EXHIBIT 2.1.10
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT dated as of this 23rd day of January 1997,
by and among FirstAmerica Automotive, Inc., a Nevada corporation or Nominee
("Purchaser") and Auto Center of North County, Inc., a California corporation
("Seller") and Thomas Nokes and H. Matthew Travis collectively ("Owners").
R E C I T A L S
WHEREAS, Seller owns and operates a Toyota automobile dealership commonly
known as Poway Toyota at 13760 Poway Road, Poway, CA 92064 (the "Dealership").
WHEREAS, Owners own all of the outstanding stock of Seller.
WHEREAS, Seller desires to sell to Purchaser and Purchaser desires to
purchase from Seller certain of the assets, properties and business of Seller
utilized in its authorized Toyota automobile dealerships located in Poway,
California.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties herein contained, the parties hereto agree as
follows:
A G R E E M E N T
1. DEFINITIONS. For the purposes of this Agreement, the herein below
terms shall have the following meanings:
1.1 ACQUIRED ASSETS. The "Acquired Assets" are the assets and
property to be purchased by Purchaser hereunder, as more fully described in
Section 2.1 hereof.
1.2 CLOSING DATE. Unless otherwise mutually agreed between
Purchaser and Seller, the "Closing Date" shall be March 21, 1997 provided,
however, Purchaser or Seller shall have the right to extend the Closing Date
until 5 business days from the date the conditions specified in Sections 7 and 8
hereof are satisfied; subject, however, to the provisions of Section 18 below.
The Closing shall take place at the offices of Mission Valley Escrow, 2565
Camino Del Rio South, San Diego, California 92108 on the Closing Date commencing
at 10:00 a.m.
1.3 FRANCHISE. "Franchise" means the Toyota franchise as currently
held by Seller.
1.4 FRANCHISER. "Franchiser" means Toyota Motor Sales, U.S.A., Inc.
1.5 OBSOLETE PARTS. "Obsolete Parts" means factory parts which are
not listed in the most current manufacturer's wholesale price book or, if listed
therein, are valued at ZERO DOLLARS ($0), parts which are not returnable to the
manufacturer (as defined by the Franchiser), parts which have been in stock of
Seller more than one (1) year and/or parts which are in excess of a one (1) year
supply, or parts indicated as discontinued, and broken or damaged parts,
regardless of whether listed in the most current manufacturer's wholesale price
book.
2. SALE OF ASSETS.
2.1 ACQUIRED ASSETS. Seller hereby agrees to, sell, convey,
transfer, assign and deliver to Purchaser on the Closing Date, and Purchaser
agrees to buy and accept as hereinafter provided all the assets related to or
used in connection with the Franchise, including but not limited to those assets
to be listed on Schedule 2.1 to be prepared prior to the Closing Date and then
attached hereto, Toyota special tools, furniture, fixtures and equipment, which
special tools, furniture, fixtures and equipment shall be in good working order,
and leasehold improvements used by Seller in operation of the Toyota franchise,
motor vehicles (new and used) (subject to exclusion of certain used vehicles in
accordance with Section 3.2(c), parts and accessories (subject to exclusion of
Obsolete Parts in accordance with Section 3.2(d), tires, work-in-progress,
advertising literature, forms, supplies, customer files and data bases, parts
return privileges from the Franchiser, rights under new car purchase orders and
deposits relating thereto, goodwill, and Seller's customer files and books and
records relating to the Acquired Assets, telephone number of Seller, all
contracts, agreements or commitments which contracts, agreements are commitments
have been approved and assumed by Purchaser as the same shall exist on the
Closing Date; provided, however, that Seller shall retain all other assets. The
parties agree that they will prepare Schedule 2.1 in conjunction with the
physical inventory described in Section 3.2. hereinbelow.
3. CONSIDERATION FOR ACQUIRED ASSETS.
3.1 PURCHASE PRICE. Subject to the terms and conditions of this
Agreement, the consideration to be paid by Purchaser for the Acquired Assets
shall be cash equal to the sum of the aggregate value of the Acquired Assets
determined in accordance with Section 3.2.
3.2 VALUATION OF ACQUIRED ASSETS. The assets set forth below shall
be valued as provided below:
(a) The price for all 1996 and 1997 new unregistered and
undamaged Toyota model vehicles with not more than five hundred (500) miles
purchased hereunder and two (2) 1997 undamaged demonstrator vehicles with not
more than five thousand (5,000) miles shall be the sum of the following:
(i) The wholesale cost of each new vehicle determined in
accordance with the factory invoice, including advertising charges; plus
(ii) The wholesale cost of all optional parts and
accessories installed in the new vehicles plus the cost of labor (determined at
the internal rate pursuant to the standard factory formula) for installation of
the same; LESS
(iii) The sum of all distributor's allowances as of the
Closing Date including, but not limited to, inventory carry-over allowances,
discounts, holdbacks, rebates, contests, model changes and similar distributor's
allowances related to specific automobiles transferred on the Closing Date.
