EXHIBIT 10.42
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
This Agreement for Purchase and Sale of Assets (this "Agreement") is
made as of the date on which the last of the parties to this Agreement executes
it, as shown on the signature page of this Agreement (the "Agreement Date"),
among HOLIDAY WORLD OF LAS CRUCES, LLC, a Delaware limited liability company
("Buyer"), HOLIDAY WORLD OF HOUSTON, L.P., a Texas limited partnership and sole
member of Buyer ("Member") and HOLIDAY RV SUPERSTORES OF NEW MEXICO, INC., a New
Mexico corporation ("Seller") and wholly-owned subsidiary of HOLIDAY RV
SUPERSTORES, INC., a Delaware corporation ("Parent"). Parent is a party to this
Agreement for the purpose of making certain representations and warranties
contained herein. Member is a party to this Agreement for the purpose of making
certain representations, warranties and covenants contained herein and the
Guaranty as provided herein.
RECITALS
A. Seller is the owner and operator of a recreational vehicle
sales and service business (the "Business") located at 0000 Xxxxxxx xx Xxxxxxx
xx Xxx Xxxxxx, Xxx Xxxxxx (the "Premises") and currently does business under the
name "Recreation USA". Buyer wishes to buy and Seller wishes to sell to Buyer
certain of the assets of the Business.
B. Parent owns all of the issued and outstanding stock of Seller.
ARTICLE 1
PURCHASE AND SALE OF ASSETS
1.1. Subject to the terms and conditions set forth in this
Agreement, Seller will sell, convey, transfer, assign, and deliver to Buyer, and
Buyer will purchase from Seller, those assets of the Business set forth in
schedules to Section 1.2 below (collectively, the "Assets"), except to the
extent any such Assets are sold in the ordinary course of business between the
date of this Agreement and the Closing Date, in which case the Purchase Price
(as hereinafter defined) shall be reduced by the amount of the Purchase Price
allocated to such Asset as set forth on the applicable schedules to Section 1.2.
All marine inventory and parts are excluded from the definition of Assets.
1.2. Buyer agrees to pay to Seller as consideration for the
transfer of the Assets the aggregate amount of the following (the "Purchase
Price"):
1.2.1. $225,000.00.
1.2.2. One hundred percent (100%) of the net invoice value
of all year 2003 new vehicle inventory (the "2003 Vehicles") as of the
Closing Date (as hereinafter defined) as set forth on Schedule 1.2.2
attached hereto.
1.2.3. Ninety percent (90%) of the net invoice value of all
year 2002 new vehicle inventory (the "2002 Vehicles") as of the Closing
Date, as set forth on Schedule 1.2.3 attached hereto, less the 3
percent (3%) tax due to the state of New Mexico on the Forest River
products for retitling.
1.2.4. The market value of all new vehicle inventory with a
model year before 2002 (the "Pre-2002 Vehicles") as of the Closing Date
as agreed to by the parties and set forth on Schedule 1.2.4 attached
hereto. The Pre-2002 Vehicles, the 2002 Vehicles and the 2003 Vehicles
are collectively referred to as the "New Vehicles".
1.2.5. The market value of all used vehicle inventory (the
"Used Vehicles") as of the Closing Date as agreed to by the parties and
set forth on Schedule 1.2.5 attached hereto.
1.2.6. All parts and accessory inventory (the "Parts
Inventory") determined in a physical inventory performed within five
(5) business prior to the Closing Date and described on Schedule 1.2.6
attached hereto (as adjusted to actual Parts Inventory as of the
Closing Date) valued as follows: If less than 365 days old, then at
seventy-five percent (75%) of original invoice cost; if less than 730
days old but greater than 364 days old, then at twenty-five percent
(25%) of original invoice cost; and for all Parts Inventory greater
than 729 days old, then at five percent (5%) of original invoice cost.
1.2.7. The value of the fixed assets of Seller (the "Fixed
Assets") as of the Closing Date as agreed to by the parties and as set
forth on Schedule 1.2.7 attached hereto. For purposes of calculating
the net invoice value of any 2002 Vehicle or 2003 Vehicle under this
Section 1.2, the invoice price shall be increased by the amount of any
"PDI" expense incurred in connection with preparing such vehicle for
sale to the public provided that such expense was incurred within one
hundred eighty (180) days of the Closing Date.
1.2.8. All partially completed service, warranty and body
shop orders in process on the date immediately prior to the Closing
Date and described on Schedule 1.2.8 (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.
1.2.9. 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 1.2.9 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.
1.3. The Purchase Price shall be paid as follows:
1.3.1. Buyer's floor plan lender shall pay to Seller's floor
plan lender the outstanding floor plan balance, which balance shall not
exceed the aggregate amounts set forth in Schedules 1.2.2, 1.2.3,
1.2.4, and 1.2.5.
1.3.2. Buyer shall have deposited with Seller the sum of
$10,000.00 which shall be applied at Closing as a credit to the
Purchase Price (the "Deposit").
1.3.3. At closing, $56,250 less the Deposit.
1.3.4. The balance of the Purchase Price (as adjusted at
Closing pursuant to Section
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1.3.6 and after Closing pursuant to Section 1.3.5) shall be paid by the
execution and delivery by Buyer to Parent of a Promissory Note in the
form attached hereto as Exhibit A (the "Buyer Note"). The Buyer Note
shall accrue interest at a per annum rate equal to the "Prime Rate" as
published from time to time in the Southwestern Edition of The Wall
Street Journal plus two percentage points (2.0%) and shall be payable
in eighteen (18) equal monthly installments of principal plus accrued
interest. The balance of the Buyer Note shall be adjusted for customer
deposits, utility deposits and proration of Premises rent, utility
charges and property taxes as of the Closing Date.
