Agreement to Provide Services for Certification
This agreement (the "Agreement") is entered into this 28th day of
September, 1999, by and between LPC of New York, Inc., a New York
corporation ("LPC"), and Nostalgia Motor Cars, Inc., a Nevada
corporation ("NMCI") under the terms, covenants and conditions
set forth below.
WHEREAS, NMCI intends to manufacture/assemble, import and sell
into the United States new "old style" Volkswagen Beetles
manufactures in Mexico ("Vehicles"), and to do no in required by
law to conform the vehicles to National Highway Traffic Safety
Administration ("NHTSA") standards and further obtain both
Environmental Protection Agency ("EPA") and California Air
Resources Board (CARB) Certificates of Conformance, and,
WHEREAS, LPC provides vehicle certification services and operates
a vehicle emissions testing laboratory recognized by EPA and CARB
as capable of performing the necessary tests in accordance with
respective agency requirements.
NOW, THEREPORE, in consideration of terms, covenants and
conditions set forth below, as well as other good and valuable
consideration,, the adequacy and receipt of which are hereby
acknowledged, the parties hereto agree as follows:
1. Governmental Compliance. LPC will submit application for
NMCI to obtain a Small Volume Manufacturer's Status ("SVM"),
allowing NMCI to import into the United States up to 10,000
Vehicles per year for retail sale and distribution. LPC agrees
to advise NMCI on such procedures as are necessary for NMCI to
obtain Certificates of Conformance so that new "old style"
Volkswagen Beetles manufactured outside the United States can be
imported by NMCI as conforming vehicles, meeting the safety
standards of NHTSA and tailpipe emission standards of EPA and
CARB. At the completion of compliance, all data, reports,
analysis etc. will be provided to NMCI to engage a facility or
factory to incorporate the parts, devices etc., that may be
necessary to incorporate into the base vehicle at a cost not to
exceed $1,600.00, so that the Vehicles may enter the United
States as conforming vehicles for resale into the retail market
complying with current EPA, CARB and NHTSA standards.
2. Certification of Compliance with United States Environmental
Protection Agency and the California Air Resources Board. LPC
will conduct such testing as are necessary to obtain a
Certificate of Conformance for Vehicles to meet EPA and CARB
requirements, including application necessary for NMCI to obtain
a SVM status, allowing NMCI to import into the United States up
to 10,000 Vehicles per year for retail sale and distribution.
3. Vehicle Requirements from NMCI. NMCI will provide LPC with
at least, but not limited to, six (6) Vehicles. LPC will
schedule and supervise the crash worthiness testing at a
recognized independent testing facility to ensure compliance with
all applicable federal motor vehicle safety standards.
Additional Vehicle(s), if necessary, will have less than a total
of 200 accumulated miles; Vehicle(s) will be for the purposes of
evaluating the base Vehicle and its ability to be conformed to
CARB and EPA tail pipe emission standards.
4. Engineering and Emission Testing. LPC will evaluate the
Vehicle's emission and safety components and provide scheduling
and witnessing of the crash worthiness of the Vehicle. The
expense associated with crash worthiness testing, and the
Vehicles required, are the sole responsibility of NMCI. If
engineering changes are required to comply the Vehicle with
NHTSA, EPA and CARB, the installation of the engineering
revisions to the Vehicles will solely be the responsibility of
NMCI. At the completion of this evaluation phase, LPC will
provide NMCI with all engineering studies, data, and reports
necessary to fully describe the emissions systems so that the
Vehicles can be sold in the United States as certified vehicles.
5. Mileage Accumulation (if necessary). It may be required to
perform mileage accumulation to obtain Deterioration Factors
("DFa") to demonstrate the durability of the emission control
components used in controlling tailpipe emissions. The mileage
accumulation may consist of emission testing at 5,000 mile
intervals up to 120,000 miles. LPC will conduct mileage
accumulation and interval testing for an additional fee. Such
costs, if necessary, are not included in the sums to be paid by
NMCI pursuant to Section 9 below.
6. Administrative Assistance by LPC. For a period of one (1)
year after the receipt of SVM status, and Certificates of
Conformance, if required, in writing by NMCI, LPC shall provide.
a necessary assistance in data handling and administrative
functions to assist NMCI, in:
(a) Obtaining required recall and warranty insurance contracts.
(b) In contracting with any necessary service centers, all for
the purpose of meeting CARB requirements.
(c) Obtaining proper manufacturing liability insurance.
(d) EPA Emission Warranties, to the extent required by all
applicable governments.
(e) The purchase of NHTSA safety warranties, to the extent
required by all applicable state and federal governments, if
necessary are not included in the sums to be. paid by NMCI
pursuant to Section 9 below.
