ASSET SALE AGREEMENT
THIS AGREEMENT, made this 6th day of April, 2005, by and between:
STATELINE FORD, INC., a New Jersey Corporation, c/o Xxxxxx X. Xxxxxxx,
Esq., Aboyoun & Xxxxxx, L.L.C., 000 Xxxxx 00 Xxxx, Xxxxx 000,
Xxxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as "SELLER");
And
ELITE FLIGHT SOLUTIONS, INC. C/O Xxxxxx Xxxxxxx, Esq., Xxxxxxxxxxx &
Xxxxxxxx Xxxxxxxxx Xxxxxx LLP, 000 Xxxxx Xxxxxxxx Xxxx. Xxxxx 0000,
Xxxxx, Xxxxxxx 00000 hereinafter referred to as "BUYER").
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W I T N E S S E T H :
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WHEREAS, SELLER is the owner and operator of a certain motor vehicle
dealership establishment which conducts business at 630 and 000 Xxxxxxxx Xxxxxxx
(Route 22), Phillipsburg (Xxxxxx County), New Jersey, and is duly franchised for
the sale of FORD and HYUNDAI automobiles, trucks and used vehicles, parts and
accessories, and the rendering of factory authorized service of FORD and HYUNDAI
motor vehicles and is licensed by the State of New Jersey to conduct a motor
vehicle dealership business at said premises aforementioned; and
WHEREAS, SELLER is desirous of selling and conveying its FORD and
HYUNDAI business, and all of the personal property used in connection therewith,
together with its FORD and HYUNDAI franchise rights as aforesaid; and
WHEREAS, BUYER is desirous of acquiring said assets; and
WHEREAS, the parties have reached an understanding with respect to the
terms and considerations of the foregoing and are desirous of memorializing the
same herein;
NOW, THEREFORE, in consideration of the terms, covenants and conditions
hereinafter set forth, the parties hereto agree as follows:
1. SUBJECT MATTER. SELLER agrees to sell and transfer to BUYER, and
BUYER agrees to purchase and acquire from SELLER, the following:
(a) New FORD and HYUNDAI Motor Vehicle Sales and Service
operation, presently located at 630 and 000 Xxxxxxxx Xxxxxxx (Route 22)
Phillipsburg, New Jersey (the "Premises"), including all furniture, fixtures,
tools, special tools, machinery, lifts, compressors, signs, supplies, and all
other equipment utilized in the operation of the subject business and sundry
items, brochures and materials; franchise rights; used car operation; new motor
vehicle inventories as herein provided; parts and accessories as herein
provided; customer lists and records (sales, parts and service); sales parts and
service manuals; computers and related equipment (including all hardware and
software rights, if any); display cases and cabinets; lease rights and
leaseholds; goodwill, the trade name "STATELINE FORD", SELLER's website and
domain name, and all rights to use SELLER's existing business telephone numbers
(hereinafter referred to, in the aggregate, as "Assets") (all in "as is" and
"where is" condition), free and clear at closing of debts, mortgages, security
interests, and other liens, taxes or other encumbrances.
(b) Upon reasonable written notice to SELLER by BUYER and
within ten (10) days of the date this document is executed, BUYER and SELLER
agree to prepare a list of the Assets to be transferred hereunder ("Asset
List"), attached hereto and made a part hereof as EXHIBIT "A".
2. AGGREGATE PURCHASE PRICE; PAYMENT.
(a) The purchase price for all of the aforementioned
(exclusive of parts and motor vehicle inventories) is the sum of EIGHT HUNDRED
THOUSAND DOLLARS ($800,000.00) (the "Purchase Price").
(b) The aggregate Purchase Price (subject to adjustment at
closing and subject to the Purchase Price Adjustment, as defined in Section 3
below) shall be paid and satisfied as follows:
i) The sum of SEVENTY THOUSAND DOLLARS ($70,000.00)
paid by BUYER concurrently herewith, receipt of which is hereby acknowledged and
held in escrow by the law firm of Aboyoun & Xxxxxx, L.L.C. as agent for SELLER
("ESCROWEE"), until closing of title, or returned to BUYER in the event the
contingencies hereinafter provided are not satisfied without fault, neglect, or
omission(s) of BUYER, or this Agreement is terminated in accordance with its
terms.
ii) The balance sum in certified or cashiers funds,
attorney trust check or wire funds at closing.
(c) The deposit monies shall be held in an interest bearing
account and the interest thereon shall accrue and be paid to the party
ultimately entitled to the deposit - i.e., to the SELLER in the event closing
occurs, or to BUYER in the event this Agreement is terminated in accordance with
its terms.