1.3.5. The principal amount of the Buyer Note shall be
reduced by the aggregate cost paid by Buyer for any parts or equipment
on New or Used Vehicles discovered missing by Buyer after the Closing
Date and prior to 120 days after the Closing Date; provided that no
more than $500.00 in missing parts or equipment per unit of New or Used
Vehicles shall be applied as a reduction in the Buyer Note balance
unless otherwise agreed by Seller. Prior to the expiration of the 120
day period described above, Buyer shall give Seller written notice of
the adjustment to be made to the principal balance of the Buyer Note
together with written documentation supporting such adjustment. In the
event the Buyer and Seller cannot agree in good faith as to the
reduction amount pursuant to this Section 1.3.5 (the "Reduction
Amount") within five (5) days after the receipt of written notice by
Seller, then an independent party shall be selected by the mutual
agreement of Buyer and Seller to determine the Adjustment Amount, which
determination shall be final and binding on Buyer and the Company. If
Buyer and Seller are unable to agree upon the selection of an
independent party within ten (10) days following the receipt of written
notice by Seller, then Buyer shall select one independent party and
Seller shall select another independent party within an additional ten
(10)-day period and the two (2) independent parties so selected shall
promptly select a third (3rd) independent party who shall timely
determine the Adjustment Amount. The determination of the third (3rd)
independent party as to the Adjustment Amount shall be conclusive and
binding upon the Buyer and Seller. The expense of this determination
shall be paid one-half (1/2) by Buyer and one-half (1/2) by Seller.
Upon agreement by Buyer and Seller of the Adjustment Amount, the Buyer
and Seller shall execute the requisite documents to evidence the
reduction of the principal amount of the Buyer Note by the amount of
the Adjustment Amount.
1.3.6. The Buyer Note shall be reduced by Seller's
proportionate share of any state and local real and personal property
taxes attributable to the Assets or the Business for the period prior
to the Closing Date. At or prior to the Closing, Buyer and Seller shall
estimate the state and local real and personal property taxes
attributable to the Assets or the Business that will be owing for the
current tax year and Seller will pay its portion, prorated as of the
Closing Date, of such estimated taxes attributable to the Assets or the
Business. For purposes of this Agreement, the foregoing proration shall
be accomplished at Closing and shall be based upon the real and
personal property taxes actually assessed against the Assets or the
Business for 2002.
1.4. Buyer will assume liability only for the customer deposits and
equipment leases listed in Schedule 1.4 attached hereto (the "Assumed
Liabilities"). Buyer shall not assume or in any way be liable or responsible for
any liabilities or obligations of Seller except as specifically provided herein,
it being expressly acknowledged that it is the intention of the parties hereto
that all liabilities that Seller has or may have in the future, whether fixed or
contingent, and whether known or unknown, not expressly described in the
definition of Assumed Liabilities shall be and remain the liabilities of Seller.
Without limiting the generality of the foregoing, Buyer shall not assume, or
take title to the Assets subject to (a) any liability or obligation of Seller
under any note, bond or
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other instrument secured by the Assets, (b) any liability or obligation of
Seller in respect of any express or implied representation, warranty, agreement
or guaranty made (or claimed to have been made) by Seller or imposed or asserted
to be imposed by operation of law, (c) any liability resulting from or relating
to the employment relationship between Seller and any of its present or former
employees or the termination of any such employment relationship, including,
without limitation, severance pay and other similar benefits, if any, and any
claim filed on or prior to the Closing Date or which may thereafter be filed by
or on behalf of any employee or former employee of Seller relating to the
employment or termination of employment of any such employee by Seller,
including, but not limited to, any claim for wrongful discharge, breach of
contract, unfair labor practice, employment discrimination, unemployment
compensation or workers' compensation.
1.5. Buyer will not be responsible for any business, occupation,
withholding, or similar tax, or any taxes of any kind related to any period
before the Closing Date.
1.6. At the Closing Seller shall assign to Buyer all of its rights
in and to any holdbacks due from manufacturers from August 1, 2002 through the
Closing Date (the "Holdbacks").
1.7. The Buyer Note shall be guaranteed by Holiday World of
Houston, L.P., pursuant to the terms of the Guaranty in the form of Exhibit B.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER AND PARENT
Seller and Parent jointly and severally represent and warrant that each
of the following representations and warranties are true, correct and complete
as of the date hereof, and as amended or supplemented pursuant to Section 4.7,
as of the Closing Date:
2.1. Seller is a corporation duly organized, validly existing, and
in good standing under the laws of New Mexico and has all requisite corporate
power and authority to own, lease and operate its properties and to carry on its
business as now being conducted. Parent is duly organized, validly existing, and
in good standing under the laws of Delaware. No actions or proceedings to
dissolve Seller are pending.
2.2. Seller has previously delivered to Buyer financial statements
(the "Financial Statements") for the Business for fiscal years 2000, 2001 and
2002. The Financial Statements are true, correct and complete and present fairly
the financial condition of Seller as of such dates and the results of operations
of the Seller for such periods, and are consistent with the books and records of
Seller (which books and records are correct and complete). Although the
Financial Statements were not prepared in accordance with generally accepted
accounting principles, such non-conformity with generally accepted accounting
principles did not result in any misstatement of revenue, income or expenses for
the accounting periods covered thereby and Buyer is justified in relying on such
statements in making it decision to purchase the Assets as contemplated herein.
2.3. There has not been any change in the financial condition or
operations of the Business as reflected in the Financial Statements, except
changes in the ordinary course of business, which have not in the aggregate been
materially adverse.
