ASSETS PURCHASE AGREEMENT
This Assets Purchase Agreement (the "Agreement") is made and entered
into on the Effective Date herein, by and between L & J Automotive Investments,
Inc., a Florida corporation (the "Purchaser"), and First Choice Stuart 1, Inc.,
a Florida corporation d/b/a Stuart Nissan ("Stuart Nissan") and First Choice
Stuart 2, Inc., a Florida corporation d/b/a Stuart Volvo ("Stuart Volvo")
(collectively, Stuart Nissan and Stuart Volvo are the "Seller")
The Seller is a franchised dealer for the sale and servicing of Nissans
and Volvos and other vehicles (the "Dealership"). The Seller desires to sell to
the Purchaser, and the Purchaser desires to buy from the Seller, substantially
all of the assets, properties and rights of the Seller used in or related to the
business of Stuart Nissan and Stuart Volvo (the "Business"), for the purchase
price and upon and subject to the other terms and conditions hereinafter set
forth.
NOW, THEREFORE, the parties agree as follows:
1. AGREEMENT TO SELL AND PURCHASE.
1.1 AGREEMENT TO SELL. At the Closing described in Section 2.1
hereof, the Seller will grant, sell, assign and transfer to the Purchaser, upon
and subject to the terms and conditions of this Agreement, all of its right,
title and interest in and to (a) all of its assets, properties and rights used
in or related to the Business of every kind and description, wherever situated,
and except as otherwise provided herein, free and clear of all pledges, liens,
encumbrances, claims and other charges and restrictions thereon of every kind,
including without limitation (i) all of its fixed assets, automobiles and other
vehicles (provided that new and used automobiles and other vehicles shall not be
purchased except as set forth in Section 1.3hereof), parts and other inventory
(in the current Nissan and Volvo parts manual) tools, leasehold improvements,
fixtures, signs, work in progress, machinery, equipment, office equipment,
customer lists, sales records, manuals, furniture, telephone systems, telephone
equipment, computer systems, computer equipment, computer software, service
lifts, portable equipment, warranty rights, customer lists, file cabinets, parts
department equipment, shop equipment, displays, telephone numbers, facsimile
numbers, service records, employee records, advertising records, trade secrets,
deposits on advance payments, supplies and customer deposits and (ii) all of its
rights under all agreements with customers made in the ordinary course of
business relating to the purchase or repair of automobiles or other vehicles and
the agreements, contracts and leases identified in Exhibit "A" (hereinafter
collectively referred to as the "Contracts") (iii) all trademarks, service
marks, tradenames, the tradename "Stuart Nissan" and "Stuart Volvo", works in
progress, manuals, warranties, data, data bases, lists, forms, technical
information, marketing information, procedures, all licenses, consents, permits,
patents, source marks, fictitious names, copyrights, registrations, and (b) the
Business and the operations of the Dealership as a going concern. The assets,
properties and rights being sold hereunder are herein sometimes collectively
called the "Assets", and are set forth in Schedule 1. All schedules referenced
in this Agreement will be prepared as of the date hereof and attached hereto,
and will be updated at Closing. Notwithstanding the foregoing, the Assets do not
include (A) the cash, retail installment contracts and accounts receivable of
the Seller, (B) the assets, properties and rights of the Seller, not used in or
related to the Business, (C) except as set forth in Section 1.3
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hereof, any new and used automobiles or other vehicles or (D) any agreement,
contract or lease other than the Contracts.
1.2 AGREEMENT TO PURCHASE. At the Closing hereunder, the Purchaser will
purchase the Assets from the Seller, upon and subject to the terms and
conditions of this Agreement and in reliance upon the representations and
warranties of the Seller contained herein and will pay the Seller therefor the
purchase price determined in accordance with Section 1.3 hereof (the "Purchase
Price"). In addition, the Purchaser will assume at the Closing and agree to pay,
discharge or perform, as appropriate, the liabilities and obligations of the
Seller only to the extent and as provided in Section 1.4 hereof. Except as
specifically provided in Section 1.4 hereof, the Purchaser shall not assume or
be responsible for any liabilities or obligations of the Seller.
1.3 PURCHASE PRICE. The Purchase Price for the Assets shall be
equal to the aggregate of:
1.3.1 $1,400,000; and
1.3.2 the New Vehicle Purchase Price (as hereinafter
defined); and
1.3.3 the Purchased Used Vehicle Purchase Price (as
hereinafter defined).
1.3.4 ALLOCATION OF PURCHASE PRICE. The Purchase
Price set forth in Article
1.3.1 shall be allocated
to the purchase of the Assets at Closing as follows:
Furniture, fixture and equipment $ TO BE DETERMINED
-----------------
Goodwill $ TO BE DETERMINED
Leasehold Improvements $ TO BE DETERMINED
Supplies and Materials $ TO BE DETERMINED
The Purchaser will purchase all of the Seller's new 1999 vehicles ("New
Vehicles") at a purchase price equal to the Seller's cost, less applicable
rebates, holdbacks and factory incentives and all 1998 and prior years (if any)
new vehicles at an agreed upon purchase price ("New Vehicle Purchase Price").
The New Vehicles and New Vehicle Purchase Price will be set forth in Schedule 2.
The Purchaser may purchase Seller's used vehicles ("Used Vehicles") at
prices to be mutually agreed upon by Seller and Purchaser ("Purchased Used
Vehicles Price"). The Used Vehicles purchased by Purchaser ("Purchased Used
Vehicles"), and the Purchased Used Vehicle Price will be set forth in Schedule
3.
The Purchase Price shall be paid at closing by delivering $100,000.00
to Seller in cash, cashier's check, or wire transfer, now held in the trust
account of Elk, Bankier, Palmer & Christu and by wire transfer of good funds of
the remainder of the Purchase Price to Seller's trust account set forth in
Schedule 4.
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1.4 LIMITED ASSUMPTION OF LIABILITIES.
(a) At the Closing, the Purchaser shall assume and
then be liable and responsible for and agree to pay, discharge or
perform those liabilities and obligations of the Seller arising after
the Closing under the Contracts. All Contracts to be assumed by
Purchaser are specifically set forth in Exhibit "A".
(b) Except as provided in Section 1.4(a) hereof, the
Purchaser shall not assume or be liable or responsible for any
liabilities or obligations of the Seller of any nature whatsoever.
(c) In no event shall the Purchaser assume or incur
any liability or obligation under this Section 1.4 or otherwise in
respect of (i) any liabilities owing to or with respect to any of the
Seller's employees, representatives, or agents, which arise out of or
are based upon an event which occurred prior to Closing, except those
liabilities stated in Section 1.4(a) and Section 4.1, or (ii) any
claim, regardless of when made or asserted, which arises out of or is
based upon negligence, strict liability or any express or implied
representation, warranty, agreement or guarantee made by the Seller,
or alleged to have been made by the Seller, or which is imposed or
asserted to be imposed by operation of law or otherwise, in connection
with any vehicle or product used, leased, sold, manufactured,
repaired, replaced, delivered, shipped or installed by or on behalf of
the Seller, or with any service performed by or on behalf of the
Seller. Seller agrees to remain responsible for all items delineated
in subpart (i) and (ii) herein subsequent to Closing. Seller agrees
that Purchaser shall provide written notice to Seller of any such
liability or obligation set forth in this Section 1.4, and Seller
shall be fully responsible for any such liability or obligation, at
its own expense.
1.5 ASSETS PURCHASED "AS-IS, WHERE-IS". THE ASSETS ARE BEING
PURCHASED AND SOLD ON AN "AS-IS, WHERE-IS" BASIS, IN THEIR CONDITION
AS OF THE EXPIRATION OF THE INSPECTION PERIOD, AND, EXCEPT FOR
SELLER'S REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN AND IN
APPENDIX A HEREOF, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, WITH RESPECT TO THE ASSETS. PURCHASER SHALL MAKE
ALL INSPECTIONS IT DEEMS APPROPRIATE TO DETERMINE THE CONDITION OF THE
ASSETS.
2. CLOSING, ITEMS TO BE DELIVERED AND FURTHER ASSURANCES.
2.1 CLOSING. Subject to the termination rights set forth in Section
7.1 hereof, the closing (the "Closing") of the sale and purchase of the Assets
shall take place at the offices of Elk, Bankier, Palmer & Christu, Sanctuary
Centre, Suite 200E, 4800 North Federal Highway, Boca Raton, Florida 33431,
commencing at 10:00 A.M., local time, on September 10, 1999, unless the same
falls on a Saturday, Sunday, or legal banking holiday, in which event Closing
shall take place on the next business day thereafter, or at such other place,
time or date as may be agreed upon in writing by the parties hereto. The date of
the Closing is sometimes herein
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referred to as the "Closing Date". In the event that the dealer approvals from
Volvo and Nissan have been obtained prior to the Closing Date, Purchaser may
accelerate the Closing date upon ten (10) days prior written notice to the
Seller. Purchaser agrees that upon notification of approval by Volvo and Nissan
Motors, Purchaser will immediately notify Seller of the approval. In the event
that dealer approvals are not received from Nissan Motors and Volvo by the
Closing Date, the Closing Date shall be extended up to thirty (30) days to allow
additional time to obtain all such dealer approvals.
