EXHIBIT 2.1.6
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT dated as of this 14th day of March 1997, by
and among FAA Concord N, Inc. a California corporation or Nominee
("Purchaser") and Concord Nissan, Inc., a California corporation d/b/a Concord
Nissan, ("Seller") and Steven Hallock, ("Hallock").
R E C I T A L S
WHEREAS, Seller owns and operates a Nissan automobile dealership commonly
known as Concord Nissan at 1290 Concord Avenue, Concord, California 94520 (the
"Dealership").
WHEREAS, Hallock owns the majority 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 Nissan automobile dealership located in Concord,
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 following 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" means five days after the date on which 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 Kay & Merkle, 100 The Embarcadero, San Francisco, California 94105,
on the Closing Date commencing at 10:00 a.m.
1.3 FRANCHISE. "Franchise" means the Nissan franchises as currently
held by Seller.
1.4 FRANCHISER. "Franchiser" means Nissan Motor Corporation.
1.5 OBSOLETE PARTS. "Obsolete Parts" means factory parts which are
not listed in the most current manufacturers' wholesale price book or, if listed
therein, are valued at Zero Dollars ($0), parts which have been in stock 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 manufacturers' 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 the Franchise and all rights thereunder and
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, Nissan 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 Nissan 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 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 current and prior model year new
unregistered and undamaged Nissan model vehicles with not more than three
hundred (300) miles purchased hereunder 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; plus
(iii) The cost of pre-delivery expense actually performed
related to specific automobiles transferred at closing, but only to the extent
that such pre-delivery expense was not previously reimbursed to Seller, in which
event the right to such expense reimbursement shall be assigned to Purchaser at
the closing; LESS
(iv) 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,
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model changes and similar distributor's allowances related to specific
automobiles transferred on the Closing Date.
(b) The price for all current model year unregistered Nissan
demonstrator vehicles with not more than three thousand (3,000) miles purchased
hereunder shall be valued in accordance with (a)(i) through (a)(iv) hereinabove
less 5%.
(c) All vehicles not described in subsections (a) and (b) above
which are to be purchased hereunder shall be valued at a price mutually agreed
upon by Seller and Purchaser; provided, however, that if Seller and Purchaser
are unable to agree on a price with respect to any individual vehicle prior to
the Closing Date, then such vehicle shall be excluded from the Acquired Assets
and not purchased hereunder.
(d) All new undamaged returnable genuine Nissan factory parts
and accessories 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.
(e) All non-factory parts, accessories and miscellaneous
inventory shall be valued at cost.
(f) All work-in-progress shall be valued at cost.
(g) All furniture, fixtures, equipment, special tools, and
service vehicles shall be valued by appraisal. Said appraisal shall be conducted
by an appraisal company mutually agreed upon by Purchaser and Seller; provided,
however, that in the event that any item of furniture, fixtures, equipment, or
special tools is materially damaged, destroyed or removed from the Dealership
between the date of the appraisal provided for herein and the Closing Date, the
value of said item damaged, destroyed or removed from the Dealership shall be
credited against the Purchase Price.
(h) In consideration for all other assets described in Section
2.1 hereinabove and goodwill Purchase shall pay to Seller the sum of Four
Hundred Seventy Five Thousand Dollars ($475,000).
(i) 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, parts, accessories, and work-in-progress and
miscellaneous inventory 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.
3.3 PAYMENT OF PURCHASE PRICE. The purchase price to be paid by
Purchaser pursuant to this Agreement 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, 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
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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 under this
Section 3.4 shall be paid by certified 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 as set forth on Schedule 3.5 attached hereto 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.
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 HALLOCK. Seller and
Hallock 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 Hallock enforceable in accordance
with its terms. Except pursuant to the Franchise 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
Hallock 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, Hallock 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 Hallock 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.
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4.5 LITIGATION. Except as set forth on Schedule 4.5 attached hereto,
there is not pending, or, 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 Hallock, Seller is not in default with respect
to any order, writ, injunction, or decree of any federal, state, local, or
foreign court, department or instrumentality.
