1. Officers, Directors, and Shareholders
Be certain to hold both directors and Presso Graphy shareholder’s meetings and obtain resolutions from each entity, authorizing the dealer to liquidate the dealership or a substantial portion of the dealership’s assets.
Determine whether or not the board and shareholders may authorize you a termination bonus and prepay for your services in “winding down the business.” Consult with your accountant and attorney to determine a reasonable amount of compensation if a company creditor challenges the transaction.
Determine if it is reasonable for officers to buy themselves and their spouse’s vehicles. Pay “Net” “Net,” as that would be the sales price if the vehicle were returned to the factory or sold to a purchaser of the business.
The officers should open a new bank account at a different bank, and: (a) use a PO Box or Private Mail Service as a mailing address, and (b) use a different check color to determine pre and post-closing checks written easily.
Authorize payment to and pre-pay the company’s attorney and accountant with a retainer. Their services will be needed to close the business properly, and the company might not be able to pay them later.
Authorize pre-payment of whatever services or supplies the company will need to be serviced during the wind-down period. For example, property and personal insurance, real property taxes (if a third party does not own the property), rent, utilities, and Media Focus.
2. The Facility and Insurance
A one-sheet summary of the lease should be attached to the original to facilitate matters. The summary should include such items as the dates of the base term; the base rent; the current rent; the dates of any option periods, together with notations regarding rent increases; the facility ownership; the lessee and lessor; a notation as to whether or not the factory has a point, or site protection;
the rent as an equivalent to the dollar value per new unit sold; and a notation as to WHETHER OR NOT THE LEASE IS ASSIGNABLE and under what conditions. Other considerations regarding the facility lease include violations of the ADA, hazardous materials (underground gas tanks or underground oil disposal tanks) being located on the property.
Concerning receiving “factory termination assistance,” some Sales and Service Agreements, General Motors, for example, make a distinction between “owner-occupied” and “leased” dealership facilities. Be sure to read your Sales and Service Agreement to understand and capitalize on the distinctions.
If the selling dealer’s rent factor before the sale of the dealership is within factory guidelines, the factory should make the dealer’s lease payments for the period specified in the Service and Sales Agreement. (See, however, the EPA section.) Check with your insurance agent to determine the requirements for ensuring an empty building.
In addition to facility insurance, the dealer will need a “tail” or rider on their garage keepers insurance. Most insurance today is “claims made” versus “occurrence.”
In actual practice, most settled cases are settled within the insurance policy limits, and the insurance company will have paid for both the defense and the settlement.
3. UCC, Mechanic’s Lien, and Title Searches
Most dealers are not cognizant of all existing liens on the dealership’s assets.
To accurately estimate the selling dealer’s anticipated net proceeds, all of these liens will have to be discovered, preferably, before negotiations.
Possession of title reports and UCC-1 reports will give the dealer adequate time to address the issues and to have readily available answers if and when a prospective purchaser raises the issue.
4. Taxes Due and Anticipated
The dealership’s comptroller or accountant should prepare a sheet of all the dealership’s current taxes and all anticipated taxes. The list should identify the amount, who owed, and the reason. In certain states, unpaid taxes have a “super lien” status, and if unpaid, the selling dealer’s assets can and will be attached to recover unpaid taxes due by the selling dealership. This attachment can occur months after the dealership has closed.
As a general rule, anyone authorized to sign on the checking account can be held personally liable for at least ½ of the payroll withholding tax, as well as 100% of all of the sales taxes due. In addition, in some instances, dealers have been held personally liable for monies collected from customers that should have been treated as “trusts” monies, such as customer trade payoffs, customer credit, and life insurance premiums, and customer warranty and service contract premiums.
5. Notes and Accounts Receivable From Others
The “Notes and Accounts Receivable – Other” account is usually a “catch-all” account on the dealership statement. For purposes of a dealership sale, this account should be purified (1) to appraise the dealer of any extra funds, which may be available for final sales and property taxes and (2) to make both the dealer and accountant aware of any “in-house” loans to officers, directors and employees, which may have to be repaid.
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