EXHIBIT
10.1
ASSET PURCHASE
AGREEMENT
______________________________________________________________
Pursuant to this
Asset Purchase Agreement (“ Agreement ”),
effective the 31st day October, 2006, Crossroads Convenience
Center, LLC, hereinafter “Seller,” and Idaho
Center Chevron, Inc., hereinafter “Buyer” ,
agree as follows:
ARTICLE
1
PARTIES
1.1
Seller.
Crossroads
Convenience Center, LLC, ( “Seller” ) is an
Idaho limited liability company with its general offices located at
5950 East Franklin Road, Nampa, Idaho 83687.
1.2
Buyer.
Idaho
Center Chevron, Inc., ( “Buyer” ) is an Idaho
corporation authorized to transact business in Idaho, with its
general offices located at 1036 East Iron Eagle Road, Eagle, Idaho
83616.
1.1
Parties.
Both “
Seller” and “ Buyer” are referred
to together as “Parties.”
ARTICLE
2
RECITALS
2.1
“Seller” owns and operates
a retail convenience center under the name of the “Crossroads
Convenience Center,” which includes a gas station, car wash,
market, food preparation, and other associated operations in Nampa,
Idaho, near the Idaho Center. One of
“Buyer’s” principals, namely Richard
Swensen, has operated the Crossroads Convenience Center as an
employee of “Seller” , and is intimately
familiar with the business.
2.2 “Seller” intends to sell to
“Buyer” and “Buyer” intends
to buy from “Seller” all of the assets of the
retail convenience center business, including, the real property,
fixtures, inventory, equipment, licenses, permits, and all other
personal property, tangible and intangible, including, but not
limited to, the right to use the name “Crossroads Convenience
Center” and the goodwill of the business.
2.3 The Parties contemplate a transaction in two
parts: First, the Personal Property will be sold to
pursuant to this Asset Purchase Agreement at which time the
Seller will take possession of all assets, assume the
business liabilities, and commence operation of the Crossroads
Convenience Center business. Within thirty (30) days
thereafter, the second phase of this transaction will take place,
whereby, pursuant the Option granted herein, Seller
will have the right to purchase the Real Property and
fixtures in accordance to a separate Real Estate Purchase
Agreement . In the interim between the two agreements,
Seller will lease the real property to Buyer pursuant
to a Lease Agreement ( ”Lease” ).
Page 1 of
16
ARTICLE
3
PURCHASE OF
PERSONAL PROPERTY ASSETS
3.1 Purchase of
Personal Property. At the Closing
(defined below), and subject to the terms and conditions of this
Agreement, Seller agrees to sell, transfer and deliver to
Buyer , and Buyer agrees to purchase from
Seller , all of the tangible and intangible personal
property assets of the convenience center business (
“Personal Property” ) of Seller, other
than real estate and appurtenant fixtures, free and clear of all
liens, interests, rights, claims, encumbrances and restrictions of
any kind (collectively, “ Encumbrances ”),
except for any Encumbrances known to Buyer or
Buyer’s principal, Richard Swensen, that are not
disclosed to Seller (See Section 8.4). The Personal
Property is defined as all tangible and intangible assets of
Seller utilized in or related to the operation of the
Crossroads Convenience Center business, other than real property
and any property excluded by this Agreement. All tangible
Personal Property, including all assets listed on
Seller’s Balance Sheet ( Exhibit
“A” ), shall be set forth in schedules as set forth
below and shall be transferred by certificate of title or by bill
of sale, as appropriate.
3.2 Purchase
Price.
3.2.1 Purchase
Price The purchase price
( “Purchase Price” ) for the Personal
Property to be paid by “Buyer” to
“Seller” pursuant to this Agreement is the total
sum of Six Hundred Thousand Dollars ( $600,000.00 ),
which sum will be paid as follows at closing:
The
sum of $300,000 in cash in form of a bank check, or bank
cashier’s check, or money order.
·
A
conditional promissory note to Seller signed and issued
jointly by Seller and Richard Swensen (
“Note” ) for the sum of $300,000, having a term
of five (5) years and bearing interest at the rate of eight percent
(8%) per annum, simple, fixed. The Note will be in the
form of Exhibit “B” hereto.