7. Exclusivity Agreement. In consideration of the payments
to LPC of the amounts set forth throughout this Agreement, LPC,
agrees that neither it, nor any affiliate, sister company, or any
company under common control (either wholly or in part) will
provide any testing, engineering, or certification procedures
relating to new "old style" Volkswagen Beetles to be imported
from outside the United States by NMCI for any person or entity
other than NMCI, with NMCI's written consent ,which consent NMCI
may grant or withhold in its sole and absolute discretion.
8. Scheduling for Phases. LPC will perform its services under
this Agreement pursuant to the following schedule, providing the
Agreement is executed and the Nostalgia vehicles are provided by
the first week of October 1999:
Phase Description of Work to Be Performed Completion Dates
Phase I Such administrative functions as are
necessary to file for SVM status with On or before
the respective agencies October 31, 1999
Phase II Such administrative functions as are
necessary to proceed with the
Certificates procedures On or before
October 31, 1999
Phase III Complete emission testing for EPA and
CARB On or before
November 30, 1999
9. Payment Terms. Nostalgia shall pay LPC for its work leading
up to the completion of Phase III as described above as follows:
(a) $75,000.00 within 72 hours of this Agreement.
(b) $100,000.00 upon completion of Phase I and II.
(c) Balance of $200,000 upon issuance of EPA and CARB issuance
of Certificate of Conformity.
(d) Although the parties hereto acknowledge that the
original crash tests on the Vehicles are still available and
valid, updated crash tests might have to be conducted, which
would entail an additional cost to Nostalgia under this Agreement
of up to $175,000.
10. Representations of LPC. LPC hereby represents and warrants
to Nostalgia the following in order to induce Nostalgia to enter
into this Agreement:
(a) LPC is a New York corporation in good standing and with full
corporate authority to perform its obligations under this
Agreement.
(b) Neither the execution, delivery or performance by LPC
of this Agreement, conflicts with or contravenes, or will
conflict with or contravene, any law, rule, regulation, judgment,
order or decree of any government, governmental instrumentality
or court, domestic or foreign, having jurisdiction over LPC or
LPC's activities or properties, or conflict with, or result in
any default under any agreement or instrument of any kind to
which LPC is a party or by which LPC or LPC's properties may be
bound or affected;
(c) This Agreement has been duly executed and delivered by
LPC and constitutes a legal, valid and binding obligation of LPC
enforceable against LPC in accordance with its terms;
(d) There is no action, litigation or other proceeding
pending or, to LPC's best knowledge, threatened against LPC
before any court, arbitrator or administrative agency, domestic
or foreign, except for the Lawsuit which may have an adverse
effect on LPC's assets, businesses, or financial condition or
which would prevent, hinder or jeopardize LPC's performance under
this Agreement; and,
(e) LPC is not a party to any contract, agreement,
indenture or instrument or subject to any restriction which
individually or in the aggregate which might adversely affect
LPC's financial condition or businesses, or which would in any
way jeopardize the ability of LPC to perform hereunder.
(f) LPC is certified and recognized by the United States
Environmental Protection Agency and the California Air Resources
Board to perform various emissions testing to the respective
agencies' standards.
(g) LPC has successfully provided vehicle certification
services for the past two decades to vehicle manufacturers to
meet the standards of the NHTSA, the EPA and CARB, and its
engineering work related to its performance under this Agreement
shall meet the highest standards of its industry.
11. Modification of Units. The cost, not to exceed $1,600.00
per car, of the Structural Modifications and the Emissions
Modifications necessary to meet all regulatory requirements,
shall include the cost of all parts, including, but not limited
to the following:
(a) Bumper modifications (If necessary)
(b) O.B. II Computer System
(c) Emission Vapor Canister
(d) Required temperature and pressure sensors
(e) Modified speedometer
(f) Warning lights and buzzers for seat belts, parking
brakes, etc.
(g) Proper labeling
(h) Door beams (If necessary)
(i) Dual air bags
12. Option to purchase LPC. Nostalgia will have the irrevocable
option to purchase 100% of LPC and its related companies, for a
period of six (6) months from the date of this Agreement, on
terms to be mutually agreed upon.
13. Notices . All notices, waivers, demands, requests and other
communications required or permitted by this Agreement
(collectively, "Notices"), to be effective, shall be in writing
and shall be given as follows by (a) personal delivery, (b)
established overnight commercial courier with delivery charges
prepaid or duly charged, (c) registered or certified mail, return
receipt requested, first class postage prepaid, or (d) by
confirmed telefacsimile, confirming the date, time and content of
the transmittal:
if to Nostalgia: Xxxx Xxxxxxxx, President
Nostalgia Motorcars, Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
with a copy to: G. Xxxxx Xxxxxx, Esq.
Xxxxxx & Short, P.C.
00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
if to LPC: Xxxxx XxXxxxxxxx
LPC of New York, Inc.
