lessor and the Mortgagee, including a description
thereof in reasonable detail. Thereafter, Lessee shall, at Lessee's own cost
and expense, proceed with diligence and promptness to carry out any work
necessary to make the Demised Premises safe and secure, and shall restore,
repair, replace, rebuild and/or improve the Demised Premises in order to
restore the Demised Premises, as nearly as practicable, to a condition and fair
market value not less than the condition required to be maintained hereunder
and fair market value immediately prior to such Destruction, or alternatively,
repair, rebuild and restore the same in accordance with such plans and
specifications as are then generally in use by Lessee, provided, however, the
repaired, rebuilt or replaced Improvements shall have a value not less than the
value just prior to the Destruction. All construction work shall be undertaken
and completed in the same manner as if the same were an Alteration; and all
materials that are scrapped or removed from the Demised Premises in connection
with such work may be dealt with by Lessee as its own property and Lessee shall
be entitled to all salvage resulting therefrom.
(c) Except as expressly provided herein, Rent shall not
xxxxx hereunder by reason of any Destruction affecting the Demised Premises,
and this Lease shall continue in full force and effect and Lessee shall
continue to perform and fulfill all of Lessee's obligations, covenants and
agreements hereunder notwithstanding such Destruction. Until such time as the
Mortgage has been satisfied, in no event shall Lessee have any right to
terminate this Lease due to any Destruction to the Demised Premises.
(d) Notwithstanding the foregoing provisions of this
Article 9, during the term of the Mortgage, proceeds shall be assigned and made
available to Lessee for the costs of restoration, but only in accordance with
and to the extent made available to Lessor pursuant to the Mortgage. In the
event that the Mortgagee does not make the proceeds available for restoration,
Lessee may, upon thirty days' written notice to Lessee and Mortgagee, terminate
this Lease, provided that, if, within such thirty day period, Mortgagee
notifies Lessee that it will
5
make the proceeds available (such proceeds to be disbursed in accordance with
the procedures and all other requirements of the Mortgage, including, if
applicable, the requirement that Lessee post any deficiency in restoration
proceeds), Lessee's termination notice shall be null and void. In connection
with the foregoing, Lessor hereby consents to the Mortgagee's making such
disbursements directly to or at the request of Lessee at Mortgagee's option. In
the event that there is a partial taking of the Demised Premises and
condemnation proceeds are not made available to Lessee, Lessee shall be
entitled, from and after the effective date of such condemnation, to an
appropriate pro rata reduction of the Basic Rent payable hereunder which shall
correspond to the pro rata reduction in the rentable square footage of the
Demised Premises.
ARTICLE 10 - MAINTENANCE AND REPAIRS
Lessee agrees at its expense to keep both the interior and exterior
(including the foundation, roof, exterior walls or any structural part of the
building) of the Demised Premises, including but not limited to parking areas,
sidewalks and driveways, in good repair and in a clean and wholesome condition
and to at all times fully comply with all health and police regulations in
force and also will make at its own expense all additions, improvements,
alterations, repairs and replacements on the Demised Premises and on and to the
appurtenances and equipment thereof required by any Legal Requirements or
Environmental Laws as required by Article 33 or which may be made necessary by
the act or neglect of any other person or corporation (public or private) and
will keep Lessor harmless and indemnified at all times against any loss,
damage, cost or expense by reason of the failure so to do in any respect or by
reason of any accident, loss or damage resulting to persons or property from
any use which may be made of said premises or of any improvements at any time
situated thereon or by reason or growing out of any act or thing done or
omitted to be done by Lessee. Lessor shall not be required to maintain, alter,
repair, rebuild or replace any improvements on the Demised Premises or to
maintain the Demised Premises, and Lessee expressly waives the right to make
repairs at the expense of Lessor pursuant to any law at any time in effect.
Lessor shall have no obligation to incur any expense of any kind or character
in connection with the management, operation or maintenance of the Demised
Premises during the Term of this Lease. Notwithstanding the foregoing
provisions of this Article 10, during the term of the Mortgage, proceeds of the
reserves established by Lessor to fund repairs and replacements shall be made
available to Lessee for such expenses, but only in accordance with and to the
extent made available to Lessor pursuant to the Mortgage.
ARTICLE 11 - TAXES AND COMPLIANCE WITH LAWS
(a) Lessee shall pay, promptly and before they become
delinquent, all taxes, assessments and other impositions general and special
that become due and payable, regardless of when assessed, at any time during
the term of this Lease upon or against the Demised Premises including the land
and all building furniture, fixtures, equipment and improvements now or
hereafter thereon which may be lawfully assessed either in the name of the
Lessor or Lessee (collectively, "Taxes"). If a special assessment is levied
against the Demised Premises, Lessee will only be responsible to pay
installments during the term of this Lease. The taxes payable by Lessee in the
first year of this Lease and the last year of the initial term or any final
extension thereof shall be prorated to reflect the actual portion of the year
that the Lease was actually in effect. The tax obligation shall be prorated
from date of commencement to date of
6
termination. Lessee shall also pay tax, if any, on Rent payments made
hereunder, but not Lessor's income tax due to receipt of Rent. Notwithstanding
the foregoing, during the term of the Mortgage, Lessee shall pay such Taxes and
special assessments as Additional Rent, by means of equal monthly installments;
such amounts are required to be deposited by Lessor with the Mortgagee pursuant
to the Mortgage. Lessee agrees that Mortgagee's determination of the monthly
payment on account of Taxes and special assessments shall be binding absent
manifest error.
(b) At Lessee's sole cost and expense, Lessee shall
perform and comply in all material respects with all laws, rules, orders,
ordinances, regulations and requirements now or hereafter enacted or
promulgated, of every government and municipality having jurisdiction over the
Demised Premises and of any agency thereof, relating to the Demised Premises,
or the improvements thereon, or the facilities or equipment thereon or therein,
or the streets, sidewalks, vaults, vault spaces, curbs and gutters adjoining
the Demised Premises, or the appurtenances to the Demised Premises, or the
franchises and privileges connected therewith (collectively, "Legal
Requirements"), whether or not such Legal Requirements shall necessitate
structural changes, improvements, interference with use and enjoyment of the
Demised Premises, replacements or repairs, extraordinary as well as ordinary,
and Lessee shall so perform and comply, whether or not such Legal Requirements
shall now exist or shall hereafter be enacted or promulgated, and whether or
not such Legal Requirements are within the present contemplation of Lessor or
Lessee.
(c) Subject to the requirements of the Mortgage
(including any requirement for the posting of collateral or for obtaining the
consent of the Mortgagee), Lessee shall have the right to contest, by
appropriate legal proceedings, any Taxes and Legal Requirement and to postpone
payment of or compliance with the same during the pendency of such contest,
provided that (i) the commencement and continuation of such proceedings shall
suspend the collection thereof from, and suspend the enforcement thereof
against, Lessor and the Demised Premises, (ii) no part of the Demised Premises
nor any Basic Rent shall be interfered with or shall be in danger of being
sold, forfeited, attached or lost, (iii) Lessee shall diligently prosecute such
contest to a final settlement or conclusion, (iv) there shall be no risk of the
imposition of criminal liability on Lessor or the Mortgagee for failure to
comply therewith, and (v) Lessee shall satisfy any Legal Requirements with
respect to such proceedings, including, if required, that the Taxes be paid in
full before being contested. Lessee shall provide Lessor with written notice of
any such contest.
ARTICLE 12 - UTILITY CHARGES
Lessee shall pay promptly as and when the same become due and payable
all rents, rates and charges for water, sewer, electricity, gas, fuel, heat and
power and other utilities supplied to the Demised Premises or used by Lessee in
connection therewith. In the event a utility easement is necessary to provide
utility service necessary for the Lessee's use, the Lessor agrees to execute
any reasonable utility easement grant.
ARTICLE 13 - INSURANCE
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(a) Lessee shall, at its cost and expense, maintain or
cause to be maintained property and liability insurance in such amounts and
with such carriers as may be reasonably requested by the Lessor and, in any
event, satisfying all insurance requirements of the Mortgage. At the option of
Mortgagee, Lessor shall maintain such insurance coverage and Lessee shall pay
the premiums therefor in equal monthly installments, as Additional Rent.