2.4. Since January 31, 2003, there has not been with respect to the
Business any:
(1) Transaction by Seller except in the ordinary course
of business as conducted on that date;
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(2) Capital expenditure by Seller exceeding $500.00;
(3) Destruction, damage, or loss of any asset of Seller
(insured or uninsured) that materially and adversely affects the
financial condition, business, or prospects of Seller.
(4) Increase in the salary or other compensation payable
or to become payable by Seller to any of the Employees (as hereinafter
defined).
(5) Sale or transfer of any asset of Seller, except in
the ordinary course of business;
(6) Amendment or termination of any contract, agreement,
or license affecting the Business to which Seller is a party, except in
the ordinary course of business;
(7) Mortgage, pledge, or other encumbrance of any Asset;
(8) Commencement or notice or threat of commencement of
any civil litigation, including any bankruptcy or insolvency
proceeding, or any governmental proceeding against or investigation of
Seller or of Parent to the extent such litigation, proceeding or
investigation relates to Parent's ownership of Seller or the sale of
Seller's Business;
(9) Labor trouble or claim of wrongful discharge or other
unlawful labor practice or action;
(10) Agreement by Seller to do any of the things described
in the preceding clauses (1) through (9); or
(11) Other event or condition of any character that has or
might reasonably have a material adverse effect on the Business or the
ability of Seller to perform its obligations under this Agreement.
2.5. Within the times and in the manner prescribed by law, Seller
has filed all federal, state, and local tax returns required by law and has paid
all taxes, assessments, and penalties due and payable. There are no present
disputes about taxes of any nature payable by Seller.
2.6. Seller has no liabilities or obligations (whether accrued,
absolute, contingent, unliquidated, or otherwise, whether or not known to
Seller, and whether due or to become due) that could constitute liabilities or
obligations of the Business except the Assumed Liabilities.
2.7. Seller has not received notice of the commencement of any
proceeding that would affect the present zoning classification of the Premises.
2.8. Seller has not installed or caused to be installed any
underground storage tanks on the Premises, any asbestos-containing materials in
or about the Premises, nor equipment containing PCBs.
2.9. Except as set forth on Schedule 2.9, all the Assets are free
and clear of restrictions on or conditions to transfer or assignment, and of
mortgages, liens, pledges, charges, encumbrances, equities, claims, easements,
rights of way, covenants, conditions, or restrictions. Seller is not in default
or in arrears in any material respect under any lease or material agreement. All
real property and tangible personal property of Seller are in good operating
condition and repair, ordinary wear and tear excepted.
2.10. Attached hereto as Schedule 2.10 is a list of all employees
(the "Employees") employed by Seller exclusively for purposes of operating the
Business. None of the Employees is covered by a collective bargaining agreement
or employed pursuant to any employment contract,
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written or oral. All Employees may be terminated "at will" by Seller. Seller has
paid, or will pay within the required period mandated by law, all pension,
bonus, profit-sharing, stock option, accrued vacation or other agreements or
arrangements providing for employee remuneration or benefits to which any
Employee is entitled. There is no pending or, to Seller's knowledge, threatened
labor organizing activity, labor dispute, strike, or work stoppage affecting the
Business. Seller has complied with all applicable laws for each of their
respective employee benefit plans, including the provisions of the Employee
Retirement Income Security Act (ERISA) if and to the extent applicable. There
are no threatened or pending claims by or on behalf of any such benefit plan, or
any employee covered under any such plan, that allege a breach of fiduciary
duties or violation of other applicable state or federal law, nor is there, to
Seller's knowledge, any basis for such a claim. Seller has not entered into any
severance or similar arrangement in respect of any present or former employee
that will result in any absolute or contingent obligation of Buyer to make any
payment to any present or former employee following termination of employment.
2.11. Except for certain manufacturer and dealer sales agreements
listed on Schedule 2.11 attached hereto (the "Sales Agreements"), Seller is not
a party to any distributor's or manufacturer's representative or agency
agreement; any output or requirements agreement. There is no default or event
that, with notice or lapse of time or both, would constitute a default by any
party to any Sales Agreements. Seller has not received notice that any party to
any Sales Agreement intends to cancel or terminate any such agreement.
2.12. Seller has not received notice of any violation of any
applicable federal, state, or local statute, law, or regulation (including any
applicable building, zoning, environmental protection, or other law, ordinance,
or regulation) affecting the Business or Assets; and to the best of the
knowledge of the Seller, there are no such violations. . The Business has been
and is being conducted in compliance with all applicable laws, statutes, rules,
and regulations.
2.13. Except as set forth on Schedule 2.13, there is no pending, or,
to the best knowledge of Seller, threatened, suit, action, arbitration, or
legal, administrative, or other proceeding, or governmental investigation
against or affecting Seller or the Business. Neither Parent nor Seller is
contemplating or presently subject to any Federal bankruptcy or state insolvency
proceeding.
2.14. Assuming the Requisite Consents (as defined below) are
obtained, the consummation of the transactions contemplated by this Agreement
will not result in or constitute any of the following: (1) a breach of any term
or provision of this Agreement; (2) a default or an event that, with notice,
lapse of time, or both, would be a default, breach, or violation of the articles
of incorporation or bylaws of Seller or Parent or any Sales Agreement, lease,
license, promissory note, conditional sales contract, commitment, indenture,
mortgage, deed of trust, or other agreement, instrument, or arrangement to which
Seller is a party or by which it or any of the Assets or the Premises is bound;
(3) an event that would permit any party to terminate any agreement or to
accelerate the maturity of any indebtedness or other obligation of Seller; or
(4) the creation or imposition of any lien, charge, or encumbrance on any of the
properties of Seller.