2.2 ITEMS TO BE DELIVERED AT CLOSING. At the Closing and subject to
the terms and conditions herein contained:
(a) the Seller shall deliver to the Purchaser (i) such bills
of sale, assignments, endorsements and other instruments and documents
of conveyance and transfer, in form and substance satisfactory to the
Purchaser and its counsel, as shall be necessary and effective to
convey, transfer and assign to and vest in the Purchaser all of the
Seller's right, title and interest in and to the Assets, and (ii) a
certificate of the Seller executed by the president of the Seller,
dated the Closing Date, certifying that (A) the Seller has performed
and complied in all material aspects with all agreements and
conditions required by this Agreement to be performed or complied with
by the Seller prior to or at the Closing and (B) the representations
and warranties of the Seller contained in this Agreement or in any
certificate or document delivered by the Seller are true, correct and
complete in all material respects with the same effect as though such
representations and warranties were made as of such date, and (iii) a
corporate director's resolution from Stuart Nissan, Stuart Volvo, and
any other corporation which owns the stock in Stuart Nissan and Stuart
Volvo authorizing the sale of Assets, and (iv) a No Lien Affidavit in
a form reasonably acceptable to Purchaser, stating that there are no
liens, encumbrances, mortgages, debts, dues or claims against the
Assets, except those assumed by Purchaser under the Contracts, and (v)
Solvency Affidavit stating that Seller is solvent, is not
contemplating a filing for protection under the Bankruptcy laws, or
reorganization laws and that the transaction is an arms length
transaction, and (vi) the keys to any and all vehicles being
transferred and to the Stuart Nissan and Stuart Volvo dealership
stores, and (vii) releases from any liens, mortgages or encumbrances,
except those assumed by Purchaser under the Contracts, and (viii)
instruments of assignment and transfer for all Assets, either tangible
or intangible to the assigns, and (ix) Certificate of Transferor
pursuant to Internal Revenue Code Section 1445, and (x) an Assignment
and Assumption of Lease fully consented to by Landlord, and (xi) an
Assignment of all Contracts and other assignable rights and items to
be assigned, including an assumption of liabilities (assumed by
Purchaser herein) related thereto; and
(b) the Purchaser shall deliver to the Seller (i) the Purchase
Price by cash and wire transfer of good funds as described in Section
1.3 hereof and (ii) an Assignment and Assumption Agreement, in form
and substance satisfactory to the Seller and its counsel, as shall be
necessary and effective to assume and agree to pay, discharge or
perform those liabilities and obligations of the Seller described in
Section 1.4(a) hereof.
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2.3 FURTHER ASSURANCES. At the Purchaser's request, the Seller from
time to time after the Closing will execute, acknowledge and deliver to the
Purchaser such other instruments of conveyance and transfer and will take such
other actions and execute and deliver such other documents, certifications and
further assurances as the Purchaser may request in order to vest more
effectively in the Purchaser, or to put the Purchaser more fully in possession
of, any of the Assets, or to better enable the Purchaser to pay, discharge or
perform any of the liabilities or obligations to be assumed by the Purchaser
pursuant to Section 1.4(a) hereof.
2.4 CERTAIN THIRD PARTY CONSENTS. To the extent that the rights of
the Seller under any Contract may not be assigned to the Purchaser without the
consent of another person which has not been obtained by the Seller prior to the
Closing (with the Purchaser's consent), this Agreement shall not constitute an
agreement to assign the same if an attempted assignment would constitute a
breach thereof or be unlawful. If any such consent has not been obtained or if
any attempted assignment would be ineffective or would impair the Purchaser's
rights under the instrument in question so that the Purchaser would not in
effect acquire the benefit of all such rights, the Seller, to the maximum extent
permitted by law and the instrument, shall act as the Purchaser's agent in order
to obtain for it the benefits thereunder and shall cooperate, to the maximum
extent permitted by law and the instrument, with the Purchaser in any other
reasonable arrangement designed to provide such benefits to the Purchaser.
2.5 DUE DILIGENCE / INSPECTION PERIOD. Purchaser, or Purchaser's
agents, accountants, attorneys and consultants shall have thirty (30) days from
the date of execution of this Agreement by Purchaser and Seller, (the
"Inspection Period") to review all of Seller's records, tax returns, financial
statements, inventory, physical structures, leases, vehicles, employee records,
any contracts set forth in Exhibit "A", and set forth in any schedule or exhibit
hereto, the Nissan Lease, the Lot Lease, and the Volvo Lease, and to perform
structural and physical inspections of the buildings and properties in which
Stuart Nissan and Stuart Volvo are located, to perform environmental audits, and
to take any and all other actions and to perform such other due diligence as may
be reasonably required by Purchaser, in Purchaser's sole discretion. Seller
agrees to provide such information to Purchaser to assist in facilitating
Purchaser's due diligence inspection of Seller, and to cooperate and assist
Purchaser in all respects. In the event Purchaser determines that any of
Purchaser's due diligence inspections herein are unsatisfactory, Purchaser shall
be entitled to, on or before the expiration of the Inspection Period, provide
written notice to Seller of Purchaser's intent to terminate this Agreement, in
which event Purchaser shall be entitled to its full escrow deposit in return,
with all interest accrued thereon, and all parties shall be relieved of any and
all liability and obligation herein. In the event Purchaser, during the
Inspection Period, determines the physical condition of the Assets to be
unacceptable to Purchaser, in its sole discretion, Purchaser shall allow Seller
written notice of any unacceptable physical condition of the Assets, and Seller
shall be entitled to cure any such unacceptable physical condition, provided
that Seller must cure any such item within ten (10) days from its receipt of
written notice from the Purchaser. Purchaser agrees to indemnify, defend and
hold harmless Seller from and against any and all physical damage which may be
incurred by Stuart Nissan or Stuart Volvo due to any of Purchaser's physical
inspections of Stuart Nissan or Stuart Volvo. Purchaser's due diligence
investigation shall be subject to the provisions of a Confidentiality Agreement,
a copy of which is attached hereto as Exhibit "B" and made a part hereof.
Purchaser shall be responsible for disclosing to Seller any
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misrepresentations or omissions of Seller herein, discovered by Purchaser during
the Inspection Period. Further, Purchaser shall provide copies of any Phase I or
Phase II environmental audit obtained by Purchaser for the property underlying
the Assets.
3. COVENANTS PENDING CLOSING. The Seller covenants and agrees with
Purchaser that, upon full execution of this Agreement and pending the Closing:
(a) the business of the Seller shall be conducted in the ordinary
course consistent with its past practice, and the Seller shall not enter into
any material new contracts or incur any material new obligations (except for the
purchase of automobiles and other vehicles in the ordinary course of business),
nor shall the Seller amend, otherwise modify or terminate any Contracts without
the prior written consent of the Purchaser, other than in the ordinary course of
business. Without limiting the foregoing, the Seller shall promptly notify the
Purchaser of any material changes in the Seller's conduct of the Business;
(b) the Seller shall not, directly or indirectly, in any way contact,
initiate, enter into, participate in or conduct any discussions or negotiations,
or enter into any agreements, whether written or oral, with any person with
respect to the sale of all or part of the Assets or the Business, except for
transactions in the ordinary course of the Business consistent with past
practice;
(c) the Seller will give to the Purchaser's officers, employees,
counsel, accountants and other representatives free and full access to and the
right to inspect, during normal business hours, all of the premises, properties,
assets, records, contracts, business plans and other documents relating to the
Business, and shall permit them to consult with the officers, employees,
counsel, accountants and other representatives of the Seller for the purpose of
making such investigation of the Business as the Purchaser shall desire to make,
provided that such investigation shall not unreasonably interfere with the
Seller's business operations. Furthermore, the Seller will furnish to the
Purchaser all such documents and copies of documents and records and information
with respect to its affairs and copies of any working papers relating thereto as
the Purchaser shall from time to time request;
(d) the Seller shall use reasonable efforts to fulfill the conditions
set forth in Section 5 hereof and to cause the representations and warranties
set forth herein to remain true and correct;
(e) the Seller shall not incur any debts, dues, claims, encumbrances,
liens, mortgages, or other indebtedness without the prior written consent of
Purchaser, other than in the ordinary course of business;
(f) the Seller shall maintain all Assets and physical structures
of Stuart Nissan and Stuart Volvo in the same condition as at the expiration of
the Inspection Period, reasonable wear and tear excepted;
(g) the Seller will use reasonable efforts to maintain all present
employees and to preserve the goodwill associated with the Business;
Page 6 of 20
(h) the Seller will maintain customer information pertaining to the
Business consistent with its past practices;
(i) the Seller will not sell any of the Assets, except in the ordinary
course of business;
(j) the Seller will maintain insurance on the Business Assets in
amounts and against risks consistent with its past practices;
(k) the Seller shall not enter into any written or oral agreements
or preliminary letters of intent or agreements in principal for the sale of
the Assets; and
(l) the Seller shall maintain in good standing the Nissan Lease
and Volvo Lease (hereinafter defined) on the Business and shall keep in full
force and effect the dealer agreements with Volvo and Nissan Motors and advise
Purchaser of any written notifications, or memoranda with Nissan or Volvo
received after the execution of this Agreement and received within six (6)
months prior to the full execution of this Agreement which in any way relate to
any violation by Seller of the dealer agreements with Nissan Motors or Volvo
adversely affecting the ability of dealer agreements to be entered into by
Nissan Motors and Volvo and Purchaser, or relate to the renewal or term thereof.