00 Xxxxx Xxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
or to any other address or addressee as any party entitled to
receive notice under this Agreement shall designate, from time to
time, by Notice given to the others in the manner provided in
this Article. Notices thus given by personal delivery and by
confirmed telefacsimile shall be deemed to have been received
upon tender to the respective address set forth above. Notices
thus given by overnight courier shall be deemed to have been
received the next business day after delivery to such overnight
commercial courier. Notices given by certified or registered
mail shall be deemed to have been received on the third day after
deposit into the United States mail.
14. Right to Waive Conditions . Either party may waive any of
the terms or conditions of this Agreement made for such party's
benefit, provided that such waiver is in a writing signed by the
waiving party. No waiver by any party of any default,
misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to apply or extend to
any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent such occurrence.
15. Binding Effect . This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective
heirs, legal representatives, successors and assigns.
16. Partial Invalidity . If any term, covenant or condition of
this Agreement, or the application thereof, to any person or
circumstance shall be invalid or unenforceable at any time or to
any extent, then the remainder of this Agreement, or the
application of such term, covenant or condition to persons or
circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby. Each term,
covenant and condition of this Agreement shall be valid and
enforced to the fullest extent permitted by law.
17. Entire Agreement . This Agreement contains the entire
agreement between the parties with respect to the Assets and
there are no promises, agreements, conditions, undertakings,
understandings, warranties, covenants or representations, oral or
written, express or implied, between them with respect to the
Assets, this Agreement, or the transaction described in this
Agreement, other than as set forth in this Agreement. This
Agreement supersedes any other agreement entered into between the
parties, including that certain "Agreement of LPC Inc. to Provide
Services for Certification" previously executed between the
parties (the "Prior Agreement"), which the parties hereby agree
is of no further force or effect. The parties hereto hereby
release any party or persons from, and waive, any claims they may
have arising out of the Prior Agreement.
18. Modifications . This Agreement may not be modified orally
or in any manner other than by an agreement in writing signed by
all the parties or their respective successors in interest.
19. Further Assurances . In addition to the respective
obligations required to be performed under this Agreement, Seller
and Buyer shall each perform from time to time hereafter, such
other acts, and shall execute, acknowledge and/or deliver such
other instruments, documents and other materials, as may be
reasonably required in order to perform their respective
obligations under this Agreement. It is understood and agreed
that the foregoing provisions shall not be deemed to require
either party to perform any of the obligations of the other.
20. No Third Party Beneficiaries . There shall be no third
party beneficiaries to this Agreement.
21. Headings . The headings used in this Agreement are for
reference and convenience only, and shall not be considered in
the interpretation of this Agreement.
22. Plurality and Gender . Wherever in this Agreement the
singular number is used, the same shall include the plural, and
the masculine gender shall include the feminine and neuter
genders, and vice versa, as the context shall require.
23. Governing Law . All questions with respect to the
construction of this Agreement and the rights and liabilities of
the parties under this Agreement shall be determined in
accordance with the laws of the State of Arizona, without regard
to the application of choice of law principles, except to the
extent that such laws are superseded by federal law.
24. Time of Essence . Time is of the essence of this Agreement.
25. Assignment . No party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without
the prior written approval of the other party.
26. Counterparts . This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but
all of which together will constitute one and the same
instrument.
27. Attorney Fees for Breach. In the event that any of the
terms, conditions, obligations restrictions, or provisions of
this contract result in litigation or arbitration, the prevailing
party shall be entitled to reasonable costs and attorney fees as
determined by a court of competent jurisdiction.
28. Construction . The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties
and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal,
state, local, or foreign statute or law shall be deemed also to
refer to all rules and regulations promulgated thereunder, unless
the context requires otherwise. The word "including" shall mean
including without limitation. The parties intend that each
representation, warranty, and covenant contained herein shall
have independent significance. If any party has breached any
representation, warranty, or covenant contained herein in any
respect, the fact that there exists another representation,
warranty, or covenant relating to the same subject matter
(regardless of the relative levels of specificity) which the
party has not breached shall not detract from or mitigate the
fact that the party is in breach of the first representation,
warranty, or covenant.
29. No Agency. Neither the terms of this Agreement nor the
transaction contemplated hereby shall be deemed or construed to
give rise to any partnership, joint venture, or agency
relationship, and the relationship of LPC to Nostalgia shall
simply be that of an independent contractor acting in accordance
with the terms of this Agreement. Neither party shall have the
right to bind the other to any obligations not expressly set
forth in this Agreement nor with respect to any third parties.
30. Confidentiality. Both parties agree to keep the terms and
conditions of this agreement strictly confidential, excepting for
bonafide regulatory or legal disclosure requirements.
In Witness Whereof, the parties have executed this Agreement as
of the first date set forth above.
Nostalgia Motorcars, Inc. LPC of New York, Inc.
By:/s/ Xxxx Xxxxxxxx By:/s/ Xxxxxx XxXxxxxxxx
Xxxx Xxxxxxxx, President Xxxxx XxXxxxxxxx, President
