EXHIBIT 2.1.8
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made and entered this 19th day of
March 1997, by and among FirstAmerica Automotive, Inc., a Nevada corporation
or nominee ("Purchaser") and Asian Pacific Industries, Inc., a Washington
corporation ("Seller").
R E C I T A L S
WHEREAS, Seller owns and operates a Nissan, Volkswagen, and Dodge
automobile dealership (the "Dealership") commonly known as Valley Auto Center,
located at 6015 Scarlett Court, Dublin, California 94568 (the "Premises").
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 connection with the Dealership.
NOW, THEREFORE, in recognition of the foregoing representations, and in
consideration of the covenants set forth herein, the parties hereto agree as
follows:
A G R E E M E N T
1. DEFINITIONS. The capitalized terms as used in this Agreement shall
be defined as hereinafter set forth in this Section 1, or as otherwise provided
in this Agreement.
1.1 ACQUIRED ASSETS. The term "Acquired Assets" shall be defined as
all of the assets and property to be acquired by Purchaser hereunder, as
described in Section 2.1 hereof.
1.2 CLOSING. The term "Closing" shall be defined as the consummation
of all of the transactions provided for in this Agreement, including the
exchange of the Acquired Assets for the consideration provided for herein. The
Closing shall occur at the offices of Kay & Merkle, 100 The Embarcadero,
Penthouse, San Francisco, California, on the Closing Date commencing at 10:00
a.m.
1.3 CLOSING DATE. The "Closing Date" shall be defined as the date
which falls 5 business days following the earliest date on which the conditions
specified in Sections 7 and 8 hereof are satisfied; subject, however, to the
provisions of Section 18 below.
1.4 FRANCHISES. The term "Franchises" shall be defined as the
Nissan, Volkswagen, and Dodge franchises currently held by Seller. The term
"Franchise" shall refer to any one of the Franchises.
1.5 FRANCHISERS. The term "Franchisers" shall be defined as Nissan
Motor Corporation USA, Chrysler Corporation, and Volkswagen of America. The
term "Franchiser" shall refer to any one of the Franchisers.
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1.6 OBSOLETE PARTS. The term "Obsolete Parts" shall be defined as
all (i) 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),
(ii) parts which are not returnable to the manufacturer (as defined by the
Franchiser), (iii) parts which have been in stock more than one (1) year and/or
parts which are in excess of a one (1) year supply, (iv) parts indicated as
discontinued, and (v) parts which are broken or damaged, regardless of whether
listed in the most current manufacturer's wholesale price book.
2. PURCHASE AND SALE OF ASSETS.
2.1 ACQUIRED ASSETS. The assets subject to this Agreement shall
consist of all the assets other than that property subject to the lease
contemplated under Schedule 11 related to or used in connection with the
Franchises, including but not limited to those assets to be listed on Schedule
2.1 to be prepared prior to the Closing Date and attached hereto, Nissan,
Volkswagen, and Dodge special tools, furniture, fixtures and equipment, which
special tools, furniture, fixtures and equipment shall be in good working order,
leasehold improvements used by Seller in operation of the Nissan, Volkswagen,
and Dodge 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) and
excess non-factory parts in accordance with Section 3.2(e)), tires,
work-in-progress, advertising literature, forms, supplies, customer files and
data bases, parts return privileges from the Franchisers, rights under new car
purchase orders and deposits relating thereto, goodwill, Seller's customer
files, books and records relating to the Acquired Assets, telephone number of
Seller, the names "Valley Auto Center," "Valley Dodge," "Valley Nissan," and
"Valley Volkswagen" or any derivative thereof, the right of occupancy of the
Premises and all contracts, agreements or commitments which are attached hereto
as Schedule 2.1. The parties agree that Schedule 2.1 shall be prepared in
conjunction with the physical inventory described in Section 3.2(h) hereinbelow.
2.2 PURCHASE. Seller hereby agrees to sell, convey, transfer, assign
and deliver to Purchaser, and Purchaser hereby agrees to purchase and acquire,
on the Closing Date, all of the Acquired Assets. Any assets which are not
Acquired Assets, shall be retained by Seller.
3. CONSIDERATION FOR ACQUIRED ASSETS.
3.1 PURCHASE PRICE. Subject to the terms and conditions of this
Agreement, the purchase price to be paid by Purchaser for the Acquired Assets
shall be that amount which is equal to the aggregate value of the Acquired
Assets as of the Closing Date determined in accordance with Section 3.2.
3.2 VALUATION OF ACQUIRED ASSETS. Those Acquired Assets which are
listed below shall be valued as provided below in this Section 3.2.