4. OTHER AGREEMENTS.
4.1 PAID LEAVE BENEFITS. Immediately following the Closing, the
Purchaser shall credit each employee hired by it on the Closing Date, if any,
who was theretofore employed by the Seller with an amount of paid leave benefits
equal to the amount accrued by the Seller with respect to such employee as of
the Closing Date or which are otherwise negotiated by Purchaser with any such
employee hired by Purchaser as of the Closing Date. All accrued paid leave
benefits which are to be assumed and paid by Purchaser are specifically limited
to these set forth in Schedule 5, only in the event Purchaser hires any such
employees, or as otherwise negotiated by Purchaser and any such employees hired
by Purchaser.
4.2 ACCOUNTS RECEIVABLE. Subject to Section 6.2 hereof, after the
Closing, the Purchaser will, at its expense, use its reasonable efforts to
assist and cooperate with the Seller in the collection of all accounts
receivable of the Seller accrued prior to the Closing (which accounts receivable
are among those of the Seller's assets, properties and rights not included in
the Assets). If the Purchaser's assistance and cooperation in the collection of
any such accounts requires the Purchaser to engage in efforts outside the
ordinary course of its business (and inconsistent with the Purchaser's then
current collection practices), or to retain the services of legal counsel or
collection agencies, the Purchaser shall engage in such efforts or retain such
services only at the Seller's written request and expense. All accounts
receivable which Seller desires to pursue shall be set forth in Schedule 6,
mutually agreed to by Purchaser and Seller and which shall be executed by Seller
and Purchaser at closing. Notwithstanding the foregoing, Purchaser's obligation
to assist Seller in collecting its accounts receivables shall be limited to
forwarding to Seller any accounts receivable of Seller received by Purchaser.
Page 7 of 20
4.3 REAL PROPERTY LEASES. The Business is currently conducted on
premises leased (a) by TAD Partnership, a Florida General Partnership ("TAD"),
pursuant to a Lease Agreement dated July 11, 1997, as amended (the "Nissan
Lease"), between TAD as Landlord and Stuart Nissan as Tenant, a copy of which
the Seller has heretofore been delivered to the Purchaser, (b) by TAD pursuant
to a Business Lease dated April 17, 1996, as amended (the "Lot Lease"), between
TAD as Lessor and B & B Enterprises, Inc., as Lessee, a copy of which has been
delivered to Purchaser, and (c) by Clements-Winters Group, Inc., a Florida
corporation ("CWGI"), pursuant to a Lease Agreement dated as of August 21, 1997,
as amended (the "Volvo Lease") between CWGI as Landlord and Stuart Volvo as
Tenant, a copy of which has been delivered to Purchaser. TAD and CWGI are
referred to in this Section 4.3 as the "Landlords," and the Stuart Lease, the
Lot Lease, and the Volvo Lease as the "Leases". Prior to the Closing, the Seller
shall obtain the Landlords' consents, without any change in the existing rights
or obligations of Seller to the assignment of the Leases by Seller to the
Purchaser at the Closing. Entering into satisfactory Assignments and Assumption
of the Nissan Lease, the Lot Lease and Volvo Lease are conditions precedent to
the closing of this transaction. Seller shall be entitled to a return of the
security deposits (less any retention for defaults, if any) if any, under the
Leases from the landlords, or payment of equivalent amounts to that assumed by
Purchaser, from Purchaser at Closing.
4.4 DEALER APPROVAL AND AGREEMENTS. The Business is currently
conducted under dealership agreements with Nissan Motors and Volvo. Purchaser
agrees that upon the full execution of this Agreement, Purchaser shall make
proper application and provide all reasonable and necessary information to
Nissan Motors and Volvo, which is required to approve Purchaser as a dealer for
Nissan Motors and Volvo, at Stuart Volvo's and Stuart Nissan's present
locations. Purchaser and/or Seller shall use reasonable efforts and diligently
respond to any and all commercially reasonable requests for information and
additional information from Nissan Motors and/or Volvo. Seller and Purchaser
acknowledge and agree that the approval by Purchaser as a dealer and execution
of dealership agreements with both Volvo and Nissan Motors are conditions
precedent to the Closing. If Purchaser's application as a dealer for Volvo or
Nissan Motors is rejected, either party to this Agreement may terminate this
Agreement, in which event all deposits and interest accrued thereon, shall be
returned to Purchaser and all parties shall be relieved of any and all liability
and obligation herein.
4.5 CONTRACTS AND WORK IN PROGRESS AND PENDING. At Closing, Seller
shall provide to Purchaser a list of any and all pending contracts for the sale
of vehicles, and a list of any and all service work in progress, all of which
shall be set forth on Schedule 7. Except as otherwise provided herein, except as
set forth in Schedule 9, and except with respect to any monies which may be due
and payable and accrued prior to the Closing Date under the "Dealer of
Excellence" Volvo program related to automobile sales prior to Closing, all
monies due on any completed contracts for sale of automobiles and completed
service work shall remain the property of Seller. Seller shall be responsible
for tendering and providing to Purchaser any and all prepayments, deposits, or
advance payments received by Seller, and shall assign any and all pending
contracts and/or service work to Purchaser and Purchaser shall be responsible
for assuming any and all such contracts, provided the same do not result in a
loss to Purchaser. Purchaser shall be entitled to all revenues and profits from
its assumption of any such pending
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contracts for sale of vehicles or for service work, provided that, relative to
service work, Seller shall be reimbursed for its actual costs for service work
performed by Seller's employees, for which Purchaser shall receive the revenue
and profit. Notwithstanding the foregoing, the parties agree to prorate all
costs and expenses and similar items which transcend the Closing Date, and
adjust same between Seller and Purchaser.
4.6 YEAR 2000 COMPLIANCE. Seller hereby covenants and agrees that it
will use all reasonable efforts prior to Closing, so that all of Seller's
information systems, including without limitation all computer hardware and
software, networks, databases, and all other electronic data storage, retrieval
and computation hardware, software and devices of any kind (collectively, the
"Information Systems"), have been and/or will be prior to Closing updated and
modified to accommodate and conform to the Year 2000 date change, and so that
such Information Sysems are and/or will be in full compliance with any and all
federal, state and local laws, regulations and ordinances relating to the same,
now in effect (collectively, the "Information System Laws").
4.7 NONBANKRUPTCY. Seller is presently solvent and has not made,
nor contemplates making, within the next one (1) year, an election under Chapter
7, 11 or 13 of the U.S. Bankruptcy Code. Each of Purchaser and Seller represents
that the sale contemplated herein is at arms length for fair value. Seller
represents that Seller is not making the conveyance of the Assets herein in
avoidance of any creditors claims, and that the conveyance of Assets herein is
not intended to be deemed a preferential transfer under the United States
Bankruptcy Code, as amended. Seller further represents that Seller does not
intend, within ninety (90) days from the Closing, to file a Petition for
Bankruptcy Protection under Chapter 7, 11 or 13 of the U.S. Bankruptcy Code, and
that Seller presently is not contemplating seeking bankruptcy protection or
reorganization or liquidation under any of the United States Bankruptcy Codes.
Seller acknowledges and agrees that Purchaser is paying the fair market value
purchase price as set forth herein for the Assets in reliance upon this, and
that in the event Sellerfiles for bankruptcy protection under any of the United
States Bankruptcy Codes within ninety (90) days subsequent to the Closing Date,
and if any trustee or other party appointed seeks to include the Assets sold
herein within the bankruptcy estate, the Seller shall immediately provide the
purchase price, and all other amounts paid herein, to the Escrow Agent as
defined herein, until such time as the trustee, or other party on behalf of any
such bankruptcy estate, shall release the Assets from the bankruptcy estate and
file a discharge of such Assets conclusively determining that the Assets are the
possession of the Purchaser herein.
