AMENDMENT NO. 1
AND
SUPPLEMENT
TO
ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 AND SUPPLEMENT TO ASSET PURCHASE AGREEMENT (this
"AMENDMENT") is made and entered into as of this 16th day of September, 1998, by
and among SONIC AUTOMOTIVE, INC., a Delaware corporation (the "BUYER"), and HMC
FINANCE CORPORATION, INC., a Florida corporation ("HMC"), HALIFAX FORD-MERCURY,
INC., a Florida corporation ("HALIFAX"), HIGGINBOTHAM AUTOMOBILES, INC., a
Florida corporation ("HAI"), HIGGINBOTHAM CHEVROLET-OLDSMOBILE, INC., a Florida
corporation ("HCO"), and SUNRISE AUTO WORLD, INC., a Florida corporation
("SUNRISE" and, together with HMC, HALIFAX, HAI, and HCO, collectively, the
"SELLERS" and each, individually, a "SELLER"), and DENNIS D. HIGGINBOTHAM (the
"STOCKHOLDER").
WITNESSETH:
WHEREAS, the parties hereto have entered into the Asset Purchase Agreement
dated as of July 7, 1998 (the "ASSET PURCHASE AGREEMENT"); capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned to
them in the Asset Purchase Agreement;
WHEREAS, the parties hereto wish to amend and supplement the Asset
Purchase Agreement as hereinafter provided;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the receipt and legal sufficiency of which are hereby
acknowledged. and intending to be legally bound, the parties hereto hereby agree
as follows:
1. Schedules; Issuance of Preferred Stock. All of the Schedules to the
Asset Purchase Agreement (including a revised Index thereof) have been agreed to
by the parties and are attached to this Amendment. Such Schedules include a new
Schedule 3.5 - Used Vehicles, and a new Schedule 5.5 - Prepaid Expenses and
Deposits. All shares of Preferred Stock shall be issued to Dennis D.
Higginbotham, as trustee; accordingly, Part III of Schedule 2.2 is hereby
deleted. Such shares of Preferred Stock shall be issued by the Buyer on
September 18, 1998 unless otherwise mutually agreed in writing by the Buyer and
Dennis D. Higginbotham prior to September 18, 1998.
2. Assumption of Certain Floor Planning Indebtedness: Reduction of New
Vehicle Purchase Price. The parties acknowledge and agree that, notwithstanding
the disclosure of any Retained Liabilities in the Schedules, the Buyer is not
assuming any Retained Liabilities including, without limitation, all liabilities
or obligations of the Sellers under lines of credit,
long and short term indebtedness; provided, however, the parties agree that the
"Liabilities" do include all "floor planning" indebtedness outstanding to
NationsBank and Ford Motor Credit as of the Closing ("INDEBTEDNESS").
Accordingly, the New Vehicle Purchase Price shall be reduced by the amount of
the Indebtedness. At the Closing, the Sellers' Agent will deliver estoppel
and/or payoff letters from Ford Motor Credit and NationsBank and the Buyer shall
assume the Indebtedness and be obligated to pay the Indebtedness in accordance
with its respective terms.
3. Real Property Purchase Agreements. The parties hereby waive the
respective conditions to the Closing set forth in Sections 8.14 and 9.7 of the
Asset Purchase Agreement; provided, however, such waiver shall not be construed
as a waiver of the respective rights and obligations of the parties under the
Real Property Purchase Agreements. Contemporaneously herewith, the Buyer and the
Owners are entering into a lease or leases of the Real Property pending the
closings under the Real Property Purchase Agreements. The Sellers and the
Stockholder acknowledge that the Buyer may assign the Real Property Purchase
Agreements to Mar Mar Realty Trust, or an affiliate thereof, it being understood
that such assignment shall not relieve the Buyer of its obligations under the
Real Property Purchase Agreements.
4. Amendments. The definition of "CLOSING DATE" in Article I of the Asset
Purchase Agreement is hereby amended to be the date of this Amendment.
