EXHIBIT 10.1
ASSET ACQUISITION AGREEMENT
DATE : August 21, 2003
BETWEEN : Xxxxx Xxxxx
----------------
________________ "Seller"
AND : Smog Centers of California LLC
0000 Xxx xx xx Xxxxx, Xxxxx 000
Xxx Xxx, Xxxxxxxxxx 00000 "Buyer"
RECITALS
A. Seller owns and operates a business engaged in the motor vehicle
smog emissions testing under the name of Broadway Smog Check ("Seller's
Business") located at 0000 Xxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx. Seller owns and
maintains certain assets in connection with Seller's Business.
B. Buyer desires to acquire all of the assets used or useful, or
intended to be used, in the operation of Seller's Business, and Seller desires
to sell such assets to Buyer.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, it is agreed as follows:
1. AGREEMENT TO SELL AND PURCHASE. Subject to the terms and conditions
herein set forth, Seller hereby agrees to sell and Buyer agrees to purchase
certain assets of Seller, as described in Section 2 herein.
2. ASSETS SOLD. The following constitute the assets sold pursuant to
this Agreement (all of which are collectively referred to herein as the
"Assets"):
2.1 EQUIPMENT. All machinery, equipment, tools, office equipment,
computers, furniture, trade fixtures, and all other tangible personal property
of Seller's Business including those items listed on Schedule 2.1 (the
"Equipment").
2.2 INTANGIBLE ASSETS. All intangible assets used in Seller's
Business including, but not limited to, Seller's name, telephone numbers,
contract rights and business relationships with its customers and suppliers,
customer lists, all of Seller's intellectual property rights if any, and all of
Seller's business records for three (3) years prior to the Closing Date.
Subsequent to the Closing Date, Seller shall have the right to have access to
and to make copies of those business records of Seller which are in Buyer's
possession as may be reasonably required.
2.3 LEASES All real property leases listed in Schedule 2.3
("Leases").
Page 1. Asset Acquisition Agreement
3. LIABILITIES. Buyer shall assume and pay those liabilities of Seller
which are listed in Schedule 3 (the "Liabilities") and the Leases and shall hold
Seller harmless from any liability thereon. Buyer shall have no obligation as to
any liabilities of Seller which are not listed in Schedule 3.
4. PURCHASE PRICE. The Purchase Price for the Assets shall be Sixty
Thousand Dollars ($60,000.00). Prior to the date of this Agreement, Buyer
tendered to Seller and Seller acknowledges receipt from Buyer of a downpayment
in the amount of Ten Thousand Dollars ($10,000.00). The balance of the Purchase
Price in the amount of Fifty Thousand Dollars ($50,000.00) will paid by Buyer to
Seller on the Closing Date. In addition to the balance of the Purchase Price,
Buyer shall reimburse Seller the sum of Three Thousand Four Hundred Dollars (
$3,400.00) paid by Seller for the continuation of a computer maintenance service
contract.
5. CLOSING DATE AND CLOSING. This Agreement shall be closed at a place
mutually agreed upon by the Parties hereto. The Closing Date will be that date,
designed by Buyer and agreed to by Seller, which shall be not less than three
(3) nor more than ten (10) days after the conditions described in Section 8 of
this Agreement have been satisfied or waived. Closing shall occur on or before
July 30, 2003, or as soon thereafter as all conditions precedent to Closing have
occurred, and all necessary documents to be executed at Closing have been
prepared. On the Closing Date, the Parties, among other things, shall do the
following:
5.1 TRANSFER OF TITLE. Seller shall transfer to Buyer, by xxxx of
sale or other documents of transfer, each in a form acceptable to Buyer,
containing warranties of title, free and clear of encumbrances and security
interests (except as otherwise agreed to herein or related to the Liabilities),
all of the Assets being sold pursuant to this Agreement.