(b) All vehicles not described in subsection (a) above which are
to be purchased hereunder shall be valued at wholesale Kelly Blue Book Value as
of the Closing Date.
(c) All new undamaged returnable genuine Toyota factory parts,
accessories and
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jobber parts which are in possession of Seller as of the Closing Date and which
are listed in the manufacturer's most current wholesale parts and accessories
price book shall be valued at dealer cost in accordance with the manufacturer's
most current wholesale parts and accessories price book as of the Closing Date;
provided, however, that Obsolete Parts shall be valued at ZERO DOLLARS ($0) and
shall be retained by Seller, provided that Seller removes such parts within ten
(10) days of the Closing Date.
(d) All work-in-progress shall be valued at cost.
(e) All furniture, fixtures, equipment and special tools shall be
valued at appraisal value as of the Closing Date, provided, however, that in the
event that any item of furniture, fixtures, equipment, special tools or
leasehold improvement is materially damaged, destroyed or removed from the
Dealership between the date of the appraisal and the Closing Date, the value of
said item damaged, destroyed or removed from the Dealership shall be credited
against the Purchase Price. Purchaser and Seller shall obtain an appraisal from
a mutually agreeable appraisal party to determine the, as is, fair market value
of the furniture, fixtures and equipment. The cost of the appraisal shall be
paid one-half by Purchaser and one-half by Seller. The parties acknowledge that
there shall be no additional charge for leasehold improvements.
(f) In further consideration for all other assets described in
Section 2.1 hereinabove and goodwill Purchaser shall pay to Seller the sum of
ONE MILLION SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($1,750,000).
(g) As of the close of business on the day immediately preceding
the Closing Date or on such other date as mutually agreed upon by Purchaser and
Seller, a physical inventory to determine the value of the new, used and
demonstrator vehicles, and work-in-progress shall be taken jointly by the
parties. Each party shall bear the expenses associated with its own personnel in
connection with the valuation of the assets. The parties shall jointly employ an
independent inventory service to take a parts and accessories inventory
immediately prior to the Closing. The cost of such inventory shall be paid one-
half by Purchaser and one-half by Seller.
3.3 PAYMENT OF PURCHASE PRICE. The Purchase Price to be paid by
Purchaser pursuant to this Agreement shall be paid as follows:
(a) Within five (5) business days of the day of execution of this
Agreement, Purchaser shall cause the sum of FIFTY THOUSAND DOLLARS ($50,000)
(the "Deposit") to be delivered to Escrow Holder as hereinafter defined. The
Deposit shall be held by the Escrow Holder as an earnest money deposit toward
the Purchase Price of the Dealership. The Deposit shall be held by Escrow
Holder in an interest bearing account with all interest accruing thereon to be
paid or credited to Purchaser. At the Closing, the Deposit shall be applied and
credited toward the payment of the Purchase Price. If escrow does not close,
and this Agreement is terminated in a manner governed by Section 7 does not
apply, the Deposit together with the interest accrued thereon shall be promptly
returned to Purchaser unless the provisions of Section 21 are applicable, in
which case the disposition of the Deposit shall be governed by the provisions of
Section 21. In the event the Closing Date has not occurred by March 21, 1997
through no fault of Seller, Purchaser shall make an additional deposit of FIFTY
THOUSAND DOLLARS ($50,000) into Escrow.
(b) The balance of the Purchase Price shall be paid in cash on
the Closing Date.
3.4 CLOSING AND POST-CLOSING ADJUSTMENTS. All adjustments normal in
asset acquisitions, including but not limited to rents and employee
compensation, telephone charges, personal property taxes, customer prepayments,
if relating to a period before and after the Closing Date, shall be apportioned
between Seller and Purchaser according to the number of days in the period
covered thereby which occurred prior to and including the Closing Date and
subsequent to the Closing Date. The aggregate amount of any adjustment shall be
determined and paid as of the Closing Date. Any additional amounts determined
after the Closing Date to be paid by either party
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under this Section 3.4 shall be paid by check delivered within seven (7) days
following determination of the amount of any such adjustment.