2.15. Seller and Parent have the right, power, legal capacity, and
authority to enter into and perform their respective obligations under this
Agreement. Except for the consents set forth on Schedule 2.15 (the "Requisite
Consents"), no consent, approval, order, or authorization of, or declaration,
filing, or registration with, any governmental entity is required to be obtained
or made by Seller in connection with the execution, delivery, or performance by
Seller or Parent of this Agreement or the consummation by either of them of the
transactions contemplated hereby. The execution and delivery of this Agreement
by Seller and Parent have been, or will be on or before the Closing Date, duly
authorized by all necessary corporate action on the part of Seller and Parent.
2.16. None of the warranties and representations made by Seller and
Parent, or made in any certificate or memorandum furnished or to be furnished by
Seller or Parent or on their behalf, contains or will contain any untrue
statement of a material fact, or omits to state a material fact necessary to
prevent the statements from being misleading.
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ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER AND MEMBER
Buyer and Member jointly and severally represent, warrant and covenant
that each of the following representations, warranties and covenants are true,
correct and complete as of the date hereof and as of the Closing Date:
3.1. Buyer is a limited liability company duly organized, existing,
and in good standing under the laws of Delaware. The execution and delivery of
this Agreement and the consummation of the transactions contemplated in this
Agreement by Buyer have been duly authorized, and no further authorization is
necessary on the part of Buyer.
3.2. Member is a limited partnership duly organized, existing and
in good standing under the laws of Texas. The execution and delivery of the
Guaranty have been duly authorized, and no further authorization is necessary on
the part of Member.
3.3. Member has previously delivered to Parent and Seller financial
statements for Member for the year ended December 31, 2002 (the "Member
Financial Statements"). The Member Financial Statements are true, correct and
complete and present fairly the financial condition of Member as of such date
and the results of operations of Member for such period, and are consistent with
the books and records of Member (which books and records are correct and
complete). Although the Member Financial Statements were not prepared in
accordance with generally accepted accounting principles, such non-conformity
with generally accepted accounting principles did not result in any misstatement
of revenue, income or expenses for the accounting period covered thereby and
Parent and Seller are justified in relying on such statements in making it
decision to sell the Assets and accept the Buyer Note together with the
Guaranty, as contemplated herein.
3.4. During the term of the Buyer Note, Member's net worth will not
be less than 150 percent (150%) of the outstanding principal balance of the
Buyer Note.
3.5. Except for Buyer obtaining a license from the New Mexico
Department of Motor Vehicles ("DMV"), no consent, approval, or authorization of,
or declaration, filing, or registration with, any United States federal or state
governmental or regulatory authority is required to be made or obtained by Buyer
in connection with the execution, delivery, and performance of this Agreement
and the consummation of the transactions contemplated by this Agreement.
ARTICLE 4
SELLER'S OBLIGATIONS BEFORE CLOSING
4.1 Seller and Parent covenant that from the date of this
Agreement until the Closing:
4.1.1 Seller will furnish or cause to be furnished to Buyer
and its representatives all data and information concerning the
Business that may reasonably be requested.
4.1.2 Seller will conduct the Business diligently and in
substantially the same manner as it previously have been conducted.
4.1.3 Seller will use its best efforts to preserve the
Business intact, to keep available to Seller its present employees, and
to preserve its present relationships with suppliers, manufacturers,
customers, and others having business relationships with it.
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4.1.4. Seller will continue to carry its existing insurance,
subject to variations in amounts required by the ordinary operations of
the Business.
4.1.5 Seller will not do, or agree to do, either of the
following acts: (1) make any change in compensation payable or to
become payable by it to any Employee or (2) make any change in benefits
payable to any Employee under any bonus or pension plan or other
contract or commitment.
4.1.6. Seller will not, without Buyer's written consent, do
or agree to do any of the following acts:
4.1.6.1. Enter into any contract, commitment, or
transaction not in the usual course of its business;
4.1.6.2. Make any capital expenditures in excess of
$500.00 for any single item or $1000.00 in the aggregate, or
enter into any leases of capital equipment or property;
4.1.6.3. Sell or dispose of any capital assets with a
net book value exceeding $500, individually, or $1,000.00 in
the aggregate; or
4.1.6.4. Modify, amend, cancel, assign or terminate
any of its Sales Agreements, or agree to do any of those acts.
4.2. All warranties and representations of Seller and Parent will
also be true and correct as of the Closing Date as if made on that date.
4.3. On the Closing Date, Seller shall terminate the employment of
all the Employees and pay, within the required period mandated by law, to the
Employees all salaries, accrued vacation, and other benefits to which they or
any of them may be entitled as of and through the date of termination and pay
any and all amounts due, as of the date of and through the date of termination
for all federal, state and local employment and withholding taxes.
4.5. Seller shall notify Buyer not less than five (5) days prior to
the Closing Date of the values Seller has assigned to any Used Vehicles acquired
by Seller after the Agreement Date but prior to the Closing Date that Buyer
intends to acquire at Closing. Buyer shall have 48 hours from notice of the
proposed value to approve or disapprove the proposed value. If Buyer
disapproves, Seller may complete the acquisition but Buyer shall only be
obligated to pay to Seller the value determined by Buyer. Buyer's failure to
approve or disapprove the values within the time period stated shall be deemed
approval by Buyer of such values.
4.6 Seller and Parent shall deliver to Buyer on or before the
Closing Date , copies of the resolutions of the Board of Directors of both
Seller and Parent, certified by the Secretary of each of Seller and Parent as
true and accurate copies of each such resolution, authorizing each of Seller and
Parent to enter into and consummate this Agreement and to authorize their
respective officers to do any and all acts on behalf of each of them to
consummate the transaction contemplated by this Agreement in accordance with the
terms of this Agreement. Such corporate resolutions shall be substantially in
the form of Exhibit C-1 and Exhibit C-2 attached hereto.