5. CONDITIONS PRECEDENT OF PURCHASER. The obligation of the Purchaser
to consummate the transactions contemplated by this Agreement is subject to the
fulfillment or satisfaction, prior to or at the Closing, of each of the
following conditions precedent:
(a) the Seller shall have performed and complied with all agreements
and conditions required by this Agreement to be performed or complied with
by the Seller prior to or at the Closing;
(b) the representations and warranties of the Seller contained in
this Agreement or in any certificate or document delivered by the Seller
shall be true, correct and complete in all material respects on the Closing
Date with the same effect as though such representations and warranties
were made as of such date;
Page 9 of 20
(c) the Purchaser shall have been approved as a franchised dealer
by Nissan and Volvo;
(d) the Seller shall have assigned the Leases to the Purchase, with
full consent of all landlords, where required, in accordance with Section
4.3 hereof by means of an assignment in form and substance reasonably
satisfactory to the Purchaser and its counsel;
(e) the Seller shall have obtained and delivered to the Purchaser
such evidence as is satisfactory to the Purchaser and its counsel that all
security interests in the Assets have been released, except for any
security interests assumed by Purchaser;
(f) the Seller shall have obtained all consents required in
connection with the consummation of the transactions contemplated hereby;
(g) the Purchaser shall have obtained a license from the
Department of Motor Vehicles, State of Florida, to operate Stuart Volvo and
Stuart Nissan; and
(h) the Purchaser shall have obtained a license to operate the
service and repair shop at Stuart Nissan and Stuart Volvo from the Florida
Department of Agriculture.
In the event of any failure to satisfy any of the conditions precedent
set forth in this Article 5.0 prior to Closing, Purchaser shall be entitled to
either (i) extend Closing to allow sufficient time to satisfy any remaining
conditions precedent, which time period shall not exceed thirty (30) days from
the scheduled Closing; or (ii) Purchaser may terminate this Agreement by
providing written notice to Seller, in which event the escrow deposits shall be
released to Purchaser with all interest accrued thereon, and all parties shall
be relieved of any and all liability and obligation herein.
6. INDEMNIFICATION.
6.1 SELLER'S OBLIGATION TO INDEMNIFY. Following the Closing, the
Seller shall reimburse, indemnify and hold harmless the Purchaser and each of
its directors, officers, shareholders, employees and agents (each such person
and its or his heirs, executors, administrators, successors and assigns is
referred to in this Section 6.1 as an "Indemnified Party") against and in
respect of:
(a) any and all liabilities and obligations of any nature
whatsoever of or relating to the Business and/or the Seller which may
attach to the Assets, or relating to or arising out of the business,
operations or assets of the Seller prior to the Closing or the actions of
the Seller's officers, employees, representatives or agents prior to the
Closing, including without limitation any liability (i) relating to, and
any claim which arises out of or is based upon, negligence, strict
liability, any environmental condition, event or practice, or any express
or implied representation, warranty, agreement or guarantee made by or on
behalf of the Seller, or alleged to
Page 10 of 20
have been made by or on behalf of the Seller, (ii) which is imposed or
asserted to be imposed on the Seller, or any successor entity by operation
of law or (iii) which otherwise arises in connection with any product used,
leased, sold, manufactured, repaired, replaced, delivered, shipped or
installed by or on behalf of the Seller, or with any service performed by
or on behalf of the Seller, including without limitation any acts,
omissions, workmanship or material performed or sold by the Seller prior to
the Closing, with all of the foregoing being irrespective of the date that
any claim, suit or other cause of action is filed or otherwise instituted
against the Seller, or any successor entity (and with all references to the
Seller in this Section 6.1 also deemed to be references to any predecessor
of the Seller); provided that the foregoing shall not apply to the
liabilities and obligations of the Seller to be assumed by the Purchaser
pursuant to Section 1.4(a) or 4.1 hereof;
(b) any and all claims, actions, suits or legal, administrative,
arbitration, governmental or other proceedings or investigations against
any Indemnified Party that relate to the Seller, the business, operations
or assets of the Seller, or the actions of the Seller's directors,
officers, shareholders, employees, representatives or agents, as the case
may be, and which result from or arise out of any event, occurrence,
action, inaction or transaction occurring prior to the Closing;
(c) any and all damages, losses, settlement payments, deficiencies,
liabilities, costs and expenses suffered, sustained, incurred or required
to be paid by any Indemnified Party because of or that result from, relate
to or arise out of:
(i) the untruth, inaccuracy or breach of, or the failure to
fulfill, any representation, warranty, covenant, agreement or statement of
the Seller contained in this Agreement or contained in any bill of sale,
assignment, certificate, agreement or other writing furnished to the
Purchaser by or on behalf of the Seller in connection with the Closing or
any of the other transactions contemplated by this Agreement;
(ii) any claim by any former employee or any officer or
employee of the Seller which results from or arises out of any event,
occurrence, action, inaction or transaction occurring prior to the Closing;
(iii) any claim, loss, liability or expense which may be
asserted against or incurred by the Purchaser in connection with the
Purchaser's efforts to assist in the collection of the Seller's accounts
receivable, except for expenses incurred by the Purchaser in the
performance of its obligations under Section 4.2 hereof (but not excluding
expenses relating to the retention of legal counsel or collection
agencies); or
(iv) any of the matters referred to in Sections 6.1(a) and
6.1(b) above; and
(d) any and all actions, suits, claims, proceedings, investigations,
demands, assessments, audits, fines, judgments, costs and other expenses
(including without limitation reasonable attorneys' fees and expenses)
incident to any of the foregoing or to the enforcement of this Section 6.1;
or
Page 11 of 20
(e) any and all loss, claims, liability, damages, injury to person,
property, or natural resources, cost, expense, action or cause of action,
arising in connection with the release or presence of any hazardous
substances and/or contaminents, as defined in any local, state or federal
rule, law, or regulation, at Stuart Nissan or Stuart Volvo, through the
acts of Seller, its employees, agents or invitees acting with Seller's
authority, or the forseeable or unforseeable consequences thereof, if such
release occurred prior to Closing. The foregoing includes, without
limitation, all costs at law or in equity of removal, remediation of any
kind, and disposal of such hazardous substances, all costs of determining
whether the premises upon which Stuart Volvo and/or Stuart Nissan is in
compliance and cause all such premises to be in compliance with all
applicable environmental laws, all costs associated with claims for damages
to persons, property or natural resources, and Purchaser's reasonable
attorney and consultant fees and court costs;
(f) any and all defaults, violations, actions, suits, claims,
proceedings, which create or may create any liability to Purchaser pursuant
to the Volvo Lease, the Nissan Lease, the Lot Lease, or any dealer
agreement between Seller and either Nissan or Volvo concerning the
Business, and in both cases if any such events occurred prior to Closing.
(g) any and all loss, claims, liabilities, damages, actions,
suits, claims, proceedings which create or may create any liability,
damage, expense or loss to Purchaser, including reasonable attorney fees
and costs at the trial, appellate and bankruptcy court levels, incurred by
Purchaser due to any filing by Seller for protection under Chapter 7, 11 or
13 of U.S. Bankruptcy Code, or any filing or action by Seller for
reorganization, restructuring, insolvency, bankruptcy, liquidation or
reorganization under any of the United States Bankruptcy codes.
6.2 PURCHASER'S OBLIGATION TO INDEMNIFY. Following the Closing,
the Purchaser shall reimburse, indemnify and hold harmless the Seller and each
of their respective directors, officers, shareholders, employees and agents
(each such person and its or his heirs, executors, administrators, successors
and assigns is referred to in this Section 6.2 as an "Indemnified Party")
against and in respect of:
(a) any and all liabilities and obligations of any nature
whatsoever of or relating to the Business and/or the Purchaser which may be
imposed against Seller, or relating to or arising out of the Business, its
operations or the Assets on or subsequent to the Closing and the actions of
the Purchaser's officers, employees, representatives or agents on or
subsequent to the Closing, including without limitation any liability (i)
relating to, and any claim which arises out of or is based upon,
negligence, strict liability, any environmental condition, event or
practice, or any express or implied representation, warranty, agreement or
guarantee made by or on behalf of the Purchaser, or alleged to have been
made by or on behalf of the Purchaser, (ii) which is imposed or asserted to
be imposed on the Purchaser, or any successor entity by operation of law or
(iii) which otherwise arises in connection with any product used, leased,
sold, manufactured, repaired, replaced, delivered, shipped or installed by
or on behalf of the Purchaser, or with any service performed by or on
behalf of the Purchaser, including without limitation any acts, omissions,
workmanship or material performed or sold by the Purchaser on or subsequent
to the Closing, with all of the foregoing being irrespective of the date
that any claim, suit or other cause of action is filed or otherwise
instituted against the Purchaser, or any successor entity (and with all
references to the Purchaser in this Section 6.2 also deemed to be
references to any
Page 12 of 20
predecessor of the Purchaser); including, without limitation, any and all
liabilities and obligations of the Seller to be assumed by the Purchaser
pursuant to Section 1.4(a) or Section 4.1 hereof;
(b) any and all claims, actions, suits or legal, administrative,
arbitration, governmental or other proceedings or investigations against
any Indemnified Party that relate to the Purchaser, the business,
operations or assets of the Purchaser, or the actions of the Purchaser's
directors, officers, shareholders, employees, representatives or agents, as
the case may be, and which result from or arise out of any event,
occurrence, action, inaction or transaction occurring on or subsequent to
the Closing;
(c) any and all damages, losses, settlement payments, deficiencies,
liabilities, costs and expenses suffered, sustained, incurred or required
to be paid by any Indemnified Party because of or that result from, relate
to or arise out of:
(i) the untruth, inaccuracy or breach of, or the failure to
fulfill, any representation, warranty, covenant, agreement or statement of
the Purchaser contained in this Agreement or contained in any bill of sale,
assignment, certificate, agreement or other writing furnished to the Seller
by or on behalf of the Purchaser in connection with the Closing or any of
the other transactions contemplated by this Agreement;
(ii) any claim by any employee or any officer of the Purchaser;
(iii) any of the matters referred to in Sections 6.2(a) and
6.2(b) above; and
(d) any and all actions, suits, claims, proceedings, investigations,
demands, assessments, audits, fines, judgments, costs and other expenses
(including without limitation reasonable attorneys' fees and expenses)
incident to any of the foregoing or to the enforcement of this Section 6.2;
(e) any and all loss, claims, liability, damages, injury to person,
property, or natural resources, costs, expense, action or cause of action,
arising in connection with the release or presence of any hazardous
substances and/or contaminents, as defined in any local, state or federal
rule, or regulation in Stuart Nissan or Stuart Volvo through the acts of
Purchaser, its employees, agents or invitees acting with Purchaser's
authority, or the foreseeable or unforeseeable consequences thereof, if
such release occurred subsequent to Closing. The foregoing includes,
without limitation, all costs at law and in equity, of removal, remediation
of any kind, in disposal of such hazardous substances, all costs of
determining whether the premises upon which Stuart Volvo and/or Stuart
Nissan is in compliance and cause all such premises to be in compliance
with all applicable environmental laws, all such costs associated with
claims to damages to persons, property or natural resources, and Seller's
reasonable attorney or consultant fees and court costs;
(f) any and all defaults, violations, actions, suits, claims, proceedings,
which create or may create any liability to Seller, pursuant to the Volvo
Lease, the Nissan Lease, the Lot Lease, or any dealer agreement between
Purchaser and either Nissan or Volvo concerning the Business, and in both
cases only if any such events occurred subsequent to Closing.