3.2.2 Allocation
of Cash Payment. The cash sum of
$300,000 paid at closing will be allocated first by the
Seller to the payment in full Seller’s
obligation (approximately $194,000 ) to the Idaho Candy
Company and thereby free the Personal Property from any and
all Encumbrance by Idaho Candy Company. The
balance of the cash proceeds remaining after payment of Idaho Candy
Co. will be retained by Seller.
3.2.3 Collateral
for the Note.
(a)
The
Note will be secured by 300,000 shares of restricted common
stock of Great American Family Parks, Inc., owned by Richard
Swensen.
(b)
A total of
270,000 shares of said stock collateral for the Note will be
provided to Seller at closing by Richard Swensen by his
delivery at closing to Seller Great American Family Parks,
Inc., stock certificate No. ____________ for 270,000 shares
endorsed by him in blank, with his signature medallion bank
guaranteed.
(c)
A total of 30,000
shares of said stock collateral for the Note will be
provided to Seller within two (2) weeks after closing by
Richard Swensen by his delivery during that time to Seller a
stock certificate for 30,000 shares duly endorsed by him in blank,
with his signature medallion bank guaranteed.
Page 2 of
16
(d)
Said stock
certificates will each be delivered with an executed stock power in
the form of Exhibit “C ” hereto.
(e)
Seller may at any time
during the term of the Note sell the stock to pay the
Note , except that Seller may not sell said stock if
Buyer or Richard Swensen give Seller ten (10)
days notice that the Note will be paid in cash and said
payment is duly made. If Seller elects to sell
said stock, then, in that event, the proceeds from the sale of the
stock shall be deemed to pay the Note in full, and
Seller may retain all of said proceeds, regardless of the
amount of the proceeds received from the sale.
3.3
No Pro-rations at Closing. Since Buyer will
own all uncollected accounts receivable at closing, such items as
utilities, personal property lease obligations, and other current
business trade accounts not fully paid at closing will not be
pro-rated, but will be assumed and paid by Buyer , as set
forth below.
ARTICLE
4
ASSETS AND
LIABILITIES INCLUDED AND EXCLUDED FROM SALE
4.1 Purchased
Assets. Except as
otherwise specifically set forth in this Agreement and on
the Schedules hereto, the Personal Property Assets to be
purchased from Seller shall include all of
Seller’s right, title and interest in and to said
assets, of every type and condition, including, without limitation,
the following:
4.1.1
Furniture, Equipment, and Machinery. All tangible
personal property owned by or leased to Seller located in or
used in connection with the business, including, without
limitation, furniture, furnishings, trade fixtures (not appurtenant
to real property), instruments, equipment, systems, machinery,
operation manuals, and manufacturer’s warranties and
guarantees, if any, as identified on Schedule 4.1.1. (
“Furniture and Equipment” )
4.1.2
Personal Property Leases. All equipment
leases and other personal property leases for tangible personal
property (including, without limitation, office equipment and
vehicles) leased by Seller , and including as identified on
Schedule 4.1.2 ( “Personal Property Leases”
).
4.1.3
Contracts. All of
Seller’s rights related to contracts, agreements,
options and commitments (other than Personal Property Leases),
including, without limitation, as identified on Schedule 3.1.4. (
“Contracts” ) .
4.1.4
Cash on Hand, Accounts Receivable, and Prepaid Income.
All cash on
hand, accounts receivable, credit card receipts, cash deposits that
customers have deposited with Seller , deferred revenue,
prepaid income, amounts paid by customers pursuant to any plans or
programs in which customers paid an amount to receive services or
goods in the future, and similar amounts paid by customers to
Seller in advance of rendering the services or providing the
goods after closing date pursuant to such contracts.
4.1.5
Motor Vehicles. All motor
vehicles owned by Seller , identified on Schedule
4.1.5
Page 3 of
16
4.1.6
Business Records. Copies of all
current accounting records, current financial records, operations
records, customer records, customer lists, vendor lists, price
lists, operations manuals, and all other records, files, memoranda,
sketches, bids, contracts, and other documents relating to any of
“ Seller’s ” business ( “Business
Records” ).