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 1993 and 1994 ("Dealer
Financial Statements"). The Dealer Financial Statements have been prepared in
accordance with past practices of Seller and are true and correct in all
material respects.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents,
warrants and agrees with Seller and Hallock 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 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.
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 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 shall not take any action or fail to
take any action which will make any of its representations and warranties not
true and correct in all material respects on the Closing Date. Seller and
Hallock 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.
6.4 ENVIRONMENTAL ASSESSMENT. During the thirty (30) day period after
the execution of this Agreement (the "Testing Period"), Buyer may conduct an
environmental assessment (the "Environmental Assessment") of the real property
at the Dealership (the "Real Property"). Expenses of any environmental
consultant engaged by Buyer to conduct the Environmental Assessment shall be
paid by Buyer. Buyer may terminate all of its obligations under this Agreement
by written notice to Seller on or before the expiration of the Testing Period,
if Buyer 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 6.4 is deemed to constitute a waiver of Buyer's right to
terminate this Agreement under this Section 6.4.
6.5 HYDRAULIC HOISTS. At Purchaser's request, Seller agrees that
Seller shall remove all of the hydraulic hoists located in and about the Real
Property prior to the Closing. Such work shall be done by a contractor approved
by Purchaser and such work shall be approved by Purchaser. Seller further agrees
to replace underground hydraulic hoists with above ground hoists as reasonably
selected by Purchaser and Seller. All such removal and installation of new
hoists shall be done at the sole cost and expense of Seller. Buyer shall
reimburse Seller at the Closing the cost of such removal up to the sum of Five
Thousand Dollars ($5,000.00).
7. CONDITIONS OF 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 Hallock
from any liability for any loss or damage sustained by Purchaser by reason of
the breach by Seller or Hallock of any covenant, obligation or agreement
contained herein, or by reason of any misrepresentation made by Seller or
Hallock 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 Hallock shall have complied with and duly performed in all material respects
all agreements and conditions on its
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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 Hallock 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 1290 Concord
Avenue, Concord, California 94520, free of any material condition which is
adverse to 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 FINANCING. Purchaser shall have received floor plan financing and
capitalization financing as reasonably required by Purchaser.
7.7 ASSIGNMENT OF LEASE. Purchaser shall have received an assignment
of the leased property commonly known as 1290 Concord Avenue, Concord,
California 94520 together with Lessor's consent as provided for in Section 11
hereinbelow.
7.8 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.
7.9 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.
7.10 TELEPHONE CHARGES. Seller shall have obtained from its telephone
company a statement that all sums billed before the Closing Date have been paid
(Purchaser shall withhold from the Purchase Price, the estimated amount of the
maximum unbilled liability of Seller from said telephone company for all
services rendered before said date, less the pro rata amount of any billings
paid by Seller for services to be rendered after the Closing Date).
7.11 LIST OF EMPLOYEES. Seller shall furnish to Purchaser a list of
all employees, their
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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.
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.
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 ASSIGNMENT OF LEASE. The assignment of the lease as for the
property required in accordance with Section 11 hereinbelow.
9.5 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
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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:
10.1 CONSIDERATION. The amounts to be delivered pursuant to Section
3.2 and 13.4 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 Hallock, as of the Closing, shall assign to
Purchaser the Lease Agreement for the property commonly known as 1290 Concord
Avenue, Concord, California 94520, which assignment shall include an
indemnification of Purchaser from any and all liability related to any toxic
materials brought on or about the premises prior to the Closing Date
("Assignment of Lease"). Said Lease shall be for a term ending June 30, 2014.
The rent shall be the sum of $35,000 per month triple net during the term of the
Lease. Such Lease shall contain an option to purchase said property at the fair
market value at the time of the exercise of the option. Such option may be
exercised at anytime during the term of the Lease after September 30, 2003. Such
consent shall be in a form and substance reasonably satisfactory to Purchaser
and its counsel.
