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EXHIBIT 10.20
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AGREEMENT OF SALE
BY AND BETWEEN
THE PARTS SOURCE, INC. ("PURCHASER")
AND
A.P.S., INC. ("SELLER")
DATED AS OF: OCTOBER 22, 1996
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AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement") is made and entered into as of
the 22nd day of October, 1996, by and between A.P.S., INC., a Delaware
corporation ("Seller"), which term shall include Seller's successors and
assigns wherever the context hereof so requires or admits, and THE PARTS
SOURCE, INC., a Florida corporation ("Purchaser"), which term shall include its
successors and assigns wherever the context hereof so requires or admits.
WHEREAS, Seller, through one or more subsidiaries, owns and operates a
business for the sale of automotive parts, accessories and supplies at the
locations set forth on EXHIBIT "A", (the "Business Locations", and Seller
desires to sell substantially all of the assets associated with the operation
of the businesses at the Business Locations upon the terms and conditions set
forth herein; and
WHEREAS, Purchaser desires to purchase such assets from Seller upon the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, Seller and Purchaser hereby agree as
follows:
1. PURCHASE OF ASSETS
A. Subject to the terms and conditions of this Agreement, Seller
shall sell and deliver to Purchaser and Purchaser shall purchase and take
possession at the Business Locations, upon completion of the physical inventory
described in Section 3.A. hereof, to be completed on the Closing Date (as
hereinafter defined), free and clear of all liens, security interests, pledges
or encumbrances, all of the automotive inventory (including cores, warranty
merchandise , inventory in transit and finished goods) of Seller located at the
Business Locations, physically counted in accordance with the inventory
procedures described in Section 3.A. hereof (the "Inventory"), a complete list
of which shall be annexed to this Agreement as EXHIBIT "B" as promptly as
practicable but not later than the time of Closing (as hereinafter defined).
Excluded from the purchase provisions of this Agreement is any item of
Inventory identified by the manufacturer thereof as being obsolete or if any
such item no longer appears in the applicable manufacturer's then current
published price sheet, and those items of Inventory whose packaging is not in
resalable condition by reason of water or other damage. Inventory not
purchased by Purchaser shall remain the property of Seller and shall be
promptly returned to Seller by Purchaser.
B. Subject to the terms and conditions of this Agreement, Seller
shall sell and deliver to Purchaser and Purchaser shall purchase and take
possession at the Business Locations as of Seller's close of business on the
Closing Date, free and clear of all liens, security interests, pledges or
encumbrances, all of the machinery, equipment, furniture, fixtures, signs,
vehicles and leasehold improvements located at the Business Locations on the
Closing Date, which are owned by Seller, a principal list of which is attached
as EXHIBIT "C" (excluding, however, certain computer
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equipment set forth as excluded) which list shall be supplemented by Seller, as
of the Closing Date, no later than the True-Up Date and the Purchase Price
shall be adjusted accordingly.
C. Subject to the terms and conditions of this Agreement, Seller
shall sell and convey to Purchaser and Purchaser shall purchase and receive
from Seller, all of Seller's right, title and interest in and to the prepaid
expenses and other assets detailed on EXHIBIT "D".
D. Subject to the terms and conditions of this Agreement, Seller
shall convey to Purchaser and Purchaser shall receive from Seller, all of
Seller's goodwill in the operation of the Business Locations as going concerns,
excluding, however, the trademarks or trade names used by Seller at the
Business Locations.
E. The assets described in Sections 1.A., 1.B., 1.C. and 1.D. hereof
are herein both individually and collectively referred to as "Assets ".
F. Except for the warranty of title set forth in Section 11.A.
hereof, the Assets are being sold "AS IS," "WHERE IS" and "WITH ALL FAULTS" and
Seller hereby expressly disclaims any and all other warranties both express and
implied.