4.7 Seller agrees that, with respect to the representations and
warranties of Seller contained in this Agreement, Seller shall have the
continuing obligation until the Closing to supplement or amend promptly the
Schedules hereto with respect to any matter hereafter arising or discovered
which, if existing or known at the date of this Agreement, would have been
required to be set forth or described in the Schedules.
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ARTICLE 5
BUYER'S AND MEMBER'S OBLIGATIONS BEFORE CLOSING
5.1. Unless and until the Closing has been consummated and except
as may be necessary for Buyer to obtain acquisition and floor plan financing,
valid assignments of the Sales Agreements, and applicable permits and insurance,
Buyer and Member will hold in strict confidence all data and information with
respect to the business of Seller obtained in connection with the transaction
contemplated in this Agreement.
5.2. Buyer will furnish any resale certificate or other documents
reasonably requested by Seller to comply with the provisions of the sales and
use tax laws of the State of New Mexico.
ARTICLE 6
CONDITIONS PRECEDENT TO BUYER'S PERFORMANCE
The obligations of Buyer to purchase the Assets under this Agreement
are subject to the satisfaction, at or before the dates stated, of all the
conditions set out below in this Article 6. Buyer may waive any or all of these
conditions in whole or in part without prior notice; provided, however, that no
such waiver of a condition constitutes a waiver by Buyer of any of its other
rights or remedies, at law or in equity, if Seller or Parent is in default of
any of their respective representations, warranties, or covenants under this
Agreement.
6.1 Buyer's approval within five (5) business days prior to the
Closing Date of the Used Vehicle inventory values shown on Schedule 1.2.5.
6.2. Seller furnishing to Buyer on or before the Closing Date
evidence of the Requisite Consents.
6.3. Buyer obtaining on or before the Closing Date a license from
the DMV to operate the Business. Buyer shall exercise its best efforts to obtain
such license on or before the Closing Date.
6.4. Except as otherwise permitted by this Agreement, all
warranties and representations by Parent and Seller in this Agreement, or in any
written statement that will be delivered to Buyer by either of them under this
Agreement, must be true on the Closing Date as though made at that time.
6.5. On or before the Closing Date, Seller will have performed,
satisfied, and complied with all covenants, agreements, and conditions required
of any of them by this Agreement.
6.6. During the period from the date of this Agreement to the
Closing Date, there will not have been any material adverse change in the
financial condition or the results of operations of the Business and Seller will
not have sustained any material loss or damage to its insured or uninsured
assets that materially affects its ability to conduct the Business.
6.7. No action, suit, or proceeding before any court or any
governmental body or authority, pertaining to the transaction contemplated by
this Agreement or to its consummation, will have been instituted or threatened
on or before the Closing Date.
6.8. The form and substance of all certificates, instruments and
other documents delivered to Buyer under this Agreement must be satisfactory in
all reasonable respects to Buyer and its counsel.
6.9. Buyer has approved the valuations of Used Vehicles acquired by
Seller after the inventory date.
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6.10. Seller has furnished to Buyer corporation tax clearance
certificates as of a date not more than 30 days before the Closing Date from the
from the New Mexico Taxation and Revenue Department
6.11. Seller will furnish to Buyer a clearance certificate from the
New Mexico Taxation and Revenue Department and any related certificates that
Buyer may reasonably request as evidence that all sales and use tax liabilities
of Seller accruing before the Closing Date have been fully satisfied or provided
for.
6.12. On or before the Closing Date, Buyer and the Landlord will
have entered into a lease of the Premises on terms and conditions satisfactory
to Buyer in its sole discretion (the "Buyer Lease").
6.13. Buyer obtaining on or before the Closing Date floorplan
financing for the Assets on terms and conditions satisfactory to Buyer in its
sole discretion.
ARTICLE 7
CONDITIONS PRECEDENT TO SELLER'S PERFORMANCE
The obligations of Seller to sell and transfer the Assets under this
Agreement are subject to the satisfaction, at or before Closing, of all the
following conditions. Seller may waive any or all of these conditions in whole
or in part without prior notice, provided, however, that no such waiver of a
condition constitutes a waiver by Seller of any of its other rights or remedies,
at law or in equity, if Buyer or Member should be in default of any of its
representations, warranties, or covenants under this Agreement.
7.1. All representations and warranties by Buyer and Member
contained in this Agreement or in any written statement delivered by Buyer or
Member under this Agreement must be true on and as of the Closing Date as though
such warranties were made on and as of that date.
7.2. Buyer and Member will have performed and complied with all
covenants and agreements and satisfied all conditions that it is required by
this Agreement to perform, comply with, or satisfy, before or at the Closing.
7.3. The managers of Buyer have duly authorized and approved the
execution and delivery of this Agreement and all corporate actions necessary or
proper to fulfill the Buyer's obligations to be performed under this Agreement
on or before the Closing Date.
7.4. The partners of Member have duly authorized and approved the
execution and delivery of this Agreement and the Guaranty and all corporate
actions necessary or proper to fulfill the Member's obligations to be performed
under this Agreement and the Guaranty on or before the Closing Date.
7.4. No action, suit, or proceeding before any court or any
governmental body or authority, pertaining to the transaction contemplated by
this Agreement or to its consummation or the Guaranty, will have been
instituted or threatened on or before the Closing Date.