4.1.7
Inventory. All items as set
forth in Seller’s balance sheet ( Exhibit
“A” ) under category “Other Current
Assets,” including, without limitation, the following: Beer
Inventory, Beverage Inventory, Fast Food Inventory, Fuel Inventory,
Store Inventory, Tobacco Inventory, and other items not
specifically enumerated, such as janitorial and office supplies,
and all other operating supplies used in the ordinary course of
business shall be classified as inventory hereunder (
“Inventory” ). As soon as possible following
closing, Seller shall complete a physical count of
Seller’s Inventory, determine the cost (in accordance
with generally accepted accounting principles) of such Inventory as
of the close of business on the Closing date. A copy of the
inventory shall be attached, post closing, to this Agreement
as schedule 4.1.7.
4.1.8
Licenses and Permits. All
licenses and permits used in operation of Seller (
”Licenses and Permits” ).
4.1.9
Intellectual Property. All of
Seller’s rights, title and interest in all trademarks,
tradenames (including, without limitation, the name
“Crossroads Convenience Center,” service marks,
copyrights and any applications therefor, and all logos, symbols,
business manuals, policies, and tangible or intangible advertising
materials that have been created by or for
“Seller” and that are or have been used by
Seller in the conduct of its business (
“Intellectual Property” ).
4.1.10
Communication Addresses. All telephone
numbers, facsimile numbers, internet addresses, internet domain
names, internet domain name registrations, log-in identifications,
user identifications, screen names and on-line service
identifications relating to Seller ( “Communication
Addresses” ).
4.1.11 Computer
Software and Databases. All computer
software, applications and databases owned, licensed, leased,
internally developed or otherwise used by “Seller” in
connection with its business ( “Computer Software and
Databases” ).
4.1.12
Proprietary Information. All rights
in Seller’s Proprietary Information. “
Proprietary Information ” means all information, data,
software and materials (whether contained in documents, electronic
media or other forms) relating to or used by Seller ,
including, without limitation, information about
Seller’s materials, procedures, inventions, expertise,
customer lists, potential customer lists, customer data, financial
data, vendors, marketing plans, and trade secrets.
4.1.13
Rights Arising from Assumed Liabilities. All rights of
Seller arising under or relating to the liabilities or
obligations expressly assumed by Buyer from
Seller” pursuant to Section 4.2.
4.1.14
Tangible and Intangible Personal Property.
All
other tangible and intangible personal property owned by
Seller.
4.1.15
Insurance. All policies of
fire, extended coverage, liability, errors and omissions,
environmental and all other kinds of insurance held by
Seller and covering any of the Assets; provided, however,
that Buyer shall have no obligation to continue or renew any
such policy of insurance following Closing.
Page 4 of
16
4.2
Assumed Liabilities. No liabilities of
any type and condition, real, personal and mixed, tangible and
intangible, fixed and unfixed, choate or inchoate, accrued,
absolute, contingent or otherwise, wherever located and whether or
not reflected on Seller’s books and records, are
assumed by Buyer except as follows:
4.2.1
Liabilities Attached to or Encumbering the Assets Post Closing.
All liabilities
and obligations attached to or encumbering the Personal
Property assets arising or accruing after the Closing Date,
including any and all liabilities and obligations of the business
not disclosed to Seller by Buyer prior to closing
arising from the operation of the business by Buyer’s
principal, Richard Swensen (See Section 8.4).
4.2.2
Current Trade payables. Current Trade Payables, such as utilities,
personal property lease obligations and amounts charged or
chargeable by vendors for goods and services provided to
Seller on or before the closing date, whether or not such
amounts are due and owing as of the Closing date ( “Trade
Payables” ).
4.3
Excluded Assets. The Assets to be
purchased by Buyer pursuant to this Agreement do not
include the following assets:
(a)
The ownership interest in the entity, Crossroads Convenience
Center, LLC
4.4 Excluded
Liabilities.
Buyer shall not assume or be deemed to have assumed, and
Seller shall remain solely responsible following Closing
for, any and all indebtedness, contract obligations and other
liabilities of Seller (“ Excluded Liabilities
”) other than those liabilities, if any, specifically
identified in Section 4.2.