Page 13 of 20
6.3 OTHER REMEDIES. The indemnification rights of any
Indemnified Party under Section 6.1 or Section 6.2, as applicable, hereof are
independent of and in addition to such rights and remedies as such Indemnified
Party may have at law, in equity or otherwise for any misrepresentation, breach
of warranty or failure to fulfill any covenant or agreement under or in
connection with this Agreement on the part of the Seller or the Purchaser, as
applicable, including without limitation the right to seek specific performance,
rescission or restitution, none of which rights or remedies shall be affected or
diminished hereby.
7. MISCELLANEOUS.
7.1 TERMINATION. This Agreement may be terminated by written notice
of termination only (a) by mutual consent of the Purchaser and the Seller, (b)
by either the Purchaser or the Seller if the Closing has not occurred on or
before the Closing Date (subject to extension as provided in Section 2.1 herein,
and if the failure of the Closing to occur by such date is not due to a
misrepresentation, breach of warranty or failure to fulfill any covenant or
agreement herein on the part of the terminating party or (c) by either the
Purchaser or the Seller if there has been a material misrepresentation or
material breach on the part of the other party in the representations,
warranties, covenants or agreements contained herein which is not cured within
ten business days after such other party has been notified of the intent to
terminate this Agreement pursuant to this clause (c). Notwithstanding the
foregoing, (i) in the event that Purchaser has not received written approval by
Nissan Motors or Volvo to be a dealer at Stuart Nissan or Stuart Volvo by the
Closing Date, or (ii) in the event of any failure of any condition precedent to
Closing herein, Purchaser shall have the right to extend the Closing for a
period not to exceed thirty (30) days from the Closing Date, to allow sufficient
time to obtain dealer approval for Nissan and/or Volvo, and to allow
satisfaction of any condition precedent, by providing written notice to Seller
prior to the scheduled Closing Date.
7.2 SALES, TRANSFER AND DOCUMENTARY TAXES, ETC. The Purchaser and the
Seller shall each pay one-half of all (a) sales, transfer and documentary taxes,
if any, due as a result of the transfer of the Assets to the Purchaser, (b)
affidavit and acknowledgment fees and (c) other fees directly relating to the
transfer of the Assets.
7.3 EXPENSES. The parties hereto shall pay their own expenses
incidental to the preparation of this Agreement, the carrying out of the
provisions of this Agreement and the consummation of the transactions
contemplated hereby. Seller shall pay Gordon Page & Associates, Inc. ("Page") a
brokerage commission equal to the greater of seven (7.0%) percent of the
Purchase Price or $75,000.00, and an additional $25,000.00 of Purchaser's
commission to Page, and the Purchaser shall pay Page $25,000.00. Brokerage
commissions herein shall only be due and payable to Page in the event of the
Closing of this transaction. Seller hereby indemnifies and hold Purchaser
harmless from and against any costs, fees, damages, claims and liabilities,
including but not limited to, reasonable attorney fees and court costs arising
out of or claim or demand or threats of claim made by any other broker or
salesperson claiming by, through or under Seller. Purchaser hereby indemnifies
and holds Seller harmless from and against any court costs, fees, damages,
claims and liabilities, including but not limited to, reasonable attorney fees
Page 14 of 20
and court costs arising out of any claim or demand or threat of claim made by
any other broker or salesperson claiming by, through or under Purchaser.
7.4 CONTENTS OF AGREEMENT; AMENDMENT. This Agreement sets forth
the entire and only understanding of the parties hereto with respect to the
transactions contemplated hereby. This Agreement shall not be amended or
modified except by written instrument duly executed by each of the parties
hereto.
7.5 WAIVER. No waiver by either party hereto, whether express or
implied, of any right under any provision of this Agreement shall constitute
a waiver of such party's rights under any other provision of this Agreement, nor
shall any such waiver constitute a waiver of such party's right at any other
time unless it is so made in writing and signed by the party waiving the
condition. No failure by either party hereto to take any action with respect to
any breach of this Agreement or default by the other party shall constitute a
waiver of such party's right to enforce any provision of this Agreement against
such other party or to take action with respect to such breach or default or of
any subsequent breach or default by such other party.
7.6 GOVERNING LAW AND JURISDICTION. This Agreement its interpretation
and enforcement, shall be governed by, and construed in accordance with, the
laws of the State of Florida, except for the rules pertaining to conflict of
laws which would provide for application of the laws of another jurisdiction.
The parties hereby submit to the in personam jurisdiction and venue in Martin
County, Florida and of the U.S. District Court for the Middle District of
Florida and the Nineteenth Judicial Circuit Court of the State of Florida.
7.7 EXHIBIT, APPENDIX, SCHEDULES. Appendix A and Appendix B, the
Exhibits and the Schedules referred to in and attached to this Agreement are
intended to be and hereby are specifically made a part of this Agreement.
7.8 SEVERABILITY. If any provision of this Agreement or the
application thereof to any person or circumstance is held invalid or
unenforceable in any jurisdiction, the remainder of this Agreement, and the
application of such provision to such person or circumstance in any other
jurisdiction or to other persons or circumstances in any jurisdiction, shall not
be affected thereby, and to this end the provisions of this Agreement shall be
severable.
7.9 ASSIGNMENT. It is specifically agreed by the Seller and Purchaser
that Purchaser may freely assign this Agreement to a limited liability company,
or corporation or such other entity, person or corporation as Purchaser may so
desire prior to Closing, provided that Lawrence Elk, Jerry Sorkin, and Larry
Casto are the majority principals and owners of any such entity. It is further
acknowledged and agreed that the Purchaser shall have the right to assign this
Agreement in part and to take title to Stuart Nissan and Stuart Volvo, in two
(2) separate entities. Purchaser shall provide notice of any such assignment to
Seller prior to the scheduled Closing Date.
7.10 SURVIVAL OF AGREEMENT. It is specifically agreed by the Seller
and Purchaser that all of the terms, representations and warranties of this
Agreement shall survive this Closing for a period of one (1) year subsequent to
the date of Closing. Any claim made by
Page 15 of 20
either party within the one (1) year period under any term, representation or
warranty, shall be deemed timely made, prior to the expiration, notwithstanding
that the resolution may exceed the one (1) year period.
7.11 DEFAULT. As the sole and exclusive remedy of each party hereto:
7.11.1 In the event that a closing does not take place as a
result of the breach of this Agreement by the Purchaser, then the
deposits paid herein shall be paid to the Seller as liquidated damages
in full and complete settlement for Purchaser's breach.
7.11.2 In the event of a breach or default of the Seller in any
terms or conditions herein, or a failure of any of the conditions to
the Seller's obligations to the Purchaser, the Purchaser shall have
all remedies available to it as provided herein, by law and/or in
equity including, but not limited to, the right to specific
performance, damages, or the return of all deposit monies hereunder or
as otherwise specifically set forth herein. Notwithstanding the
foregoing, in any event Seller's liability for damages shall be limited
to $100,000.00.