(b) Insurance certificates evidencing the policies
required above shall be deposited with Lessor by Lessee on the date hereof, and
thereafter no less frequently than thirty (30) days prior to the expiration of
each such policy. Lessee also shall deliver insurance certificates evidencing
the coverage required by this Lease to the Mortgagee, naming the Mortgagee as
the certificate holder, the form and substance of such certificates to be
sufficient to evidence compliance with the requirements of this Lease and to be
issued by the insurer or a duly authorized agent of the insurer. Furthermore,
Lessee shall be required to deliver certificates evidencing renewal policies of
all insurance required under this Article, at least thirty (30) days prior to
the expiration of the existing insurance period. All insurance policies and
endorsements shall be fully prepaid and nonassessable. Except for Lessee's
business interruption, moving expenses and trade fixtures insurance, Lessee
shall not obtain any separate or additional insurance relating to the Demised
Premises unless Lessor and the Mortgagee are insureds thereunder (as their
interests may appear).
(c) Lessee shall comply with all of the terms and
conditions of each insurance policy maintained pursuant to the terms of this
Lease.
ARTICLE 14 - SUBORDINATION AND NON-DISTURBANCE
(a) Lessee hereby agrees that this Lease shall be
subject and subordinate to the Mortgage without the necessity of any further
instrument. Within ten (10) days after request therefor from Lessor, the Lessee
agrees to enter into a subordination, non-disturbance and attornment agreement
with the Mortgagee (a "SNDA Agreement") in such form as may be requested from
time to time from by the Mortgagee.
(b) Notwithstanding Section 14(a), Lessee agrees, at the
request of the Mortgagee, to attorn, from time to time, to the Mortgagee or any
purchaser of the Demised Premises, for the remainder of the Term. The
provisions of this paragraph shall inure to the benefit of such holder or such
purchaser, shall apply notwithstanding that, as a matter of law, this Lease may
terminate upon the foreclosure of the Mortgage (in which event the parties
shall execute a new lease for the remainder of the Term on the same terms and
conditions set forth herein), shall be self-operative upon any such demand, and
no further instrument shall be required to give effect to said provisions.
(c) Lessee hereby agrees to execute, from time to time,
any instruments reasonably requested by the Mortgagee in confirmation of the
foregoing provisions (a) and (b) hereof.
ARTICLE 15 - HOLDING OVER
8
Should the Lessee hold over in possession at the expiration of the
Term, such holding over shall not be deemed to extend the Term or renew this
Lease, but the tenancy thereafter shall continue on a month to month term upon
the covenants and conditions herein set forth at Basic Rent equal to two (2)
times the monthly rate of Rent in effect for the last month of the Term until
terminated by either party, which notice shall be given thirty (30) days or
more before such date.
ARTICLE 16 - DEFAULT BY LESSEE AND REMEDIES
(a) In the event of any failure of Lessee to pay any
Rent or other amount due hereunder within ten (10) days after receipt of notice
by certified mail, or any failure to perform any other of the terms, conditions
or covenants of this Lease to be observed or performed by Lessee for more than
thirty (30) days after receipt of written notice of such default shall have
been given to Lessee, or if Lessee shall become bankrupt, or file any debtor
proceedings or take or have taken against Lessee in any court pursuant to any
statute either of the United States or of any State, a petition in bankruptcy
or insolvency or for reorganization or for the appointment of a receiver or
trustee of all or a portion of Lessee's property, or if Lessee makes an
assignment for the benefit of creditors, or petitions for or enters into an
arrangement, or if Lessee shall abandon said premises, or suffer this Lease to
be taken under any writ of execution, then Lessor, besides other rights or
remedies it may have, shall have the immediate right to re-entry and may remove
all persons and property from the Demised Premises and such property may be
removed and stored in a public warehouse or elsewhere at the cost of, and for
the account of, Lessee, all without service of notice or resort to legal
process and without being deemed guilty of trespass, or becoming liable for any
loss or damage which may be occasioned thereby. Should Lessor elect to
re-enter, as herein provided, or should it take possession pursuant to legal
proceedings or pursuant to any notice provided for by law, it may either
terminate this Lease or it may from time to time, without terminating this
Lease, make such alterations and repairs as may be necessary in Lessor's
reasonable judgment in order to relet the Demised Premises, and relet said
premises or any part thereof for such term or terms (which may be for a term
extending beyond the term of this Lease) and such rental or rentals and upon
such other terms and conditions as Lessor in its sole discretion may deem
advisable; upon each such reletting all rentals received by the Lessor from
such reletting shall be applied first to the payment of any costs and expenses
of such reletting, including brokerage fees and attorney's fees and of costs of
such alterations and repairs; second, to the payment of rent due and unpaid
hereunder; and the residue, if any, shall be held by Lessor and applied in
payment of future rent as the same may become due and payable hereunder. If
such rentals received from such reletting during any month be less than that to
be paid during that month by Lessee hereunder, Lessee shall pay any such
deficiency to Lessor. Such deficiency shall be calculated and paid monthly. No
such re-entry or taking possession of said premises by Lessor shall be
construed as an election on its part to terminate this Lease unless a written
notice of such intention be given to Lessee or unless the termination thereof
be decreed by a court of competent jurisdiction. Notwithstanding any such
reletting without termination, Lessor may at any time thereafter elect to
terminate this Lease for such previous breach. Should Lessor at any time
terminate this Lease for any breach, in addition to any other remedies it may
have it may recover from Lessee all damages it may incur by reason of such
breach, including the cost of recovering the Demised Premises, reasonable
attorney's fees, and including the worth at the time of such termination of the
excess, if any, of the amount of Rent
9
and other charges reserved in this Lease for the remainder of the stated term
over the then reasonable rental value of the Demised Premises for the remainder
of the stated term, all of which amounts shall be immediately due and payable
from Lessee to Lessor.
(b) No receipt of moneys by Lessor from Lessee after a
termination of this Lease by Lessor shall reinstate, continue or extend the
Term of this Lease or affect any notice theretofore given to Lessee, or operate
as a waiver of the right of Lessor to enforce the payment Rent, it being agreed
that after the commencement of suit for possession of the Demised Premises, or
after final order or judgment for the possession of the Demised Premises,
Lessor may demand, receive and collect any moneys due or thereafter falling due
without in any manner affecting such suit, order or judgment, all such moneys
collected being deemed payments on account of the use and occupation of the
Demised Premises or, at the election of Lessor, on account of Lessee's
liability hereunder. Lessee hereby waives any and all rights of redemption
provided by any law, statute or ordinance now in effect or which may hereafter
be enacted.
(c) The word "re-enter," as used in this Lease, shall
not be restricted to its technical legal meaning, but is used in the broadest
sense. No such taking of possession of the Demised Premises by Lessor shall
constitute an election to terminate the Term unless written notice of such
intention be given to Lessee by Lessor or unless such termination be decreed by
a court.
(d) If an action shall be brought for the enforcement of
any provision of this Lease, Lessee shall pay to Lessor all costs and other
expenses which may become payable as a result thereof, including reasonable
attorneys' fees and expenses.
(e) In addition to the foregoing rights and remedies,
Lessor shall have all those rights and remedies available to Lessor at law or
in equity. No right or remedy herein conferred upon or reserved to Lessor is
intended to be exclusive of any other right or remedy, and every right and
remedy shall be cumulative and in addition to any other legal or equitable
right or remedy given hereunder, or at any time existing. The failure of Lessor
to insist upon the strict performance of any provision or to exercise any
option, right, power or remedy contained in this Lease shall not be construed
as a waiver or a relinquishment thereof for the future. Receipt by Lessor of
any Rent or any other sum payable hereunder with knowledge of the breach of any
provision contained in this Lease shall not constitute a waiver of such breach,
and no waiver by Lessor of any provision of this Lease shall be deemed to have
been made unless made under signature of an authorized representative of
Lessor.
ARTICLE 17 - LIMITATION OF LANDLORD'S PERSONAL LIABILITY
Lessee shall look solely to Lessor's interest in the Demised Premises
for the recovery of any judgment against Lessor, and no other property or
assets of Lessor or Lessor's partners, officers, directors, shareholders or
principals, direct or indirect, disclosed or undisclosed, shall be subject to
levy, execution or other enforcement procedure for the satisfaction of Lessee's
remedies under or with respect to this Lease.
