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Exhibit 10.18
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement") is
entered into effective as of September 26, 1995, by and between THE GOOD GUYS,
INC., a Delaware corporation ("Assignor"), and THE GOOD GUYS - CALIFORNIA,
INC., a California corporation ("Assignee").
RECITALS
A. Assignor desires to assign substantially all of its
assets, rights, properties, claims and contracts used in its business (the
"Business") to Assignee, subject to the assumption by Assignee of all
liabilities and obligations of Assignor relating to such assets, rights,
properties, claims and contracts.
B. Assignee desires to issue 1,000 shares of its common
stock to Assignor, which will constitute all of the issued and outstanding
shares of capital stock of Assignee, in exchange for the assets, rights,
properties, claims and contracts assigned by Assignor hereunder.
C. It is intended that the transaction contemplated by
this Agreement will qualify for nonrecognition of gain or loss under Section
351 of the Internal Revenue Code of 1986.
NOW, THEREFORE, Assignor and Assignee hereby agree as follows:
1. Assignment of Property and Assets by Assignor.
a. Assignment. On the terms and subject to the
conditions of this Agreement, Assignor hereby conveys, assigns, transfers and
delivers to Assignee, in exchange for the issuance to Assignor of 1,000 shares
of common stock of Assignee (the "Shares"), all of Assignor's assets, rights,
accounts, properties, claims and contracts (the "Assigned Assets"), except for
those leases set forth in ATTACHMENT I (the "Unassigned Leases") which will be
the subject of a separate assignment and assumption agreement, and except that
any contract between Assignor and any third party which contains a prohibition
against, or limitation or condition on, transfer or assignment (the
"Non-Assignable Contracts") is not assigned hereby.
b. Instruments of Conveyance and Transfer.
Assignor has delivered or will deliver to Assignee such deeds, endorsements,
consents, assignments and other good and sufficient instruments of conveyance
and assignment as will be effective to vest in Assignee all right, title and
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interest of Assignor in and to the Assigned Assets, and has transferred or will
transfer to Assignee copies of all the contracts, agreements, commitments,
books, records, files and other data relating to the Assigned Assets reasonably
necessary for the continued operation of the Business by Assignee.
c. Further Assurances. From time to time
hereafter, Assignor will execute and deliver such other instruments of
conveyance, assignment, transfer and delivery, and will take such other
actions, as Assignee reasonably may request in order more effectively to
transfer, convey, assign and deliver to Assignee, and to place Assignee in
possession and control of, any of the Assigned Assets and the Unassigned Leases
and Non-Assignable Contracts (at such time as they may be assigned by Assignor
to Assignee).
2. Assumption of Liabilities. Effective as of the date
hereof, Assignee hereby assumes and agrees to pay, perform and discharge when
due the liabilities and obligations of Assignor, to the extent the same are
unpaid, undelivered or unperformed as of the date hereof (the "Assumed
Liabilities").
3. Delivery of Shares.
a. Subscription; Delivery of Certificates.
Assignee will promptly deliver to Assignor a duly executed stock certificate or
certificates, registered in Assignor's name and representing the Shares,
against assignment of the Assigned Assets to Assignee pursuant to Section 1
hereof and the assumption of the Assumed Liabilities by Assignee pursuant to
Section 2 hereof, representing payment in full for the Shares.
b. Representation of Assignor. Assignor hereby
represents and warrants that it is acquiring the Shares for its own account and
not with an intent to sell or otherwise distribute such securities.
4. Covenants Subsequent to Assignment and Assumption.
a. Assignor's Cooperation. Assignor will use
its reasonable best efforts to provide any information contained in Assignor's
books and records, and will use its reasonable best efforts otherwise to assist
and cause its employees to assist Assignee, in connection with the
investigation, litigation and final disposition of any claims relating to the
Assigned Assets or the Assumed Liabilities.
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b. Insurance. With respect to any liability or
obligation assumed hereunder by Assignee relating to the operation of the
Business prior to the date hereof that is covered by Assignor's insurance
policies, Assignor will make its insurance available to cover such claims,
including worker's compensation claims with respect to occurrences prior to the
date hereof; provided that Assignee will be responsible for any deductible
amounts and amounts in excess of coverage with respect thereto. Assignor and
Assignee each agree to cooperate fully and promptly in the preparation and
presentation of defenses to any such liability claims, including, but not
limited to, the prompt review and copying of records, the availability of
employees for consultation and as witnesses, and the prompt response to all
requests for supporting documents and materials. Assignee agrees to give
Assignor prompt notice of any information it receives which pertains to a claim
for which Assignor could be required to make insurance coverage available under
this Section 4.b.
c. Further Agreements. Assignor authorizes and
empowers Assignee on and after the date hereof to receive and open all mail
received by Assignee relating to the Business, the Assigned Assets, or the
Assumed Liabilities, and to deal with the contents of such communications in
any proper manner. Assignor will promptly deliver to Assignee any mail or
other communication received by Assignor after the date hereof pertaining to
the Assigned Assets or the Assumed Liabilities and any cash, checks or other
instruments of payment to which Assignee is entitled.
5. Miscellaneous.
a. Bulk Sales Law. Assignee and Assignor agree
to waive compliance with the provisions of the California Bulk Sales Law.
b. Further Action. Each of the parties hereto
agrees to use reasonable efforts to take, or cause to be taken, all action and
to do, or cause to be done, all things necessary, proper or advisable to
consummate and make effective the transactions contemplated by this Agreement
and to effect all registrations, filings and notices with or to third parties
or governmental or regulatory authorities that are necessary or desirable.
c. No Third Party Rights. Nothing in this
Agreement, expressed or implied, is intended to confer on any person or entity
other than Assignor and Assignee or their respective successors and assigns,
any rights, remedies, obligations or liabilities under or by reason of this
Agreement.
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d. Choice of Law. This Agreement will be
interpreted and enforced in accordance with the laws of the State of California
as applied to contracts executed and performed entirely therein.
e. Counterparts. This Agreement may be executed
in any number of counterparts, each of which will be an original, but all of
which together will constitute one instrument.
f. Captions. The captions appearing in this
Agreement are inserted only as a matter of convenience and in no way define,
limit, construe or describe the scope or interpretation of this Agreement.
g. Amendment of Agreement; Termination. This
Agreement may be amended by a written instrument signed by all of the parties
hereto. This Agreement may be terminated and the transactions contemplated
herein may be abandoned by mutual written consent of Assignor and Assignee. In
the event of any such termination, this Agreement will forthwith become wholly
void and of no further force and effect and there will be no liability on the
part of Assignor, Assignee, or their respective officers or directors.
h. Severability. The invalidity or
unenforceability of any provision of this Agreement will not affect the
validity or enforceability of any other provision.
i. Assignability. This Agreement is not
assignable by either party without the prior written consent of the other.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Assignment and Assumption Agreement as of the date first written
above.
THE GOOD GUYS, INC., A DELAWARE
CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Title: President
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THE GOOD GUYS - CALIFORNIA,
INC., A CALIFORNIA CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Title: President
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ATTACHMENT I
UNASSIGNED LEASES
Stonestown Shopping Center
Stonestown Installation Facility
San Mateo
Almaden Plaza (Blossom Hill)
Xxxxxxx Connection
Chula Vista
Southland Mall (Hayward)
Marina Del Rey
Metro Center (MIS Facility) Burlingame
Anaheim Service Center
Temple of the Golden Rule (Berkeley)
Xxxxx Street, San Francisco
Grossmont Center, San Diego
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