(a) The price for each 1997 new unregistered and undamaged Nissan,
Volkswagen, and Dodge model vehicle with not more than five hundred (500) miles
shall be the sum of the following:
(i) The wholesale cost of each such vehicle determined in
accordance with the factory invoice, including advertising charges; plus
(ii) The wholesale cost of all optional parts and accessories
installed in such vehicle plus the cost of labor (determined at the internal
rate pursuant to the standard factory formula) for
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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 such vehicle.
(b) The price for each 1997 unregistered and undamaged Nissan,
Volkswagen, and Dodge demonstrator vehicle with not more than three thousand
(3,000) miles which is purchased hereunder shall be the value determined in
accordance with subsections (a)(i) through (a)(iii) hereinabove, less five
percent (5%) of such value.
(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, Volkswagen, and
Dodge 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, and removed by Seller from
the Premises not later than ten (10) days following the Closing Date.
(e) All non-factory parts, accessories and miscellaneous inventory
which are in the possession of Seller as of the Closing Date, shall be valued at
dealer cost, provided, however, that Purchaser shall have no obligation to
purchase in excess of TWENTY THOUSAND DOLLARS ($20,000) of such items.
(f) All work-in-progress shall be valued at cost.
(g) All furniture, fixtures, equipment, leasehold improvements and
special tools shall be valued at NINE HUNDRED FIFTY THOUSAND DOLLARS ($950,000)
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 execution of this
Agreement and the Closing Date, the value of said item damaged, destroyed or
removed from the Dealership shall be credited against the Purchase Price.
(h) 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. In the event either party disputes the
accuracy of the physical inventory or the valuation of the assets or if for any
reason Schedule 2.1 is not prepared before Closing so as to meet with the
approval of both parties as is contemplated in Section 2.1, such dispute will be
submitted to binding arbitration in accordance with Section 20 hereof.
Notwithstanding the pendency of such dispute or arbitration proceeding, the
transaction shall nonetheless proceed to Closing as to all
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other matters.
3.3 PAYMENT OF PURCHASE PRICE. The purchase price shall be paid as
follows:
(a) The Purchaser shall pay to Seller in cash the sum equal to the
value of the Acquired Assets as determined pursuant to Section 3.2 above.
(b) The Purchaser shall further deliver to Seller a certificate
evidencing 290,000 fully paid and non-assessable shares of capital stock of
FirstAmerica Automotive, Inc. which shares the parties hereto agree shall have a
value of TWO MILLION DOLLARS ($2,000,000).
3.4 CLOSING AND POST-CLOSING ADJUSTMENTS. All expenses of a nature
which are customarily subject to proration in a transaction involving the
purchase and sale of assets of an ongoing business 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 the number
of such days subsequent to the Closing Date. Those items subject to proration
hereunder shall include, without limitation, rent and all other amounts payable
with respect to any lease for the Premises, employee compensation, personal
property taxes, and customer prepayments. The aggregate amount of any
adjustment shall be determined and paid as of the Closing Date. Any additional
proration determined after the Closing Date to be paid by either party 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 other than those liabilities which
Purchaser specifically agrees to assume all of which shall be set forth on
Schedule 3.5 attached hereto, including without limitation all contracts,
agreements and commitments of Seller, which Purchaser agrees to assume.
Purchaser shall be responsible solely for that portion of any such obligations,
which first accrue on or subsequent to the Closing Date. Purchaser shall have
no obligation with respect to any liability arising under any such contract,
agreement or commitment prior to the Closing Date, all of which liability shall
remain the responsibility of Seller. 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. Seller hereby represents,
warrants and agrees 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 Washington 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
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encumbrances whatsoever, other than as set forth on Schedule 4.2 attached
hereto. Except as set forth in Schedule 4.2, all of the tangible Acquired Assets
are in good working order and condition, ordinary wear and tear excepted.
4.3 AUTHORIZATION. The execution and delivery of this Agreement
and each other document, agreement and instrument contemplated hereby, and the
consummation of 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 each other document, agreement and instrument contemplated
hereby, and the consummation of the transactions contemplated hereby, have also
been taken. Except for consent of the Franchisers, 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 the valid and binding obligation of Seller enforceable in accordance
with its terms. Except as to the terms of the Franchise, leases 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 is a party, under which it is obligated or to which any of the
Acquired Assets are subject, (b) do not violate any judgment, order, statute,
rule or regulation to which Seller 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 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, 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, Seller is not in default with respect to any
order, writ, injunction, or decree of any federal, state, or local court. To the
best knowledge of Seller, use of the names "Valley Auto Center," "Valley Dodge,"
"Valley Nissan," and "Valley Volkswagen" by Seller do not infringe upon the
rights of any other person and Seller is not aware of any claim of any nature to
the effect that any person other than Seller holds any rights with respect to
such names.