2. PURCHASE PRICE
A. The purchase price for the Assets described in Section 1.A.
hereof is a sum of money equal to the aggregate value of the Inventory priced
according to Seller's "Net 15 Pricing Program". All Inventory for which there
is no "Net 15 Pricing Program" price sheet shall be marked up at the same
percentage rate from Seller's acquisition cost as Inventory that appears on a
"Net 15 Pricing Program" price sheet.
B. The purchase price for the Assets described in Section 1.B.
hereof shall be a sum of money equal to the aggregate of their net book values
as set forth on Seller's balance sheet for the Business Locations dated as of
the Closing Date.
C. The purchase price for the prepaid expenses, leasehold
improvements and other Assets detailed on Exhibit "D" shall be the aggregate of
their respective net book values as set forth on Seller's balance sheet for the
Business Locations dated as of the Closing Date.
D. The purchase price for the Assets described in Section 1.D.
hereof is the sum of One Million Thirty-Six Thousand and No/100 Dollars
($1,036,000.00).
E. The sum of money due Seller by Purchaser for the sale and
purchase respectively of the Assets, as adjusted either upward or downward
according to the provisions of this Agreement, is herein referred to as the
"Purchase Price" and shall be paid in cash by wire transfer or other
immediately available funds acceptable to Seller.
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3. PHYSICAL INVENTORY
A. A physical accounting of the Inventory shall be taken commencing
as of Seller's close of business on the Closing Date. Such physical inventory
shall be taken cooperatively by representatives of Seller and Purchaser and a
written itemized listing setting forth specifically all such items physically
counted shall be prepared by Seller, which written inventory shall be priced
and extended using the valuation method described in Section 2.A. hereof.
Employees or independent contractors of Seller participating in the physical
inventory shall be compensated solely by Seller, and employees or independent
contractors of Purchaser participating in the physical inventory shall be
compensated solely by Purchaser.
B. Purchaser shall, on the Closing Date, deliver Seller immediately
available United States funds in an amount equal to one hundred percent (100%)
of the value of the Assets described in Sections 1.B., 1.C. and 1.D. hereof and
eighty percent (80%) of the value of the Inventory shown as being present at
the Business Locations on the financial books and records of Seller as of
Seller's then most recently completed FISCAL month.
4. CLOSING
The time of closing of this Agreement shall be at 12:00 noon local time
on October 25, 1996, at the offices of Seller, 15710 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or at such other time and place or places as
the parties may agree ("Closing" or "Closing Date").
5. TRUE-UP
A. It is understood between Seller and Purchaser that the
calculation of the Purchase Price cannot be completed by the time of Closing
and as such the determination of the Purchase Price shall be ascertained on or
before seven (7) calendar days immediately following the Closing Date ("True-Up
Date"). On the True-Up Date, Purchaser shall deliver Seller good funds in an
amount necessary to have, as of the True-Up Date, delivered Seller the Purchase
Price (except as contemplated by Section 5.B. below), or in the unlikely event
the Purchase Price is less than the amount theretofore delivered Seller, the
amount of any excess shall be refunded to Purchaser by Seller's delivery of
good funds in the appropriate amount. In the event Seller and Purchaser cannot
agree upon the Purchase Price, any dispute shall be submitted to arbitration
according to the provisions of Section 5.B.