7.12 RISK OF LOSS. Prior to the Closing Date, Seller shall bear all
risk of loss, damage or destruction to the Assets subject to this Agreement,
except as set forth in Section 2.5 of this Agreement. If prior to the Closing
the Assets are damaged as a result of flood or other casualty which has not been
fully repaired and restored in the same condition as existed immediately prior
to such damage, Purchaser shall have the option to cancel this Agreement, in
which event the deposit held by Escrow Agent shall be returned to Purchaser
whereupon neither party shall have further liability or obligation to the other
hereunder.
7.13 ENTIRE AGREEMENT. This Agreement constitutes the sole and only
agreement between Purchaser and Seller. Any agreements or representations
respecting the purchase and sale described in this Agreement not expressly set
forth herein are null and void unless said agreement is set forth in writing by
Purchaser and Seller.
7.14 NOTICES. All notices given to either party hereto shall be in
writing and shall be deemed duly served and personally delivered to the party or
in lieu of such personal service, when deposited in United States mail,
certified mail, return receipt requested, or by express mail or via facsimile
transfer with original to follow via overnight express mail, addressed as
follows:
Purchaser: L & J Automotive Investments, Inc.
Attention: Lawrence I. Elk
c/o 4800 North Federal Highway, Suite 200-E
Boca Raton, FL 33431
Facsimile No. 561/394-3699
With copy to: Scott A. Elk, Esq.
Elk, Bankier, Palmer & Christu
4800 North Federal Highway, Suite 200E
Boca Raton, Florida 33431
Facsimile No. 561/394-3699
Page 16 of 20
Seller: First Choice Stuart 1, Inc.
5200 South Washington Avenue
Titusville, FL 32780
Facsimile No. 407/264-0376
First Choice Stuart 2, Inc.
5200 South Washington Avenue
Titusville, FL 32780
Facsimile No. 407/264-0376
With copy to: Robert J. Downing, Esq.
Chief Legal Officer
Smart Choice Automotive Group, Inc.
5200 South Washington Avenue
Titusville, FL 32780
Facsimile No. 407/264-0376
7.15 ESCROW AGENT.
7.15.1 The Escrow Agent with respect to this transaction
shall be Elk, Bankier, Palmer & Christu ("Escrow Agent") which Escrow
Agent shall hold the deposit hereinbefore referred to in accordance
with the terms and provisions of this Agreement subject to the
following:
7.15.2 DUTIES OF THE ESCROW AGENT. Escrow Agent undertakes
to perform only such duties as are expressly set forth in this
Agreement and no implied duties or obligations shall be read into this
Agreement against Escrow Agent. Escrow Agent is also the law firm
representing the Purchaser. In the event of a dispute between the
parties, the parties consent to Escrow Agent continuing to represent
the Escrow Agent and/or the Purchaser, notwithstanding the fact that
it also shall have the duties provided for in this Agreement.
7.15.3 RELIANCE OF ESCROW AGENT ON DOCUMENTS. Escrow Agent
may act in reliance upon any writing or instrument or signature which
it in good faith, believes to be genuine; may assume the validity and
accuracy of any statement or assertion contained in such a writing or
instrument; and may assume that any person purporting to give any
writing, notice, advise or instrument in connection with the
provisions of this Agreement has been duly authorized to do so. Escrow
Agent shall not be liable in any manner and execution, or validity of
any instrument deposited in escrow, nor as to the identity, authority,
or right of any person executing the same; and its duties under this
Agreement shall be limited to those provided in this Agreement.
Page 17 of 20
7.15.4 INDEMNIFICATION OF ESCROW AGENT. Unless Escrow Agent
discharges any of its duties under this Agreement in a grossly
negligent manner or is guilty of willful misconduct with regard to its
duties under this Agreement, the parties shall indemnify Escrow Agent
and hold it harmless from any and all claims, liabilities, losses,
actions, suits or proceedings at law or in equity, or other expenses,
fees, or charges of any character or nature, which it may incur or
with which it may be threatened by reason of its acting as Escrow
Agent under this Agreement; and in such connection shall indemnify
Escrow Agent against any and all expenses including reasonable
attorneys' fees and the cost of defending any action, suit or
proceedings or resisting any claim in such capacity. Escrow Agent
shall be vested with a lien on all property deposited under this
Agreement for indemnification, for reasonable attorneys' fees and
court costs, for any suit, interpleader or otherwise, or any other
expense, fees or charges of any character or nature, which may be
incurred by Escrow Agent in its capacity as escrow agent by reason or
disputes arising between the parties to this Agreement and
instructions given to Escrow Agent under this Agreement, to otherwise,
with the right of escrow agent, regardless of any instructions, to
hold the property deposited in escrow until and unless said additional
expenses, fees and charges shall be fully paid.
7.15.5 DISCRETION OF ESCROW AGENT TO FILE AN INTERPLEADER
ACTION IN THE EVENT OF DISPUTE. If the parties (including Escrow
Agent) shall be in disagreement about the interpretation of this
Agreement, or about their respective rights and obligations, or the
propriety of any action contemplated by Escrow Agent, Escrow Agent
may, but shall not be required to, file an action in interpleader to
resolve the disagreement. Escrow Agent shall be indemnified and
reimbursed equally by Seller and Purchaser for all costs and
reasonable attorneys fees in its capacity as escrow agent in
connection with any such interpleader action and shall be fully
protected in suspending all or part of its activities under this
Agreement until a final judgment in the interpleader action is
received.
7.15.6 CONSULTANT WITH COUNSEL. Escrow Agent may consult with
counsel of its own choice and have full and complete authorization and
protection in accordance with the opinion of such counsel. Escrow
Agent shall otherwise not be liable for any mistakes of fact or errors
of judgment, or for any acts or omissions of any kind unless caused by
its gross negligence or willful misconduct. Escrow Agent shall be
entitled to represent Escrow Agent and/or Purchaser in this
transaction, and Seller waives any right to assert a conflict due to
any such representation.
7.15.7 RESIGNATION OF ESCROW AGENT. Escrow Agent may resign
upon five (5) days written notice to the Purchaser and the Seller,
pursuant to this Agreement. If a successor escrow agent is not
appointed jointly by the Purchaser and Seller within the five (5) day
period, Escrow Agent may petition a court of competent jurisdiction to
name a successor.
7.15.8 ATTORNEYS' FEES. Should an action be commenced between
that parties concerning this Agreement, the prevailing party shall be
entitled, in addition to such other relief as may be granted, to
reasonable attorney's fees and costs whether or not a final judgement
is reached.
Page 18 of 20
7.15.9 COOPERATION. Seller and Purchaser agree that they will
at any time, and from time to time, after the Closing, upon the
request of the other party, do or cause to be done all such further
acts, deeds and assurances as may be required for the carrying out of
the intent of this Agreement. Seller and Purchaser hereby agree that
each of them shall pay their own expenses, including, but not limited
to, reasonable attorneys' fees in the preparation, completion and/or
cancellation of this Agreement.
7.15.10 TAXES. If, after the Closing, any liability for income
taxes or any other tax is asserted against the Seller with respect to
the Assets or Business accruing prior to the Closing Date, Seller
agrees to take full responsibility for full and prompt payment for any
such tax or liability, subject to Seller's rights to contest any such
tax or liability.
7.15.11 BINDING ON HEIRS. This Agreement shall be binding on
and shall inure to the benefit of the heirs, executors,
administrators, successors and assigns of the parties hereto.
7.15.12 DUPLICATE ORIGINALS. This Agreement may be executed
simultaneously in counterparts, and each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
7.15.13 TIME IS OF THE ESSENCE. It is specifically agreed that
time is of the essence in this Agreement and that no waiver of any
obligation hereunder or of the obligation secured hereby shall at any
time thereafter be held to be a waiver of the terms hereof or of the
instrument secured hereby.
7.15.14 HEADINGS. The headings of the articles, sections,
paragraphs and subdivisions of this Agreement are for convenience of
reference only, and are not to be considered a part hereof, and shall
not limit or otherwise affect any of the terms hereof.
7.15.15 EFFECTIVE DATE. The Effective Date of this Agreement for
all purposes herein, shall be the date of the last of Purchaser or
Seller to sign this Agreement.
Page 19 of 20
IN WITNESS WHEREOF, the parties hereto have duly executed this Asset
Purchase Agreement as of the date first written.
PURCHASER:
L & J AUTOMOTIVE INVESTMENTS, INC.,
a Florida corporation
By: ________________________________
Name:
Title:
DATED:
SELLER:
FIRST CHOICE STUART 1, INC., a Florida corporation
D/B/A STUART NISSAN
By:
Name:
Title:
DATED:
SELLER:
FIRST CHOICE STUART 2, INC., a Florida corporation
D/B/A STUART VOLVO
By:
Name:
Title:
DATED:
Page 20 of 20
Page hereby executes this Assets Purchase Agreement for the purpose of
agreeing to Section 7.3 herein.
GORDON PAGE & ASSOCIATES, INC.
