Right of First Refusal or Option to Purchase. Subject to Article 15 hereof (regarding the Right of Succession) and without limiting the provisions of Article 5.2 of this Agreement in any way, should Dealer or its owners propose to sell or transfer Dealer's principal assets, or any majority ownership interests (whether equitable or voting) in Dealer, whether by transfer of any equity interests, grant of voting rights, merger, division, recapitalization, reorganization, sale of all or substantially all assets used in its Aston ▇▇▇▇▇▇ Operations or otherwise (any of the foregoing, an "Ownership Change"), Aston ▇▇▇▇▇▇ shall, in addition to any other right vested in it hereunder, have a right to purchase (herein, a "Right of First Refusal" and/or "Option to Purchase") such ownership interests or principal assets, including any leasehold interest or realty of the dealership, pursuant to this Article. (a) Dealer will not complete any Ownership Change prior to the expiration of the period in which Aston ▇▇▇▇▇▇ may exercise its Right of First Refusal hereunder without Aston Martin's express prior written approval. (b) Should Aston ▇▇▇▇▇▇ choose to exercise its Right of First Refusal, it must do so in writing within sixty (60) days of the date that Aston ▇▇▇▇▇▇ receives written notice of the proposed Ownership Change and all information necessary for Aston ▇▇▇▇▇▇ to evaluate the proposed transfer. If Aston ▇▇▇▇▇▇ exercises its Right of First Refusal, such exercise shall supersede any other right Dealer may have to transfer or otherwise dispose of its stock or assets. Aston ▇▇▇▇▇▇ may assign the foregoing right to any person selected by Aston ▇▇▇▇▇▇ in its sole discretion, subject to Aston Martin's guaranty to the Dealer's owners of collection of the full amount of the purchase price. Aston Martin's rights under this Article shall be binding upon and enforceable against any assignee or successor-in-interest of Dealer or purchaser of Dealer's assets or ownership interests. (c) If Dealer has entered into a bona fide written agreement with a qualified candidate for an Ownership Change, Aston ▇▇▇▇▇▇ shall have the right, but not the obligation, under this subparagraph to (i) assume the prospective purchaser's rights and obligations under such agreement, or (ii) nominate, in its sole discretion, an alternative purchaser who will purchase such ownership interest or principal assets on terms and conditions identical to those contained in the Dealer's agreement. The purchase price and other terms of sale shall be those set forth in such agreement and any related documents unless Dealer and Aston ▇▇▇▇▇▇ (or Aston Martin's nominated alternative purchaser) agree to other terms or unless different terms are established pursuant to an arbitration award rendered in accordance with the provisions of this Agreement. Aston ▇▇▇▇▇▇ may request and Dealer agrees to provide all other documents relating to the proposed transfer, including, but not limited to, those reflecting any other agreements or understandings between the parties to the agreement. If Dealer refuses either to provide such documentation or to state in writing that no such documents exist, it shall be conclusively presumed that the agreement is not bona fide. (d) If Aston ▇▇▇▇▇▇ exercises its Right of First Refusal, Aston ▇▇▇▇▇▇ agrees to reimburse or credit Dealer for reasonable costs and expenses that Dealer may be liable to the initial proposed purchaser as a result of Dealer's failure to complete the sale or transfer to such purchaser. These costs may include, but are not limited to, title searches, reasonable attorneys' fees, property inspections and brokers' fees. Dealer shall provide Aston ▇▇▇▇▇▇ with all documents substantiating such costs and expenses. In no event shall Aston Martin's liability to Dealer for reimbursement of said costs or fees exceed Fifty Thousand ($50,000.00) Dollars in the aggregate. (e) Should Aston ▇▇▇▇▇▇ determine that the proposed agreement is not bona-fide, or if no value is specified for the Aston ▇▇▇▇▇▇-related assets being sold as part of the agreement, Aston ▇▇▇▇▇▇ may, within the period provided for above, notify Dealer in writing of same. Aston ▇▇▇▇▇▇ shall, thereafter, have the option, but not the obligation, to purchase the principal assets of the Aston ▇▇▇▇▇▇ dealership utilized in the dealership operations including, but not limited to, real property and leasehold interests as may be agreed upon between Dealer and Aston ▇▇▇▇▇▇, and to terminate this Agreement and all rights granted to Dealer hereunder. If the Dealership Facilities are leased by Dealer from an affiliated company, the right to purchase the principal assets of Dealer shall include the right, but not the obligation, to lease that part of the Dealership Facilities related to the Aston ▇▇▇▇▇▇ Operations on the same terms and conditions as applicable to Dealer. The purchase price of the dealership's principal assets, as well as the dealership's "blue sky" or goodwill, shall be at their fair market value as a separate, stand-alone, going concern (without giving considerations to, or imputing value from, other dealerships) as negotiated by Aston ▇▇▇▇▇▇ and Dealer. The purchase price and other terms of sale shall be those agreed upon by Dealer and Aston ▇▇▇▇▇▇ within forty-five (45) days of receipt of Aston Martin's notice exercising its option. If a mutually satisfactory purchase price cannot be reached, or if the Dealer believes the proposed agreement is bona fide, the matter shall