B. If, by the True-Up Date, Seller and Purchaser are unable to
agree to a purchase price for the Inventory, Purchaser shall have delivered to
Seller at Closing the sum of money set forth in Section 3.B. and on the True-Up
Date such sum of money as is mutually agreed upon as then being owed and, with
respect to all disputed items relating to the Inventory purchase price, submit,
within ten (10) days following True-Up, for review and resolution, such
disputed items along with work papers, price sheets and other applicable
documents and materials to a mutually acceptable "Big 6" accounting firm or, if
such firm is unable or unwilling to act, to any other accounting firm selected
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as hereinafter provided. The charges of such firm (or any other firm selected
as hereinafter provided) with respect to the services performed by it pursuant
to this Section 5.B shall be apportioned by such firm as it may determine on
the basis of each party bearing the expenses of that portion of the review that
relates to disputed items that are resolved not in favor of such party. If the
above firm is not willing or able to act as provided in this Section 5.B., then
for the purposes of resolving disputes under this Section 5.B. only, a firm of
independent Certified Public Accountants shall be selected by the then Chair-
person of the Florida Association of Certified Public Accountants, or if such
Chair-person is not willing or able to act, by the first in the order named of
the following then officers of the Florida Association of Certified Public
Accountants who is willing and able to act: President, Vice President (in order
of seniority if more than one), Treasurer or Secretary. The decision of the
arbitrating firm or individual as called for in this Section 5.B. shall be
conclusive and binding on Seller and Purchaser for the purposes of determining
the purchase price for the disputed items of Inventory set forth in Exhibit
"B". Purchaser and Seller shall each represent to the other that, to the best
of each such party's knowledge, the public accounting firm that will be
recommended by each has not performed services that could be considered a
conflict of interest to any arbitration work described in this Agreement. The
use of arbitration in this Agreement is limited solely to the purposes
specifically set forth in this Section 5.B.
6. TAXES
A. Purchaser hereby agrees to be solely responsible for and pay when
due any sales or other transfer tax or impositions and, except as otherwise set
forth in the immediately following sentence, any other tax or impositions that
may be applicable to the transfer of the Assets pursuant to this Agreement.
All personal property taxes shall be equitably prorated between Purchaser and
Seller as of the Closing Date and a corresponding adjustment to the Purchase
Price shall be made at Closing.
7. ASSUMPTION OF CERTAIN OBLIGATIONS; REIMBURSEMENT OF CERTAIN EXPENSES
A. Purchaser hereby specifically assumes all of the following
obligations of Seller with respect to the Business Locations:
(i) All operating and financing leases for vehicles,
telephones, photocopiers, fax machines, and all obligations with
respect to advertising arrangements (including yellow pages
advertising), alarm systems and the like (but excluding computer
systems and software licenses), a list of all such material
leases and obligations is set forth in EXHIBIT "E-1" hereto.
(ii) All service and maintenance contracts such as utilities,
trash pick up, alarm monitoring, computer and other equipment
maintenance for such time as Purchaser shall use Seller's
computer systems and software and the like, a list of all such
material service and maintenance contracts is set forth in
EXHIBIT "E-2" hereto.
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(iii) All returns of merchandise to the Business Locations
following the Closing Date for warranty reasons.
B. To the extent any operating or financing leases are not
assignable, in whole or in part, Seller will make available to Purchaser the
use of the leased property for a payment to Seller in an amount equivalent to
what the Business Locations (including home office) are being charged therefor.
C. The Purchase Price will be increased by one-half (1/2) of the
cost incurred by Seller in the audit of the business conducted by Seller at the
Business Locations prepared at the request of Purchaser for inclusion in
Purchaser's securities filings.
8. CONDUCT OF BUSINESS BY PURCHASER AND SELLER
The business at the Business Locations shall be conducted by the Seller
between the date of execution of this Agreement and the Closing Date according
to and in conformity with all material laws, rules and regulations of all
governmental authority.
9. ACCESS TO RECORDS
Between the date of this Agreement's execution and the Closing Date,
Seller shall grant Purchaser and its authorized representatives reasonable
access during normal business hours to the books, records, contracts and
documents of Seller relating to Seller's operation of the Business Locations.
10. RISK OF LOSS
Provided the transactions contemplated by this Agreement close,
Purchaser assumes all risk of loss, destruction or damage to the Assets
purchased hereunder due to fire or other casualty whatsoever effective as of
12:01 a.m. on the Closing Date. Seller assumes all risk of loss, destruction
or damage to the Assets due to fire or other casualty whatsoever until 12:01
a.m. on the Closing Date. In the event of destruction, damage or partial loss
of or to any of the Assets prior to the Closing Date, such Assets shall be
excluded from the purchase provisions of this Agreement.
11. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby makes the following representations and warranties:
A. Excluding only those Assets under lease, Seller has good title to
each, every and all of the Assets.
B. The Assets shall be transferred to Purchaser free and clear of
any and all liens, charges, encumbrances, pledges, security interests or rights
of third parties except with respect to
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current ad valorem personal property taxes.
C. Seller warrants and covenants that the execution and delivery of
this Agreement, and the consummation of the transactions herein contemplated
does not conflict with or constitute a default under any law or any order,
writ, injunction or decree of any court, governmental agency, bureau or
arbitration tribunal or of any contract, agreement or instrument by which
Seller is bound.
D. Seller is not a party to, subject to or bound by any judgment or
order of any court, agency or other governmental body that could or may prevent
the execution or consummation of the transactions contemplated in this
Agreement. Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated herein will violate or result in
a breach of or constitute a default under any judgment, order or decree of any
court or governmental agency to which Seller is subject.
E. There are no actions, suits, arbitrations or other legal or
administrative proceedings pending or, to the knowledge of Seller, threatened
against Seller that relate to the Assets, that could materially and adversely
affect Seller's performance of this Agreement and Seller does not know or have
reason to be aware of any basis for the same.
F. Seller has not made any written or oral agreement to pay any
individual or entity any brokerage commission or finder's fee in connection
with the transactions contemplated by this Agreement.
G. The execution, delivery and performance of this Agreement (and
all other agreements delivered pursuant to this Agreement) and the consummation
of the transactions contemplated hereby (thereby) by Seller have been duly and
validly authorized by all requisite corporate actions and proceedings on the
part of Seller including, without limitation, actions and proceedings of
Seller's board of directors. All documents required by this Agreement (and all
other agreements delivered pursuant to this Agreement) to be executed and
delivered by Seller to Purchaser constitute legally valid and binding
obligations of Seller enforceable according to their terms, except as such
obligations may be affected by laws regarding creditors' rights generally or
the application of general principles of equity.
H. Seller is a corporation duly organized, validly existing and in
good standing under and by virtue of the laws of the State of Delaware and has
all requisite power and authority to operate a business at the Business
Locations; and the execution, delivery and performance of this Agreement by
Seller will not result in or constitute a breach of any term, provision of, or
default under, Seller's Certificate of Incorporation or by-laws, or any other
agreement or understanding to which Seller is a party or by which it is bound.
12. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby makes the following representations and warranties:
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A. Purchaser is a corporation duly organized, validly existing and
in good standing under and by virtue of the laws of the State of Florida, is
duly qualified to conduct business within the state of Florida, and has full
corporate power and authority to enter into this Agreement (and all other
agreements delivered pursuant to this Agreement) and to carry out the
transactions contemplated hereby (thereby) and the execution, delivery and
performance of this Agreement (and all other agreements delivered pursuant to
this Agreement) by Purchaser will not result in or constitute a breach of any
term or provision of, or default under, Purchaser's Certificate of
Incorporation or bylaws of Purchaser or any other agreement or understanding to
which Purchaser is a party or by which it is bound.
B. The execution and delivery of this Agreement (and all other
agreements delivered pursuant to this Agreement) and the consummation of the
transactions contemplated hereby (thereby) in accordance with the terms of this
Agreement (and all other agreements delivered pursuant to this Agreement) do
not conflict with or constitute a default under any law or any order, writ,
injunction or decree of any court, governmental agency, bureau or arbitration
tribunal or of any contract, agreement or instrument by which Purchaser is
bound.
C. The execution, delivery and performance of this Agreement (and
all other agreements delivered pursuant to this Agreement) and the transactions
contemplated herein (therein) by Purchaser have been duly and validly
authorized by all requisite corporate actions and proceedings including,
without limitation, actions and proceedings of Purchaser's board of directors
and, when necessary, its stockholders. This Agreement and all documents to be
executed and delivered by Purchaser to Seller pursuant to the terms of this
Agreement, constitute legally valid and binding obligations of Purchaser
enforceable according to their terms, except as such obligations may be
affected by laws affecting creditors' rights generally or the application of
general principles of equity.