(d) The foregoing aggregate Purchase Price shall be allocated
in the manner set forth in EXHIBIT "B", a true copy of which is attached hereto
and made a part hereof. The parties warrant and represent that said allocations
were a prime subject matter of their negotiations and that they believe that
these allocations truly reflect the economic value of the respective interests,
rights and restrictions provided herein. The parties further warrant and
represent that they shall not at any time, directly or indirectly, expressly or
implied, take any action, with the taxing authorities or otherwise, inconsistent
with the allocations outlined herein, and for which they have expressly
bargained.
3. PURCHASE OF PARTS AND ACCESSORIES AND MISCELLANEOUS INVENTORIES. In
addition to the aggregate purchase price provided in for in Section 2 above,
SELLER shall transfer and BUYER shall receive, at closing, SELLER's entire
inventory of returnable FORD and HYUNDAI motor vehicle parts and accessories and
outside vendor parts and accessories, oil, gas and grease inventories. It is
understood that the foregoing shall be inventoried immediately prior to closing
by an inventory service satisfactory to both parties, the expense thereof to be
borne equally by SELLER and BUYER. The FORD and HYUNDAI parts and accessories
inventories shall be priced at FORD MOTOR COMPANY, Ford Motor Division ("FMD")
and HYUNDAI MOTOR AMERICA, INC. ("HMA") respective stock order net invoice
prices. The outside vendor inventories shall be priced at the SELLER'S cost. The
risk of loss to said inventory between the date hereof and the date of closing
is expressly borne by SELLER.
The term "returnable", as used in this paragraph,
shall be either such items of inventory as are eligible for return for full
value to FMD or HMA (as the case may be) in the course of a regular return (in
the ordinary course of business) or a return in connection with the termination
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of a Dealer Sales and Service Agreement under such document or in accordance
with New Jersey law, or such items of inventory as listed in the FMD or HMA
catalogs then in effect on the closing date. A "non-returnable" part or
accessory is any such item that does not fall within the scope of the preceding
sentence.
BUYER shall pay for the inventory in certified, bank,
attorney trust account, or cashiers' checks or wired funds at the closing. In
addition, SELLER shall assign to BUYER, at closing, its termination rights to
return parts and accessories to FMD and HMA, if any, under its respective Dealer
Sales and Service Agreements and applicable law.
4. PURCHASE OF VEHICLES: It is understood that BUYER agrees to purchase
from SELLER at closing:
(a) Its then inventory of all new, never used, never
registered 2004, 2005 and 2006 (if applicable) model year FORD and HYUNDAI motor
vehicles at factory net invoice price to SELLER, less as applicable, (i) all
factory hold backs, (ii) leftover/carryover allowances, (iii) finance assistance
credits or payments; (iv) advertising credits or payments; (v) preparation
allowances; and (vi) the net cost to effectuate unrepaired damage thereto, if
any, free and clear of liens and encumbrances. The term "never used" as used in
this paragraph shall mean a vehicle with less than five hundred (500) miles
thereon and not titled in any consumer's name. Notwithstanding anything herein
contained to the contrary, the adjustments contained in clauses (iii), (iv) and
(v) shall not be required in the case of dealer swaps in instances where the
SELLER has not obtained the benefit of said adjustments.
(b) SELLER's inventory of 2004, 2005 and 2006 (if applicable)
FORD and HYUNDAI demonstrator units at the price formula provided in subsection
(a), less the sum of fifteen cents(15(cent)) per mile for each mile of usage
(reflected on each unit as of the date of closing) in excess of five hundred
(500) miles (per unit).
In the event there is any damage to any motor vehicles, the cost of
such repairs are to be calculated at SELLER'S existing internal cost rates for
parts and labor. Nothing herein contained shall prohibit SELLER from selling and
delivering new or demonstrator vehicles prior to closing.
(c) In addition to the foregoing, BUYER shall purchase from
SELLER, at a purchase price computed in accordance with the formula established
in sub-paragraph (a) above, any and all FORD and HYUNDAI vehicles consigned and
invoiced to SELLER by the aforesaid vehicle manufacturer and/or distributor and
not received by SELLER prior to closing. SELLER shall forthwith, on demand of
BUYER and simultaneously with the payment required by SELLER's floor plan
institution therefore, execute assignments of the statements of origin for such
vehicles so purchased.
It is understood and agreed that the purchase price paid by BUYER to
SELLER for motor vehicles pursuant to this section shall be in addition to the
purchase price paid for the Assets of the SELLER as set forth in Section 2
above.