3.5 LIABILITIES. Purchaser shall have no obligation for any
liabilities of any kind whatsoever of Seller except that Purchaser shall assume
Seller's obligations for Equipment Leases as set forth on Schedule 3.5 attached
hereto or provided to Purchaser within seven (7) days of execution of this
Agreement and all liabilities under contracts, agreements or commitments assumed
by Purchaser in each case for the period commencing on the Closing Date and
continuing thereafter. Seller shall be fully responsible for any and all costs
or charges of any kind whatsoever arising out of such agreements for the period
prior to the Closing Date. The parties acknowledge and agree that Purchaser is
not assuming any employment agreements, labor agreements, collective bargaining
agreements or other similar contracts.
3.6 TRANSFER TAXES. Purchaser agrees to pay any and all sales,
transfer or other similar taxes which may be imposed or payable on or in
connection with the transfer of the Acquired Assets.
3.7 ALLOCATION OF PURCHASE PRICE. The Purchase Price as provided for
herein shall be allocated as set forth on Schedule 3.7 attached hereto.
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND OWNERS. Seller and
Owners hereby represent, warrant and agree with Purchaser as follows:
4.1 GOOD STANDING. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of California and is
entitled to and has the corporate power and authority to own or lease its
property and to carry on its business in the manner and in the places where such
property are now owned, leased or operated and such business is now conducted.
4.2 TITLE TO ASSETS; LIENS AND ENCUMBRANCES. Seller will convey to
Purchaser good and marketable title to the Acquired Assets, free and clear of
all security interests, liens, claims, restrictions, equities and encumbrances
whatsoever.
4.3 AUTHORIZATION. The execution and delivery of this Agreement
and the transactions contemplated hereby has been duly authorized by the Board
of Directors of the Seller and all other corporate action, including all
shareholders' approvals necessary to authorize the execution and delivery of
this Agreement and the transactions contemplated hereby, have also been taken.
Except for consent of the Franchiser, landlords under leases and floor plan
lenders, no consent of any lender, trustee, security holder, lessor or any other
person or entity is required to be obtained by Seller in connection with the
execution, delivery and performance of this Agreement by Seller and the
consummation of the transactions contemplated hereby. This Agreement
constitutes a valid and binding obligation of Seller and Owners enforceable in
accordance with its terms. Except pursuant to the Franchise, Lessors, and floor
plan financing, the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby (a) do not violate or
constitute a breach of or default under any contract, agreement or commitment to
which Seller or Owners is a party, under which they are obligated or to which
any of the Acquired Assets are subject to, (b) do not violate any judgment,
order, statute, rule or regulation to which Seller, Owners or any of the
Acquired Assets are subject or the articles of incorporation or bylaws of the
Seller, and (c) will not result in the creation of any lien, charge or
encumbrance on any of the Acquired Assets.
4.4 REPRESENTATIONS AND WARRANTIES ON CLOSING DATE. The
representations and warranties of Seller and Owners contained in this Agreement
shall be true and correct in all material respects on and as of the Closing Date
with the same force and effect as though such representations and warranties
have been made on and as of the Closing Date.
4.5 LITIGATION. Except as set forth on Schedule 4.5 attached
hereto, there is not pending, or,
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to best knowledge of Seller, threatened, any suit, action, arbitration, or
legal, administrative, or other proceeding, or governmental investigation
against or affecting any of the Acquired Assets. To the best knowledge of Seller
and Owners, Seller is not in default with respect to any order, writ,
injunction, or decree of any federal, state, or local court.
4.6 ENVIRONMENTAL COMPLIANCE NOTICES. Seller has received no
written notice advising Seller of any defects, defaults or non-compliance in
connection with the Acquired Assets pursuant to the laws, rules and regulations
from any governmental agency dealing with environmental laws, except notices
which have been previously complied with or waived by the governmental agency.
4.7 COMPLIANCE WITH LAW. To the actual knowledge of Seller, Seller
has complied with, and is not in violation of, applicable federal, state or
local statutes, laws or regulations the violation of which would have a material
adverse effect on the financial condition of the Dealership.
4.8 FINANCIAL REPORTS. Seller has delivered to Purchaser dealer
financial statements for Seller for the calendar year 1996 ("Dealer Financial
Statement"). The income and expenses reflected in the Dealer Financial
Statement has been prepared in accordance with past practices of Seller and are
true and correct in all material respects.
4.9 FRANCHISE NOTICES. Seller has received no written notice from
Toyota Motor Sales, U.S.A., Inc. regarding any appointment of new Toyota
dealerships within a 20 mile radius of the Dealership.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents,
warrants and agrees with Seller and Owners as follows:
5.1 GOOD STANDING. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada and
is entitled to and has the corporate power and authority to own or lease its
property and to carry on its business in the manner and in the places where such
property are now owned, leased or operated and such business is now conducted.