BY:
GORDON PAGE
Title:
DATED:
Appendix A-2
Appendix A
REPRESENTATIONS AND WARRANTIES OF THE SELLER
To induce the Purchaser to enter into this Agreement and to consummate
the transactions contemplated hereby, the Seller hereby represents and warrants
to the Purchaser with respect to each of Stuart Nissan and Stuart Volvo, and
with respect to Clause 3 hereof covenants and agrees as follows:
Clause 1. ORGANIZATION/APPROVAL. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of Florida. The
persons who are executing this Agreement on behalf of the Seller have been duly
authorized to do so by all requisite corporate action.
Clause 2. ENFORCEABLE OBLIGATIONS. This Agreement constitutes, and the
bills of sale, assignments, certificates and other writings furnished to the
Purchaser by or on behalf of the Seller in connection with the Closing when
executed and delivered will constitute, legal, valid and binding obligations of
the Seller enforceable against it in accordance with their respective terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or other laws affecting the enforcement of creditors' rights in general, and
except that the enforceability of this Agreement is subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
Clause 3. ASSETS AND PROPERTIES. Except for the security interests
disclosed on Schedule 9 hereto, all of which will be released by the Closing,
unless otherwise agreed to by the Seller and Purchaser and expressly set forth
in Schedule 10 hereto, or as otherwise provided for under Clause 7 of this
Appendix A, the Seller owns outright and has good, valid and marketable title
(except for obsolete parts inventory) to all of the Assets, free and clear of
all liens, pledges, security interests, charges, claims, restrictions and other
encumbrances and defects of title of any nature whatsoever. All leases to be
assumed by the Purchaser under this Agreement, and all other Contracts pursuant
to which the Seller has obtained the right to use any real or personal property,
are in good standing, valid and effective in accordance with their respective
terms, and there is not under any of such Contracts any existing default by
Seller, or to Seller's knowledge an event which with notice or lapse of time, or
both, would constitute a default. The equipment, inventory and other personal
property included in the Assets constitute all of the equipment, inventory and
other personal property used in the Business, except for new and used
automobiles and other vehicles unless otherwise included in the Assets. Other
than the names "Stuart Nissan", "Stuart Volvo" and "Motorcars of Stuart", and
the Seller has no trade names, trademarks or service marks. Except as otherwise
disclosed in the Agreement, including Exhibits, Schedules and Appendices
thereto, the Seller has the unrestricted right to grant, sell, assign and
transfer the Assets pursuant to this Agreement.
Clause 4. LEGAL PROCEEDINGS. Except as disclosed on Schedule 11, there
are no disputes, claims, actions, suits or proceedings, arbitrations or
investigations, either administrative or judicial, pending, or to Seller's
knowledge threatened or contemplated by or against or affecting,
Appendix A-1
the Seller or any of its assets or business, before or by any court or
governmental or regulatory official, body or authority, or before an arbitrator
of any kind which would have a material adverse effect on the Assets, nor does
the Seller have any knowledge of any basis for any claim, liability or
litigation against the Seller which would have such effect. Except as disclosed
on Schedule 11, the Seller is not a party to or subject to the provisions of any
judgment, order, writ, injunction, decree or award of any court, arbitrator or
governmental or regulatory official, body or authority.
Clause 5. COMPLIANCE WITH LAW. The Seller has complied with each and is
not in violation of any law, rule or regulation to which it, the Assets, the
Dealership or the Business is subject and has not failed to obtain or to adhere
to the requirements of any license, permit or authorization relating to its
ownership of the Assets or to the operation of the Dealership or the conduct of
the Business, wherein such violation or failure to obtain or adhere would have a
material adverse effect on the Assets.
Clause 6. VALIDITY OF CONTEMPLATED TRANSACTIONS. Neither the execution
or delivery of this Agreement by the Seller, nor the Seller's consummation of
the transactions contemplated hereby, will contravene or violate (a) any law,
rule or regulation to which the Seller is subject, (b) any judgment, order,
writ, injunction, decree or award of any court, arbitrator or governmental or
regulatory official, body or authority which is applicable to the Seller or (c)
the organizational documents of the Seller, or will violate, be in conflict with
or result in the breach (with or without notice or lapse of time, or both) of
any term, condition or provision of, or, except as disclosed on Schedule 12
hereto, require the consent of any other party to, any indenture, agreement,
contract, commitment, lease, plan, license, permit, authorization, or other
instrument, document, or understanding, oral or written, to or by which the
Seller is a party or otherwise bound or affected or by which any of the Assets
may be bound or affected or give any party with rights thereunder the right to
terminate, modify, accelerate, renegotiate or otherwise change the existing
rights or obligations of the Seller thereunder. No authorization, approval or
consent, and no registration or filing with, any governmental or regulatory
official, body or authority is required in connection with the execution or
delivery of this Agreement by the Seller or the Seller's consummation of the
transactions contemplated hereby.
Clause 7. TITLE TO ASSETS. Seller warrants and represents that it has
good and marketable title (not applicable to obsolete inventory) to all Assets
which are the subject of this transaction and all such Assets are free and clear
of all mortgages, liens, pledges, charges, encumbrances, equities, claims,
covenants, conditions or restrictions other than those which will be satisfied
in full at Closing, or those that are set forth in Schedule 10 hereto, or are to
be prorated at Closing and those Contracts which shall be assumed by Purchaser
and which are set forth in Exhibit "A" attached hereto. Seller knows of no
contingent liabilities, lawsuits or claims pending or threatened against Seller
relative to the Business, other than those set forth in Schedule 7 hereto.
Clause 8. TRANSFER OF ASSETS. Seller has not sold, transferred,
conveyed, or assigned any of the Assets, of Seller prior to the contemplated
sale of the Assets to Purchaser, other than in the
Appendix A-2
ordinary course of business. Seller has taken no action to diminish, to impede
or to impair Seller's Assets or the Business and shall not take any such action
prior to or after Closing.
Clause 9. MAINTENANCE OF INVENTORY AND PARTS. Seller shall maintain the
parts inventory at its ordinary and customary supply levels to the Closing Date.
Any sales made by Seller between the date of this Agreement and the Closing date
shall be reviewed and approved by Purchaser, unless the same are made in the
ordinary course of business.
Clause 10. CONDITION OF ASSETS. Seller covenants and warrants that all
Assets shall be in the same condition at the Closing Date as they were at the
date of the expiration of the Inspection Period, reasonable wear and tear
excepted.
Clause 11. FINANCIAL STATEMENTS, BOOKS AND RECORDS. The Seller has
presently delivered to the Purchaser copies of consolidated financial statements
and balance sheets, books of account and records of the Seller as of December
31, 1998 and March 31, 1999, which are reported based upon segment reporting and
are complete, and accurate in all material respects to the best of Seller's
knowledge.
Clause 12. NO MATERIAL ADVERSE CHANGES. As of the date of this
Agreement, there has not been:
(a) any material adverse change in the Assets;
(b) any damage, destruction or loss materially affecting the
Assets; or
(c) any mortgage or pledge by Seller of the Assets.
Clause 13. TAXES. Except as set forth in Schedule "13", all the returns
required to be filed by Seller in respect of the Business have been filed and
Seller has paid all taxes within the times and in the manner prescribed by law.
The Seller has filed all foreign, federal, state, county and local tax returns
required by law and has paid all taxes, assessments, and penalties
(collectively, "Taxes") due and payable. There are no present or to Seller's
knowledge, potential disputes as to Taxes payable by Seller, that could
themselves result in any material adverse effect on Seller, or the Assets. No
legal actions, Internal Revenue Service claims or State tax claims are pending
or to the knowledge of Seller threatened which reasonably could be expected to
ripen into a lien or encumbrance on the Assets. Seller has paid all applicable
State sales tax, Internal Revenue Service taxes and any other taxes, levies or
assessments imposed by any governmental or quasi governmental entity. In the
event any taxes, levies or assessments may be imposed at any time relative to
the period of ownership by Seller of the Assets, Seller agrees to pay the same
immediately, subject to Seller's right to contest payment, and reimburse the
Purchaser for any expense the Purchaser may incur relative to the same. Seller
agrees at Closing to provide to Purchaser a Sales Tax Certificate from the
Florida Department of Revenue proving that Seller has paid all sales taxes due
or which shall become due through the date of Closing.
Clause 14. LITIGATION. There is no suit, claim, suit, action,
arbitration, or legal, administrative, or other proceeding, or worker's
compensation claim, or governmental
Appendix A-3
investigation pending or to Seller's knowledge threatened against or affecting
the Business or the Assets, except as set forth on Schedule "11". The Seller is
not a party to or subject to any judgment or decree or order entered in any suit
or proceeding brought by any governmental agency or by any other person
enjoining it in respect of any aspect of the Business or of the Assets. Seller
is not in default with respect to any order, writ, injunction or decree of any
federal, state, local, or foreign court, department, agency or instrumentality
which would reasonably be expected to have a material adverse effect on the
Business and/or the Assets except that set forth in Schedule "11".