5.2 PAYMENT OF PURCHASE PRICE Buyer shall tender the balance of the
Purchase Price in the amount of Fifty Thousand Dollars ($50,000.00) and shall
also tender payment of Three Thousand Four Hundred Dollars ($3,400.00) as
described in Section 4 of this Agreement.
5.3 POSSESSION. Seller shall deliver to Buyer possession of the
Assets.
5.4 LEASES. Seller and Buyer shall execute forms of assignment as to
the Leases.
5.5 MISCELLANEOUS. The Parties shall do all other things at the
Closing to consummate and effectuate this Agreement, all Documents, and all
other agreements, covenants and conditions set forth herein and therein.
5.6 FURTHER ACTS. If, at any time after the Closing Date, any
further action by any of the Parties to this Agreement is necessary or desirable
to carry out the purposes of this Agreement and/or to vest in Buyer full title
to the assets sold hereunder, such party shall take all such necessary or
desirable action to cause such action to be taken.
Page 2. Asset Acquisition Agreement
6. REPRESENTATIONS AND WARRANTIES BY SELLER. Seller represents and
warrants to Buyer as of the date of this Agreement and as of the Closing Date as
follows:
6.1 NO OTHER SALE. Seller has not, and will not before the Closing
Date, offer or agree to sell Seller's Business or any of the Assets to any
person other than Buyer. Further, prior to the Closing Date, Seller will not
provide to any third parties information about Seller's business operations
other than which is traditionally provided in the ordinary course of business.
6.2 CONDITION OF EQUIPMENT. The Equipment does not have and will not
have at the Closing Date any known material defects.
6.3 TITLE. Seller owns absolute, clear and unencumbered title to all
of the Assets, and the same are now free and clear of all mortgages, liens,
pledges, security interests or encumbrances of any nature whatsoever. On the
Closing Date, the same shall be conveyed to Buyer free and clear of all
mortgages, liens, pledges, security interests and encumbrances of any nature
whatsoever, except as related directly to the Liabilities.
6.4 COMPLIANCE WITH LAW. Seller has complied with, and is in
compliance with, all federal, state and local laws, rules, ordinances, decrees
and orders applicable to the operation if his business or to his owned or leased
properties, including, without limitation, applicable environmental, pollution
control and land use provisions. Seller has obtained all necessary permits,
licenses, variances, exemptions, orders and approvals from federal, state, local
and foreign regulatory bodies including, but not limited to, environmental
regulatory bodies, in order to conduct its business as presently conducted.
Seller has no notice or knowledge of any alleged violation relating to the
operation of Seller's Business or its owned or leased properties with regard to
any law, regulation or ordinance.
6.5 NO APPROVAL OR NOTICES REQUIRED; NO CONFLICTS. The execution,
delivery and performance of this Agreement and each of the other agreements,
exhibits and documents referred to herein or necessary to effectuate this
Agreement (collectively, the "Documents" or individually, the "Document"), by
Seller and the consummation of the transactions contemplated hereby or thereby
will not:
6.5.1 Constitute a violation of any provision of applicable law;
6.5.2 Require any consent, approval, permit or authorization of
any person or governmental authority, except for the consent of the landlord and
lessor as to Buyer's assumption of the Lease, and the consent, where necessary,
of certain creditors as to the assumption of certain of the Liabilities.
6.5.3 Result in a breach of or a default under (with or without
the giving of notice or lapse of time), acceleration or termination of, or the
creation in any party of the right to accelerate, terminate, modify or cancel
any agreement or other restriction, encumbrance, obligation or liability to
which Seller is a party or by which it is bound or to which any of the Assets
are subject.
Page 3. Asset Acquisition Agreement
6.6 NO UNDISCLOSED LIABILITIES. Except for the Liabilities and other
liabilities of Seller set forth in contracts disclosed in this Agreement and as
set forth in Schedule 6.5, there are no liabilities or obligations of any
nature, whether absolute, accrued, contingent or otherwise, applicable to Seller
or any of its assets, or arising from environmental conditions on, in or under
the real property and improvements upon and in which Seller's business operates
at 0000 Xxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx, which may have adverse consequences
on Buyer.