5.2 AUTHORIZATION. The execution and delivery of this Agreement and
the transactions contemplated hereby has been duly authorized by the Board of
Directors of the Purchaser and all other corporate action, including all
shareholders' approvals necessary to authorize the execution and delivery of
this Agreement and the transactions contemplated hereby, have also been taken.
This Agreement is a valid and binding obligation of Purchaser enforceable
against Purchaser in accordance with its terms. Except for consent of the
Franchiser, Lessors, and lenders, no consent of any trustee, security holder or
any other person or entity is required to be obtained by Purchaser in connection
with the execution, delivery and performance of this Agreement by Purchaser and
the consummation of the transactions contemplated hereby. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby (a) do not violate or constitute a breach of or
default under any contract, agreement or commitment to which Purchaser is a
party or under which it is obligated, and (b) do not violate any judgment,
order, statute, rule or regulation to which Purchaser is subject.
5.3 REPRESENTATIONS AND WARRANTIES ON CLOSING DATE. The
representations and warranties of Purchaser contained in this Agreement shall be
true and correct in all material respects on and as of the Closing Date with the
same force and effect as though such representations and warranties had been
made on and as of the Closing Date.
6. CONDUCT PRIOR TO CLOSING DATE.
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6.1 ONGOING OPERATIONS. Seller will use its best effort to preserve
intact the Acquired Assets and to continue to operate the Dealership as a going
concern, including, but not limited to, maintaining commercially reasonable
inventories and receivables. Seller will not dispose of any of the Acquired
Assets except in the ordinary course of business consistent with past practices,
and will not, without limiting the foregoing, hold a "going-out-of-business" or
"liquidation" sale.
6.2 APPROVALS. Each of Purchaser and Seller will use its best
efforts to obtain all permits, approvals, authorizations and consents of third
parties necessary or desirable for the consummation of the transactions
contemplated by this Agreement and for the ownership and operation by Purchaser
of the Acquired Assets and the Dealership related thereto. Purchaser and Seller
shall proceed as promptly as practicable after the date hereof to prepare all
materials necessary to obtain the consent of the Franchiser as is necessary for
Purchaser to acquire the Acquired Assets and for consummation of the
transactions contemplated hereby.
6.3 COVENANT TO COMPLY. Seller and Owners shall not take any action
or fail to take any action which will make any of their representations and
warranties not true and correct in all material respects on the Closing Date.
Seller and Owners shall use their best efforts to satisfy or cause to be
satisfied all of the conditions precedent to Purchaser's obligations hereunder.
Seller shall give Purchaser prompt written notice of any material change in any
of the information contained in the representations and warranties made in
Section 4 hereof or the schedules referred to herein which occur prior to the
Closing Date; provided, however, that any change in the information contained in
the representations and warranties or schedules will not relieve Seller of any
obligations hereunder if such changes result in a breach of the representations
and warranties contained herein.
7. CONDITIONS TO PURCHASER'S OBLIGATIONS TO CLOSE. The obligations of
Purchaser under this Agreement are subject fulfillment of the conditions set
forth below. Purchaser shall have the right to waive in writing all or part of
any one or more of the following conditions without releasing Seller or Owners
from any liability for any loss or damage sustained by Purchaser by reason of
the breach by Seller or Owners of any covenant, obligation or agreement
contained herein, or by reason of any misrepresentation made by Seller or Owners
and upon such waiver may proceed with the transactions contemplated by this
Agreement.
7.1 AGREEMENTS AND CONDITIONS. On or before the Closing Date,
Seller and Owners shall have complied with and duly performed in all material
respects all agreements and conditions on its part to be complied with and
performed pursuant to or in connection with this Agreement on or before the
Closing Date.
7.2 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Seller and Owners contained in this Agreement, or otherwise made
in writing in connection with the transactions contemplated hereby, shall be
true and correct in all material respects on and as of the Closing Date with the
same force and effect as though such representations and warranties had been
made on and as of the Closing Date and Purchaser shall have received a
certificate to that effect dated the Closing Date and executed by the President
of Seller.
7.3 NO LEGAL PROCEEDINGS. No action or proceeding shall have been
instituted or threatened to restrain or prohibit the acquisition by Purchaser or
the conveyance by Seller of the Acquired Assets or which might result in any
material adverse change in the business, prospects or financial or other
condition of the Acquired Assets.
7.4 LOSS, DAMAGE OR DESTRUCTION. Between the date hereof and the
Closing Date, there shall not have been any material loss, damage or destruction
to or of any of the Acquired Assets, and there shall have been no development
which would have a material adverse effect on the Dealership.