5. TAX CLEARANCE CERTIFICATE.
(a) SELLER agrees to provide BUYER with all information needed
to notify the New Jersey Division of Taxation ("Division"), pursuant to N.J.S.A.
54:32B-22, and any other state governmental agency. Escrows, if any are
expressly required by the Division, shall be held by ESCROWEE, unless the state
governmental agency requires otherwise. SELLER shall be responsible for all
taxes required by the Division as a result of such bulk sale notification.
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(b) SELLER warrants and represents that it has not used any
other corporate or trade names and/or addresses within the last three (3) years,
except "STATELINE FORD, INC.", "FORD WORLD OF PHILLIPSBURG", and "HYUNDAI WORLD
OF PHILLIPSBURG".
6. ACCOUNTS RECEIVABLE OF SELLER. SELLER's accounts receivable shall
remain the property of the SELLER. It is understood and agreed that factory
receivables erroneously credited to SELLER to which BUYER is entitled shall be
the property of BUYER and factory receivables erroneously credited to BUYER to
which SELLER is entitled shall be the property of SELLER. These include without
limitation, holdback and other factory credits to which BUYER is entitled but
may be erroneously assigned to SELLER's dealer number by FMD or HMA. In the
event of any such erroneous credit to BUYER or SELLER, BUYER or SELLER, as the
case may be, shall promptly pay to the other party an amount equivalent to said
erroneous credit(s). This provision shall survive closing of title.
7. REPRESENTATIONS AND WARRANTIES OF SELLER. SELLER represents and
warrants to BUYER.
(a) The SELLER is a corporation organized and existing in good
standing under the laws of the State of New Jersey and is duly authorized to
carry on its aforementioned business (and shall provide a good standing
certificate, or its equivalent, issued by the New Jersey Secretary of State to
BUYER at closing); that all necessary corporate action to authorize the
execution of this Agreement and to consummate the transactions contemplated
herein has been taken, and that this Agreement constitutes the valid and binding
obligation of SELLER enforceable in accordance with its terms;
(b) That SELLER shall, at closing, have good and marketable
title to all of the Assets to be sold, transferred and assigned to BUYER
pursuant to this Agreement, free and clear of all liens and encumbrances, except
vehicle floor planning to be satisfied at closing and such other items as may be
referenced in Section 20 below;
(c) That there are no legal, quasi-judicial or administrative
actions, suits or proceedings of any kind or nature now pending to the best of
SELLERS's knowledge or other claims which would prevent SELLER from consummating
the transactions contemplated hereunder;
(d) That the consummation of the transactions contemplated by
this Agreement and compliance with the provisions hereof will not conflict with
or result in breach or default under any provision of law, order of any court or
other agency of government, the charter or by-laws of SELLER, or any note,
debenture, mortgage, loan agreement or other instrument to which SELLER is a
party or by which it is bound;
(e) That SELLER's FMD Franchise Agreement and HMA Franchise
Agreement are and will remain until closing, in full force and effect and the
SELLER is in full compliance with the terms of either the FMD Franchise
Agreement or HMA Franchise Agreement and there are no breaches or defaults by
either party under either the FMD Franchise Agreement or the HMA Franchise
Agreement;
(f) That all federal, state or local taxes imposed upon SELLER
which are due and payable at closing and for which BUYER would be responsible if
not paid by SELLER have been or will be paid as they mature;
(g) That SELLER is not a party to any employee contracts, or
union/collective bargaining agreements, which will be binding upon the BUYER,
and any such agreements are expressly excluded from this Agreement;
(h) That there are no tenancies at the Premises other than
that of SELLER, which shall terminate concurrently with closing;
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(i) That SELLER has not heretofore received any unabated
written notice of any facility or other franchise deficiency from FMD, HMA or
any written notice requiring it to relocate the dealership operation, cautioning
SELLER not to improve or expand the Premises, or requiring SELLER to improve or
expand or otherwise modify its facility or the location thereof;
(j) That a valid Certificate of Occupancy has been issued for
the Premises. SELLER will, at its sole cost and expense obtain an unconditional
Certificate of Occupancy in favor of BUYER prior to closing authorizing the use
of said Premises as a new and used motor vehicle dealership and all uses
incidental thereto and, in connection therewith, SELLER covenants and agrees to
satisfy any and all requirements and/or conditions imposed by any governmental
entity in order to obtain said Certificate of Occupancy prior to closing,