ARTICLE 18 - RIGHT OF ENTRY
10
Lessor shall have the right to enter, at any reasonable time and
place, to inspect the condition of the Demised Premises or for any other
purpose in connection with this Lease.
ARTICLE 19 - LESSOR RELEASED FROM LIABILITY FOR DAMAGES
Lessor shall not be responsible at any time or in any event for any
latent defect, deterioration or change in the condition of the Demised Premises
or for damage to the same. Lessor shall not be liable for any damages to
property of Lessee caused by damage to the Demised Premises. Lessor shall not
be liable for any injury or damage to persons or property whether caused by or
resulting from falling plaster, dampness, any overflow or leaking upon or into
the Demised Premises of water, rain, snow, steam, gas or electricity or any
breakage of pipes, appliances or plumbing or breakage, leaking or obstruction
of soil pipes nor for damage from any such source nor for interferences with
light or other incorporeal hereditament.
ARTICLE 20 - HOLD HARMLESS
Lessee shall pay, and shall protect, defend and indemnify Lessor, the
Mortgagee, the successors and assigns of either and the trustees,
beneficiaries, partners, shareholders, officers, directors, agents or employees
of Lessor, the Mortgagee or any such successor or assign (each, an "Indemnified
Party" and collectively, the "Indemnified Parties"), against and hold the
Indemnified Parties harmless from all liabilities, losses, damages, costs,
expenses (including reasonable attorneys' fees and expenses), claims, demands
or judgments of any nature (a) arising or alleged to arise from or in
connection with the condition, use, operation, maintenance, subletting and
management of the Demised Premises, (b) relating to the Demised Premises and
the appurtenances thereto and the use and occupancy thereof by Lessee or anyone
claiming by, through or under Lessee or (c) arising or alleged to arise from or
in connection with any of the following events: (i) any injury to, or death of,
any person or any damage to or loss of property on the Demised Premises or
growing out of or directly or indirectly connected with, ownership, use,
nonuse, occupancy, operation, possession, condition, construction, repair or
rebuilding of the Demised Premises or resulting from the condition of any
thereof, (ii) any claims by third parties resulting from any violation or
alleged violation by Lessee of (A) any provision of this Lease, or (B) any
Legal Requirement or the REA, or (C) any other lease or agreement relating to
the Demised Premises, or (D) any contract or agreement to which Lessee is a
party or any restriction, law, ordinance or regulation, affecting the Demised
Premises or the ownership, use, nonuse, occupancy, condition, operation,
possession, construction, repair or rebuilding thereof, (iii) any contest
permitted by Article 11; or (iv) Lessee's failure to pay in accordance with the
terms and provisions hereof any item of Additional Rent, ground rent, if any,
or other sums payable by Lessee hereunder. If Lessor, the Mortgagee, or any
agent of Lessor or the Mortgagee, or any other Indemnified Party, shall be made
a party to any such litigation commenced against Lessee, and if Lessee, at
Lessee's expense, shall fail to provide Lessor or the Mortgagee or its agent or
other Indemnified Party with counsel reasonably approved by such party within
thirty (30) days written notice of such failure, Lessee shall pay all costs and
reasonable attorney's fees and expenses incurred or paid by Lessor or the
Mortgagee or its agent or other Indemnified Party in connection with such
litigation.
11
ARTICLE 21 - SURRENDER
At the expiration of the Term Lessee shall surrender the Demised
Premises in as good a condition as it was at the beginning of the Term,
reasonable use, wear and tear, and damages by the elements excepted. Lessee
agrees that removal of any trade fixtures, trade machinery, trade equipment, or
any of Lessee's personal property shall be done in a good and workmanlike
manner in conformity with all laws, ordinances and regulations of all public
authorities having jurisdiction, and that the Demised Premises will not be
diminished in value thereby. No act or thing done by the Lessor or its agents
during the term of this Lease shall be deemed an acceptance of the surrender to
the Demised Premises and no agreement to accept such surrender shall be valid
unless in writing signed by the Lessor. No employee or agent of the Lessor
shall have any power to accept the keys of the Demised Premises prior to the
termination of this Lease and the delivery of the keys to any employee or agent
of the Lessor shall not operate as a termination of this Lease or a surrender
of the Demised Premises.
ARTICLE 22 - FULL NET RENT
It is the purpose and intent of Lessor and Lessee that the Basic Rent
shall be absolutely net to the Lessor, so that this Lease shall yield net to
Lessor, the Basic Rent specified in Article 3 above in each year during the
Term, and that all Additional Rent including without limitation all costs,
impositions, insurance premiums, carrying charges, expenses, levies,
assessments, taxes and obligations of every kind and nature whatsoever relating
to the Demised Premises, or any improvements thereon or additions thereto,
shall be paid by Lessee, excepting only principal and interest on any fee,
mortgages, or other lien placed upon the premises by Lessor or income taxes,
franchise taxes, or estate or transfer taxes of the Lessor, provided, however,
that if at any time the present method of taxation or assessment shall be
changed so that the whole or any part of the taxes, assessments, levies,
impositions or charges now levied, assessed or imposed on real estate or the
improvements thereon shall be levied, assessed or imposed wholly or partially
as a capital levy or otherwise on the rents received therefrom or if any tax,
franchise tax, assessment, imposition, levy or charge, or any part thereof,
shall be measured by or based, in whole or in part, upon the present or any
future building or buildings on or constituting a portion of the Demised
Premises, and shall be imposed upon Lessor, then all such taxes, assessments,
levies, impositions or charges, or the part thereof so measured and based,
shall be deemed to be included within the term "Taxes" for the purpose hereof,
and Lessee will pay and discharge the same as herein provided.
ARTICLE 23 - SERVICE OF NOTICE
12
Every notice, approval, consent or other communication authorized or
required by this Lease shall not be effective unless the same shall be in
writing and sent postage prepaid by United States registered or certified mail,
return receipt requested, and
(a) if intended for Lessor shall be addressed to:
Holiday RV Superstores of South Carolina, Inc.
000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
(b) if intended for Lessee shall be addressed to:
Holiday Xxxxxx of Columbia, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
or to such other address as either party may designate by notice given from
time to time in accordance with this Article. Any notice given in accordance
with the provisions of this Article shall be deemed to have been given as of
the date such notice shall have been placed in the United States Postal
Service. Rent shall be paid to Lessor at the same place where a notice to
Lessor is herein required to be directed.
ARTICLE 24 - SUCCESSORS AND ASSIGNS
The terms, conditions and covenants of this Lease shall be binding
upon and shall inure to the benefit of each of the parties hereto, their
respective successors or assigns and shall run with the land.
ARTICLE 25 - RECORDING
This Lease shall not be recorded. However, if either of the parties
hereto desire to record a memorandum of this Lease, Lessor and Lessee agree to
execute and deliver to the other a memorandum of this Lease containing only
minimum requirements, which memorandum may then be recorded in the appropriate
office of the County within which the Demised Premises is located.
ARTICLE 26 - AMENDMENTS
No waivers, alterations, or modifications of this Lease or any
agreements in connection therewith shall be valid unless in writing duly
executed by both Lessor and Lessee and consented to by the Mortgagee.
ARTICLE 27 - ESTOPPEL CERTIFICATE
13
Each party hereto agrees that at any time and from time to time during
the term of this Lease, it will promptly, but in no event later than ten (10)
days after request by the other party hereto, execute, acknowledge and deliver
to such other party a certificate stating, to the best of such party's
knowledge, (a) whether or not this Lease is unmodified and in force and effect
(or if there have been modifications, that this Lease is in force and effect as
modified, and setting forth any modifications); (b) the date to which Basic
Rent, Additional Rent and other sums payable hereunder have been paid; (c)
whether or not there is an existing default by Lessee in the payment of Basic
Rent or any other sum required to be paid hereunder, and whether or not there
is any other existing default by Lessee with respect to which a notice of
default has been served or of which the signer has Actual Knowledge, and, if
there is any such default, specifying the nature and extent thereof, (d)
whether or not there are any existing setoffs, defenses or counterclaims
against enforcement of the obligations to be performed hereunder existing in
favor of the party executing such certificate; (e) stating that Lessee is in
possession of the Demised Premises or setting forth the parties in possession
and identifying the instruments pursuant to which they took possession; and (f)
stating such other information with respect to the Demised Premises and/or this
Lease as may be reasonably requested. Any such certificate may be relied upon
by Lessor and the Mortgagee and by any potential purchaser from the Lessor or
the Mortgagee.