7.5 CONSENTS. Purchaser shall have received the written approval of
the Franchiser designating Purchaser or its designee as the duly authorized
dealer for the sales and service of the Franchiser's automobiles at 13760 Poway
Road, Poway, CA 92064, free of any material condition which is adverse to
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Purchaser, and Purchaser and such Franchiser shall have entered into a customary
dealer sales and service agreement. All permits and licenses necessary to enable
Purchaser to conduct the Franchise and service facilities shall have been
obtained. All other requisite consents and approvals shall have been obtained.
7.6 DUE DILIGENCE. Purchaser shall for a period of ten (10) days
from the date of execution of this Agreement have the right to review the books
and records of the Dealership, the physical condition of the Dealership property
and any other items reasonably necessary or appropriate to evaluate the
Dealership. Such review shall be done at times and locations as mutually agreed
between Purchaser and Seller provided that Purchaser shall use all reasonable
efforts to have such review of books and records at locations away from the
Dealership. Seller shall cooperate and provide such information reasonably
necessary for Purchaser to conduct such due diligence review during such ten
(10) day period. In the event Purchaser does not approve of the physical
condition of the Dealership and the review of the books and records by written
notice to Seller within such ten (10) day period, this Agreement shall terminate
with all deposits returned to Purchaser and no further rights or obligations to
either party.
7.7 ENVIRONMENTAL ASSESSMENT. During the ten (10) day period after
the execution of this Agreement (the "Testing Period"), Purchaser and Seller
shall conduct an environmental assessment (the "Environmental Assessment") of
the real property at the Dealership (the "Real Property"). Expenses of any
environmental consultant engaged by Purchaser and Seller to conduct the
Environmental Assessment shall be paid by Purchaser. Purchaser may terminate
all of its obligations under this Agreement by written notice to Seller on or
before the expiration of the Testing Period, if Purchaser determines that a
release or threatened release of a hazardous substance has occurred on the Real
Property. Failure to timely notify Seller under this Section 7.7 is deemed to
constitute a waiver of Purchaser's right to terminate this Agreement under this
Section 7.7.
7.8 PURCHASE OF POWAY HONDA/DODGE. Purchaser shall have
simultaneously with the Closing of this transaction acquired the assets of Poway
Honda/Dodge from Auto Center of Poway, Inc., a California corporation.
7.9 PHYSICAL AUDIT. On or before the Closing Date the valuation of
the Acquired Assets pursuant to the physical audit specified in Section 3.2
shall be completed.
7.10 TAX CLEARANCE. Seller shall have furnished to Purchaser,
certificates from all appropriate federal, state, county and local authorities
that all taxes and contributions payable by Seller have been paid in full. If
all appropriate tax certificates are not available on the Closing Date,
Purchaser shall withhold from the estimated amount of maximum unpaid tax
liability reasonably determined by Purchaser which sum shall be held by
Purchaser until such time as all certificates are presented in a form
satisfactory to Purchaser's counsel.
7.11 LIST OF EMPLOYEES. Seller shall furnish to Purchaser a list of
all employees, their rates of pay, including, separately, base pay, and
incentive and commission plans. Further Seller shall deliver to Purchaser a
certificate from each of such employees showing that such employee has received
from Seller all compensation including all sick leave, vacation, and any and all
other compensation due such employee through the Closing Date. In addition
thereto, Seller shall have complied with any and all obligation of Seller under
any collective union agreements and/or collective bargaining agreements.
7.12 BULK SALE. Seller shall furnish, in an appropriate time to
comply, all affidavits and lists of creditors and such other instruments or
documents as Escrow Holder shall require for Seller and Purchaser to comply with
all applicable bulk sales laws.
7.13 ASSIGNMENT OF LEASE. Purchaser and Seller shall enter into an
Assignment of Lease for the real property commonly known as 13760 Poway Road,
Poway, CA 92064 ("Lease Assignment") which Lease Assignments shall have been
approved as required by the landlord of the Property.
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8. CONDITIONS OF SELLER'S OBLIGATIONS TO CLOSE. The obligations of
Seller under this Agreement are subject to fulfillment of the conditions set
forth below. Seller shall have the right to waive in writing all or part of any
one or more of the following conditions without, however, releasing Purchaser
from any liability for any loss or damage sustained by Seller by reason of the
breach by Purchaser of any covenant, obligation or agreement contained herein,
or by reason of any misrepresentation made by Purchaser and upon such waiver may
proceed with the transactions contemplated by this Agreement.
8.1 AGREEMENTS AND CONDITIONS. On or before the Closing Date,
Purchaser shall have complied with and duly performed in all material respects
all of the agreements and conditions on its part required to be complied with or
performed pursuant to this Agreement on or before the Closing Date.