5. Release from Personal Guarantees. The Buyer shall use its best
reasonable efforts to obtain the release of Dennis D. Higginbotham from his
personal guarantees of those Liabilities specified in Schedule 9.12 to the Asset
Purchase Agreement, as well as any such personal guarantees of the Indebtedness.
If necessary in order to obtain such release of any particular personal
guaranty, the Buyer shall substitute a guaranty by the Buyer of the Liability in
question. Pending such release of Dennis D. Higginbotham, the Buyer will
indemnify and hold harmless Dennis D. Higginbotham from and against all
Liabilities (including the Indebtedness) personally guaranteed by him.
6. Asset Purchase Agreement Confirmed. Except as provided in this
Amendment, the Asset Purchase Agreement is hereby confirmed, as amended hereby,
and shall continue in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day, month and year first above written.
THE BUYER: SONIC AUTOMOTIVE, INC.
By: /s/ Theodore M. Wright
---------------------------------------
Name: Theodore M. Wright
Title: Vice President
Federal Taxpayer I.D.: 51-0363307
THE SELLERS: HMC FINANCE CORPORATION, INC.
By: /s/ Dennis D. Higginbotham
-----------------------------------------
Name: Dennis D. Higginbotham
Title: President
Federal Taxpayer I.D.: 59-3095116
HALIFAX FORD-MERCURY, INC.
By: /s/ Dennis D. Higginbotham
-----------------------------------------
Name: Dennis D. Higginbotham
Title: President
Federal Taxpayer I.D.: 59-2806650
HIGGINBOTHAM AUTOMOBILES, INC.
By: /s/ Dennis D. Higginbotham
-----------------------------------------
Name: Dennis D. Higginbotham
Title: President
Federal Taxpayer I.D.: 59-3278207
HIGGINBOTHAM CHEVROLET-
OLDSMOBILE, INC.
By: /s/ Dennis D. Higginbotham
-----------------------------------------
Name: Dennis D. Higginbotham
Title: President
Federal Taxpayer I.D.: 59-1671876
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SUNRISE AUTO WORLD, INC.
By: /s/ Dennis D. Higginbotham
-----------------------------------------
Name: Dennis D. Higginbotham
Title: President
Federal Taxpayer I.D.: 59-3297730
THE STOCKHOLDER: /s/ Dennis D. Higginbotham (SEAL)
-------------------------------
DENNIS D. HIGGINBOTHAM
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INDEX OF SCHEDULES AND EXHIBITS
TO
ASSET PURCHASE AGREEMENT
Schedules
---------
Schedule 2.2 Part I - Allocation of Purchase Price Among Sellers
Part II - Allocation of Purchase Price and Liabilities to Assets
Part III - [Intentionally Deleted]
Schedule 2.4 Part I - Liabilities
Part II - Retained Liabilities
Schedule 2.5 Promissory Note from HMC to Dennis D. Higginbotham
Schedule 3.1 New Vehicles
Schedule 3.2 Demonstrators
Schedule 3.5 Used Vehicles
Schedule 5.4 Fixtures and Equipment (Book Depreciation Schedule)
Schedule 5.5 Prepaid Expenses and Deposits
Schedule 5.9 HMC Receivables
Schedule 6.2 Compliance re: Buyer
Schedule 7.1 Stockholders
Schedule 7.2 Compliance re: Seller and Stockholder
Schedule 7.3 Pending or Threatened Actions, Suits or Proceedings
Schedule 7.4 Encumbrances on the Assets
Schedule 7.5 Permits and Approvals
Schedule 7.7 Employees
Schedule 7.10 Compliance with Laws
Schedule 9.12 Personal Guarantees by Dennis D. Higginbotham
Exhibits
A Form of Bills of Sale
B Statement of Rights and Preferences
C Form of Non-Competition Agreement
D Form of Employment Agreement - Dennis Higginbotham
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