provided, however, that the cost does not exceed TEN THOUSAND ($10,000.00)
DOLLARS. If the cost exceeds TEN THOUSAND ($10,000.00) DOLLARS, then SELLER
shall notify BUYER, in writing, as to whether or not it shall assume said excess
costs, or refuse to assume said excess costs. If SELLER refuses to assume said
excess costs, then BUYER shall have the right to either (A) terminate this
Agreement, or (B) assume those costs to satisfy the requirements and/or
conditions in excess of TEN THOUSAND ($10,000.00) DOLLARS so that SELLER will
obtain the Certificate of Occupancy. In the event of such termination, all
deposit monies paid hereunder and under the Realty Agreements (as defined in
Section 18 below) shall be returned to BUYER (together with all accrued
interest), and this Agreement and the Realty Agreements shall be deemed null,
void and of no further force or effect. To the best of SELLER's knowledge,
SELLER has neither knowledge nor notice of, any uncured zoning code, building
code, or environmental violations as of the date of this Agreement and warrants
that such warranty will be true and correct at closing or any interim
notification cured prior to the date of closing;
(k) That SELLER will remove all debris from the Premises prior
to closing, including, but not limited to, all used tires, batteries, drums and
abandoned vehicles;
(l) That SELLER has not removed any equipment or accessories
from the new vehicles to be purchased by BUYER hereunder and such vehicles are
equipped as per the manufacturer's/distributor's invoice;
(m) That, at closing, SELLER shall voluntarily cause to be
executed and delivered to each franchisor a concurrent dealer termination letter
with respect to each of its Dealer Sales and Service Agreements and effective
upon closing in order to facilitate BUYER's application for Dealer Sales and
Service Agreements with said franchisors; and
(n) That this Agreement and none of the Realty Agreements
contain or will contain any untrue statement of fact; and this Agreement and
none of the Realty Agreements omit or will omit to state any fact necessary to
make any of the representations, warranties or other statements or information
contained herein or therein not misleading.
(o) That the new vehicle sales information provided to BUYER
is true and correct, subject, however, to a ten (10%) percent discrepancy.
(p) Within sixty (60) days next succeeding the date of
closing, BUYER intends to conduct and complete an audit of the past two (2)
fiscal years of SELLER (the Seller within sixty ("Audit") days of the closing.
SELLER shall instruct its accounting firm, BRUNO, XxXXXXX & CO. ("BRUNO"), to
cooperate in the Audit, provided, however, that all fees resulting from said
cooperation shall be paid to BRUNO by BUYER. There shall be no adjustment to the
purchase price paid by BUYER to SELLER for the Assets as a result of the Audit,
unless, as a result of the Audit.
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8. COVENANTS OF SELLER. SELLER warrants, represents and covenants to
BUYER that between the date hereof and the closing of title to the Assets,
franchise, and property contemplated hereby, and as of closing, that SELLER
will:
(a) Keep its place of business open and operative during and
for not less than the hours customary for SELLER's dealership;
(b) Lend its best efforts to cause its dealership to function
in the ordinary course of its business;
(c) Not dispose of any of its Assets or obligate itself to do
so, except as may be expressly provided by the terms of this Agreement or except
in the ordinary course of business as in this Agreement provided; and
(d) Keep all of its insurable Assets which are the subject
matter of this Agreement insured in accordance with its present practice.
9. ABSENCE OF CERTAIN REPRESENTATIONS.
(a) SELLER makes no representations as to: (i) values, gross
profits, expenses or net profits; or (ii) the value or condition of the Assets
being transferred.
(b) BUYER acknowledges that each has had an opportunity to
inspect the Assets being transferred and certain business information and
records, the condition and accuracy of which have not been the subject of
representations of any nature. In entering into this Agreement, BUYER is relying
solely on their own business judgment and accept the Assets being transferred
and the respective business "as is" and "where is", except as may be otherwise
expressly represented elsewhere herein.
10. REPRESENTATIONS AND WARRANTIES OF BUYER. BUYER warrants and
represents to SELLER:
(a) That the within Agreement is a valid and binding
obligation of BUYER, and that BUYER has the ability to enter into and consummate
this Agreement;
(b) That BUYER has the funds (subject to satisfaction of the
financing contingency referenced in Section 17(b) below) to consummate the
transaction contemplated by this Agreement; and
(c) That there is no material litigation, judgments, or
insolvency proceedings threatened or pending against BUYER which would impair
BUYER's right to purchase the subject dealership business and Assets.