D. Purchaser has not made any written or oral agreement to pay any
individual or entity any brokerage commission or finder's fee in connection
with the transactions contemplated by this Agreement.
E. Purchaser is not a party to, subject to or bound by any judgment
or order of any court, agency or other governmental body that could or may
prevent the execution or consummation of this Agreement (and all other
agreements delivered pursuant to this Agreement). Neither the execution and
delivery of this Agreement (and all other agreements delivered pursuant to this
Agreement), nor the consummation of the transactions contemplated herein
(therein) will violate or result in a breach of or constitute a default under
any judgment, order or decree of any court or governmental agency to which
Purchaser is subject.
F. There are no actions, suits, arbitrations or other legal or
administrative proceedings pending or, to the knowledge of Purchaser,
threatened against Purchaser that could materially and adversely affect
Purchaser's performance of this Agreement and Purchaser does not know or have
reason to be aware of any basis for the same.
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G. Purchaser has been provided all information, financial and other,
necessary for Purchaser to make a decision to enter into and perform, pursuant
to the terms of this Agreement (and all other agreements delivered pursuant to
this Agreement), and no representations have been made to Purchaser by Seller
or anyone else as to what the level of performance of Purchaser's business
shall be at the Business Locations.
13. CONDITIONS PRECEDENT TO SELLER'S PERFORMANCE
The performance of obligations of Seller under this Agreement are
subject to each, every and all of the following conditions:
A. Purchaser shall have performed and complied with all agreements
and conditions required by this Agreement to be performed and complied with by
it;
B. The representations and warranties of Purchaser set forth in
Section 12 hereof are, in all material respects, true and correct as of the
Closing Date;
C. No claim, action, suit, proceeding or investigation shall, to the
knowledge of Purchaser or Seller, be pending or threatened against Purchaser or
Seller which, if adversely determined, would prevent, hinder or invalidate the
consummation of the transactions contemplated by this Agreement, deprive Seller
of any right to be obtained hereunder, or result in the payment of damages by
Seller as a result of such transactions; and
D. Purchaser shall have delivered all of the documents, sums of
money, opinions and performed all other acts called for by the provisions of
this Agreement.
Purchaser's failure to meet any or all of the aforesaid conditions
precedent shall relieve Seller from any and all obligations of Seller under
this Agreement.
14. CONDITIONS PRECEDENT TO PURCHASERS PERFORMANCE
The performance of obligations of Purchaser under this Agreement are
subject to each, every and all of the following conditions:
A. Seller shall have performed and complied with all material
agreements and conditions required by this Agreement to be performed and
complied with by it;
B. The representations and warranties of Seller set forth in
Section 11 hereof are, in all material respects, true and correct as of the
Closing Date;
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C. No claim, action, suit, proceeding or investigation shall, to the
knowledge of Purchaser or Seller, be pending or threatened against Purchaser or
Seller which, if adversely determined, would prevent, hinder or invalidate the
consummation of the transactions contemplated by this Agreement, deprive
Purchaser of any right to be obtained hereunder, or result in the payment of
damages by Purchaser as a result of such transactions; and
D. Seller shall have delivered all of the documents and performed
all other acts called for by the provisions of this Agreement.
Seller's failure to meet any or all of the aforesaid conditions
precedent shall relieve Purchaser from any and all obligations of Purchaser
under this Agreement.