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ARTICLE 8
THE CLOSING
8.1 The transfer of the Assets by Seller to Buyer (the "Closing")
will take place at the offices of Seller at 0000 Xxxxxxx xx Xxxxxxx, Las Cruces,
New Mexico, on or before April 22, 2003, or at such other time and place as the
parties may agree to in writing (the "Closing Date").
8.2. At the Closing, Seller must deliver or cause to be delivered
to Buyer:
8.2.1. Instruments of assignment and transfer of the Assets
sufficient to transfer good title to Buyer including but not limited to
certificates of title to Used Vehicles and manufacturers statements of
origin for New Vehicles.
8.2.2. A duly executed Assignment and Xxxx of Sale covering
the Assets in form and substance satisfactory to Buyer, including an
assignment of the Holdbacks described in Section 1.6.
8.2.3. Duly executed assignments of the Sales Agreements.
8.3. Simultaneously with the consummation of the transfer, Seller,
through its officers, agents, and employees, will put Buyer into full possession
and enjoyment of all properties and Assets to be conveyed and transferred by
this Agreement.
8.4. Seller at any time before or after the Closing Date, will
execute, acknowledge, and deliver any further bills of sale, deeds, assignments,
conveyances, and other assurances, documents, and instruments of transfer,
reasonably requested by Buyer, and will take any other action consistent with
the terms of this Agreement that may reasonably be requested by Buyer for the
purpose of assigning, transferring, granting, conveying, and confirming to
Buyer, or reducing to possession, any or all property to be conveyed and
transferred under this Agreement.
8.5. At the Closing, Buyer must deliver to Seller the following:
8.5.1. $46,250.00, the Buyer Note, dated the Closing Date,
in the principal amount of the balance of the Purchase Price as
adjusted as provided herein, and the Guaranty.
8.5.2. A letter evidencing the pay off of the Seller's
outstanding floor plan balance pursuant to Section 1.3.1.
8.5.3. A termination of Seller's and Parent's obligations
under the current lease of the Premises.
ARTICLE 9
SELLER'S OBLIGATIONS AFTER CLOSING
9.1. Seller will indemnify, defend, and hold harmless Buyer against and
in respect of claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries, and deficiencies, including interest,
penalties, and reasonable attorney fees, that Buyer may incur or suffer (i) that
arise from any breach of, or failure by Seller or Parent to perform any of their
respective representations, warranties, covenants, or agreements in this
Agreement or in any schedule, certificate, exhibit, or other instrument
furnished or to be furnished by Seller under this Agreement, (ii) by reason of
any person(s) attempting to collect or collecting from Buyer any obligations,
other than the Assumed Liabilities, owed by or alleged to be owed by Seller to
such person(s), including, without limitation, any warranty claims to be paid by
Seller in accordance with Section 9.3.1, (iii) by reason of any acts or
omissions of Seller, its shareholders, officers,
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employees, agents, or contractors related to the ownership or operation of the
Business occurring prior to the Closing Date, or (iv) by reason of any claim
resulting from or relating to the employment relationship between Seller and any
of its present or former employees or the termination of any such employment
relationship, including, without limitation, severance pay and other similar
benefits, if any, and any claim filed on or prior to the Closing Date or which
may thereafter be filed by or on behalf of any employee or former employee of
Seller relating to the employment or termination of employment of any such
employee by Seller, including, but not limited to, any claim for wrongful
discharge, breach of contract, unfair labor practice, employment discrimination,
unemployment compensation or workers' compensation. Buyer will promptly notify
Seller of the existence of any claim, demand, or other matter to which Seller's
indemnification obligations would apply, and will give it a reasonable
opportunity to defend the same at Seller's own expense and with counsel of its
own selection; provided that Buyer will at all times also have the right to
participate fully in the defense at its own expense. If, within 30 days after
receipt by Seller of this notice, Seller fails to assume the defense of the
matter, Buyer will have the right, but not the obligation, to undertake the
defense of, and to compromise or settle (exercising reasonable business
judgment), the claim or other matter on behalf and at the risk of Seller. If the
claim is one that cannot by its nature be defended solely by Seller (including
any federal or state tax proceeding), Buyer will make available all information
and assistance that Seller may reasonably request.
9.2. Neither Parent, Seller or any other entity in which Parent or
Seller has a controlling interest, , at any time within the two-year period
immediately following the Closing Date, directly or indirectly engage in, or
have any interest in any person, firm, corporation, or business (whether as an
employee, officer, director, agent, security holder, creditor, consultant, or
otherwise) that engages in any activity in the counties of Xxxx Xxx and El Paso,
New Mexico, that is the same as, similar to, or competitive with the Business
(or any successor or successors of either) in any of these counties or cities as
long as Buyer (or any successor) engages in the activity in such county or city.
The parties intend that the covenant contained in the preceding portion of this
section be construed as a series of separate covenants, one for each county and
city specified. Except for geographic coverage, each such separate covenant will
be considered identical in terms to the covenant contained in the preceding
paragraph. If, in any judicial proceeding, a court refuses to enforce any of the
separate covenants included in this paragraph, the unenforceable covenant will
be considered eliminated from these provisions for the purpose of those
proceedings to the extent necessary to permit the remaining separate covenants
to be enforced.