11. REPRESENTATIONS. WARRANTIES AND COVENANTS TRUE AS OF CLOSING DATE.
All of the representations, warranties and covenants contained in this Agreement
shall be true and correct and shall not have been breached on and as of the
closing date.
12. INDEPENDENT COUNSEL. This Agreement has been prepared by the law
firm of ABOYOUN & XXXXXX, L.L.C. ("ABOYOUN"), as counsel to SELLER. BUYER is
expressly advised to obtain independent counsel and advice with respect to the
subject matter of this Agreement and has been afforded an ample period of time
to do so. In this regard, BUYER represents that they have retained the services
of Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx Xxxxxx LLP in connection herewith. BUYER
further confirm that they have not relied directly or indirectly, upon any
communication, advice, or consultation with ABOYOUN but, in fact, have relied
solely and exclusively upon their independent judgment and upon the advice of
the respective independent counsel employed by them.
13. NO BROKER. Each party warrants and represents to the other that no
agent or broker has been involved in this transaction or shown the BUYER the
subject business and Premises or called the subject business and/or Premises to
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the BUYER's attention. Each party hereby indemnifies and holds harmless the
other against any liability which the other is obligated to discharge or defend
against any agent or real estate and/or business broker, whether or not
licensed, wholly or partly because of the indemnifying party's relations with
such agent or broker, together with all reasonable legal expenses and costs of
the other necessitated in connection therewith.
14. WORK IN PROCESS. BUYER shall reimburse SELLER on the closing date
for SELLER'S net direct cost of completed labor and parts installed, or
materials used, or in process of installation on any uncompleted repair orders
in process on the closing date. Said uncompleted repair orders shall become the
property of BUYER. BUYER shall complete such repair work and shall be entitled
to collect the entire proceeds covering such repair work from the customers of
SELLER, and shall indemnify and hold SELLER harmless from any and all claims in
connection with same for post-closing work (including reasonable attorneys' fees
and costs).
15. OUTSTANDING SALES CONTRACTS AND ORDERS. The parties understand that
there may be, on the date of closing, outstanding sales contracts and/or orders
("Contracts and/or Orders") between SELLER and third party buyers for the sale
of FORD or HYUNDAI motor vehicles. For the purpose of arranging for the proper
fulfillment of said Contracts and/or Orders, the parties have agreed that SELLER
shall assign those Contracts and/or Orders to BUYER at closing. BUYER covenants
and agrees to perform said Contracts and Orders in place and instead of SELLER,
and to indemnify and hold SELLER harmless in respect to same (including
reasonable attorneys' fees and costs). In consideration of the foregoing, SELLER
shall receive from BUYER a sum equal to fifty (50%) percent of the gross profit
thereon as and when such Contract and/or Order is fully consummated (to be paid
within five (5) business days of consummation of the subject sale). The term
"gross profit", as used herein, shall mean sales price received less (i) dealer
cost (including preparation cost) and (ii) actual and customary sales
commissions to be paid on such Contracts and/or Orders. BUYER covenants and
agrees to satisfy said commission when a Contract and/or Order is consummated.
16. ADJUSTMENTS. The following adjustments shall be made at closing:
(a) Telephone and other utilities for the then-current period;
(b) Employee wages, prorated vacation, and sick days to
SELLER'S employees shall be satisfied by SELLER concurrent with closing;
(c) Work-in-process pursuant to Section 14 above;
(d) Yellow Page advertising to which SELLER is bound; BUYER to
expressly assume and perform same in place and instead of SELLER, effective with
the date of closing;
(e) Proration of payments and installments pursuant to the
obligations to be assumed in accordance with Section 20 below;
(f) Deposits on outstanding contracts and/or orders pursuant
to Section 15 above (deposits to be transferred to BUYER at closing); and
(g) Any and all other adjustments as required hereunder.
BUYER shall reimburse SELLER (at SELLER'S cost) at closing for (i) any
and all dealer preparation costs and dealer-installed parts and accessories with
respect to each new, never registered unused motor vehicle or demonstrator type
motor vehicle to be purchased by BUYER hereunder; and (ii) any and all "special"
tools and equipment which SELLER must purchase from FORD and/or HYUNDAI from and
after the date hereof through closing.
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17. BUYER'S CONTINGENCIES. The within conveyance is expressly
contingent upon the following, unless expressly waived or modified by BUYER, in
writing:
(a) Franchise. Executed standard form Dealer Sales and Service
Agreements ("Franchise Agreements") with BUYER and (i) FMD authorizing the sale
and factory authorized service of FORD motor vehicles, parts and accessories at
the current Premises, appointing XXXXX XXXXXXX ("XXXXXXX") as dealer-operator,
and (ii) HMA authorizing the sale and factory authorized service of HYUNDAI
motor vehicles, parts and accessories at the current Premises and appointing
XXXXXXX as dealer-operator. The Franchise Agreements shall contain such terms
and conditions as are reasonably acceptable to BUYER and may be subject to
reasonable restrictions.