be decided by arbitration before a single arbitrator to be selected in accordance with the commercial arbitration rules of the American Arbitration Association. The award shall be in writing, signed by the arbitrator and shall be final and binding on the parties. The site of the arbitration shall be the office of the American Arbitration Association in Manhattan, New York City. The fees and expenses of the American Arbitration Association including the arbitrator shall be shared equally by the parties; however each party shall be responsible for its own costs and expenses, including attorney's fees, witness expenses and other related expenses. (f) As provided above, the Right of First Refusal set forth herein shall include the right, but not the obligation, to purchase the fee or leasehold interest in the real estate on which the Dealer Facility is located. Aston ▇▇▇▇▇▇ may designate its preference to exclude such real estate interests at the time of exercise of the Right of First Refusal. In such case, the purchase price for such assets shall exclude any consideration or any liability for such real estate interests. If, however, at the time of exercise of the Right of First Refusal, (i) Dealer has no other automotive dealership located at the Dealership Facility, (ii) the Dealership Facility has no other tenants or occupants and the Aston ▇▇▇▇▇▇ Operations are the sole use of the fee or leasehold interest in the real estate on which the Dealership Facility is located, (iii) such real estate is free, or will be made free by Dealer, of any material liens, mortgages or other encumbrances, is free from any potential liability from any violation of environmental or other laws and is properly zoned and insurable without significant exception by a national title insurance company, (iv) the landlord consents to the transfer of Dealer's leasehold interest to Aston ▇▇▇▇▇▇ or its assigns (in the case of a lease), (v) the Dealership Facility meets, in Aston Martin's judgment, the requirements set forth in Aston Martin's Facilities/Personnel Guide, (vi) Aston ▇▇▇▇▇▇ intends to continue the operation of an Aston ▇▇▇▇▇▇ dealership at such location, (vii) the fee or leasehold interest on which the Dealership Facility is located is included in the bona fide written agreement with a qualified candidate for an ownership change, and (viii) the value attributed to the fee interest does not exceed the fair market value of such property and the rental payment for the leasehold interest does not exceed the fair rental value of such property, then such Right of First Refusal (if exercised by Aston ▇▇▇▇▇▇) shall include the obligation to purchase the fee or leasehold interest in the real estate on which the Dealership Facility is located. (g) Closing of such sale to Aston ▇▇▇▇▇▇ or its assignee shall occur within sixty (60) days after the later to occur of (i) the exercise of the Right of First Refusal, and (ii) agreement of the purchase price or its determination after arbitration. At closing, Dealer shall deliver all documents and conveyancing instruments customarily delivered in an arms' length transaction of this nature, including, without limitation, the following: Dealer shall transfer the affected property by warranty deed conveying marketable title free and clear of liens, claims, mortgages, encumbrances, tenancies and occupancies. The warranty deed shall be in proper form for recording and Dealer shall deliver complete possession of the property at the time of delivery of the deed. Dealer shall also furnish to Aston ▇▇▇▇▇▇ copies of any easements, licenses, or other documents affecting the property and shall assign any permits or licenses which are necessary for the conduct of Aston ▇▇▇▇▇▇ Operations. Dealer shall also execute and deliver to Aston ▇▇▇▇▇▇, at Aston Martin's expense, all instruments satisfactory to Aston ▇▇▇▇▇▇ conveying title to all personal property including leasehold interests involved in the transfer or sale to Aston ▇▇▇▇▇▇. Dealer shall deliver such personal property free and clear of all liens, claims, mortgages, encumbrances, tenancies and occupancies. (h) If Aston ▇▇▇▇▇▇ does not exercise its Right of First Refusal within sixty (60) days of its receipt of written notice of a proposed Ownership Change, together with all information necessary for Aston ▇▇▇▇▇▇ to evaluate such proposed transfer, then Dealer may effect the Ownership Change, but only after approval by Aston ▇▇▇▇▇▇ in writing and only upon the terms and conditions contained in the proposed Ownership Change delivered to and approved by Aston ▇▇▇▇▇▇. Such Ownership Change must close with the proposed purchaser within ninety (90) days after the earlier to occur of (i) the expiration of the sixty (60) day period referred to in the immediately preceding sentence; or (ii) the date that Aston ▇▇▇▇▇▇ gives notice to Dealer that it does not intend to exercise its Right of First Refusal, and approves of the Ownership Change. If the Ownership Change does not close within such ninety (90)-day period or if Dealer proposes to close such Ownership Change on terms different than those presented to Aston ▇▇▇▇▇▇, then such proposed Ownership Transfer shall again be subject to Aston Martin's Right of First Refusal in accordance with this Section 5.7. (i) Dealer agrees that any outstanding monetary obligations it may have to Aston ▇▇▇▇▇▇ must be paid prior to, or at the time of, any Ownership Change or closing of a transaction pursuant to the Right of First Refusal.
