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Death of an Automobile Dealership

Closing a store requires considerable considered.Leasehold ImprovementsThe
effort and attention and the items listed value of Leasehold Improvements is
below, in no particular order, are generally lost in the termination
minimal considerations when terminating a process.VehiclesWhile accomplishing a new
franchise and closing a dealership vehicle inventory valuation is a
operation.THIS CHECKLIST IS NOT "ALL relatively, routine matter, it is also
INCLUSIVE". YOU SHOULD CONSULT WITH YOUR time consuming; consequently, in order
ATTORNEY AND ACCOUNTANT AND THIS LIST for a dealer to realize full value, or
SHOULD BE CONSIDERED AS AN ADDITIONAL AID each vehicle, at time of transfer, a
FOR YOU TO USE TO BUILD UPON WHEN YOU checklist must be compiled and
CONFER WITH THEM.Basic Preparation1. maintained. There are certain additions
Officers, Directors and ShareholdersBe to, and subtractions from, the invoice
certain to hold both directors and price that must be made.The difference in
shareholders meetings and to obtain cash to be paid by purchaser's flooring
resolutions from each entity, authorizing entity to the dealer's flooring
the dealer to liquidate the dealership, institution can be considerable,
or a substantial portion of the especially with respect to domestic
dealership's assets.Determine whether or lines, where holdback monies routinely
not the board and shareholders may average between $400 and $600 per unit,
authorize you a termination bonus and or more.A dealer needs to be aware of
prepay your for your services in "winding this figure, early on in order to provide
down the business". Consult with your for the contingency during
accountant and attorney to determine what negotiations.Various states have laws
would be a reasonable amount of more liberal than the factory's Sales and
compensation in the event a company Service Agreements and the specific laws
creditor challenges the of the terminating dealer's jurisdiction
transaction.Determine if it is reasonable should be review. For example, Maine
for officers to buy themselves and their requires that the factory repurchase
spouse vehicles. Pay "Net" "Net", as that terminating dealers' entire new vehicle
would be the sales price if the vehicle inventory, regardless of model year. Some
were returned to the factory or sold to a states require the factory repurchase
purchaser of the business.The officers only current model year vehicles and
should open a new bank account, at a others current plus one year
different bank, and: (a) use a PO Box, carry-over.In MSO states, the dealer
or Private Mail Service as a mailing should control all vehicle keys and MSOs
address; and (b) use a different check - if the lender does not already have
color in order to easily determine pre them.Prepare to liquidate used vehicles
and post closing checks written.Authorize and any dealership vehicles such as parts
payment to and pre-pay the company's trucks, courtesy vans, demonstrators and
attorney and accountant with a retainer. snow plows. It is generally easier to
Their services will be needed to properly obtain a good price for them by not
close the business and the company might letting anyone "cherry pick". Several
not be able to pay them later.Authorize wholesales should bid them as a
pre-payment of whatever services or "group".Make list of carryovers and if
supplies the company will need to be the factory will not repurchase them have
serviced during the wind-down period. For the wholesalers bid them separately and
example, property and personal insurance, also shop them with other dealers.Dealer
real property taxes (if the property is plates must be surrendered and accounted
not owned by a third party), rent, for when the dealer license is
utilities and such.2. The Facility terminated.13. Appraisals and
and InsuranceA one-sheet summary of the AuctionsThere are a number of competent,
lease should be attached to the original, recognized appraisers, our firm could
in order to facilitate matters. The recommend. In order to maximize the
summary should include such items as: the dollar value of an appraisal or auction,
dates of the base term; the base rent; the dealer should contact several firms,
the current rent; the dates of any option determine how they operate, what records
periods, together with notations will be required, the method for valuing.
regarding rent increases; the facility After obtaining such information, the
ownership; the lessee and lessor; a dealer should know the precise form and
notation as to whether or not the factory schedules necessary in order to maximize
has point, or site protection; the rent the appraisal or sale of the fixed
as an equivalent to the dollar value per assets. In addition, by assigning an
new unit sold; and, a notation as to employee to thoroughly prepare the assets
WHETHER OR NOT THE LEASE IS ASSIGNABLE and schedules, the dealer will better
and under what conditions.Other understand the value of the assets at the
considerations regarding the facility premises.Perhaps the greatest problems,
lease include violations of the ADA, with respect to appraisals and auctions,
hazardous materials (underground gas are: (1) neither party takes the time to
tanks, or underground oil disposal tanks) understand the methods and reasoning used
being located on the property.Owned by the appraisal/auction company; and (2)
FacilitiesWith respect to receiving the dealer almost never adequately
"factory termination assistance", some prepares the assets and schedules. We
Sales and Service Agreements, General invariably find that all of the
Motors for example, make a distinction dealership's assets do not appear on
between "owner occupied" and "leased" schedules, either because they have been
dealership facilities. Be sure to read fully depreciated, or because of an
your Sales and Service Agreement in order error.14. Contracts for
to understand and be able to capitalize ServicesService maintenance contracts and
on the distinctions.Leased FacilitiesIf personal service contracts should be
the selling dealer's rent factor prior to reviewed for personal guarantees, term
the sale of the dealership is within and assignability. An oversight could
factory guidelines the factory should mean that personal liability, for
make the dealer's lease payments for the performance, would remain with the
period specified in the Service and Sales selling dealer. Service maintenance