9.3. The parties acknowledge that Seller has warranted certain of
its sold vehicles, labor and/or parts and accessories it has furnished to its
customers at or prior to Closing. Further, the parties acknowledge that Seller
has sold recreational vehicles which carry a manufacturer's warranty. The
obligation of the parties as to the cost of complying with such warranties
subsequent to closing are as follows:
9.3.1. Seller's Warranty Work: After the Closing Date,
Seller shall remain responsible for the cost of any claims made by its
customers under warranties granted by the Seller to its customers at or
prior to the Closing Date. Subsequent to the Closing Date, Buyer shall
notify Seller, in writing, that such warranty claims have been raised
by customer and Seller shall have the option of supplying the labor and
materials under such warranties or authorizing the Buyer, in writing,
to perform such warranty work, in which event Seller shall pay Buyer
upon demand for the cost of such work. As used herein, the cost of such
work to be charged to Seller by Buyer shall mean the cost to Buyer at
its internal cost rate at Sixty Dollars ($60.00) per hour plus internal
parts at internal parts cost (retail less 15%) needed to complete the
job.
9.3.2. Manufacturers' Recalls: Buyer shall be responsible
for warranty work arising subsequent to the Closing Date that is
directed to be made by manufacturers of
12
recreational vehicles which were sold by Seller at or prior to the
Closing Date. Manufacturers' recall warranty work as provided for
herein shall be done by Buyer at Buyer's expense subject to Buyer's
reimbursement by the manufacturer.
9.3.3. Other Warranty Work:
9.3.3.1. Manufacturer Directed Warranty Work: If,
subsequent to the Closing Date, Buyer is required by a
manufacturer to do warranty work on recreational vehicles sold
by the Seller at or prior to the Closing Date, then the same
shall be done by Buyer, at Buyer's expense, subject to
reimbursement by the manufacturer;
9.3.3.2. Customer Requested Warranty Work: Buyer
shall be responsible for warranty work arising subsequent to
the Closing Date that may be required on recreational vehicles
pursuant to the manufacturers' warranties in effect on the
date said vehicles were sold by Seller at or prior to the
Closing Date.
ARTICLE 10
BUYER'S OBLIGATIONS AFTER CLOSING
10.1 Buyer will indemnify and hold harmless Seller against, and in
respect of, claims, losses, expenses, costs, obligations, and liabilities Seller
may incur by reason of Buyer's breach of or failure to perform any of its
warranties or commitments in this Agreement, or by reason of any act or omission
of Buyer, its members, managers, officers, employees, agents, or contractors
after the Closing Date that constitutes a breach or default under, or a failure
to perform, any obligation or liability of Seller under the Buyer Lease or any
equipment lease which constitutes an Assumed Liability hereunder or by reason of
any acts or omissions of Buyer, its shareholders, officers, employees, agents,
or contractors related to the ownership or operation of the Business occurring
after the Closing Date.
ARTICLE 11
COSTS
11.1. Each party warrants that it has dealt with no broker or finder
in connection with any transaction contemplated by this Agreement, and, to its
knowledge, no broker or other person is entitled to any commission or finder's
fee in connection with any of these transactions. Seller and Buyer each
indemnify and hold harmless one another against any loss, liability, damage,
cost, claim, or expense incurred by reason of any brokerage commission or
finder's fee alleged to be payable because of any act, omission, or statement of
the indemnifying party.
11.2. Each party will pay all costs and expenses incurred or to be
incurred by it in negotiating and preparing this Agreement and in closing and
carrying out the transactions contemplated in this Agreement.
ARTICLE 12
REMEDIES
12.1. Buyer recognizes that the Assets will be removed from the
market during the existence of this Agreement. Buyer acknowledges that if Buyer
fails to purchase the Assets by reason of a default on the part of Buyer
hereunder, Seller shall be entitled to compensation for the detriment resulting
from the removal of the Assets from the market. The parties hereto agree that
the damages that Seller shall sustain as a result of such failure will be
substantial, but will be extremely difficult and impracticable to ascertain.
Therefore, the parties agree that if Buyer fails to
13
purchase the Assets by reason of a default on the part of Buyer, Seller shall be
entitled, as Seller's sole and exclusive remedy, to recover and retain the
Deposit. This sum shall be paid and received as liquidated damages and not as a
penalty. Both parties acknowledge and agree that said amount is presently a
reasonable estimate of Seller's damages considering all of the circumstances
existing on the date of this Agreement, including the relationship of the sum to
the range of harm to seller that reasonably could be anticipated and the
anticipation that proof of actual damages would be impractical or extremely
difficult. In placing their initials at the places provided, each party
specifically confirms the accuracy of the statements made above. Both parties
agree that this sum stated as liquidated damages shall be in lieu of any other
monetary and/or equitable relief to which seller might otherwise be entitled by
virtue of this Agreement by operation of law and/or equity.
----------------------------- -----------------------------------
BUYER SELLER
(INITIALS) (INITIALS)
12.2. Seller's obligation under this Agreement is unique. If Seller
should default in its obligations under this Agreement, it acknowledges that it
would be extremely impracticable to measure the resulting damages; accordingly,
Buyer, in addition to any other available rights or remedies, may xxx in equity
for specific performance, and Seller expressly waives the defense that a remedy
in damages will be adequate.
12.3. If any legal action, arbitration, or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default, or misrepresentation in connection with any of the provisions
of this Agreement, the successful or prevailing party or parties will be
entitled to recover reasonable attorney fees and other costs incurred in that
action or proceeding, in addition to any other relief to which they may be
entitled.
ARTICLE 13
TERMINATION
13.1 Right of Termination. This Agreement and the transactions
contemplated herein may be terminated at any time at or prior to Closing:
13.1.1. By Seller, at Seller's option, if any of the
conditions set forth in Article 7 have not been satisfied on or before
the Closing Date as provided therein or waived in writing by Seller, in
which case Seller shall be entitled to retain the Deposit.
13.1.2 By Seller or Buyer, if Closing has not occurred on or
before April 22, 2003, for reasons including but not limited to (i)
Buyer not receiving a license from DMV, (ii) Buyer not entering into
the Buyer Lease, or (iii) Buyer not obtaining floorplan financing for
the Assets, in which case Seller shall be entitled to retain the
Deposit; unless the failure to close on or before April 22, 2003 was
the sole fault of the Seller, in which case the Deposit shall be
returned to Buyer.