Clause 15. LEASES. The Volvo Lease and Nissan Lease are in full force
and effect. Seller, to its knowledge, is not in default on any obligations set
forth and required within the Nissan Lease, the Lot Lease or the Volvo Lease,
and no event has occurred which, with the giving of notice or passage of time,
or both, would constitute a material default under any of the Leases. The Seller
has not received any written or oral communication from any Seller or any third
party which alleges that, as of the date hereof, either a default exists or with
the passage of time will exist under the Lease.
Clause 16. EMPLOYMENT MATTERS. The Seller is not presently a party to
any employment agreement, and has not previously been a party to any employment
agreement, other than that with Tom DeRita, which is the subject of litigation
set forth in Schedule "11", or agreement to lend to, or guarantee any loan to an
employee or agreement relating to a bonus, severance pay or similar plan,
agreement, arrangement or understanding. The Seller has incurred no liability,
or taken or failed to take, any action which will result in any liability in
respect of any failure to comply with the Fair Labor Standards Act or any other
applicable law dealing with minimum wages or maximum hours for any employees,
and all payments due from the Seller on account of its employee health and
welfare insurance, holiday and vacation pay and similar benefits have been paid
or accrued, and may be paid prior to Closing at Seller's election, with the
exception of obligations with respect to employees which Purchaser decides to
hire subsequent to Closing, which health and welfare insurance, holiday and
vacation pay and other benefits shall be negotiated by and between any such
employee and Purchaser. The Seller is not a party to any collective bargaining
agreement governing its employees. To Seller's knowledge, there is no pending or
threatened election for union representation of the Seller's employees.
Clause 17. LICENSES. All material necessary licenses of Seller required
by any federal, state or local governing authority shall be in effect and in
good standing at the time of Closing, other than those to be obtained by
Purchaser, for which Purchaser shall be responsible.
Clause 18. ENVIRONMENTAL MATTERS. Except as disclosed on Schedule 14
hereto, to Seller's knowledge, Seller represents that the property upon which
Stuart Nissan and Stuart Volvo is located or any contiguous or adjacent
properties have not been, are not presently or are not contemplated to be
utilized as a reservoir of toxic chemicals, and/or nuclear waste material.
Except as disclosed on Schedule 14 hereto, to Seller's knowledge, Seller
represents and warrants that: (a) no substance including without limitation,
asbestos or any substance containing more than 0.1 percent asbestos, the group
of compounds known as polychlorinated biphenyls, flammable, explosives,
radioactive materials, chemicals known to cause cancer or reproductive toxicity,
pollutants, effluents, contaminants, emissions or related materials or
substances
Appendix A-4
(collectively "Hazardous Materials") (any mixture of a Hazardous Material,
regardless of concentration with other materials shall be considered a Hazardous
Material) under any law relating to environmental conditions and industrial
hygiene, including without limitation, the Resource Conservation and Recovery
Act of 1976 ("RCRA"), 42 I Section 6901 et seq., the Comprehensive Environmental
Response, the Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C.
Section 9601 et seq., as amended by the Superfund Amendments and Reauthorization
Act of 1986 ("SARA"), the Hazardous Materials Transportation Act. 49 U.S.C.
Section 1801, et seq., the Clean Air Act, 42 U.S.C. Section 7401 et seq., the
Toxic Substances Control Act, 15 U.S.C. Sections 2601-2629, the Safe Drinking
Water Act. 42 U.S. Section 300f et seq., and all similar federal, state and
local environmental statutes, ordinances and the regulations, orders decrees now
or hereafter promulgated thereunder (collectively, the "Hazardous Material
Laws"), have been installed, used, generated, manufactured, treated, handled,
refined, produced, processed, stored or disposed of, or otherwise present in, on
or under the Property, and that to Seller's knowledge no activity has been
undertaken on the Property which would cause (i) the Property to become a
hazardous waste treatment, storage or disposal facility within the meaning of,
or otherwise being the Property within the ambit of RCRA or any Hazardous
Material Law, (ii) a release or threatened release of Hazardous Material from
the Property within the meaning of, or otherwise bring the Property within the
ambit of CERCLA or SARA or any Hazardous Material Law, or (iii) the discharge of
Hazardous Material into any watercourse, body of surface or subsurface water or
wetland, or the discharge into the atmosphere of any Hazardous Material which
would require a permit under any Hazardous Material Law; (b) no activity has
been undertaken with respect to the Property which would cause a violation or
support claim under RCRA, CERCLA, SARA or any Hazardous Material Law, (c) no
underground storage tanks or underground Hazardous Material Deposits are or were
located on the Property and subsequently removed or filled; (d) no
investigation, administrative order, litigation or settlement with respect to
any Hazardous Materials is threatened or in existence with respect to the
Property; and (e) no notice has been served on Seller from any entity,
governmental body, or individual claiming any violation of any Hazardous
Material Law, or requiring compliance with any Hazardous Material Law, or
demanding payment or contribution for environmental damage or injury to natural
resources.
Clause 19. CERTAIN LIENS. Except as specifically set forth in Schedule
"7" or Schedule "15", to Seller's knowledge, for at least ninety (90) days prior
to the Closing of the transaction, no material, labor or services have been
furnished, performed or supplied in connection with the Assets, for which
payment has not been made in full; no material, labor or services have been
contracted to be furnished, performed or supplied at a future date in connection
with the Assets, for which payment has not been made in full; and there are no
unpaid mechanic's, materialmen's or other liens affecting the Assets or actual
or potential claims on account of any such material, labor or services.
Clause 20. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties of Seller under this Agreement shall be true and
correct as of the Closing date as if made on this date and shall survive the
Closing for a period of one (1) year subsequent to the Closing Date. The Seller
knows of no statement which is not true or material fact or omission of any
material fact, the omission of which would be misleading or would be in
contravention of any covenant, representation or warranty contained herein.
Seller shall provide an Affidavit at
Appendix A-5
Closing attesting to the truth and accuracy of all representatives and
warranties herein and indemnifying and holding Purchaser harmless from and
against any liabilities for any liabilities, obligations, representations and
warranties contained herein. At the Closing, Seller shall submit an affidavit of
all accounts payable of Seller which shall be paid by Seller in full at Closing.
Appendix A-6
Appendix B
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
To induce the Seller to enter into this Agreement and to consummate the
transactions contemplated hereby, the Purchaser hereby represents and warrants
to the Seller, and with respect to Clause 3 hereof covenants and agrees as
follows:
Clause 1. ORGANIZATION/APPROVAL. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of Florida. The
persons who are executing this Agreement on behalf of the Purchaser have been
duly authorized to do so by all requisite corporate action.
Clause 2. ENFORCEABLE OBLIGATIONS. This Agreement constitutes, and the
bills of sale, assignments, certificates and other writings furnished to the
Seller by or on behalf of the Purchaser in connection with the Closing when
executed and delivered will constitute, legal, valid and binding obligations of
the Purchaser enforceable against it in accordance with their respective terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or other laws affecting the enforcement of creditors' rights in general, and
except that the enforceability of this Agreement is subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
Clause 3. VALIDITY OF CONTEMPLATED TRANSACTIONS. Neither the execution
or delivery of this Agreement by the Purchaser, nor the Purchaser's consummation
of the transactions contemplated hereby, will contravene or violate (a) any law,
rule or regulation to which the Purchaser is subject, (b) any judgment, order,
writ, injunction, decree or award of any court, arbitrator or governmental or
regulatory official, body or authority which is applicable to the Purchaser or
(c) the organizational documents of the Purchaser, or will violate, be in
conflict with or result in the breach (with or without notice or lapse of time,
or both) of any term, condition or provision of, or, except as disclosed on
Schedule 16 hereto, require the consent of any other party to, any indenture,
agreement, contract, commitment, lease, plan, license, permit, authorization, or
other instrument, document, or understanding, oral or written, to or by which
the Purchaser is a party or otherwise bound or affected or by which any of the
Assets may be bound or affected or give any party with rights thereunder the
right to terminate, modify, accelerate, renegotiate or otherwise change the
existing rights or obligations of the Purchaser thereunder. No authorization,
approval or consent, and no registration or filing with, any governmental or
regulatory official, body or authority is required in connection with the
execution or delivery of this Agreement by the Purchaser or the Purchaser's
consummation of the transactions contemplated hereby.
Clause 4. DUE DILIGENCE.
4.1 Purchaser is an informed and sophisticated Purchaser and
is experienced in the valuation of purchasing companies such as
Seller's and its Assets. In making the decision to enter into this
Agreement and consummate the transactions contemplated hereby,
Purchaser has relied upon its own independent investigation of the
Business and
Appendix B-1
its Assets, as of this date and upon the representations, warranties
and covenants contained in the Agreement.
4.2 Purchaser acknowledges that Seller has made no
representation or warranty as to the prospects, financial or otherwise,
of the Business and its Assets, and that the Assets are to be sold
pursuant to this Agreement in an "AS-IS, WHERE IS" condition. Purchaser
agrees to accept the Assets in the condition required herein on the
Closing Date, based upon its own inspection, examination and
determination with respect thereto.
Appendix B-2