15. SELLER'S DELIVERY AT CLOSING
At the time of the closing, Seller shall deliver or have delivered to
Purchaser the following:
A. A ▇▇▇▇ of sale in the form of EXHIBIT "F", duly executed by
Seller;
B. A duly executed certificate of the duly authorized Corporate
Secretary of Seller evidencing that the transactions contemplated by this
Agreement are unconditionally authorized by all requisite authority of Seller's
board of directors;
C. Real property lease assignments and/or subleases in the forms of
EXHIBIT "G-1" thru EXHIBIT "G-6";
D. An opinion of counsel for Seller, addressed to Purchaser, in the
form of EXHIBIT "H-1";
E. An Investment Agreement and Registration Rights Agreement in the
form of EXHIBITS "I-1 and "I-2"; and
F. Such other documents as may be reasonably necessary to transfer
the Assets or to grant Purchaser any of the rights intending to be given
Purchaser by the terms of this Agreement or any other agreement delivered
pursuant hereto (thereto).
16. PURCHASER'S DELIVERY AT CLOSING
At the time of closing, Purchaser shall perform or have performed the
following:
A. Deliver or have delivered to Seller U.S. funds in the form and in
the amount required by this Agreement;
B. Deliver to Seller a duly executed certificate of the Corporate
Secretary of Purchaser
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evidencing that the transactions contemplated by this Agreement are
unconditionally authorized by all requisite authority of Purchaser's board of
directors and shareholders;
C. Real property lease assignments and/or subleases in the forms of
Exhibit "G-1" thru Exhibit "G-6";
D. An opinion of counsel acceptable to Seller, addressed to Seller,
in the form of EXHIBIT "H-2";
E. An Investment Agreement and Registration Rights Agreement in the
forms of Exhibits "I-1" and "I-2"; and
F. Such other documents as may be called for by the terms of this
Agreement or any other agreement delivered pursuant thereto.
17. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties of each of the parties hereto shall
survive Closing.
18. SELLER'S INDEMNIFICATION, HOLD HARMLESS
Seller hereby indemnifies and holds Purchaser harmless from and against
any and all claims, judgments, actions, costs, liabilities, damages, debts,
dues, sums of money, accounts, controversies, reckonings, promises, agreements,
executions at law or in equity (whether direct or consequential) and expenses
whatsoever (including, without limitation, reasonable attorney's fees) that may
be based upon, arise out of or result from any actual or claimed breach of any
representation, warranty, covenant or undertaking of Seller made or pledged in
this Agreement.
19. PURCHASER'S INDEMNIFICATION, HOLD HARMLESS
Purchaser hereby indemnifies and holds Seller harmless from and against
any and all claims, judgments, actions, costs, liabilities, damages, debts,
dues, sums of money, accounts, controversies, reckonings, promises, agreements,
executions at law or in equity (whether direct or consequential) or expenses
whatsoever (including, without limitation, reasonable attorney's fees) that may
be based upon, arise out of or result from any actual or claimed breach of any
representation, warranty, covenant or undertaking of Purchaser (including
without limitation the assumption of those liabilities set forth in Section 7)
made or pledged in this Agreement.
20. EMPLOYMENT MATTERS
Purchaser shall have no obligation in respect of, and assumes no
responsibility for, accrued employment benefits of any kind claimed to belong
or belonging to Seller's employees except that Purchaser shall honor the
vacation earned by those employees of Seller (including any direct or
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indirect subsidiaries of Seller) employed by Purchaser or an affiliate of
Purchaser while in Seller's employ and Seller shall reduce the Purchase Price
by the value of such accrued vacation obligation.
21. CONDITION OF BUSINESS LOCATIONS
A. Between the date of execution of this Agreement and the Closing
Date, the Purchaser, its employees, agents and contractors may enter upon the
Business Locations at all reasonable times for the purpose of inspecting the
condition of such Business Locations. The Purchaser shall submit to the Seller
a detailed report identifying repairs and replacements (including the estimated
cost for completing such repairs or replacements) pertaining to the Business
Locations, whether interior or exterior, ordinary or extraordinary or
structural or non-structural, which repairs and replacements are necessary in
order for the Business Locations to be in the condition that the respective
landlords would reasonably require pursuant to the terms of the Business
Locations' leases. The Seller shall make all of the necessary repairs as
herein required.