4.6 DEFAULTS. Seller is not in default, and no event has occurred
which, with the passage of time will constitute a default, with respect to any
obligation or liability to be assumed by Purchaser hereunder, which are listed
on Schedule 3.5 attached hereto. To the best knowledge of Seller, no other party
to any obligation or liability set forth in Schedule 3.5 is in default with
respect to any provision thereof.
4.7 ENVIRONMENTAL COMPLIANCE NOTICES. Seller has received no written
notice advising Seller of any defects, defaults or non-compliance in connection
with the Acquired Assets or the Premises from any governmental agency dealing
with environmental laws, except notices which have been previously complied with
or waived by the governmental agency.
4.8 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.
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4.9 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 as of the date specified therein.
4.10 PURPOSE OF SHARE ACQUISITION. Seller is acquiring the capital
stock of FirstAmerica Automotive, Inc. for its own account, solely for
investment and not with a view to or for sale in connection with any
distribution of such capital stock.
4.11 ACCREDITED INVESTORS. Seller is an accredited investor for
purposes of Regulation D in that Seller is a corporation all of its outstanding
stock of which is owned by accredited investors. Further, Seller has such
knowledge and experience in financial and business matters that Seller is
capable of evaluating the merits and risks of investment in the capital stock of
FirstAmerica Automotive, Inc. and Seller is able to bear the economic risk of an
investment in such capital stock.
4.12 ACKNOWLEDGMENT. Seller acknowledges that no person has made any
representation regarding the value or potential future profit of FirstAmerica
Automotive, Inc., and that any investment in the capital stock of FirstAmerica,
Inc. involves high risks. Seller further acknowledges that the capital stock of
FirstAmerica Automotive, Inc. is subject to restrictions imposed on the
transferability thereof under the Securities Act of 1933, and may not be resold,
transferred or assigned except in compliance with such Act and any applicable
state securities laws. Seller acknowledges that a legend to the foregoing effect
may be placed upon any and all certificates representing such shares.
4.13 FRANCHISE NOTICES. Seller has received no written notice from
Nissan Motor Corporation USA, Volkswagen of America, or Chrysler Corporation
regarding any appointment of new Nissan, Volkswagen or Dodge dealerships within
a twenty (20) mile radius of the Dealership within the six months immediately
prior to the date of this Agreement.
4.14 UNIONS. Except as set forth on Schedule 4.14 as attached hereto,
Seller is not a party to any arrangement with any union, and no employees of the
Seller are represented by any labor union or covered by any collective
bargaining agreement or, to the knowledge of Seller, is any effort to establish
such representation in progress.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents,
warrants and agrees with Seller 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
duly qualified to transact business in 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.
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5.2 AUTHORIZATION. The execution and delivery of this Agreement and
the consummation of 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 Franchisers, landlords under leases, 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.
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 Franchisers 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 use its 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. Notwithstanding
the above, the parties acknowledge and agree that in the event Purchaser has
actual notice of any breach of a warranty prior to the Closing, Purchaser shall
have the right to terminate this Agreement provided however in the event
Purchaser continues to close the transaction Seller shall not be liable for such
breach of warranty discovered by Purchaser prior to the Closing.
7. CONDITIONS TO PURCHASER'S OBLIGATIONS TO CLOSE. The obligations of
Purchaser under this Agreement are subject to fulfillment of the conditions set
forth below. Purchaser shall have the right to waive in
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writing all or part of any one or more of the following conditions without
releasing Seller from any liability for any loss or damage sustained by
Purchaser by reason of the breach by Seller or Owner of any covenant, obligation
or agreement contained herein, or by reason of any misrepresentation made by
Seller and upon such waiver may proceed with the transactions contemplated by
this Agreement. Notwithstanding the above, the parties acknowledge and agree
that in the event Purchaser has actual notice of any breach of a warranty prior
to the Closing, Purchaser shall have the right to terminate this Agreement
provided however in the event Purchaser continues to close the transaction
Seller shall not be liable for such breach of warranty discovered by Purchaser
prior to the Closing.
7.1 AGREEMENTS AND CONDITIONS. On or before the Closing Date, Seller
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 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 is likely to result in a
substantial and 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
each Franchiser designating Purchaser or its designee as the duly authorized
dealer for the sales and service of such Franchiser's automobiles at 6015
Scarlett Court, Dublin, CA 94568 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 DUE DILIGENCE. Purchaser shall for a period of thirty (30) 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 thirty
(30) 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 thirty (30) 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 thirty (30) day period
after the execution of this
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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 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 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.
7.11 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.