ARTICLE 28 - INVALIDITY OF PROVISIONS
If any term, covenant, condition or provisions of this Lease or the
application thereof to any person or circumstance shall, at any time, or to any
extent, be invalid or unenforceable, the remainder of this Lease or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term, covenant, condition and provisions of this Lease shall
be valid and enforceable to the fullest extent permitted by law.
ARTICLE 29 - CAPTIONS
The captions appearing in this Lease are inserted only as a matter of
convenience and in no way define, limit, construe or describe the scope or
intent of such articles of this Lease or in any way affect this Lease.
ARTICLE 30 - ENTIRE AGREEMENT
This Lease supersedes any and all other agreements, either oral or in
writing, between the parties hereto with respect to the Demised Premises and
contains all of the covenants, agreements and other obligations between the
said parties in respect to said premises.
ARTICLE 31 - MECHANIC'S LIENS
Lessee shall promptly pay and discharge all costs and expenses of any
work done in or on the Demised Premises by Lessee or its subtenants, and its
and their agents, employees or contractors, and shall not do or fail to do any
act which shall or may render the Demises
14
Premises or any part thereof subject to any mechanic's lien or other lien or
security agreement or charge or chattel mortgage or conditional xxxx of sale or
title retention agreement (hereinafter collectively called "Lien"), and if any
Lien be filed against the Demised Premises, any Alterations, or any portion of
any of the foregoing, Lessee shall, at Lessee's own cost and expense, within
twenty (20) days after the filing of any such Lien, promptly take and prosecute
all necessary proceedings to cause the same to be removed of record by bonding
or otherwise; and, in default thereof, Lessor may, in addition to any other
rights and remedies it may have by reason of Lessee's default, cause any such
Lien to be removed or record by payment or bond or otherwise, as Lessor may
elect, and Lessee shall reimburse Lessor as Additional Rent for all costs and
expenses incidental to the removal of any such Lien incurred by Lessor, together
with an administrative charge of ten percent (10%) thereof.
ARTICLE 32 - WAIVER OF TRIAL BY JURY
LESSOR AND LESSEE HEREBY WAIVE TRIAL BY JURY IN ANY LITIGATION BROUGHT
BY EITHER AGAINST THE OTHER ON ANY MATTER ARISING OUT OF OR IN CONNECTED WITH
THIS LEASE OR THE DEMISED PREMISES.
ARTICLE 33 - ENVIRONMENTAL MATTERS
(a) Promptly, upon receipt by Lessee of written notice
of any violation of any Environmental Laws with respect to the Demised Premises
or of the presence of Hazardous Substances in any portion of the Demised
Premises in concentrations and conditions that constitute a violation of
Environmental Laws, Lessee shall notify Lessor in writing of such condition. In
the event of such violation, Lessee shall, not later than thirty (30) days
after Lessee has Actual Knowledge of such violation, deliver to Lessor and the
Mortgagee a certificate signed by an Executive Officer advising Lessor of such
violation and at Lessee's sole cost and expense, promptly and diligently
undertake any response, clean up, remedial or other action necessary to remove,
cleanup or remediate the violation in accordance with all Legal Requirements.
As soon as practicable, Lessee shall notify Lessor of Lessee's proposed
remedial actions and, upon completion of remedial action by Lessee, cause to be
prepared by an environmental consultant reasonably acceptable to Lessor a
written report describing the violation and the actions taken by Lessee (or its
agents) in response to such violation in reasonable detail, and a written
statement by the consultant that the violation has been remedied in full
compliance with all applicable Environmental Laws.
(b) Promptly, but in any event within ten (10) days from
the date Lessor or Lessee has Actual Knowledge thereof, Lessor or Lessee, as
the case may be, shall provide to the other written notice of any pending or
threatened claim, action or proceeding involving any Environmental Laws or any
release of Hazardous Substances on or in connection with the Demised Premises.
All such notices shall describe in reasonable detail the nature of the claim,
action or proceeding. In addition, Lessor or Lessee, as the case may be, shall
provide to the other, within ten (10) days of receipt, copies of all written
communications with any governmental authority relating to any actual or
asserted violation of Environmental Laws in connection with the Demised
Premises. Lessor and Lessee shall also promptly provide such detailed reports
of any such environmental claims as may reasonably be requested by the other or
15
by the Mortgagee. Failure by the Lessor to provide any such notices to Lessee
shall not affect any of Lessee's obligations under this Lease, including its
obligation hereunder, if any, to remediate any violation of Environmental Laws.
(c) Lessor or the Mortgagee, or their agents, employees,
contractors, or representatives, shall have the right, but not the duty, at
Lessee's sole cost and expense, to enter upon the Demised Premises to monitor
and inspect any release of Hazardous Substances thereon or any violation, if
any, of any applicable Environmental Laws relating thereto, if after being
required to do so, Lessee fails to contest the allegations surrounding such
violation or commence such remediation promptly thereafter and to continue
diligently to effect such remediation or contest. In exercising its rights
herein, each such party shall use reasonable efforts to minimize interference
with Lessee's business but any such entry shall not constitute an eviction of
Lessee, in whole or in part. If any governmental authority shall ever require
testing to ascertain whether there has been a release or violation of
Environmental Laws, then all of the costs thereof shall be paid by Lessee.
(d) Lessee will not cause or permit the use, release,
generation, treatment, storage, recycling or disposal of any Hazardous
Substances on the Demised Premises or the transportation of Hazardous
Substances to or from the Demised Premises by the Lessee, its sublessees and/or
its or their respective agents, employees, contractors or invitees other than
(i) in compliance with all applicable Environmental Laws and (ii) as necessary
to use, operate and maintain the Demised Premises as is currently or may in the
future be used in the operation of the Lessee's business, in compliance with
applicable Environmental Laws.
(e) Lessee shall comply with all applicable
Environmental Laws now or hereafter applicable to the use, modification,
operation, construction or maintenance of the Demised Premises and Lessee shall
have sole responsibility for all expenses. Lessee covenants that from and after
the date of this Lease it shall not install or permit the installation by the
Lessee, its sublessees, and/or its and their respective agents, employees,
contractors and invitees, of any asbestos-containing materials in or on the
Demised Premises and Lessee shall not construct or permit the construction or
installation of any underground storage tanks or surface impoundments on the
Demised Premises other than in compliance with Environmental Laws and shall
cause any Alterations of the Demised Premises undertaken by, through or under
Lessee to be done in a way so as to prevent exposure of persons working on or
visiting the Demised Premises to Hazardous Substances in excess of safety
levels established by any applicable Environmental Laws and so as not to result
in liability under any applicable Environmental Laws. Lessee agrees that it
will not store combustible or flammable materials on the Property in violation
of Environmental Laws.
(f) Lessee shall obtain, at or prior to the time
required by applicable Environmental Laws, all approvals and/or permits
necessary for the full use, operation and maintenance of the Demised Premises
and maintain such approvals and/or permits in full force and effect at all
times.
(g) Lessee shall and hereby does agree to defend,
indemnify and hold the Mortgagee and Lessor, their officers, directors,
shareholders, partners, beneficial owners,
16
trustees, members and employees, harmless from and against any and all causes
of actions, suits, demands or judgments of any nature whatsoever, losses,
damages, penalties, expenses, fees, claims, costs (including response and
remedial costs), and liabilities, including, but not limited to, reasonable
attorneys' fees and costs of litigation, arising out of or in any manner
connected with (i) any violation of Environmental Laws, (ii) release or
threatened release of or failure to remove as required by paragraph (a) above,
any Hazardous Substances at or from the Demised Premises or any portion or
portions thereof, including any past or current release and any release or
threatened release during the Term, whether or not arising out of or in any
manner connected with Lessee's occupancy of the Demised Premises during the
Term; provided the indemnifications contained herein shall not apply to the
extent the foregoing matters arise out of the willful misconduct or gross
negligence of Lessor or the Mortgagee and are not covered by the insurance
required to be carried by Lessee hereunder.