8.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER. The representations
and warranties of Purchaser contained in this Agreement shall be true and
correct in all material respects on and as of the Closing Date with the same
force and effect as though such representations and warranties had been made on
and as of the Closing Date and Seller shall have received a certificate to that
effect dated the Closing Date and executed by the President or a Vice President
of Purchaser.
8.3 PHYSICAL AUDIT. On or before the Closing Date the valuation of
the Acquired Assets pursuant to Section 3.2 shall be completed.
8.4 PURCHASE OF POWAY HONDA/DODGE. Purchaser shall have
simultaneously with the Closing of this transaction acquired the assets of Poway
Honda/Dodge from Auto Center of Poway, Inc., a California corporation.
8.5 ASSIGNMENT OF LEASE. Purchaser and Seller shall enter into an
Assignment of Lease for the real property commonly known as 13760 Poway Road,
Poway, CA 92064, ("Lease Assignment") which Lease Assignment shall have been
approved as required by the landlord of the Property.
9. DELIVERIES OF SELLER ON THE CLOSING DATE. Seller agrees on the
Closing Date to deliver to Purchaser:
9.1 TITLE TO ACQUIRED ASSETS. All conveyances, covenants,
warranties, deeds, assignments, bills of sale, motor vehicle titles,
confirmations, powers of attorney, approvals, consents and any and all further
instruments as may be necessary, expedient or proper in order to complete any
and all conveyances, transfers and assignments herein provided for and to convey
to Purchaser such title to the Acquired Assets as Seller is obligated hereunder
to convey.
9.2 CERTIFICATE OF SECRETARY. Certificate of the Secretary of the
Seller setting forth a copy of the resolutions adopted by Seller's Board of
Directors and shareholders authorizing and approving the execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby.
9.3 CERTIFICATE. Certificate of the President of Seller referred to
in Section 7.2.
9.4 CONSENTS. All consents, approvals, authorizations or orders of
any person or entity or court or governmental agency required or necessary for
the consummation of the transactions contemplated hereby, provided that Seller
shall not be obligated to deliver the consent of the Franchiser.
10. DELIVERIES OF PURCHASER ON THE CLOSING DATE. Purchaser agrees on the
Closing Date to deliver or cause to be delivered:
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10.1 CONSIDERATION. The amounts to be delivered pursuant to Section
3.3 hereof.
10.2 CERTIFICATE OF SECRETARY. Certificate of the Secretary of the
Purchaser setting forth a copy of the resolutions adopted by Purchaser's Board
of Directors and shareholders authorizing and approving the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby.
10.3 CERTIFICATE. The Certificate of the President or a Vice
President of the Purchaser referred to in Section 8.2.
11. LEASE. Seller and Purchaser shall enter into an Assignment of Lease
for the Property which Assignment of Lease shall be in the form and substance
reasonably satisfactory to Purchaser and its counsel. The Assignments of Lease
shall have been approved by the landlord of the Property as required pursuant to
existing lease ("Lease") which Assignment of Lease shall be attached hereto as
Schedule 11.
12. ESCROW. The parties, upon execution of this Agreement shall open an
escrow with Mission Valley Escrow ("Escrow Holder"). The parties shall
forthwith provide to Escrow Holder any and all documentation necessary for
Escrow Holder to publish its notices as required by the Bulk Sale Laws of the
State of California. Any and all costs of such escrow shall be paid one-half by
Purchaser and one-half by Seller.
13. COVENANTS AFTER CLOSING DATE.
13.1 TRANSFER OF ACQUIRED ASSETS. Seller agrees, at any time and
from time to time after the Closing Date, upon the request of Purchaser, to do,
execute, acknowledge and deliver, or to cause to be done, executed, acknowledged
and delivered, all such further acts, deeds, assignments, transfers,
conveyances, powers of attorney and assurances as may be required for the better
assigning, transferring, conveying, and confirming to Purchaser, or to its
successors and assigns, or for the aiding, assisting, collecting and reducing to
possession of, any or all of the Acquired Assets as provided herein.
13.2 COOPERATION. Seller will cooperate and use its best efforts to
have its officers and employees cooperate with Purchaser at Purchaser's request,
on and after the Closing Date in furnishing information, evidence, testimony and
other assistance in connection with any actions, proceedings, arrangements or
disputes involving Purchaser and based upon contracts, arrangements, commitments
or acts of Seller which were in effect or occurred on or prior to the Closing
Date. From and after the Closing Date, Seller will permit Purchaser and its
representatives to have access to Seller's books and records relating to the
Acquired Assets for periods prior to the Closing Date. From and after the
Closing Date, Purchaser will permit Seller and its representatives to have
access to Seller's books and records relating to the period prior to the Closing
Date.