BUYER shall forthwith prepare the information reasonably required by
said franchisors. SELLER shall, within three (3) days of the date hereof,
dispatch notification of this Agreement to said franchisors. BUYER shall, within
twenty (20) days of the date hereof, submit fully completed application packages
to FMD and HMA.
(b) Financing. BUYER shall have the right to obtain the
following: Issuance of a written letter commitment from FORD MOTOR CREDIT
CORPORATION, or other institutional lender ("Lender") for working capital loan
financing from Lender in an amount reasonably acceptable to BUYER, upon
prevailing interest rates, terms and conditions, as well as a floor plan in an
amount equal to the SELLER's current existing floor plan with FORD MOTOR COMPANY
and STATELINE FORD, but, in no event, in amount less than Six Hundred Thousand
Dollars ($600,000). BUYER covenants and agrees to use due diligence, good faith,
and their bona fide efforts to make application and obtain said wholesale floor
plan and working capital loan financing.
(c) Termination. It is understood and agreed that if the
foregoing contingencies are not satisfied or expressly waived by BUYER in
writing within seventy-five (75) days from the date hereof, then and in such
event either SELLER or BUYER may elect to terminate this Agreement and the
Realty Agreements upon written notice to the other; provided, however, that, in
the event BUYER uses due diligence and exercises good faith in its efforts to
satisfy the foregoing contingencies, then BUYER shall have the right to request
an extension of said contingencies for an additional period not to exceed thirty
(30) days in the aggregate, upon written notice to SELLER of same, together with
documentation evidencing said due diligence and good faith. In the event of such
termination, the deposit monies paid (together with accrued interest) under this
Agreement and the Realty Agreements shall be returned to BUYER, and this
Agreement and the Realty Agreements shall be deemed null, void and of no further
effect. It is further understood and agreed that BUYER and SELLER shall exercise
due diligence in an effort to satisfy the foregoing contingencies.
18. REAL ESTATE SALE AGREEMENT. As an express and prime inducement for
the parties to enter into the within Agreement, separate agreements shall be
entered into (i) by and between BUYER and STATELINE REALTY, L.L.C. for the sale
of that certain real estate utilized by SELLER for the operation of the subject
dealership situate at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxx Xxxxxx, as
designated by Xxx 0, Xxxxx 0000 ("Xxxxxxxxx Xxxx Xxxxxx Agreement"), and (ii) by
and among BUYER and XXXXX XXXXXXXX AND XXXXXX XXXXXXXX XX., and MEMORIAL PARKWAY
ASSOCIATES, L.L.C. ("MPA") for the transfer, sale, and conveyance of all right,
title, and interest in and to all of the membership units in MPA, concurrently
herewith with respect to premises situate at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx,
Xxx Xxxxxx, and designated as Xxx 0, Xxxxx 0000 (xxx Xxxxxxxxx Xxxx Xxxxxx
Agreement and the Memorial Agreement shall collectively be referred to herein as
the "Realty Agreements"). In the absence of the execution of the Realty
Agreements and their continuing effect, this Agreement shall be deemed null,
void, an of no further effect, it being understood and agreed that closing of
title hereunder is contingent upon closing of title under the Realty Agreements.
In furtherance of the foregoing, it is expressly understood and agreed that the
termination of this Agreement in accordance with its terms shall entitle either
of the contracting parties under the Realty Agreements to terminate all of the
Agreements. In addition, closing of title under all of the Agreements shall
occur simultaneously.
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19. RISK OF LOSS. Risk of loss and/or damage to the Premises and the
subject matter of this Agreement by casualty and liability for personal injury,
property and leasehold improvement damage shall be borne by SELLER until closing
of title. In the event of casualty damage, SELLER shall notify BUYER within five
(5) days of same. BUYER shall be excused from proceeding with closing on account
of any casualty loss and BUYER shall have the right to terminate this Agreement
with no penalty.