ARTICLE 34 - FINANCIAL STATEMENTS
Lessee will cause to be delivered to Lessor and the Mortgagee the
following financial statements of Lessee:
(i) for any period that Lessee is a public company, as
soon as practicable, copies of all regular, current or periodic reports
(including reports on Form 10-K, Form 8-K and Form 10-Q) which Lessee is or may
be required to file with the Securities and Exchange Commission or any
governmental body or agency succeeding to the functions of the Securities and
Exchange Commission;
(ii) if Lessee shall not be a public company required to
file such reports with the Securities and Exchange Commission, then within one
hundred twenty (120) days after the end of each fiscal year, and within sixty
(60) days after the end of any other fiscal quarter, a consolidated statement
of earnings, and a consolidated statement of changes in financial position, a
consolidated statement of stockholders' equity, and a consolidated balance
sheet of Lessee as at the end of each such year or fiscal quarter, in the form
previously accepted by the Mortgagee; and
(iii) annually, and from time to time upon request, a
report of Lessee's sales at the Demised Premises for the prior 12-month period,
on a monthly basis.
ARTICLE 35 - QUIET ENJOYMENT
So long as Lessee is not in default under this Lease, Lessor covenants
that Lessee shall and may at all times peaceably and quietly have, hold and
enjoy the Demised Premises during the Term of this Lease.
ARTICLE 36 - ASSIGNMENT AND SUBLETTING
(a) Lessee may not Transfer its interest in this Lease and
may not sublet the Demised Premises in whole or in part without the prior
written consent of Lessor and Mortgagee, and any attempt to do any of the
foregoing without such consents shall be null and void and shall
17
in no event operate to release Lessee from any of its obligations hereunder.
For purposes of this provision, an "assignment" shall include the transfer of
any direct or indirect interests in Lessee.
(b) Notwithstanding the foregoing, upon the occurrence
of a default under this Lease by Lessee, Lessor shall have the right to collect
and enjoy all rents and other sums of money payable under any sublease of any
of the Demised Premises, and Lessee hereby irrevocably and unconditionally
assigns such rents and money to Lessor, which assignment may be exercised upon
and after said default.
ARTICLE 37 - ADVANCES BY LESSOR
If Lessee shall fail to make or perform any payment (other than the
payment of Basic Rent) or act required by this Lease, then, upon ten (10) days'
notice to Lessee (or upon shorter notice or no notice, to the extent necessary
to meet an emergency or a governmental limitation), Lessor may at its option
make such payment or perform such act for the account of Lessee, and Lessor
shall not thereby be deemed to have waived any default or released Lessee from
any obligation hereunder. Amounts so paid by Lessor and all incidental costs
and expenses (including reasonable attorneys' fees and expenses) incurred in
connection with such payment or performance shall constitute Additional Rent
and shall be paid by Lessee to Lessor on demand together with interest thereon
at the rate of interest set forth in Article 3 hereof from the date of demand
until the date of payment.
ARTICLE 38 - NO MERGER
Lessee agrees that there shall be no merger of this Lease or of any
sublease under this Lease or of any leasehold or subleasehold estate hereby or
thereby created with the fee or any other estate or ownership interest in the
Demised Premises or any part thereof by reason of the fact that the same entity
may acquire or own or hold, directly or indirectly, (a) this Lease or any
sublease or any leasehold or subleasehold estate created hereby or thereby or
any interest in this Lease or any such sublease or in any such leasehold or
subleasehold estate, and (b) the fee estate or other estate or ownership
interest in the Demised Premises or any part thereof.
ARTICLE 39 - MISCELLANEOUS
No failure, delay, forbearance or indulgence on the part of any party
in exercising any right, power or privilege hereunder shall operate as a waiver
thereof, or as an acquiescence in any breach, nor shall any single or partial
exercise of any right, power or remedy hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. This
Lease and the rights and obligations in respect hereof shall be governed by,
and construed and interpreted in accordance with, the laws of the state within
which the Demised Premises is located. This Lease may be executed in any number
of counterparts, each of which shall be an original, and such counterparts
together shall constitute but one and the same instrument.
18
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19
IN WITNESS WHEREOF, the parties hereto have set their hands to this
instrument the day and year first above written.
LESSOR: LESSEE:
HOLIDAY RV SUPERSTORES OF HOLIDAY XXXXXX OF COLUMBIA, INC.
SOUTH CAROLINA, INC.
By: By:
---------------------------- ----------------------------------------
Name: Xxxxx X. Xxxxxxx Name: Xxxx Xxxxxx
Title: President Title: President
20
APPENDIX I
DEFINITIONS
Actual Knowledge by the Lessee with respect to any matter means
knowledge of such matter by an Executive Officer after due inquiry. Actual
Knowledge shall be presumed conclusively as to the content of any notice to
Lessee made in accordance with the provisions of this Lease.
Additional Rent. All amounts which Lessee is required to pay or
discharge pursuant to this Lease in addition to Basic Rent (including, without
limitation, amounts payable on account of Taxes pursuant to Article 11 and on
account of insurance premiums pursuant to Article 13 and any amounts payable as
liquidated damages pursuant to Article 16) together with every penalty, overdue
interest and cost which may be added for nonpayment or late payment thereof
Alteration is defined in Article 7.
Basic Rent is defined in Article 3.
Change of Control means
(a) The acquisition by an individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of 30% or more of either (i) the
then outstanding shares of common stock of the Lessee (the "Outstanding Common
Stock") or (ii) the combined voting power of the then outstanding voting
securities of the Lessee entitled to vote generally in the election of
directors (the "Outstanding Voting Securities"); provided, however, that the
following acquisitions shall not constitute a Change of Control: (x) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by Lessee or any of its subsidiaries, (y) any acquisition by any
corporation with respect to which, following such acquisition, more than 85%
of, respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election of
directors, is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were beneficial owners,
respectively of the Outstanding Common Stock and Outstanding Voting Securities
in substantially the same proportions as their ownership, immediately prior to
such acquisition, of the Outstanding Common Stock and Outstanding Voting
Securities, as the case may be or (z) any acquisition by an individual, entity
or group that, pursuant to Rule 13d-1 promulgated under the Exchange Act, is
permitted to, and actually does, report its beneficial ownership of Outstanding
Common Stock and Outstanding Voting Securities on Schedule 13G (or any
successor Schedule); provided further, that if any such individual, entity or
group subsequently becomes required to or does report its ownership of
Outstanding Common Stock and Outstanding Voting Securities on Schedule 13D (or
any successor Schedule) then, for purposes of this Section 2(a), such
individual, entity or group shall be deemed to have first acquired, on the
first date on which such
21
individual, entity or group becomes required to or does so file, beneficial
ownership of all of the Outstanding Common Stock and Outstanding Voting
Securities beneficially owned by it on such date; or
(b) Individuals who, as of the date hereof, constitute Lessee's
Board of Directors (the "Incumbent Board") cease for any reason to constitute
at least a majority of the Lessee's Board of Directors; provided, however, that
any individual becoming a director subsequent to the date hereof whose
election, or nomination for election by Lessee's shareholders, was approved by
a vote of at least a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of either an actual or
threatened election contest (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents; or
(c) There is consummated a reorganization, merger or
consolidation, in each case, with respect to which all or substantially all of
the individuals and entities who were the beneficial owners, respectively, of
the Outstanding Common Stock and Outstanding Voting Securities immediately
prior to such reorganization, merger or consolidation, beneficially own,
directly or indirectly, less than 85% of, respectively, the then outstanding
shares of common stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors, as
the case may be, of the corporation (or any parent thereof) resulting from such
reorganization, merger or consolidation in substantially the same proportions
as their ownership, immediately prior to such reorganization, merger or
consolidation of the Outstanding Common Stock and the Outstanding Voting
Securities, as the case may be; or
(d) Approval by the shareholders of Lessee of a complete
liquidation or dissolution of Lessee or the consummation of the sale or other
disposition of all or substantially all of the assets of Lessee, other than to
a corporation with respect to which, following such sale or other disposition,
more than 85% of, respectively, the then outstanding shares of common stock of
such corporation and the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Common Stock and Outstanding Voting
Securities immediately prior to such sale or other disposition in substantially
the same proportion as their ownership, immediately prior to such sale or other
disposition, of the Outstanding Common Stock and Outstanding Voting Securities,
as the case may be.