6.7 TAXES. Seller has timely filed or will timely file with the
appropriate governmental agencies all tax returns, information returns and
reports required to have been filed with respect to all periods ending on or
before the Closing Date. Seller has paid, or will pay, in full, as of the
Closing Date, all taxes, interest, penalties, assessments, deficiencies and
other charges ("Taxes"), the non-payment of which could result in the imposition
of Taxes on Buyer or the imposition of a lien on or in any of the Assets, or
that could otherwise result in a risk of forfeiture of any of the Assets. Seller
has not filed or entered into any election, consent or extension agreement which
extends any applicable statute of limitations. Seller has made adequate
provisions for all accrued and unpaid Taxes of Seller. To the best of Seller's
knowledge, Seller is not a party to any action or proceeding pending or
threatened by any governmental authority for assessment or collection of Taxes,
no unresolved claims for assessment or collection of such Taxes has been
asserted against it, and no audit or investigation by governmental authorities
is underway.
6.8 REPRESENTATIONS IN OTHER DOCUMENTS. The representations and
warranties of Seller in all documents executed by Seller in connection with the
assignment to and/or assumption by Buyer of all of the Leases and all of the
Liabilities are true and accurate in all material respects as of the date of
such representation and warranty and as of the Closing Date.
6.9 ASSETS. To the best knowledge of Seller, the Assets described in
Section 2 herein sets forth a complete and accurate list of all assets owned,
leased, or rented by Seller or licensed to Seller, and includes all property
required for use in the conduct of Seller's Business as presently conducted.
6.10 ENVIRONMENTAL LAWS AND REGULATIONS. There are no Hazardous
Substances (as hereinafter defined) in, at, under or upon the Seller's Business,
and no spills, releases, discharges or disposals of Hazardous Substances have
occurred during the period in which the Seller Business has been owned or used
by Seller or are presently occurring on or under the Seller's Business or onto
any property adjacent to the Seller's Business, except for any of the foregoing
which are authorized by all applicable governmental authorities. The Seller'
Business does not now contain, nor, to the best knowledge of Seller, did the
Seller's Business heretofore contain, any storage tanks for any Hazardous
Substances. Seller has not received any notice or correspondence from any
governmental agency pertaining to Hazardous Substances, including notices of any
inquiry, potential proceeding or other action pending or threatened regarding
the condition of the Seller's Business. There is no Hazardous Substance on, in
or under the Seller's Business, and to the best knowledge of Seller, no
Hazardous Substance which existed at the location of Seller's Business prior to
the date on which Seller acquired or occupied the same. Seller has complied with
all applicable local, state and federal
Page 4. Asset Acquisition Agreement
environmental laws, regulations, ordinances and administrative and judicial
orders relating to the generation, recycling, use, sale, storage, handling,
transfer and disposal of any Hazardous Substances. Seller is not hereby waiving
any rights it has against its landlord under either of its real property leases.
As used herein, "Hazardous Substances" shall mean any asbestos,
petroleum, gasoline, fuel, or any substance or material defined or designated as
hazardous or toxic waste, hazardous or toxic material, hazardous or toxic
substance, or other similar term, by any federal, state or local environmental
statute, regulation or ordinance presently in effect, including, without
limitation, any material or substance which is designated or defined as a
"hazardous substance", "hazardous waste" or "toxic substance" in (a) the Federal
Water Pollution Control Act, 33 U.S.C. ss.1251 et seq, and any amendments
thereto, (b) the Federal Resource Conservation and Recovery Act, 42 U.S.C.
ss.6901 et seq, and any amendments thereto, (c) the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. ss.9601 et seq, and any
amendments thereto, or (d) the Hazardous Material Transportation Act, 49 U.S.C.
ss.1801 et seq, and any amendments thereto.
