MANAGEMENT AGREEMENT

C.           It is mutually desired by the Parties that the operation of the Business, including the assets to be purchased pursuant to the terms of the Purchase Agreement, be continued under the management of Manager during the term of this Agreement.

d. Manager shall indemnify and save Seller, harmless from any and all Adverse Consequences (but not for operational losses not otherwise attributable to Adverse Consequences resulting from the Manager's actions or omissions) incurred or suffered by the Seller resulting from or related to the operation and management of the Business during the Term, unless such loss or liability is the result of any action on the part of Seller, or its representatives, agents, officers, managers, members or employees.

h. Manager shall not, during the Term, encumber, sell, or convey any fixtures, furniture, inventory or equipment of the Seller, other than in the Ordinary Course of Business, nor pledge the credit of Seller in any way.

i. Manager shall use its best efforts to keep the Business and properties associated with the Business substantially intact including, but not limited to, the present operations, physical facilities, working conditions, and relationships with lessors, licensors, suppliers, customers, and employees.

7.           Payment of the Fee.  Subject to the terms of this Section, the Fee shall be payable by the Seller to the Manager within sixty (60) days following the conclusion of the Term.  Notwithstanding the foregoing, the Manager agrees that the first Sixty Thousand Dollars ($60,000) of the Fee shall be paid to Auction Venture Limited Liability Company (the "Landlord") on behalf of Manager's subsidiary, Acacia Chattanooga Vehicle Auction, Inc. (the "Tenant"), to be held as a security deposit under that certain Lease to be entered into between Landlord and Tenant as of the Closing.

9.           Termination.  The Seller may terminate this Agreement by giving written notice to the Manager in the event the Manager has breached any term or condition of this Agreement in any material respect, the Seller has notified the Manager of the breach, and the breach has continued without cure for a period of five (5) days after the notice of breach.

9.           Miscellaneous.

 

a. Entire Agreement.  This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior negotiations, discussions, undertakings, and agreements between the Parties.  This Agreement may be amended or modified only by a writing executed by the Parties.

 

b. Applicable Law; Venue.  This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio (regardless of the laws that might be applicable under principles of conflicts of law) as to all matters, including, but not limited to, matters of validity, construction, effect, and performance.  The Parties hereby consent to the exclusive jurisdiction of the courts of the State of Ohio in Franklin County, and the United States District Court for the Southern District of Ohio, Eastern Division, and waive any contention that any such court is an improper venue for enforcement of this Agreement.

 

c. Waiver.  Any waiver of a right under this Agreement must be in writing.  Any waiver of a particular default shall constitute a waiver of such default only and not of any other default by the nonwaiving Party.  Any waiver of a specific right or remedy under this Agreement shall constitute a waiver of such right or remedy only and not of any other right or remedy of the waiving Party.

 

d. Captions.  The subject headings of the various sections of this Agreement are included for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions.

 

e. Counterparts.  This Agreement may be executed in one or more counterparts, including by facsimile, all of which shall be considered one and the same agreement, binding on all Parties, notwithstanding that all Parties are not signatories to the same counterpart.

 

f. Further Acts.  Consistent with the terms and conditions hereof, each Party shall execute and deliver all instruments, certificates, and other documents and shall perform all other acts which any other Party may reasonably request in order to carry out this Agreement and the transactions contemplated hereby.

g. Third Party Beneficiaries.  Nothing herein expressed or implied is intended or shall be construed to confer upon or give any Person other than the Parties, and their permitted successors and assigns, any rights or remedies under or by reason of this Agreement.

h. Severability.  The Parties agree that if any part, term, or provision of this Agreement shall be found illegal and unenforceable by any court of law, the remaining provisions shall be severable, valid, and enforceable in accordance with their terms.

i. Notices.  Notice from one Party to another relating to this Agreement shall be deemed effective if made in writing and delivered to the recipient's address, telex number, or telecopy number set forth below by any of the following means:  (i) hand delivery, (ii) registered or certified mail, postage prepaid, with return receipt requested, (iii) FedEx or like overnight courier service, or (iv) facsimile or other wire transmission with request for assurance of receipt in a manner typical with respect to communications of that type. Notice made in accordance with this Section shall be deemed delivered on receipt if delivered by hand or wire transmission, on the third business day after mailing if mailed by registered or certified mail, or the next business day after deposit with an overnight courier service if delivered for next day delivery.  The Parties agree that electronic mail shall not constitute a permitted form of notice under this Section.