B. Between the date of execution of this Agreement and the Closing
Date, the Seller may make any alterations, additions or improvements to the
Business Locations. The Purchaser shall be under no obligation to reimburse
Seller for any such alterations, additions or improvements to the Business
Locations unless Purchaser shall have given its prior written consent.
22. COOPERATION OF SELLER AND PURCHASER SUBSEQUENT TO CLOSING
Subsequent to the Closing Date, each of Purchaser and Seller, at the
request of the other, shall execute, deliver and acknowledge all such further
instruments and documents and do and perform all such other acts and deeds as
may be reasonably required to vest more effectively in each such party the
rights intended to be conferred upon such party pursuant to this Agreement.
23. WAIVER OF BULK SALES REQUIREMENT
Seller and Purchaser hereby agree to waive the bulk transfer provisions
of the Uniform Commercial Code as adopted by the State of Florida, if any,
subject only to the indemnification provisions of Section 18.
24. NOTICES
All notices, requests and other communications hereunder shall be in
writing and shall be deemed to have been given, if sent by certified mail,
return receipt requested, postage prepaid or by CONFIRMED fax, as follows:
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If to Seller, to: A.P.S., Inc.
World Houston Plaza
▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President & General Counsel
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser, to: The Parts Source, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Schifino & ▇▇▇▇▇▇▇▇▇, P.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esquire
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or addresses or fax numbers to which such parties
shall have notified the other in writing.
25. COUNTERPARTS
This Agreement may be executed simultaneously in any number of
counterparts each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
26. MODIFICATIONS
This Agreement constitutes the entire understanding between the parties
hereto with respect to the subject matter hereof and may not be amended or
modified in any respect except by an instrument in writing executed by each of
the parties hereto.
27. EXPENSES
Each party to this Agreement shall pay its own expenses (including,
without limitation, fees and expenses of auditors and legal counsel) incident
to the transactions contemplated by this Agreement.
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28. ENTIRE AGREEMENT
This instrument, together with any schedules or exhibits attached hereto
and made a part hereof, contains the entire agreement between the parties
hereto with respect to the sale by Seller and the purchase by Purchaser of the
Assets described herein and supersedes any and all prior agreements made by the
parties with respect thereto.
29. INVALIDITY
The invalidity of any provision of this Agreement shall not impair the
validity of any other provision. If any provision of this Agreement is
determined by a court of competent jurisdiction to be unenforceable, such
provision shall be deemed severable and this Agreement may be enforced with
such provision severed or as modified by such court.
30. EFFECT OF EXECUTION
Until executed by all parties, this is a draft and is neither an
agreement between the parties nor an embodiment of any prior oral agreement.
When and if this document is fully executed, it shall become the agreement of
the parties hereto.
31. SECTION AND OTHER HEADINGS
The section and other headings contained in this Agreement are for
reference purposes and shall not in any way affect the meaning or
interpretation of this Agreement. Reference to "Sections," "Exhibits" and
"Schedules" refer to Sections of this Agreement and Exhibits and Schedules
attached or referred to in this Agreement. Terms used in the Exhibits and
Schedules that ARE defined in this Agreement shall have the meaning given them
in this Agreement.
32. INTERPRETATION
This Agreement is to be interpreted according to the laws of the State
of Florida.
33. GOVERNING LAW; COURTS
This Agreement shall be construed and enforced in accordance with the
laws of the State of Florida without regard to principles of conflicts of laws.
The parties agree that in any dispute between them relating to this Agreement,
exclusive jurisdiction shall be in the trial courts located within Orange
County, Florida, any objections as to jurisdiction or venue in such courts
being expressly waived.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and sealed as of the day and year first above written.
ATTEST: SELLER:
A.P.S., INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------- -------------------------
Assistant Secretary Vice President
PURCHASER:
ATTEST:
THE PARTS SOURCE, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
---------------------------- -------------------------
Secretary President
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