6.11 ABSENCE OF CHANGES. From the date of this Agreement to the
Closing Date, there has not been, to the best knowledge of Seller, with respect
to Seller's Business:
6.11.1 Any transaction, agreement or commitment by Seller
relating to Seller's Business other than in the ordinary course of business and
consistent with past practice;
6.11.2 Any transaction, agreement or commitment known to Seller,
or any event or events, that, individually or in the aggregate, has or have
materially interfered or could materially interfere with the normal and usual
operations of the business or business prospects of Seller's Business;
6.11.3 Any action by Seller to permit or allow any of the Assets
(tangible or intangible) to be subjected to any mortgage, pledge, lien, security
interest, encumbrance, restriction or charge except for assessments for current
taxes not yet due and payable;
6.11.4 Any sale, transfer or other disposition of any of the
Assets (tangible or intangible);
6.11.5 Any agreement of Seller whether in writing or otherwise,
to take any action described in this Section 6.11
6.12 CONTRACTS AND OTHER OBLIGATIONS. Except for contracts disclosed
in this Agreement (the "Material Contracts"), Seller will have no material
leases, employment contracts, contracts for services or maintenance or any other
form of agreement, commitment, covenant, or obligation of any kind, nature or
description which is not cancelable without penalty upon thirty (30) days'
notice. Each of the Material Contracts, is in full force and effect and there
exists no default or event of default or event, occurrence, condition or act
(including the execution and performance of this Agreement), which, with the
giving of notice, the lapse of time or the happening of any other
Page 5. Asset Acquisition Agreement
event or condition, would become a default or event of default thereunder.
Seller has not received notice that any party to any of the Material Contracts
intends to cancel, terminate or refuse to renew the same.
6.13 LEGAL PROCEEDINGS; CLAIMS. There are no claims, actions, suits,
arbitrations, proceedings or investigations pending or threatened against
Seller, before or by any governmental or nongovernmental department, commission,
board, bureau, agency or instrumentality, whether federal, state, local or
foreign, or any other person, and there are no outstanding or unsatisfied
judgments, orders, decrees or stipulations to which Seller is a party, which
relate to either the Assets or the transaction contemplated herein, or which
would alone or in the aggregate have a material adverse effect upon the
business, business prospects, assets or financial condition of Seller.
6.14 TRADEMARKS AND INTELLECTUAL PROPERTY. Seller has full and
unrestricted rights to use all trademarks and trade names now used by it in
connection with Seller's Business.
6.15 ACCURACY OF REPRESENTATIONS AND WARRANTIES. No representation
or warranty made or to be made by Seller in this Agreement or in any other
Document furnished or to be furnished from time to time in connection herewith,
contains or will contain any misrepresentation of a material fact or omits or
will omit to state any material fact necessary to make the statements herein or
therein not misleading. There is no fact known to Seller which would materially
adversely affect, or which would, in the future, materially adversely affect,
the business, prospects, assets, property or condition (financial or otherwise)
of Seller's Business which has not been set forth in this Agreement, except
those facts concerning general economic, legislative, regulatory, or other
matters such as may generally impact all businesses of the type operated by
Seller.
7. COVENANTS . Buyer and Seller each covenant and agree with the others
to perform and observe the following covenants (Buyer and Seller are referred to
collectively in this Agreement as "Parties", and individually, as "Party"):
7.1 ACCESS TO PREMISES AND INFORMATION. At reasonable times before
the Closing Date, Seller will provide Buyer and its representatives with
reasonable access during business hours to the assets, titles, contracts, and
records of Seller and furnish such additional information concerning Seller's
Business as Buyer from time to time may reasonably request.
7.2 ADVICE OF CLAIMS. From the date of this Agreement to and
including the Closing Date, Seller will promptly advise Buyer in writing of the
commencement or threat of any claims, litigation or proceedings against or
affecting Seller or the Assets, or any event that makes or is likely to make any
representation or warranty untrue, of which Seller has notice or knowledge.