Demised Premises is defined in Article 1.
Destruction is defined in Article 9.
Environmental Laws means and includes but shall not be limited to the
Resource Conservation and Recovery Act (42 U.S.C. ss. 6901 et seq.), as amended
by the Hazardous and Solid Waste Amendments of 1984, the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. ss. 9601 et
seq.), as amended by the Superfund Amendments and Reauthorization Act of 1986,
the Hazardous Materials Transportation Act (49 U.S.C. ss. 1801 et.
22
seq.), the Toxic Substances Control Act (15 U.S.C. ss. 2601, et seq.) Clean Air
Act (42 U.S.C. ss. 7401 et seq.), the Clean Water Act (33 U.S.C. ss. 1251 et
seq.) the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. ss. 136
et seq.), the Occupational Safety and Health Act (29 U.S.C. ss. 651 et seq.) and
all applicable federal, state and local environmental laws, including
obligations under the common law, ordinances, rules, regulations and
publications, as any of the foregoing may have been or may be from time to time
amended, supplemented or supplanted, and any other federal, state or local laws,
including obligations under the common law, ordinances, rules, regulations and
publications, now or hereafter existing relating to regulation or control of
Hazardous Substances or environmental protection, health and safety.
Executive Officer means the President, Executive Vice President, Chief
Financial Officer, Treasurer, Vice President or Director of Real Estate or if
such office does not exist, its closest equivalent.
Hazardous Substances means (i) those substances included within the
definitions of identified as "hazardous substances," "hazardous materials," or
"toxic substances" in or pursuant to, without limitation, the Comprehensive
Environmental Response Compensation and Liability Act of 1980 (42 U.S.C.
ss. 9601 et seq.) (CERCLA), as amended by Superfund Amendments and
Reauthorization Act of 1986 (Pub. L. 99-499, 100 Stat. 1613) (XXXX), the
Resource Conservation and Recovery Act of 1976 (42 U.S.C., ss. 6901 et seq.)
(RCRA), the Occupational Safety and Health Act of 1970 (29 U.S.C. ss. 651 et
seq.) (OSHA), and the Hazardous Materials Transportation Act, 49 U.S.C. ss. 1801
et seq., and in the regulations promulgated pursuant to said laws, all as
amended; (ii) those substances listed in the United States Department of
Transportation Table (40 CFR 172.101 and amendments thereto) or by the
Environmental Protection Agency (or any successor agency) as hazardous
substances (40 CFR Part 302 and amendments thereto); (iii) any material, waste
or substance which is or contains (A) petroleum, including crude oil or any
fraction thereof, natural gas, or synthetic gas usable for fuel or any mixture
thereof, (B) asbestos, (C) polychlorinated biphenyls, (D) designated as
"hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C.
ss. 1251 et seq., (33 U.S.C. ss. 1321) or listed pursuant to Section 307 of the
Clean Water Act (33 U.S.C. ss. 1317); (E) flammable explosives; (F) radioactive
materials; and (iv) such other substances, materials and wastes which are or
become regulated as hazardous, toxic or "special wastes" under applicable
local, state or federal law, or the United States government, or which are
classified as hazardous, toxic or as "special wastes" under federal, state or
local laws or regulations.
Improvements is defined in Article 1.
Indemnified Parties is defined in Article 20.
Late Charge is defined in Article 3.
Legal Requirements is defined in Article 11.
Lessee's Loss is defined in Article 9.
Lien is defined in Article 31
23
Mortgage means a mortgage/deed of trust and/or security agreement
dated on or about the date hereof made by Lessor for the purchase of the
Property, as such mortgage/deed of trust and/or security agreement may be
modified, supplemented, split, consolidated, severed and/or restated from time
to time and any first mortgage loan replacing or refinancing the Mortgage,
regardless of the amount thereof.
Mortgagee means the holder of the Mortgage.
Permitted Encumbrances means, with respect to the Demised Premises:
(a) rights reserved to or vested in any municipality or public authority to
condemn, appropriate, recapture or designate a purchaser of the Demised
Premises; (b) any liens thereon for taxes, assessments and other governmental
charges and any liens of mechanics, materialmen and laborers for work or
services performed or material furnished in connection with the Demised
Premises, which are not due and payable, or the amount or validity of which are
being contested as permitted by Article 11 hereof and do not arise as a result
of acts of Lessor, (c) easements, rights-of-way, servitudes, zoning laws, use
regulations, and other similar reservations, rights and restrictions and other
minor defects and irregularities in the title to the Demised Premises existing
on the date of this Lease, (d) the lien of the Mortgage and any assignment of
this Lease as further security for the note or notes secured by the Mortgage;
(e) all other matters affecting title existing on the date of this Lease as set
forth in Exhibit A.
Person means any individual, corporation, partnership, limited
liability company, joint venture, joint stock company, trust, trustee of a
trust, unincorporated organization or government or governmental authority,
agency or political subdivision thereof.
Taxes is defined in Article 11.
Term is defined in Article 2 and includes any renewal options that are
exercised.
Transfer means an assignment, mortgage, pledge, transfer, sublease,
license or other encumbrance or conveyance (voluntarily, by operation of law or
otherwise) of this Lease or the Demised Premises or any right, title or
interest in or created by this Lease or the Demised Premises.
24
EXHIBIT A
Permitted Encumbrances
EXHIBIT B
TO
ASSET PURCHASE AGREEMENT
FORM OF PERSONAL PROPERTY LEASE
PERSONAL PROPERTY LEASE
THIS AGREEMENT, made and entered into as of March 7, 2003 by and
between HOLIDAY RV SUPERSTORES OF SOUTH CAROLINA, INC., a South Carolina
corporation ("Lessor"), and HOLIDAY XXXXXX COMPANY OF COLUMBIA, INC., a South
Carolina corporation (the "Lessee").
WITNESSETH:
WHEREAS, Lessor has the right to lease the personal property described
on Schedule 1 attached hereto (the "Personal Property") constituting the
tangible personal property, including furniture, equipment and other fixed
assets, (other than inventories of goods) used in the operation of the
recreation vehicle sales and service business that Lessor has heretofore
operated in Spartanburg, South Carolina;
WHEREAS, contemporaneous with the execution and delivery of this
Lease, Lessor is selling the Business to Lessee pursuant to the asset purchase
agreement dated March 7, 2003 between Lessor, as seller, and Lessee, as buyer;
and
WHEREAS, Lessor is willing to lease to Lessee, and Lessee is willing
to rent from Lessor, the Personal Property upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of these premises and the mutual
covenants and agreements set forth herein and in consideration of other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged the parties hereby agree as follows:
Section 1. Lease of the Personal Property. Lessor hereby leases
to Lessee, and Lessee hereby rents from Lessor, the Personal Property upon the
terms and conditions set forth in this Lease.
Section 2. Term and Renewal. The term of this Lease shall be as
described on Schedule 2 attached hereto.
Section 3. Rent. The monthly rent for the Personal Property
shall be in the amount as described on Schedule 2 attached hereto payable
monthly in advance, on or before the first day of each month falling within the
term of this Lease at the office of Lessor or its assigns or at such other
place as Lessor may from time to time designate in writing, except that the
monthly rental for the month in which this Lease commences shall be prorated
for such month and paid on the commencement date, if such date is not the first
day of a month.
Section 4. Limited Warranties. LESSOR IS NOT THE MANUFACTURER
OF THE PERSONAL PROPERTY NOR THE MANUFACTURER'S AGENT AND EXCEPT AS EXPRESSLY
PROVIDED IN PARAGRAPH 16, LESSOR MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY
KIND WHATSOEVER WITH RESPECT TO THE PERSONAL PROPERTY, INCLUDING BUT NOT
LIMITED TO: THE MERCHANTABILITY OF THE PERSONAL PROPERTY OR ITS FITNESS FOR ANY
PARTICULAR PURPOSE; THE DESIGN OR CONDITION OF THE PERSONAL PROPERTY; THE
QUALITY OR
CAPACITY OF THE PERSONAL PROPERTY; THE WORKMANSHIP IN THE PERSONAL PROPERTY;
COMPLIANCE OF THE PERSONAL PROPERTY WITH THE REQUIREMENTS OF ANY LAW, RULE,
SPECIFICATION OR CONTRACT PERTAINING THERETO; PATENT INFRINGEMENT; OR LATENT
DEFECTS. Lessee has inspected the Personal Property, is fully knowledgeable of
the condition and capabilities of the Personal Property and accepts the
Personal Property "AS IS" and "WHERE IS" on the date hereof.