20. ASSUMPTION OF CERTAIN OBLIGATIONS OF SELLER. As a further
inducement for SELLER to enter into the within Agreement, BUYER agrees to assume
at closing certain leases and other obligations of SELLER, as specifically
enumerated, quantified and described on EXHIBIT "C", attached hereto and made a
part hereof (the "Leases and/or Obligations"). Any and all payments, charges
and/or credits with respect to any such Leases and/or obligations shall be
apportioned and adjusted as of the date of closing. BUYER shall indemnify and
save SELLER harmless from any and all loss, liability, damage, or expense
(including attorneys' fees and costs of litigation) resulting from the BUYER'S
failure to perform any act or fulfill any obligation under any of the Leases
and/or Obligations. BUYER'S responsibilities under this paragraph include, but
are not limited to, purchasing any equipment which is the subject of said Leases
and/or Obligations, if the lessor or obligee refuses to an assumption of the
Leases and/or obligations. To the extent property must be delivered or returned
to any third party as a result of the assumption, transfer or termination of any
of the Leases and/or Obligations, the BUYER agrees to cooperate in and effect
such return. BUYER'S obligations under this paragraph shall continue after
closing.
21. ASSIGNMENT. This Agreement may not be assigned by BUYER, except to
an entity formed by BUYER for the purpose of consummating this Agreement and in
which BUYER holds an equity interest of not less than sixty-six and two-thirds
percent (66 2/3%). In the event of such assignment, the BUYER shall be relieved
of personal liability hereunder.
22. MISCELLANEOUS PROVISIONS.
(a) SELLER shall transfer to BUYER at closing its rights to
all telephone numbers used by SELLER in its business.
(b) Prior to closing, SELLER shall furnish to BUYER a list of
all employees, their rates of pay, including base pay, and any incentive,
commission or bonus plans. Nothing contained herein shall prevent any employee
of SELLER from commencing employment with any other business, corporation or
operation of SELLER or shareholder of SELLER. Nothing herein shall obligate
BUYER to provide employment to any employee of SELLER.
(c) SELLER shall deliver to BUYER at closing a Xxxx of Sale
with affidavit of no liens for all Assets to be transferred by SELLER hereunder,
together with statements of origin for each vehicle purchased.
(d) SELLER shall permit its service records to remain with
BUYER. BUYER will safeguard the records and permit access thereto during
business hours. After the expiration of two (2) years next succeeding the date
of closing, SELLER shall remove the records from BUYER's place of business.
(e) At the closing, BUYER and SELLER shall deliver to the
other party a true copy of a Corporate Resolution authorizing the execution of
the Agreement and sale as set forth herein.
23. HEADINGS. The "headings" contained in this Agreement are for the
purpose of expediency and are not intended to otherwise bind the parties or
interpret the content of the paragraph language they precede.
24. NOTICES. Any notice, communication, request, reply or advice or
other notice pertaining to this Agreement to be given, made or accepted by
either party to the other must be in writing and shall be given or be served
only by dispatching the same by Federal Express (or any other overnight courier
delivery service), and such notice so dispatched shall become effective on the
date of receipt, or by United States Certified Mail and addressed to the party
to be notified, with return receipt requested, and receipted by the postal
authority and such notice so dispatched shall be effective seven (7) days after
the date it is so dispatched. For purposes thereof, the addresses of the parties
hereto are as follows:
If to SELLER: XXXXXX X. XXXXXXX, ESQ.
Aboyoun & Xxxxxx, L.L.C.
000 Xxxxx 00 Xxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxxxx 00000
If to BUYER: XXXXXX XXXXXXX, ESQ.
Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx Xxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxx, Xxxxxxx 00000
25. INDEMNIFICATION.
1. In consideration of the BUYER's execution and delivery of
this Agreement, and in addition to all of SELLER's other obligations under this
Agreement, the SELLER shall defend, protect, indemnify and hold harmless the
BUYER, and all of its officers, directors, partners, employees and agents
(including, without limitation, those retained in connection with the
transactions contemplated by this Agreement) (collectively, the "Buyer
Indemnitees") from and against any and all actions, causes of action, suits,
claims, losses, costs, penalties, fees, liabilities and damages, and expenses in
connection therewith (irrespective of whether any such Buyer Indemnitee is a
party to the action for which indemnification hereunder is sought), and
including reasonable attorneys'. fees and disbursements (the "Indemnified
Liabilities"), incurred by the Buyer Indemnitees or any of them as a result of,
or arising out of, or relating to (a) any misrepresentation or breach of any
representation or warranty made by SELLER in this Agreement or the Realty
Agreements or any other certificate, instrument or document contemplated hereby
or thereby, (b) any breach of any covenant, agreement or obligation of SELLER
contained in this Agreement or the Realty Agreements or any other certificate,
instrument or document contemplated hereby or thereby, or (c) any cause of
action, suit or claim brought or made against such Buyer Indemnitee not arising
out of any action or inaction of a Buyer Indemnitee, and arising out of or
resulting from the execution, delivery, performance or enforcement of this
Agreement or any other instrument, document or agreement executed pursuant
hereto by any of the Buyer Indemnitees. To the extent that the foregoing
undertaking by SELLER may be unenforceable for any reason, SELLER shall make the
maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities, which is permissible under applicable law.