7.3 COOPERATION. The Parties will fully cooperate with the each
other and with the other Parties' counsel and accountants in connection with any
steps required to be taken as part of its obligations under this Agreement. Each
Party will use its best efforts to cause all conditions to this Agreement to be
satisfied as promptly as possible and to obtain all consents and approvals
Page 6. Asset Acquisition Agreement
necessary for its due and punctual performance of this Agreement and for the
satisfaction of the conditions hereof on its part to be satisfied. No Party
shall undertake any course of action inconsistent with this Agreement or which
would make any representations, warranties or agreements made by it in this
Agreement untrue or render any conditions precedent to this Agreement unable to
be satisfied at or prior to the Closing Date.
7.4 CONDUCT OF BUSINESS PRIOR TO THE CLOSING DATE. Seller shall not
enter into any form of agreement, covenant or commitment or engage in any other
act prior to the Closing Date which may have adverse consequences on the Assets
or Buyer or render any representation or warranty of Seller in this Agreement
untrue.
7.4 RISK OF LOSS. The risk of loss, damage or destruction to any of
the assets sold to Buyer under this Agreement shall be borne by Seller through
the Closing Date.
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER. The obligations of
Buyer to perform and observe the covenants, agreements and conditions hereof to
be performed and observed by it at or before the Closing Date shall be subject
to the satisfaction of the following conditions, any of which may be expressly
waived in writing by Buyer:
8.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES; COMPLIANCE WITH
COVENANTS. The representations and warranties of Seller contained herein shall
have been true in all material respects when made and shall be true in all
material respects on and as of the Closing Date with the same force and effect
as though made on and as of such date, except to the extent that such
representations and warranties are made as of a specified date, in which case
such representations and warranties shall be true as of the specified date.
Seller shall have performed in all material respects all obligations and
agreements and complied in all material respects with all covenants and
conditions contained in this Agreement to be performed and complied with by it
or by them at or prior to the Closing Date.
8.2 LEGAL PROCEEDINGS. No order of any court or administrative
agency shall be in effect which enjoins, restrains or prohibits consummation of
this Agreement, and no litigation, investigation or administrative proceeding
shall be pending or threatened which would enjoin, restrain or prohibit
consummation of this Agreement.
8.2 TITLE. Seller shall have supplied to Buyer evidence satisfactory
to Buyer establishing Seller's good and marketable title to the Asset, free and
clear of all liens, mortgages, pledges, deeds of trust, security interests,
conditional sales agreements, charges, encumbrances and other adverse claims or
interests of any kind, except encumbrances arising out of the Liabilities
assumed by Buyer under Section 3.
8.3 NO MATERIAL CHANGE. From the date of this Agreement to the
Closing Date, Seller shall not have suffered any material adverse change in its
financial condition, assets, liabilities, earnings, reserves, business, business
prospects or operations, which may have adverse consequences on Buyer.
Page 7. Asset Acquisition Agreement
8.4 APPROVALS AND CONSENTS. All approvals and consents from third
parties which are necessary for the consummation of the transactions
contemplated hereby shall have been obtained, including but not limited to the
consent and approval of Buyer's commercial bank, and the consent to the
assumption by Buyer, as necessary, of the Liabilities described in Section 3.
Page 8. Asset Acquisition Agreement
9. SURVIVAL AND INDEMNIFICATION
9.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made in this Agreement shall survive the Closing Date of this
Agreement. Any party learning of a misrepresentation or breach of warranty under
this Agreement shall as soon as practicable give notice in writing thereof to
the other party to this Agreement.
9.2 INDEMNIFICATION OF BUYER. Seller agrees to defend, indemnify and
hold Buyer, its successors and assigns harmless from and against:
9.2.1 Any and all claims, liabilities, and obligations of any
kind and description, contingent or otherwise, including attorney's fees and
expenses of litigation, known or unknown, arising out of or related to the
operation of the Seller's Business prior to the date of this Agreement.