Section 5. Title to and Location of Personal Property. Title to
each item of Personal Property shall remain with Lessor at all times and Lessee
shall have no right, title or interest therein except as expressly set forth in
this Lease. Lessee shall, at its expense, keep the Personal Property free and
clear from any and all claims, liens, encumbrances and legal processes of
Lessee's creditors and other persons claiming any interest therein through
Lessee. Lessor assumes no liability and makes no representation as to the
treatment by Lessee of this Lease, the Personal Property or the rental payments
for financial statement or tax purposes. All items of Personal Property shall
at all times be and remain personal property notwithstanding that any item of
Personal Property may now or hereafter be affixed to realty. Upon execution of
this Lease, the Personal Property shall be located at the location specified in
Schedule 1 attached hereto and shall not thereafter be removed from such
location without the prior written consent of Lessor. The Lessor shall be
permitted to display notice of its ownership of the Personal Property by
affixing to each item of Personal Property an identifying stencil or plate or
any other indicia of ownership as Lessor may determine and Lessee will not
alter, deface, cover or remove such ownership identification.
Section 6. Use of Personal Property, Inspection and Reports.
Lessee shall use the Personal Property in the operation of its recreation
vehicle dealership located in Spartanburg, South Carolina, and for no other
purpose and any such possession or use shall be in conformity with all
applicable laws, any insurance policies pertaining to the Personal Property and
sound business practice. Lessee shall pay all costs and expenses associated
with the use, operation and possession of the Personal Property during the term
hereof. Lessor shall have the right, upon reasonable prior notice to the Lessee
and during the Lessee's regular business hours and without unreasonable
disturbance of the business of Lessee, to inspect the Personal Property at the
premises of Lessee or wherever the Personal Property may be located; provided
however, Lessee shall not remove the Personal Property from the location
hereinbefore described without the express written consent of Lessor. Lessee
shall promptly notify Lessor of all details of any accident allegedly resulting
from the use or operation thereof.
Section 7. Further Assurances. Lessee shall execute and deliver
to Lessor, upon Lessor's request, such additional instruments and assurances as
Lessor deems necessary for the confirmation or perfection of this Lease and
Lessor's rights hereunder. In furtherance thereof, Lessor may file or record
this Lease or a financing statement with respect thereto so as to give notice
to any interested parties. Any such filing or recording shall not be deemed
evidence of any intent to create a security interest under the Uniform
Commercial Code.
Section 8. Risk of Loss. All risk of loss, damage, theft or
destruction to each item of Personal Property shall be borne by the Lessee. No
such loss, damage, theft or destruction of the Personal Property, in whole or
in part, shall impair the obligations of Lessee under this Lease, all of which
shall continue in full force and effect; and Lessee, at Lessee's option after
consultation with Lessor, shall either (i) place the affected Personal Property
in good repair, condition and working
2
order or (ii) replace the same with like Personal Property in good repair,
condition and working order. After compliance with the foregoing to Lessor's
satisfaction, and provided Lessee is not in default under this Lease, Lessee
shall be subrogated to Lessor's rights with respect to any insurance policies
or claims for reimbursement by others with respect to such loss, damage, theft
or destruction.
Section 9. Maintenance and Repairs. Lessee shall, at its
expense, maintain each item of Personal Property, and all replacements,
additions, attachments and accessories with respect thereto, in good condition
and working order, but shall not be responsible for normal wear and tear or
depreciation resulting from the authorized use thereof. Without the prior
written consent of Lessor, Lessee shall make no repair, replacement, alteration
or attachment with respect to any item of Personal Property which interferes
with the normal and satisfactory operation or maintenance thereof, or creates a
safety hazard. All replacements, additions, attachments, accessories and
repairs at any time made or placed upon or to the Personal Property shall
become part of the Personal Property and shall be the property of Lessor.
Section 10. Insurance. Lessee shall, at its own expense, (a)
insure the Personal Property at all times against all hazards requested by
Lessor, including but not limited to, fire, theft and extended coverage
insurance, in an amount equal to the full replacement cost of the Personal
Property and (b) carry public liability insurance with respect to the Personal
Property and the use thereof, in such amounts and with such insurers as are
satisfactory to Lessor and Lender. Such policies shall name Lessor and any
lender to Lessor (the "Lender") as named insureds and shall be payable to
Lessor and Lender as their interest may appear. Such policies of insurance
shall be reasonably satisfactory to Lessor and Lender as to form. Such policies
shall provide for at least ten (10) days' prior written notice of cancellation
to Lessor. Lessee shall furnish Lessor and Lender with such certificates,
policies or endorsements as Lessor may request as proof of such insurance. If
Lessee shall not have provided the insurance required under this Paragraph,
Lessor or Lender may secure and arrange the insurance required by this
paragraph and in such event Lessee shall reimburse Lessor and Lender for the
cost of such insurance. The proceeds of any fire, theft and extended coverage
insurance with respect to the Personal Property shall be payable solely to
Lessor and Lender, as their interests may appear and shall be applied by Lessor
toward the payment of Lessee's obligations hereunder and any balance of the
proceeds shall be the property of Lessor; provided that at Lessee's option such
proceeds may be used for the repair or replacement of the affected Personal
Property. Lessee shall also, at its expense, carry Worker's Compensation
Insurance during the term of this Lease, which insurance shall be in amounts
and on terms as are consistent with good business practice.
Section 11. Taxes. Lessee will keep the Personal Property free
and clear of all levies, liens and encumbrances and, as additional rent during
the term of this Lease, shall pay all assessments, license fees, taxes
(including sales, use, excise, personal property, ad valorem, stamp,
documentary and other taxes) and all other governmental charges, fees, fines or
penalties whatsoever, whether payable by Lessor or Lessee, on or relating to
the Personal Property or the use, xxxxxxxxxxxx, xxxxxx, shipment,
transportation, delivery, ownership or operation thereof, and on or relating to
this Lease and any Schedules executed in connection herewith, and Lessee shall
file all returns required therefor and furnish copies thereof to Lessor at its
request; provided, however, that the foregoing shall not include any federal or
state income or franchise taxes of Lessor.
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Section 12. Lessor's Performance of Lessee's Obligations. If
Lessee shall fail to duly and promptly perform any of its obligations under
this Lease, Lessor may, at its option, perform any act or make any payment
which Lessor deems necessary for the maintenance and preservation of the
Personal Property and Lessor's title thereto, including payments for
satisfaction of liens, repairs, taxes, levies and insurance, and all sums so
paid or incurred by Lessor, together with interest as provided below, and any
reasonable legal fees incurred by Lessor in connection therewith shall be
additional rent under this Lease and payable by Lessee to Lessor on demand. The
performance of any act or payment by Lessor as aforesaid shall not be deemed a
waiver or release of any obligation or default on the part of Lessee.
Section 13. Late Charges. If Lessee fails to duly pay any part
of any rental payment or other sum to be paid to Lessor under this Lease, then
Lessee shall pay interest on such delinquent payment from the due date until
paid at the lower of one and one-half percent (1.5%) per month or, if less, the
highest legal contract rate of interest allowed by law.
Section 14. Indemnification. Lessee assumes liability for, and
hereby agrees to indemnify, protect and keep harmless Lessor and Lender and
their agents, employees, officers, directors, successors and assigns from and
against, any and all liabilities, obligations, losses, damages, injuries,
claims, demands, penalties, actions, costs and expenses, including reasonable
attorneys' fees, of whatsoever kind and nature, arising out of (a) the use,
possession, condition, operation (other than operation by Lessor), selection,
delivery, leasing or return of any item of Personal Property regardless of
where, how and by whom operated, or any failure on the part of Lessee to
perform or comply with any conditions of this Lease during the term hereof, (b)
the failure of Lessee to perform any of its obligations under this Lease, or
(c) any act of negligence of Lessee or any person or entity for whose acts
Lessee is responsible. The indemnities and assumptions of liabilities and
obligations herein provided for shall continue in full force and effect
notwithstanding the expiration or other termination of this Lease. Lessee is an
independent contractor and nothing contained in this Lease shall authorize
Lessee or any other person to operate any item of Personal Property so as to
incur or impose any liability or obligation for or on behalf of Lessor.