Appears in 1 contract
Sources: Retail Dealer Sales and Service Agreement (HBL LLC)
Right of First Refusal or Option to Purchase. Subject A. RIGHTS GRANTED DEALER recognizes the importance of the approved locations to Article 15 hereof (regarding DISTRIBUTOR's authorized dealer network and to the Right effective sale and servicing of Succession) and without limiting Toyota Products in DEALER's primary area of responsibility. Accordingly, DEALER agrees that in the provisions of Article 5.2 of this Agreement in any way, should Dealer event that DISTRIBUTOR refuses to approve a transfer or its owners propose to sell or transfer Dealer's principal assets, or any majority ownership interests (whether equitable or voting) in Dealer, whether by transfer sale of any equity interestsownership interest in the dealership, grant pursuant to paragraph VI, DISTRIBUTOR shall have the right of voting rights, merger, division, recapitalization, reorganization, sale of all first refusal or substantially all assets used in its Aston ▇▇▇▇▇▇ Operations or otherwise (any of the foregoing, an "Ownership Change"), Aston ▇▇▇▇▇▇ shall, in addition to any other right vested in it hereunder, have a right option to purchase (herein, a "Right of First Refusal" and/or "Option to Purchase") such ownership interests or principal the dealership assets, including any leasehold interest or realty realty, as provided herein.
B. EXERCISE OF DISTRIBUTOR'S RIGHTS If DISTRIBUTOR exercises its right of first refusal or option to purchase the dealership, it must advise DEALER in writing of its decision within thirty (30) days of its refusal to approve any sale or transfer pursuant to this Article.
(a) Dealer will not complete any Ownership Change prior paragraph VI. DEALER agrees that DISTRIBUTOR shall have the right to the expiration of the period in which Aston ▇▇▇▇▇▇ may exercise assign its Right of First Refusal hereunder without Aston Martin's express prior written approval.
(b) Should Aston ▇▇▇▇▇▇ choose right to exercise its Right option to purchase or right of First Refusal, it must do so in writing within sixty (60) days of the date that Aston ▇▇▇▇▇▇ receives written notice of the proposed Ownership Change and all information necessary for Aston ▇▇▇▇▇▇ to evaluate the proposed transfer. If Aston ▇▇▇▇▇▇ exercises its Right of First Refusal, such exercise shall supersede any other right Dealer may have to transfer or otherwise dispose of its stock or assets. Aston ▇▇▇▇▇▇ may assign the foregoing right first refusal to any person selected by Aston ▇▇▇▇▇▇ in its sole discretion, subject to Aston Martin's guaranty to the Dealer's owners of collection of third party it may select and hereby guarantees the full amount payment of the purchase price. Aston Martin's rights under this Article shall be binding upon and enforceable against any assignee or successor-in-interest of Dealer or purchaser of Dealer's assets or ownership interestsprice by such assignee.
