EXHIBIT 10.1
ASSIGNMENT AND ASSUMPTION AGREEMENT
Agreement made this 21st day of August , 2003 between Vuong Quang Quoc
("Vuong"), as Tenant and Smog Centers of California, LLC ("Smog Centers"), as
Assignee.
Recitals
A. Vuong as Tenant is a party to a Real Estate Lease dated April 4,
2001 ("Lease") with Manuel Nunez, as Landlord.
B. Vuong possesses all right, title and interest in and to the Lease,
as tenant, and desires to sell, assign and transfer the Lease to Smog Centers,
as Assignee and Smog Centers desires to accept such sale, assignment and
transfer upon the terms and conditions set forth in this Agreement.
C. To their respective best knowledge, Vuong and Landlord have no
claims or defenses one against the other by reason of the Lease.
D. Vuong and Smog have entered into an Asset Acquisition Agreement
dated August 21, 2003 regarding the sale and purchase of all of the assets used
by Vuong in connection with the operation of a motor vehicle smog emissions test
center on the property subject to the Lease.
Now, therefore, in consideration of the mutual covenants contained
herein set forth and for other good and valuable consideration, it is agreed as
follows:
1. ASSIGNMENT. Vuong hereby sells, assigns and transfers to Smog
Centers any and all of Vuong's right, title and interest in and to the Lease.
The sale, assignment and transfer is made without recourse whatsoever to Vuong
and with out any representations and warranties, express or implied, of any
nature whatsoever.
2. ACCEPTANCE AND INDEMNIFICATION. Smog Centers hereby accepts the
foregoing sale, assignment and transfer and promises to pay all rent and
additional rent and to faithfully perform all other covenants, stipulations,
agreements and obligations under the Lease accruing on and after August 21,
2003, or otherwise attributable to the period commencing on that date and
continuing thereafter and Vuong shall be responsible to the period prior
thereto. Smog Centers shall indemnify and hold Vuong harmless from any and all
claims, demands, actions, causes of action, suits, proceedings, damages,
liabilities and costs and expenses of every nature whatsoever which relate to
the Lease or the premises demised thereunder arising on or after August 21,
2003.
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3. MODIFICATION OF LEASE. Vuong agrees that Landlord and Smog Centers
may change, modify or amend the Lease in any way, including the rental to be
paid thereunder, and that further assignments may be made, without notice to or
consent of Vuong and without in any manner releasing or relieving Vuong from
liability under the Lease as originally executed by the parties thereto.
4. CONSENT OF LANDLORD. In consideration of the foregoing, the Landlord
hereby consents to the assignment of the Lease by Vuong to Smog Centers, but
upon the express condition that neither such consent nor the collection of rent
from Smog Centers shall be deemed a waiver or relinquishment for the future of
the covenant against assignment or subletting, nor shall the acceptance of Smog
Centers as tenant be construed as releasing Vuong from the full performance of
the provisions of the Lease.
5. ASSIGNEE'S EXPENSES. All taxes and other governmental charges and
fees, including without limitation, any and all transfer taxes, sales taxes and
recording fees, related to the transaction evidenced by this Agreement shall be
paid by Smog Centers.
6. BENEFIT. Subject to the provisions in this Agreement restricting
assignment, this Agreement shall be binding upon and inure to the benefit heirs,
executor, administrators, successors and assigns of the parties.
7. NOTICES. Any notice required to be given hereunder shall be
sufficient if in writing, and sent by facsimile transmission and by courier
service (with proof of service), hand delivery or certified or registered mail
(return receipt requested and first-class postage prepaid), addressed as
follows:
If to Vuong, to:
Vuong Quang Quoc
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If to Smog Centers, to:
Stephen D. Wilson
3790 Via de la Valle, Suite 103
Del Mar, California 92014
Facsimile:_________________
8. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of California without regard to its rules on conflict of laws.
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9. DESCRIPTIVE HEADINGS. The descriptive headings herein are inserted
for convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.
10. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of will deemed to be an original and together shall
constitute one and same instrument.
11. ATTORNEY'S FEES. In the event the services of an attorney at law
are necessary to enforce any of the terms of this Agreement or to resolve any
disputes arising under this Agreement, the prevailing Party shall be entitled to
recover its attorney's fees from the losing Party as determined in the
appropriate trial and/or appellate court, bankruptcy court or on a Petition for
Review.
12. NON-WAIVER. No delay or failure by either party to exercise any
right under this Agreement, and not partial or single exercise of that right,
shall be constitute a waiver of that or any other right,
13. COMPLETE AGREEMENT. This Agreement and other agreements referred to
herein set forth the entire understanding of the parties hereto with respect to
the matters provided herein and supersede all prior agreements, covenants,
arrangements, communications, representations or warranties, whether oral or
written, by any of the parties or by any officer, employer or representative of
any party.
14. REPRESENTATION BY COUNSEL. This Agreement has been prepared by
legal counsel for and on behalf of Smog Centers. Vuong has been advised by Smog
Centers to obtain his own legal counsel in connection with this Agreement and
the transaction contemplated herein. Vuong has informed Smog Centers that he has
elected not to seek the advice of his own legal counsel.
IN WITNESS WHEREOF, the parties have executed this Agreement by their
respective authorized officers as of the date first above written.
Tenant: /s/ VUONG QUANG QUOC
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Vuong Quang Quoc
Assignee:
Smog Centers of California, LLC
By: /s/ STEPHEN D. WILSON
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Manager
Landlord: /s/ MANUEL NUNEZ
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Manuel Nunez
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