12. ESCROW. The parties, upon execution of this Agreement shall open an
escrow with a mutually agreeable escrow company, ("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 fifty
percent 50% by Purchaser and 50% 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.
14. INDEMNIFICATION.
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14.1 INDEMNIFICATION BY SELLER AND HALLOCK. Seller and Hallock 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 Hallock 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 except related to the underground
hoists, (d) non-compliance with any applicable bulk sale laws or (e) 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 Hallock 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 are an obligation of
Seller provided that the total of all such repairs without Seller's prior
approval shall not exceed the sum of One Thousand Dollars ($1,000).
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)
all liability related to the presence of toxic materials as a result of
underground hoists discovered prior to or after the closing date as provided for
herein, provided that the transaction actually closes, (c) any liability or
obligation of any kind relating to the operations of the Acquired Assets or
Dealership after the Closing Date, 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 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 Hallock 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
Hallock on the one hand, or by Purchaser on the other, Seller, Hallock 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. Purchaser agrees that from and after the Closing
Date, Purchaser shall have the right to use the name "Concord Nissan" 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 within 135
days of the date of execution of this Agreement, 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,
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terminate this Agreement by giving written notice to the other party.
19. TELEPHONE/COMPUTER SYSTEMS. Purchaser shall purchase from H.G.
Automotive Systems, Inc., a California corporation and an affiliate of Seller
the telephone system and computer system currently used in the operation of the
Dealership, which equipment is listed on Schedule 19 attached hereto and
incorporated herein by this reference. The purchase price shall be the sum of
Thirty Thousand Dollars ($30,000) and shall be payable in cash simultaneously
with the Closing.
20. NOTICES. All notices, requests, demands and other communications
provided for by this Agreement shall be in writing and (unless otherwise
specifically provided herein) shall be deemed to have been given upon
transmission by telecopy (with receipt confirmed), upon hand delivery or
delivery by air freight or courier service, or three (3) days after the time
when mailed in any general or branch United States Post Office, enclosed in a
registered or certified postage-paid envelope, addressed to the address of the
parties stated below or to such changed address as such party may have fixed by
notice:
To Purchaser: FAA Concord N, Inc.
1300 Concord Avenue
Concord, CA 94563
With a copy to: W. Bruce Bercovich
Kay & Merkle
100 The Embarcadero, Penthouse
San Francisco, CA 94015
To Seller: Concord Nissan, Inc.
1290 Concord Avenue
Concord, CA
To Hallock: Steven S. Hallock
1290 Concord Avenue
Concord, CA
provided, however, that any notice of change of address shall be effective only
upon receipt.
21. MISCELLANEOUS.
21.1 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.
21.2 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.
21.3 SEVERABILITY. If any provision of this Agreement or the
application of any
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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.
21.4 BENEFIT OF PARTIES, ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors, heirs, legal representatives and assigns. This Agreement may not be
assigned by any party hereto, except with the prior written consent of the other
parties hereto.
21.5 NECESSARY DOCUMENTS. Each of the parties does hereby agree to do
any act and to execute any other or further documents necessary or convenient to
the carrying out of the provisions of this Agreement.
21.6 HEADINGS. The headings in the sections of this Agreement are
inserted for convenience of reference only and shall not constitute a part
hereof.
21.7 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 Hallock, 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.
21.8 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
PURCHASER: SELLER:
FAA CONCORD N, INC. CONCORD NISSAN, INC., A CALIFORNIA
A CALIFORNIA CORPORATION CORPORATION
By: /s/ Thomas A. Price By: /s/ Steven Hallock
________________________ ________________________
Thomas A. Price, President Steven Hallock, President
HALLOCK:
/s/ Steven Hallock
____________________________
Steven Hallock
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SCHEDULE 2.1
ACQUIRED ASSETS
SCHEDULE 3.5
LIABILITIES
SCHEDULE 3.7
ALLOCATION OF PURCHASE PRICE
SCHEDULE 4.5
LITIGATION
SCHEDULE 19
TELEPHONE/COMPUTER SYSTEMS EQUIPMENT