1
EXHIBIT 10.29
AGREEMENT TO TRANSFER
BUSINESS OPERATIONS
This Agreement To Transfer Automobile Business Operations
("Agreement") is entered into as of the 31st day of July 1996, by and between
Banner's Central Electric, Inc., a California corporation ("BCE"), Central
Consumer Finance Company, a Delaware corporation ("Central"), Central Financial
Acceptance Corporation, a Delaware corporation ("CFAC"), and Central Auto
Sales, Inc., a California corporation ("Central Auto").
WHEREAS, CFAC is the sole shareholder of Central Auto, which engages
in the business of selling used automobiles (the "Automobile Business"), and
Central;
WHEREAS, BCE is the majority shareholder of CFAC;
WHEREAS, Central Auto desires to sell to BCE, and BCE desires to
purchase from Central Auto, certain assets of the Automobile Business, subject
to the assumption by BCE of certain liabilities of the Automobile Business, in
accordance with the provisions of this Agreement; and
WHEREAS, in connection with the transfer of certain assets of the
Automobile Business to BCE, BCE desires to grant to Central the exclusive right
to purchase consumer finance receivables generated by sales of automobiles at
BCE (the "Automobile Finance Receivables").
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties hereto mutually agree as follows:
1. Assignment of Automobile Operations. Central Auto hereby
grants to BCE the unconditional right to operate Central Auto's business
effective as of August 1, 1996. In connection therewith, Central Auto assigns,
transfers and conveys to BCE its current inventory of automobiles (the
"Transferred Assets"). Central Auto and/or Central shall retain all consumer
finance receivables generated by sales of automobiles by Central Auto prior to
the date hereof.
2. Lease of Auto Lot. Central Auto currently conducts the
Automobile Business from a lot located at 1900 to 0000 Xxxxx Xxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx (the "Automobile Lot") pursuant to a month to month lease
with BCE Properties I (the "Automobile Lot Lease") at a rent of $6,250 per
month. Effective August 1, 1996, Central Auto assigns its obligations under
the Automobile Lot Lease to BCE, and BCE assumes all obligations of Central
Auto under the Automobile Lot Lease.
3. Lease of Furniture and Equipment. Central Auto shall lease to
BCE the following furniture and equipment at a monthly rent of Three Thousand
($3,000), subject to
1
2
termination by any of Central Auto, CFAC or BCE upon thirty (30) days written
notice to the other party;
(i) All fixtures and improvements attached to the
Automobile Lot; and
(ii) All machinery, apparatus, furniture and fixtures,
materials, supplies, telephone lines, computer equipment, desks, chairs,
signage (attached and detached) and other equipment which is located at the
Automobile Lot or used by Central Auto to conduct the Automobile Business.
4. Assumption of Central Auto's Liabilities. BCE hereby assumes
all of the outstanding liabilities of Central Auto as of August 1, 1996 and all
future liabilities incurred in the operation of the Automobile Business.
5. Purchase Price. In consideration for the purchase of the
Transferred Assets and the transfer of the Automobile Business, BCE shall pay,
by wire transfer to Central Auto, an amount equal to the net book value of the
Transferred Assets.
6. Exclusive Rights to Purchase or Finance Automobile Finance
Receivables. In connection with the transfer of the Automobile Business to
BCE, BCE hereby grants to Central, the exclusive right, at BCE's option, (i) to
purchase Automobile Finance Receivables originated by BCE or (ii) to provide
financing directly to BCE's customers for sales of automobiles, with full
recourse to BCE at any time after the borrower on such consumer finance
receivable is 31 days or more delinquent. BCE agrees that, so long as BCE
originates Automobile Finance Receivables, it will not offer any automobile
financing except on such terms, conditions and according to such underwriting
criteria as may be directed by Central from time to time, and, if Central shall
originate consumer finance receivables directly to BCE's customers, BCE agrees
that it will not offer any automobile financing without the prior written
consent of Central.
7. Term. This Agreement shall be in effect for a period of
fifteen (15) years from the date hereof, subject to termination by Central or
Central Auto upon one (1) year's prior written notice.
8. Representations and Warranties of Central Auto. Central Auto
represents, warrants and agrees as follows:
(a) Central Auto is the sole owner of and has good and
marketable title to all of the Transferred Assets being transferred hereby with
full right to dispose of them as Central Auto may choose, and no one has any
claim, right, title, interest, or lien in, to or on said Transferred Assets.
2
3
(b) Central Auto agrees that in the event it becomes
necessary to pay sales taxes or any other applicable transfer tax on the
Transferred Assets as a result of this transaction, Central Auto shall pay such
taxes.