14. INDEMNIFICATION.
14.1 INDEMNIFICATION BY SELLER AND OWNERS. Seller and Owners agree
to indemnify and hold harmless Purchaser from and against any and all losses,
costs, damages, claims and expenses (including reasonable attorneys' fees) which
Purchaser may sustain at any time by reason of (a) any debt, liability or
obligation of Seller and/or Owners except obligations assumed by Purchaser, (b)
any liability or obligation of any kind relating to the operations of the
Acquired Assets or Dealership prior to the Closing Date, (c) any presence of
hazardous materials or toxic substances located at the Closing Date in or around
the premises to be assigned from Seller to Purchaser related to the underground
storage tanks or other hazardous substances, or (d) the breach or inaccuracy of
or failure to comply with, or the existence of any facts resulting in the
inaccuracy of, any of the warranties, representations, covenants or agreements
of Seller or Owners contained in this Agreement or in any agreement or document
delivered pursuant hereto or in connection herewith or with the closing of the
transactions contemplated hereby. The parties acknowledge and agree that
Purchaser shall have the right to repair automobiles sold and/or serviced by
Seller to correct miscellaneous customer complaints that Purchaser determines in
Purchaser's reasonable judgment
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are an obligation of Seller provided that the total of all such repairs in the
aggregate without Seller's prior approval shall not exceed the sum of TWO
THOUSAND FIVE HUNDRED DOLLARS ($2,500).
14.2 INDEMNIFICATION BY PURCHASER. Purchaser agrees to indemnify and
hold harmless Seller from and against any and all losses, cost, damages, claims
and expenses (including reasonable attorneys' fees) which Seller may sustain at
any time by reason of (a) any debt, liability or obligation of Purchaser, (b)
any liability or obligation of any kind relating to the operations of the
Acquired Assets or Dealership after the Closing Date, or (c) the breach or
inaccuracy of or failure to comply with, or the existence of any facts resulting
in the inaccuracy of, any of the warranties, representations, covenants or
agreements of Purchaser contained in this Agreement or in any agreement or
document delivered pursuant hereto or in connection herewith or with the closing
of the transactions contemplated hereby.
14.3 DEFENSE. Any party who receives notice of a claim for which it
will seek indemnification shall promptly notify the indemnifying party in
writing of such claim. The indemnifying party shall have the right to assume
the defense of such action at its cost with counsel reasonably satisfactory to
the indemnified party. The indemnified party shall have the right to participate
in such defense with its own counsel at its cost.
15. SURVIVAL OF REPRESENTATIONS. The parties hereto each agree that all
representations, warranties and agreements contained herein shall survive the
execution and delivery of this Agreement, the closing hereunder and any
investigation made by any party hereto.
16. NO BROKER. Purchaser on the one hand, and Seller and Owners on the
other, represent to the other that no broker or finder has been connected with
the transactions contemplated by this Agreement. In the event of a claim by any
broker or finder based upon his representing or being retained by Seller or
Owners on the one hand, or by Purchaser on the other, Seller, Owners or
Purchaser, as the case may be, agrees to indemnify and save harmless the other
in respect of such claim.
17. USE OF THE NAME. Seller agrees that from and after the Closing Date,
Purchaser shall have the right to use the name "Poway Toyota" or any derivative
thereof or similar name in connection with the operation of the Dealership
acquired hereunder.
18. TERMINATION. If the Closing Date shall not have occurred on or prior
to May 2, 1997 or if Purchaser shall receive disapproval from the Franchiser
prior thereto, any party that is not in default in the performance of its
obligations under this Agreement may, thereafter, terminate this Agreement by
giving written notice to the other party.
19. NOTICES. All notices, requests or demands to a party hereunder shall
be in writing and shall be given or served upon the other party by personal
service, by certified return receipt requested or registered mail, postage
prepaid, or by Federal Express or other nationally recognized commercial
courier, charges prepaid, addressed as set forth below. Any such notice,
demand, request or other communication shall be deemed to have been given upon
the earlier of personal delivery thereof, three (3) business days after having
been mailed as provided above, or one (1) business day after delivery through a
commercial courier, as the case may be. Notices may be given by facsimile and
shall be effective upon the transmission of such facsimile notice provided that
the facsimile notice is transmitted on a business day and a copy of the
facsimile notice together with evidence of its successful transmission
indicating the date and time of transmission is sent on the day of transmission
by recognized overnight carrier for delivery on the immediately succeeding
business day. Each party shall be entitled to modify its address by notice
given in accordance with this Section 19.