2. In consideration of SELLER's execution and delivery of
this Agreement, and in addition to all of BUYER's other obligations under this
Agreement, BUYER shall defend, protect, indemnify and hold harmless SELLER and
all of its officers, directors, shareholders, employees and agents (including,
without limitation, those retained in connection with the transactions
contemplated by this Agreement) (collectively, the "Seller Indemnitees") from
and against any and all Indemnified Liabilities incurred by the Seller
Indemnitees or any of them as a result of, or arising out of, or relating to (a)
any misrepresentation or breach of any representation or warranty made by BUYER
in this Agreement, the Reality Agreements, or any instrument or document
contemplated hereby or thereby executed by the BUYER; (b) any breach of any
covenant, agreement or obligation of the BUYER contained in this Agreement, the
Realty Agreements or any other certificate, instrument or document contemplated
hereby or thereby executed by BUYER, or (c) any cause of action, suit or claim
brought or made against such Seller Indemnitee based on misrepresentations or
due to a breach by BUYER and arising out of or resulting from the execution,
delivery, performance or enforcement of this Agreement or any other instrument,
document or agreement executed pursuant hereto by any of the Seller Indemnitees.
To the extent that the foregoing undertaking by BUYER may be unenforceable for
any reason, BUYER shall make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities, which is permissible under
applicable law.
10
(c) The obligations of the parties to indemnify or make
contributions under this Section 26 shall survive termination.
(d) The party entitled to indemnification hereunder shall
notify the other in writing of the pendency of the claim or obligation, and the
other party shall have a reasonable period of time (not to exceed thirty (30)
days) to cure or otherwise resolve the subject claim or obligation.
26. CLOSING. The closing of title shall take place at the offices of
ABOYOUN & XXXXXX, L.L.C., 000 Xxxxx 00, Xxxxx 000, Xxxxxxxxx, Xxx Xxxxxx, xx
such other place as the parties may agree, fifteen (15) days following the
satisfaction of the contingencies referred to in Section 17 above.
27. SURVIVORSHIP. The representations, covenants and obligations of
BUYER and SELLER as set forth in this Agreement shall survive the closing of
title.
28. BINDING EFFECT. All of the terms, covenants and conditions herein
contained shall be for and shall inure to the benefit of and shall bind the
respective parties hereto and their successors and assigns respectively.
29. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
ATTEST: SELLER:
STATELINE FORD, INC.
/s/ XXXXXX XXXXXXXX, XX. By: /s/ XXXXX XXXXXXXX
------------------------------ --------------------------------
XXXXXX XXXXXXXX, XX. XXXXX XXXXXXXX
Secretary President
ATTEST: BUYER:
ELITE FLIGHT SOLUTIONS, INC.
By: /s/ XXXXX XXXXXXX
------------------------------ --------------------------------
XXXXX XXXXXXX, President
11
EXHIBIT "A"
LIST OF ASSETS
[TO BE PROVIDED]
EXHIBIT "B"
ALLOCATION OF PURCHASE PRICE
(a) Furniture, fixtures, equipment and
other tangible assets: $ 47,000.00
(b) Franchise rights and goodwill: $753,000.00
-----------
$800,000.00
===========
EXHIBIT "C"
LIST OF ASSUMED LEASES AND OBLIGATIONS
NAME EQUIPMENT FREQ AMOUNT START DATE TERM DATE
Pitney Xxxxx Copier Monthly $175.00 5/17/2002 9/30/2005
Pitney Xxxxx Postage Meter Quarterly $175.00 9/30/2002 9/30/2005
Xxxxx Fargo Financial Lease Profit Mach Monthly $1,349.46 1/10/2002 4/10/2005
Xxxxx Fargo Financial Lease Profit Integration Monthly $212.00 1/10/2002 4/10/2005
Ford DCS Electronic Catalog Monthly $530.00 10/11/1995 10/11/2005
Key Logix Maintenance on Key Mach Monthly $53.33 2/10/2005 2/10/2006
Safeway Enterprises Key Machine Monthly $625.00 4/1/2002 4/1/2007