(c) Central Auto has the full capacity, right, power and
authority to enter into this Agreement. The execution, delivery and
performance of this Agreement by Central Auto and the execution, delivery and
performance of any related agreements or contemplated transactions by Central
Auto will not violate, or constitute a breach or default (whether upon lapse of
time and/or the occurrence of any act or event or otherwise) under, the
articles of incorporation or bylaws of Central Auto, or any material contract
of Central Auto, or violate any laws or regulations. No permits or approvals
are required to be obtained by Central Auto to consummate the transactions
contemplated by this Agreement. The execution and delivery of this Agreement
by Central Auto and the performance of this Agreement and any related or
contemplated transactions by Central Auto will not require filing or
registration with, or the issuance of any permit by, any other third party or
governmental entity.
(d) Central Auto holds all material permits that are
required by any governmental entity to permit it to conduct its business as now
conducted. To the best knowledge of Central Auto no suspension, cancellation
or termination of any of such permits is threatened or imminent.
9. Representations and Warranties of BCE. BCE represents and
warrants as follows: BCE has the full capacity, right, power and authority to
enter into this Agreement. The execution, delivery and performance of this
Agreement by BCE and the execution, delivery and performance of any related
agreements or contemplated transactions by BCE will not violate, or constitute
a breach or default (whether upon lapse of time and/or the occurrence of any
act or event or otherwise) under the Articles of Incorporation or Bylaws of
BCE, or any material contract of BCE, or violate any laws or regulations. No
permits or approvals are required to be obtained by BCE to consummate the
transactions contemplated by this Agreement. The execution and delivery of
this Agreement by BCE and the performance of this Agreement and any related or
contemplated transactions by BCE will not require filing a registration with,
or the issuance of any permit by, any other third party or governmental entity.
10. General.
(a) This Agreement and the legal relations between the
parties shall be governed by and construed in accordance with the laws of the
State of California applicable in contracts made and performed in such State.
(b) If any provision of this Agreement is determined to
be invalid, illegal or unenforceable by any governmental body, the remaining
provisions of this Agreement to the extent permitted by law shall remain in
full force and effect provided that the economic and legal substance of the
transactions contemplated is not affected in any manner adverse to any party.
In
3
4
the event of any such determination, the parties agree to negotiate in good
faith to modify this Agreement to fulfill as closely as possible the original
intents and purposes hereof. To the extent permitted by law, the parties
hereby to the same extent waive any provision of law that renders any provision
hereof prohibited or unenforceable in any respect.
(c) The parties are independent engaged in the operation
of their respective businesses. No party has the authority to enter into
contracts or assume any obligations for any other party or is to be considered
as the agent or employee of any other party for any purpose whatsoever.
Nothing in this Agreement shall be construed to establish a relationship of
partners or joint venturers among the parties.
(d) This Agreement shall be binding upon and shall inure
to the benefit of the parties and their respective successors and permitted
assigns. This Agreement may not be assigned or delegated by any party without
the consent of the other parties; provided, however, Central may assign its
rights under Section 6 hereof to any direct or indirect subsidiary of CFAC at
any time without the consent of any party hereto.
(e) All notices, requests, demands and other
communications provided for by this Agreement shall be in writing (including
telecopier or similar writing) and shall be deemed to have been given at the
time when mailed in any general or branch office of the United States Postal
Service, enclosed in a registered or certified postpaid envelope, or sent by
Federal Express or other similar overnight courier service, addressed to the
appropriate party at 0000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000,
Attention: Secretary, or to such changed address as
4
5
such party may have fixed by notice or, if given by telecopier, when such
telecopy is transmitted and the appropriate answer back is received.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorized officers as of the day and year
first above written.
BANNER'S CENTRAL ELECTRIC, INC., CENTRAL AUTO SALES, INC.,
a California corporation a California corporation
By: /s/ XXXX X. XXXXXX By: /s/ XXXX X. XXXXXX
----------------------------- ----------------------------
Xxxx X. Xxxxxx Xxxx X. Xxxxxx
Its: Chairman, President and Its: Chairman, President and
Chief Executive Officer Chief Executive Officer
CENTRAL FINANCIAL ACCEPTANCE CENTRAL CONSUMER FINANCE
CORPORATION, COMPANY,
a Delaware corporation a Delaware corporation
By: /s/ XXXX X. XXXXXX By: /s/ XXXX X. XXXXXX
_____________________________ ___________________________
Xxxx X. Xxxxxx Xxxx X. Xxxxxx
Its: Chairman, President and Its: Chairman, President and
Chief Executive Officer Chief Executive Officer
5