9.2.2 If any claim is asserted against Buyer which would give
rise to a claim by Buyer against Seller for indemnification under the provisions
of this section, Buyer shall promptly give written notice to Seller concerning
such claim, and Seller shall, at no expense to Buyer, defend the claim, to the
point of nonappealable final judgment. If Seller fails to take steps to defend
said claim within ten (10) days of Buyer providing written notice of said claim,
or if Seller and fails to sooner defend said claim when the nature of the claim
or date of service requires immediate defensive action, or if Seller at any time
abandons defense of such a claim, Buyer may undertake or continue the defense of
any such claims, with counsel of its own choosing, and shall be entitled to
indemnity from Seller for all costs of such defense, including but not limited
to, reasonable attorney's fees, court costs and incidental expenses of
litigation. If Buyer becomes entitled to payment of indemnity pursuant to this
section, Seller shall immediately pay to Buyer the amount of said indemnity
claim. Buyer shall not be entitled to indemnity from Seller except for the
obligations to defend set forth in this section, unless and until Buyer has
actually paid a claim, debt or other liability giving rise to a right of
indemnity under this section, or has incurred a legal obligation to do so. In
such event, Buyer shall be entitled to interest from Seller at the rate of
twelve (12%) percent per annum from the date of said payment until the indemnity
claim is paid.
9.3 SURVIVAL OF INDEMNIFICATION. The provisions of this Section 9
shall survive the consummation of this Agreement and expressly are intended to
benefit each of the indemnified parties and will be binding on all successors
and assigns of the Buyer and Seller, respectively.
Page 9. Asset Acquisition Agreement
10. MISCELLANEOUS PROVISIONS.
10.1 BENEFIT. Subject to the provisions set forth herein restricting
assignment, this Agreement shall be binding upon and inure to the benefit of the
heirs, executors, administrators, successors and assigns of Seller and Buyer.
10.2 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 Seller, to:
Xxxxx Xxxxx
====================
If to Buyer, to:
Xxxxxxx X. Xxxxxx
3790 Xxx xx xx Xxxxx, Xxxxx 000
Xxx Xxx, Xxxxxxxxxx 00000
Facsimile:_________________
10.3 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of California without regard to its rules on conflict of laws.
10.4 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.
10.5 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.
10.6 INCORPORATION OF EXHIBITS. All exhibits attached hereto and
referred to herein are hereby incorporated herein and made a part of this
Agreement.
10.7 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.
Page 10. Asset Acquisition Agreement
10.8 ASSIGNMENT. The Parties may assign their rights and liabilities
arising under this Agreement or the Documents, only with the prior written
consent of the other parties, which consent shall not be unreasonably withheld,
provided, however, that any assignment of rights by the Seller shall be subject
to all of the terms and conditions of this Agreement, and any rights of setoff,
recoupment or defense of Buyer arising under this Agreement or any of the
Documents, and shall not relieve Seller of any liabilities under this Agreement.
10.9 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.
10.10 REPRESENTATION BY COUNSEL. This Agreement, the Schedules
attached hereto and other Documents executed by the Parties have been prepared
by legal counsel for and on behalf of Buyer. Seller has been advised by Buyer to
obtain his own legal counsel in connection with this Agreement and the
transaction contemplated herein. Seller has informed Buyer 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.
SMOG CENTERS OF CALIFORNIA LLC
By:______________________________
Manager
------------------------------------
Xxxxx Xxxxx
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SCHEDULE 2.1
EQUIPMENT
See Attachment
Page 12. Asset Acquisition Agreement
SCHEDULE 2.3
LEASES
Real Estate Lease dated July 1, 2001 between Xxxxxx Xxxxx, as Landlord, and
Xxxxx Xxxxx Xxxx, as Tenant
Page 13. Asset Acquisition Agreement
SCHEDULE 3
LIABILITIES
None
Page 14. Asset Acquisition Agreement
SCHEDULE 6.5
CONTRACT LIABILITIES
Page 15. Asset Acquisition Agreement