7.12 LEASE OF REAL PROPERTY. The owner of the real property commonly
known as 6015 Scarlett Court, Dublin California and Purchaser shall have
executed a lease containing, among other things, substantially the terms and
conditions contemplated under Section 11 hereof.
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. Notwithstanding
the above, the parties acknowledge and agree that in the event Seller has actual
notice of any breach of a warranty prior to the Closing, Seller shall have the
right to terminate this Agreement provided however in the event Seller continues
to close the transaction Purchaser shall not be liable for such breach of
warranty discovered by Seller prior to the Closing.
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.
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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 LEASE OF REAL PROPERTY. The owner of the real property commonly
known as 6015 Scarlett Court, Dublin California and Purchaser shall have
executed a lease containing, among other things, substantially the terms and
conditions contemplated under Section 11 hereof.
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 Franchisers.
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
3.3 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. LEASES. The owner of the real property commonly known as 6015
Scarlett Court, Dublin,
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California 94568 and Purchaser shall have entered into a lease for said real
property. The lease shall provide for an initial monthly rent of SIXTY THOUSAND
DOLLARS ($60,000) per month. Commencing at the beginning of the eighth year the
rent shall increase by 50% of any increase in the Consumer Price Index during
the first seven years of the lease, subject to the limitation that the increase
in the monthly rent shall not exceed 20% of the initial monthly rent. Such rent
shall be fixed for the balance of the initial term of the lease. The lease shall
provide for an initial term of ten years, with two five year options. The
monthly rent on commencement of each option period shall be equal to the monthly
rent payable immediately prior to the commencement of such option, increased by
that proportion equal to 50% of any increase in the Consumer Price Index which
has occurred since the then most recent and prior increase in monthly rent,
provided that any increase in monthly rent hereunder shall be not greater than
3% per annum.
The lease shall be a triple net lease. Notwithstanding the foregoing,
landlord under such lease shall be responsible for the structural portions of
the buildings located on the property subject to such lease, including the roof,
sidewalls and foundation. Further, such lease shall specify that the landlord
thereof shall indemnify and defend tenant from any and all liabilities relating
to hazardous materials located in or about the premises prior to the
commencement of the term of the lease. The lease shall be in the form attached
hereto as Schedule 11.
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 such notices as may be 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.
14. INDEMNIFICATION.
14.1 INDEMNIFICATION BY SELLER. Seller agrees 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 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
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Closing Date in or around the Premises including without limitation any such
related to the underground storage tanks, 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 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 repairs for any one automobile without Seller's prior approval shall
not exceed the sum of ONE THOUSAND DOLLARS ($1,000). The total amount to be paid
by Seller without Seller's prior approval shall not exceed FIVE THOUSAND DOLLARS
($5,000). Notwithstanding the above, Seller's liability hereunder shall be equal
to the amount of the value of the consideration received by Seller in this
transaction. Further the obligations of Seller as provided for herein shall be
limited to a period of three (3) years from the Closing.
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 on or 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.
16. NO BROKER. Purchaser on the one hand, and Seller 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 on the
one hand, or by Purchaser on the other, Seller 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 names "Valley Auto Center," "Valley
Dodge," "Valley Nissan," and "Valley Volkswagen" or any derivative thereof or
similar name in connection with the operation of the Dealership acquired
hereunder, and that Seller shall not subsequent to the Closing, use such names.
18. TERMINATION. If the Closing Date shall not have occurred on or prior
to June 30, 1997 or if Purchaser shall receive disapproval from the Franchisers
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.
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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
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: Asian Pacific Industries, Inc.
901 Van Ness Avenue
San Francisco, CA 94109
Attn: Bruce Qvale
Fax No.: 415-776-9826
20. DISPUTE RESOLUTION. Any controversy or claim arising out of relating
to this Agreement or the breach thereof shall be settled by arbitration
conducted in San Francisco, CA, by a single arbitrator selected by the San
Francisco office of the American Arbitration Association ("AAA") conducted in
accordance with the Commercial Rules of the AAA. Judgement on the award rendered
by the arbitrator may be entered in any court having jurisdiction.
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
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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 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. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
heirs, legal representatives and assigns.
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, 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.
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., Asian Pacific Industries, Inc.
a Nevada corporation a Washington corporation
By: /s/ Thomas A. Price By: /s/ Bruce Qvale
_________________________________ _________________________________
Thomas A. Price, President Bruce Qvale, Vice President
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LIST OF SCHEDULES
SCHEDULE 2.1 Acquired Assets
SCHEDULE 3.5 Liabilities
SCHEDULE 3.7 Allocation of Purchase Price
SCHEDULE 4.2 Title to Assets; Liens and Encumbrances
SCHEDULE 4.5 Litigation
SCHEDULE 4.14 Unions
SCHEDULE 11 Lease