13.1.3. By Buyer, at Buyer's option, if any of the conditions
set forth in Article 6, other than Sections 6.3 (DMV license), 6.12
(Buyer Lease) or 6.13 (floorplan financing), have not been satisfied on
or before the Closing Date as provided therein or waived in writing by
Buyer, in which case the Deposit shall be returned to Buyer.
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13.1.4. By mutual agreement of Seller and Buyer, in which
case the Deposit shall be returned to Buyer.
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.1. The subject headings of the paragraphs and subparagraphs of
this Agreement are included for convenience only and will not affect the
construction or interpretation of any of its provisions.
14.2 Unless the context clearly requires otherwise:
14.2.1. Plural and singular numbers will each be considered
to include the other;
14.2.2. The masculine, feminine, and neuter genders will each
be considered to include the others;
14.2.3. "Shall," "will," "must," "agree," and "covenants" are
each mandatory;
14.2.4. "May" is permissive;
14.2.5. "Or" is not exclusive; and
14.2.6. "Includes" and "including" are not limiting.
14.3. This Agreement constitutes the entire agreement between the
parties pertaining to the subject matter contained in it and supersedes all
prior and contemporaneous agreements, representations, and understandings of the
parties. No supplement, modification, or amendment of this agreement will be
binding unless executed in writing by all the parties. No waiver of any of the
provisions of this Agreement will be considered, or will constitute, a waiver of
any other provision, and no waiver will constitute a continuing waiver. No
waiver will be binding unless executed in writing by the party making the
waiver.
14.4. This Agreement may be executed simultaneously in one or more
counterparts, each of which will be considered an original, but all of which
together will constitute one and the same instrument.
14.5. Nothing in this Agreement, whether express or implied, is
intended to confer any rights or remedies under or by reason of this Agreement
on any persons other than the parties to it and their respective successors and
assigns; nothing in this Agreement is intended to relieve or discharge the
obligation or liability of any third persons to any party to this Agreement; and
no provision will give any third persons any right of subrogation or action
against any party to this Agreement.
14.6. This Agreement will be binding on, and will inure to the
benefit of, the parties to it and their respective successors, and assigns,
provided that Buyer may not assign any of its rights under this Agreement except
to a wholly owned subsidiary of Buyer. No such assignment by Buyer to its wholly
owned subsidiary will relieve Buyer of any of its obligations or duties under
this Agreement.
15
14.7. All representations, warranties, covenants, and agreements of
the parties contained in this Agreement, or in any instrument, certificate,
opinion, or other writing provided for in it, will survive the Closing.
14.8. All notices and demands shall be given in writing by personal
service, by facsimile, or by certified mail, postage prepaid and return receipt
requested, or by Federal Express, Express Mail, or any other commercial delivery
service which guarantees overnight delivery (an "Overnight Service"). Notices
and payments required hereunder shall be considered given when received whether
by personal service, facsimile, United States mail, or Overnight Service.
Notices shall be addressed as appears below for the respective parties, provided
that if any party gives notice of a change in name or address, notices to the
giver of such notice shall thereafter be given as demanded in such notice:
Buyer:
Holiday World of Las Cruces, LLC
00000 Xxxx Xxxxxxx
Xxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxx
Tel No: (000) 000-0000
Fax No.: (000) 000-0000
Seller:
HOLIDAY RV SUPERSTORES OF NEW MEXICO, INC.
000 Xxxx Xxxxxxx Xxxx., Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Tel No: 000-000-0000
Fax No.: 000-000-0000
Parent:
HOLIDAY RV SUPERSTORES, INC
000 Xxxx Xxxxxxx Xxxx., Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx, CFO
Tel No.: 000-000-0000
Fax. No.: 000-000-0000
14.9. This Agreement will be construed in accordance with, and
governed by, the laws of the State of Delaware. Each of the parties hereto
hereby irrevocably waive any right to a trial by jury in any legal proceedings
or to have a jury participate in resolving any disputes or claims, whether any
such proceedings, disputes or claims relate to or arise in contract, tort or
otherwise, whether with respect to this Agreement or any other documents or
instruments delivered in connection with this Agreement or the transactions
contemplated hereby.
16
14.10. 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.
14.11. If any provision of this Agreement is held invalid or
unenforceable by any court of final jurisdiction, it is the intent of the
parties that all other provisions of this Agreement be construed to remain fully
valid, enforceable and binding on the parties.
17
IN WITNESS WHEREOF, the parties to this Agreement have duly executed it
on the day and year first above written.
SELLER: HOLIDAY RV SUPERSTORES OF NEW MEXICO, INC.
By:
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President and Chief Financial Officer
Address: 000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
BUYER: HOLIDAY WORLD OF LAS CRUCES, LLC
By:
-------------------------------------------------
Name:
Title:
Address: 00000 Xxxx Xxxxxxx
Xxxx, Xxxxx 00000
Attention: C. Xxxxxx Xxxxxxx
MEMBER: HOLIDAY WORLD OF HOUSTON, L.P.
By Holiday World Holdings, LLC, its General Partner
By:
-------------------------------------------------
Name:
Title:
Address: 00000 Xxxx Xxxxxxx
Xxxx, Xxxxx 00000
Attention: C. Xxxxxx Xxxxxxx
PARENT: HOLIDAY RV SUPERSTORES, INC.
By:
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President and Chief Financial Officer
Address: 000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
18
INDEX OF SCHEDULES AND EXHIBITS