4.4.1
Transaction Taxes. Any liability or
obligation relating to income, sales or excise taxes, that the law
imposes on Seller, arising from, related to, or caused by
the sale or transfer of the Assets as contemplated by this
Agreement, which taxes shall be paid by Seller.
4.4.2
Taxes; Employment Liabilities. Any
liability or obligation of Seller , whether arising prior
to, on or after the Closing date, relating to (i) federal,
state and local taxes, including income, sales, use, property,
service or other taxes that applicable statutes, laws, ordinances,
rules or regulations required, or the taxing authority asserts were
required, to be paid on or prior to Closing; (ii) compliance
with federal, state and local tax rules and regulations, including
the obligation to prepare, report or file payroll, income, excise,
sales, social security, trust fund, unemployment, withholding,
property or other taxes or to prepare or file notices, forms,
reports or documents that applicable statues, laws, ordinances,
rules or regulations require, or the taxing authority asserts were
required, to be paid or filed on or prior to Closing; and (iii) any
liability arising out of or related in any manner to employees of
Seller , including, without limitation, employment
compensation, workers compensation, unemployment, any employment
benefits or any employee benefit plan of any kind, shall remain the
liability of, and be paid by Seller . Seller
shall pay on or before Closing all Seller Employment
Liabilities due and owing up to and through the date of Closing,
and shall pay all Seller Employment Liabilities that may
arise after Closing.
4.4.3
Insurance. Deductibles,
co-payments, premiums or other payments relating to property,
casualty, liability, errors and omissions, and other insurance
premiums or payments for loss incurred or claims made prior to
Closing.
4.4.4
Litigation and Judgments. Any litigation,
arbitration or mediation, and any amounts payable to resolve
disputes, if any, including, without limitation, judgments,
settlements, arbitration, or mediation for claims arising prior to
Closing .
Page 5 of
16
4.4.5
Other Non-business Liabilities. Any liability of
Seller related to, connected with, or arising from, any
other business or asset of Seller not part of or involved in
the Crossroads Convenience Center business.
ARTICLE
5
RISK OF LOSS AND
OFFSETS
5.1 Risk of Loss.
Until possession
has been delivered to Buyer at Closing, Seller shall
retain all risk of loss or damage with respect to the assets sold
hereunder. In the event of any material loss or damage to all
or any part of the Assets prior to such time, Buyer shall
have the right to (i) terminate this Agreement and abandon the
transaction, in which event each party shall be fully released and
discharged from any further obligations under this Agreement,
except for any continuing obligations of a party under this
Agreement, or (ii) consummate the transactions contemplated by
this Agreement and reduce the Purchase Price by an equitable amount
(to be determined by agreement of Buyer and Seller )
to equal the loss or damage (net of any insurance proceeds paid or
payable to Buyer by reason of the loss or
damage).
5.2
Allocation Offsets. To the extent
that the closing inventory count results in a total value different
than that set forth in Seller’s balance sheet (
Exhibit “A” ), said difference shall be
inversely applied (negative or positive) to the value allocated to
the “good will” of the business so as to maintain the
same net worth of the business as set forth on said balance
sheet.
ARTICLE
6
REAL PROPERTY
OPTION
6.1
Option to Purchase Real Property.
6.1.1
Grant of Option. For consideration
of ten dollars ($10) in hand paid and for other good and valuable
consideration, which consideration is separate from the
consideration of this Agreement and the Real Estate
Purchase Agreement , and the receipt of which consideration is
hereby acknowledged by Seller, Seller hereby grants to Buyer an
option to purchase Seller’s real property and
appurtenant fixtures ( “Option” ) located at
5950 East Franklin Road in Nampa, Canyon County, Idaho, (
“Real Property” ) in a and more particularly
described in Exhibit “D” hereto.
6.1.2 Terms of
Option .
Buyer has the Option to purchase the Real
Property on or before November 30, 2006, in accordance with the
terms and conditions set forth in the Real Estate
Purchase Agreement , the form of which is attached hereto as
Exhibit “E,” and by this reference made a part
hereof.
6.1.3 Exercise of
the Option . In order to
exercise the Option, Seller must give written notice to
Buyer on or before Monday November 20, 2006 that
Seller intends to exercise the option. If
timel