(c) C. THE NATURE OF DISTRIBUTOR'S RIGHTS If Dealer DISTRIBUTOR has refused to approve the transfer or sale of DEALER's ownership or assets and DEALER has entered into a bona fide arm's length written agreement with a qualified candidate for an Ownership Changegoverning such transfer or sale, Aston ▇▇▇▇▇▇ shall have the right, but not the obligation, DISTRIBUTOR's right under this subparagraph paragraph shall be a right of first refusal, permitting DISTRIBUTOR to (i) assume the prospective purchaserbuyer's rights and obligations under such agreement, or (ii) nominate, in its sole discretion, an alternative purchaser who will purchase such ownership interest or principal assets on terms and conditions identical to those contained in the Dealer's written agreement. The purchase price and other terms of sale shall be those set forth in such agreement and any related documents unless Dealer and Aston ▇▇▇▇▇▇ (or Aston Martin's nominated alternative purchaser) agree to other terms or unless different terms are established pursuant to an arbitration award rendered in accordance with the provisions of this Agreementdocuments. Aston ▇▇▇▇▇▇ DISTRIBUTOR may request and Dealer DEALER agrees to provide any and all other supporting documents relating to the proposed transfer, including, but not limited to, those reflecting any other agreements or understandings between transfer which DISTRIBUTOR may require to assess the parties to bona fides of the agreement. If Dealer refuses either Refusal to provide such documentation or to state in writing that no such documents exist, it exist shall be conclusively presumed create the presumption that the buy/sell agreement is not a bona fide.
(d) fide agreement. If Aston ▇▇▇▇▇▇ exercises its Right DISTRIBUTOR has refused to approve the transfer or sale of First RefusalDEALER's ownership or assets and DEALER has not entered into a bona fide arm's length written agreement governing such transfer or sale, Aston ▇▇▇▇▇▇ agrees to reimburse or credit Dealer for reasonable costs and expenses that Dealer may be liable to the initial proposed purchaser as a result of Dealer's failure to complete the sale or transfer to such purchaser. These costs may include, but are not limited to, title searches, reasonable attorneys' fees, property inspections and brokers' fees. Dealer then DISTRIBUTOR shall provide Aston ▇▇▇▇▇▇ with all documents substantiating such costs and expenses. In no event shall Aston Martin's liability to Dealer for reimbursement of said costs or fees exceed Fifty Thousand ($50,000.00) Dollars in the aggregate.
(e) Should Aston ▇▇▇▇▇▇ determine that the proposed agreement is not bona-fide, or if no value is specified for the Aston ▇▇▇▇▇▇-related assets being sold as part of the agreement, Aston ▇▇▇▇▇▇ may, within the period provided for above, notify Dealer in writing of same. Aston ▇▇▇▇▇▇ shall, thereafter, have the option, but not the obligation, option to purchase the principal assets of the Aston ▇▇▇▇▇▇ dealership DEALER utilized in the dealership operations includingoperations, but not limited to, including real property and estate and/or leasehold interests as may be agreed upon between Dealer and Aston ▇▇▇▇▇▇interest, and to terminate this Agreement and all rights granted to Dealer hereunder. If the Dealership Facilities are leased by Dealer from an affiliated company, the right to purchase the principal assets of Dealer shall include the right, but not the obligation, to lease that part of the Dealership Facilities related to the Aston ▇▇▇▇▇▇ Operations on the same terms and conditions as applicable to DealerAgreement. The purchase price of the dealership's principal assets, as well as the dealership's "blue sky" or goodwill, shall be at their the fair market value as a separate, stand-alone, going concern (without giving considerations to, or imputing value from, other dealerships) as negotiated by Aston ▇▇▇▇▇▇ and Dealerthe parties. The purchase If the parties are unable to reach a negotiated sale in a reasonable time, the price and other terms of sale shall be those agreed upon by Dealer and Aston ▇▇▇▇▇▇ within forty-five (45) days of receipt of Aston Martin's notice exercising its option. If a mutually satisfactory purchase price cannot be reached, or if the Dealer believes the proposed agreement is bona fide, the matter shall be decided established exclusively by arbitration before a single arbitrator to be selected in accordance with the commercial arbitration rules of the American Arbitration Association. The award shall be in writing, signed by the arbitrator and shall be final and binding on the parties. The site of the arbitration shall be the office of the American Arbitration Association in Manhattan, New York City. The fees and expenses the locality of the American Arbitration Association including the arbitrator shall be shared equally by the parties; however each party shall be responsible for its own costs and expenses, including attorneyDISTRIBUTOR's fees, witness expenses and other related expensesprincipal place of business or Regional Office.