Section 15. No Offset. This Lease is a net lease and all rental
payments shall be paid by Lessee irrespective of any setoff, counterclaim,
recoupment, defense or other right which Lessee may have against Lessor,
Lender, the supplier of the Personal Property or any other party.
Section 16. Quiet Enjoyment. Subject to Lessee performing its
obligations under this Lease, Lessor covenants that Lessee shall have the right
to use and possess the Personal Property under the terms of this Lease. In the
event of a material breach by Lessor of its covenant of quiet enjoyment, Lessee
may terminate this Lease without any further obligations other than the return
of Personal Property to Lessor as provided in Paragraph 19.
Section 17. Assignment by Lessee. Without Lessor's prior written
consent, Lessee may not, by operation of law or otherwise, assign, transfer,
pledge, hypothecate or otherwise dispose of any item of Personal Property or
this Lease or any interest therein, or sublet or lend any item of Personal
Property or permit the same to be used by anyone other than Lessee or Lessee's
employees.
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Section 18. Assignment by Lessor. Lessee acknowledges that: (a)
Lessor may assign, sell or encumber all or any other part of this Lease, the
Personal Property and the rental payments hereunder; and (b) in the event of
any such assignment of the Lease or the rental payments hereunder, and upon
written notice thereof to Lessee, Lessee shall unconditionally pay directly to
any such assignee all rentals and other sums due to or become due under this
Lease. Notwithstanding the foregoing, any such assignment shall be subject to
Lessee's right to possess and use the Personal Property so long as Lessee is
not in default under this Lease and shall not release any of Lessor's
obligations hereunder or any claim which Lessee has against Lessor.
Section 19. Return of Personal Property. Upon expiration or
sooner termination hereunder of the term of this Lease, Lessee shall, at its
expense, deliver the Personal Property to any place as designated by Lessor in
writing unless Lessee exercises its right of purchase under Section 5(b)
hereof. All Personal Property so delivered by Lessee to Lessor will be in the
same condition as when delivered to Lessor, reasonable wear and tear resulting
from authorized use thereof alone excepted.
Section 20. Events of Default. Lessee shall be in default under
this Lease upon the happening of any of the following events or conditions
("Events of Default"): (a) the failure by Lessee to pay any installment of rent
or any other indebtedness or obligation now or hereafter owed by Lessee to
Lessor under this Lease; (b) default in the performance of any of Lessee's
obligations, covenants, and agreements contained in Section 11 hereof or the
lapse or termination of any insurance coverage required thereby; (c) default in
the performance of any other obligation, covenant or liability contained in
this Lease and the continuance of such default for thirty (30) days after
written notice thereof by Lessor to Lessee; (d) any warranty, representation or
statement made or furnished to Lessor by or on behalf of Lessee proves to have
been false in any material respect when made or furnished; (e) the attempted
sale or encumbrance by Lessee of any of the Personal Property, or the making of
any levy, seizure or attachment thereof or thereon; or (f) dissolution,
termination of existence, discontinuance of its business, insolvency, business
failure, or appointment of a receiver of any part of the property of, or
assignment for the benefit of creditors by Lessee or the commencement of any
proceedings under any bankruptcy, reorganization or arrangement laws by or
against Lessee.
Section 21. Remedies of Lessor. Upon the occurrence of any Event
of Default and at any time thereafter (subject to any applicable grace
provisions), Lessor may, without any further notice, exercise one or more of
the following remedies, as Lessor in its sole discretion shall elect: (a)
terminate this Lease as to any or all items of Personal Property; (b) take
possession of the Personal Property wherever found, and for this purpose enter
upon any premises of Lessee without any liability for suit, action or other
proceeding by Lessee, and remove the same; (c) cause Lessee, at its expense, to
promptly return the Personal Property to Lessor in the condition required
herein; (d) use, hold, sell, lease or otherwise dispose of the Personal
Property or any item thereof on the premises of Lessee or any other location
without affecting the obligations of Lessee as provided in this Lease; (e) sell
or lease the Personal Property, or any part thereof, at public auction or by
private sale or lease at such time or times and upon such terms as Lessor may
determine, free and clear of any rights of Lessee and, if notice thereof is
required by law, any notice in writing of any such sale or lease by Lessor to
Lessee not less than ten (10) days prior to the date thereof shall constitute
reasonable notice thereof to Lessee; (f) proceed by appropriate action either
by law or in equity to enforce performance by Lessee of the applicable
covenants of this Lease or to recover damages for
5
the breach thereof, including, without limitation, rentals for the greater of
(i) the period of any required notice for Lessee to return Personal Property to
Lessor or (ii) the period from the date of default to the date of return of the
Personal Property to Lessor; or (g) exercise any and all rights accruing to a
Lessor under any applicable law upon a default by a Lessee. None of the
remedies under this Lease are intended to be exclusive, but each shall be
cumulative and in addition to any other remedy referred to herein or otherwise
available to Lessor in law or in equity. Any repossession or subsequent sale or
lease by Lessor of any item of Personal Property shall not bar an action for a
deficiency as herein provided and the bringing of an action or the entry of
judgment against the Lessee shall not bar the Lessor's right to repossess any
or all items of Personal Property. In the event of a default by Lessee
hereunder and Lessor exercises any of the above remedies, Lessor shall use
reasonable efforts to mitigate damages and any rental or other amounts received
by Lessor shall offset the amounts owing from Lessee hereunder.
Section 22. Severability. Any provision of this Lease which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition and unenforceable without
invalidating the remaining provisions hereof. To the extent permitted by
applicable law, Lessee hereby waives any provision of law which prohibits or
renders unenforceable any provisions hereof in any respect.
Section 23. Notices. Any notice, demand, request or other
instrument which may be or is required to be made or given under this Lease
shall either be delivered in person or sent by United States first class mail,
postage prepaid, certified mail return receipt requested and addressed:
If to Lessor: Holiday RV Superstores of South Carolina, Inc.
000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
If to Lessee: Holiday Xxxxxx of Columbia, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Section 24. Amendments and Waivers. This Lease constitutes the
entire agreement between Lessor and Lessee with respect to the Personal
Property and the subject matter of this Lease except as otherwise provided
herein. No term or provision of this Lease may be changed, waived, amended or
terminated except by a written agreement signed by both Lessor and Lessee,
except that Lessor may insert the serial number of any item of Personal
Property on the appropriate Schedule after delivery thereof. No express or
implied waiver by Lessor of any Event of Default hereunder shall in any way be,
or be construed to be, a waiver of any future or subsequent Event of Default
whether similar in kind or otherwise.
Section 25. Construction. This Lease shall in all respects be
governed by and construed in accordance with the laws of the State of
Minnesota. The titles of the Paragraphs of this Lease are for convenience only
and shall not define or limit any of the terms or provisions hereof. Time is of
the essence in this Lease in each and all of its provisions.
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Section 26. Parties. Except as otherwise provided herein, the
provisions of this Lease shall be binding upon, and inure to the benefit of,
the assigns, representatives and successors of the Lessor and Lessee.
Section 27. Counterparts. This Lease may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
Section 28. Existing Warranties. To the extent that Lessor has
warranties available to it from contractors, subcontractors, suppliers or other
persons with respect to Personal Property, Lessor will take such steps as may
be reasonably necessary or appropriate, in the event of any defects or damage
which would be eligible for remediation under such warranties, to permit Lessee
to enforce such warranties against such third persons.
[The balance of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the Lessor and Lessee have each caused this Lease
to be duly executed the day and year first above written.
LESSOR:
HOLIDAY RV SUPERSTORES OF SOUTH CAROLINA, INC.
By:
---------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
LESSEE:
HOLIDAY XXXXXX COMPANY OF COLUMBIA, INC.
By:
---------------------------------------------
Name: Xxxx Xxxxxx
Title: President
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SCHEDULE 1
ITEMS OF PERSONAL PROPERTY
SCHEDULE 2
TERM AND RENT
Term:
Commencement Date: March 7, 2003
Expiration Date: June 1, 2003 subject to renewal on a year
to year basis at fair rental value of the
Personal Property
Monthly Rent: $1.00