To Purchaser: FirstAmerica Automotive, Inc.
c/o Kay & Merkle
100 The Embarcadero, Penthouse
San Francisco, CA 94105
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Fax No.: 415-512-9277
With a copy to: W. Bruce Bercovich
Kay & Merkle
100 The Embarcadero, Penthouse
San Francisco, CA 94105
Fax No.: 415-512-9277
To Seller: Auto Center of North County, Inc.
1810 Sommersville Road
Antioch, CA 94509
Fax No.: 510-778-7679
To Nokes: Thomas Nokes
1810 Sommersville Road
Antioch CA 94509
Fax No.: 510-778-7679
To Travis: H. Matthew Travis
13760 Poway Road
Poway, CA 92064
Fax No.: 619-486-6322
With a copy to: Robert G. Allen, Esq.
Knox Ricksen
1999 Harrison Street, Suite 1700
Oakland, CA 94612
FX: 510-446-1946
20. MISCELLANEOUS.
20.1 ENTIRE AGREEMENT. This Agreement, including the exhibits and
schedules hereto, sets forth the entire agreement and understanding between the
parties as to the subject matter hereof and merges and supersedes all prior
discussions, agreements and understandings of every kind and nature between them
and no party hereto shall be bound by any condition, definition, warranty or
representation other than as expressly provided for in this Agreement or as may
be on a date subsequent to the date hereof duly set forth in writing signed by
the party hereto which is to be bound thereby. This Agreement shall not be
changed, modified or amended except by a writing signed by the party to be
charged and this Agreement may not be discharged except by performance in
accordance with its terms or by a writing signed by the party to be charged.
20.2 GOVERNING LAW. This Agreement and its validity, construction
and performance shall be governed in all respects by the laws of the State of
California, without giving effect to principles of conflict of laws.
20.3 SEVERABILITY. If any provision of this Agreement or the
application of any provision hereof to any person or circumstance is held
invalid, the remainder of this Agreement and the application of such provision
to other persons or circumstances shall not be affected unless the provision
held invalid shall substantially impair the benefits of the remaining portions
of this Agreement.
20.4 BENEFIT OF PARTIES. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
heirs, legal representatives and assigns.
20.5 NECESSARY DOCUMENTS. Each of the parties does hereby agree to do
any act and to execute
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any other or further documents necessary or convenient to the carrying out of
the provisions of this Agreement.
20.6 HEADINGS. The headings in the sections of this Agreement are
inserted for convenience of reference only and shall not constitute a part
hereof.
20.7 ATTORNEYS' FEES. In the event that any action or proceeding is
brought to enforce or interpret any provision, covenant or condition contained
in this Agreement on the part of Purchaser, Seller or Owners, the prevailing
party in such action or proceeding (whether after trial or appeal) shall be
entitled to recover from the party not prevailing its expenses therein,
including reasonable attorneys' fees and allowable costs.
20.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. This
Agreement shall become effective upon the execution of a counterpart hereof by
each of the parties hereto.
21. LIQUIDATED DAMAGES. If Purchaser breaches this Agreement, and the
transaction contemplated by this Agreement fails to close solely by reason
thereof, Seller shall be entitled to terminate this Agreement and retain the
amount of the Deposit plus any accrued interest thereon (the "Specified Sum") as
liquidated damages. SELLER AND PURCHASER ACKNOWLEDGE THAT SELLER'S DAMAGES
WOULD BE DIFFICULT TO DETERMINE, AND THAT THE SPECIFIED SUM IS A REASONABLE
ESTIMATE OF SELLER'S DAMAGES. SELLER AND PURCHASER FURTHER AGREE THAT THIS
SECTION IS INTENDED TO AND DOES LIQUIDATE THE AMOUNT OF DAMAGES DUE SELLER, AND
SHALL BE SELLER'S EXCLUSIVE REMEDY AGAINST PURCHASER, BOTH A LAW AND IN EQUITY
ARISING FROM OR RELATED TO A BREACH BY PURCHASER OF ITS OBLIGATIONS TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
____________________ _____________________
Purchaser's Initials Seller's Initials
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
PURCHASER: SELLER:
FirstAmerica Automotive, Inc., Auto Center of North County, Inc.
a Nevada corporation a California corporation
By: /s/ Thomas A. Price By: /s/ Thomas Nokes
--------------------------- _________________________________
Thomas Nokes, President
OWNERS:
/s/ Thomas Nokes
_______________________________________
Thomas Nokes
/s/ H. Matthew Travis
_______________________________________
H. Matthew Travis
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