(f) As provided above, the Right of First Refusal set forth herein shall include the right, but not the obligation, to purchase the fee or leasehold interest in the real estate on which the Dealer Facility is located. Aston ▇▇▇▇▇▇ may designate its preference to exclude such real estate interests at the time of exercise of the Right of First Refusal. In such case, the purchase price for such assets shall exclude any consideration or any liability for such real estate interests. If, however, at the time of exercise of the Right of First Refusal, (i) Dealer has no other automotive dealership located at the Dealership Facility, (ii) the Dealership Facility has no other tenants or occupants and the Aston ▇▇▇▇▇▇ Operations are the sole use of the fee or leasehold interest in the real estate on which the Dealership Facility is located, (iii) such real estate is free, or will be made free by Dealer, of any material liens, mortgages or other encumbrances, is free from any potential liability from any violation of environmental or other laws and is properly zoned and insurable without significant exception by a national title insurance company, (iv) the landlord consents to the transfer of Dealer's leasehold interest to Aston ▇▇▇▇▇▇ or its assigns (in the case of a lease), (v) the Dealership Facility meets, in Aston Martin's judgment, the requirements set forth in Aston Martin's Facilities/Personnel Guide, (vi) Aston ▇▇▇▇▇▇ intends to continue the operation of an Aston ▇▇▇▇▇▇ dealership at such location, (vii) the fee or leasehold interest on which the Dealership Facility is located is included in the bona fide written agreement with a qualified candidate for an ownership change, and (viii) the value attributed to the fee interest does not exceed the fair market value of such property and the rental payment for the leasehold interest does not exceed the fair rental value of such property, then such Right of First Refusal (if exercised by Aston ▇▇▇▇▇▇) shall include the obligation to purchase the fee or leasehold interest in the real estate on which the Dealership Facility is located.
(g) Closing of such sale to Aston ▇▇▇▇▇▇ or its assignee shall occur within sixty (60) days after the later to occur of (i) the exercise of the Right of First Refusal, and (ii) agreement of the purchase price or its determination after arbitration. At closing, Dealer shall deliver all documents and conveyancing instruments customarily delivered in an arms' length transaction of this nature, including, without limitation, the following: Dealer shall transfer the affected property by warranty deed conveying marketable title free and clear of liens, claims, mortgages, encumbrances, tenancies and occupancies. The warranty deed shall be in proper form for recording and Dealer shall deliver complete possession of the property at the time of delivery of the deed. Dealer shall also furnish to Aston ▇▇▇▇▇▇ copies of any easements, licenses, or other documents affecting the property and shall assign any permits or licenses which are necessary for the conduct of Aston ▇▇▇▇▇▇ Operations. Dealer shall also execute and deliver to Aston ▇▇▇▇▇▇, at Aston Martin's expense, all instruments satisfactory to Aston ▇▇▇▇▇▇ conveying title to all personal property including leasehold interests involved in the transfer or sale to Aston ▇▇▇▇▇▇. Dealer shall deliver such personal property free and clear of all liens, claims, mortgages, encumbrances, tenancies and occupancies.
(h) If Aston ▇▇▇▇▇▇ does not exercise its Right of First Refusal within sixty (60) days of its receipt of written notice of a proposed Ownership Change, together with all information necessary for Aston ▇▇▇▇▇▇ to evaluate such proposed transfer, then Dealer may effect the Ownership Change, but only after approval by Aston ▇▇▇▇▇▇ in writing and only upon the terms and conditions contained in the proposed Ownership Change delivered to and approved by Aston ▇▇▇▇▇▇. Such Ownership Change must close with the proposed purchaser within ninety (90) days after the earlier to occur of (i) the expiration of the sixty (60) day period referred to in the immediately preceding sentence; or (ii) the date that Aston ▇▇▇▇▇▇ gives notice to Dealer that it does not intend to exercise its Right of First Refusal, and approves of the Ownership Change. If the Ownership Change does not close within such ninety (90)-day period or if Dealer proposes to close such Ownership Change on terms different than those presented to Aston ▇▇▇▇▇▇, then such proposed Ownership Transfer shall again be subject to Aston Martin's Right of First Refusal in accordance with this Section 5.7.
(i) Dealer agrees that any outstanding monetary obligations it may have to Aston ▇▇▇▇▇▇ must be paid prior to, or at the time of, any Ownership Change or closing of a transaction pursuant to the Right of First Refusal.
Appears in 1 contract