Agreement. (See, however, the EPA contracts should be scheduled, with the
section.)Check with your insurance agent detail indicating the amount of each
to determine the requirements for payment, duration of agreement, service
insuring an empty building.Other to be rendered, and any personal
InsuranceIn addition to facility liability. Any contracts that can be
insurance the dealer will need a "tail" cancelled should be calendared for
or rider on his or her garage keepers cancellation.15. Contingent
insurance. Most insurance today is Liability and ReservesThe dealer should
"claims made" versus "occurrence".In know the amount of all outstanding retail
actual practice, most cases that are paper, which has been unconditionally
settled are settled within the insurance guaranteed by the dealership, or the
policy limits and the insurance company dealer. The dealer should know which the
will have paid for both the defense and dealership's reserve account will be
the settlement.With respect to Medical subject to charge backs, for early
Insurance, arrange for COBRA all payoffs and the amount, if any, of
employees of the company. Again, officers recourse against the dealer and the
and directors may be able to include dealership.A spreadsheet of the
medical insurance payments as part of outstanding contracts should be compiled,
their wind-down compensation.3. UCC, detailing, in addition to collateral
Mechanic's Lien and Title SearchesMost description, remaining term and
dealers are not cognizant of all existing delinquency status, and credit grade,
liens on dealership's assets.In order to such as A, B, or C, or whatever system
accurately estimate the selling dealer's the finance company uses. The type of
anticipated net proceeds, all of these recourse, average monthly reserve
liens will have to be discovered, charge-backs and the current reserve
preferably, prior to balance should also be included.Shortly
negotiations.Possession of title reports after informing the financing
and UCC-1 reports will give the dealer institutions of the dealer's intent to
adequate time to address the issues and close the dealership, the lenders should
to have readily available answers, if and again be approached, regarding the
when a prospective purchaser raises the availability of any "walk-away" programs.
issue.4. Taxes Due and Furthermore, in the event the dealership
AnticipatedThe dealership's comptroller has been operating with reduced reserve
or accountant, should prepare a sheet of retention, the amount required to bring
all taxes currently owed by the the reserve(s) to standard, upon
dealership and all anticipated taxes. The cessation of retail operations, should be
list should identify the amount, to who determined. On occasion, this amount has
owed and the reason. In certain states proved to be significant.Eventually, when
unpaid taxes have a "superlien" status confidentiality is no longer an issue,
and if unpaid the selling dealer's assets the dealer should discuss with the
can and will be attached to recover lender, the handling of future
unpaid taxes due by the selling repossessions, extensions, renewals and
dealership. This attachment can occur other maintenance functions. If the
months after the dealership has closed.As prior dealer-lender relationship was
a general rule, anyone authorized to sign good, the dealer will discover that an
on the checking account can be held incredible amount of help available from
personally liable for at least ½ of the a cooperative finance company.Lastly, if
payroll withholding tax, as well as 100% the dealer discovers a large contingency,
of all of the sales taxes due. In a certain degree of assistance may be
addition, in some instances dealers have negotiated with the buyer.16.
been held personally liable for monies Accounts Receivable and CashCashWhile
collected from customers that should have apparently obvious, dealership cash must
been treated as "trust" monies, such as: be considered. Generally a new checking
customer trade payoffs, customer credit account should be opened at a financial
and life insurance premiums, and customer institution that is not affiliated with
warranty and service contract premiums.5. the dealer's current business. Also, if
Notes and Accounts Receivable From possible, a locally owned bank should be
OthersThe "Notes and Accounts Receivable used, versus a national bank. The dealer
- Other" account is usually a "catch-all" should consider reducing the number of
account on the dealership statement. For signatories on the checking account(s) to
purposes of a dealership sale, this two, one of which is the dealer and,
account should be purified (1) in order effective the day of the close, the
to apprise the dealer of any extra funds, number of signatories should be reduced
which may be available for final sales to the dealer principal only.Factory
and property taxes and (2) to make both ReceivablesFrom the moment a decision to
the dealer and accountant aware of any close the store is reached, factory
"in-house" loans to officers, directors receivables should receive concentrated
and employees, which may have to be attention. The very instant an awareness
repaid.6. Prepaid ExpensesThe of the pending closing reaches the
prepaid expense account is another factory, the payments cease.Try to
"catch-all" account that must be resolve all problem receivables, such as
purified. When scheduling the prepaid warranty disputes, well before the
expense account the comptroller should closing. In any event, assistance from
make a thorough search for all lease and the factory, following the close of
contract deposits. In many instances, escrow will be essential to process
service equipment on lease, vehicles on warranty re-submissions and other
lease, computers on lease, and other problems.
leases made to the dealership carry Employee ReceivablesEmployee receivables
security deposits, or the last month's should also be thoroughly analyzed during
payment, or both.7. Dealership this preliminary stage. An immediate
EmployeesAlong with the normal policy, of no advances, should be
employer-employee relations, there are established.Without causing alarm,
two very important legal areas that may employee receivables should be scheduled
affect automobile dealers: (a) pension and a course of repayment established.
fund liability; and (b) state and federal One of the better methods is to prepare a
laws regarding closings.In some states schedule of what each employee owes and,
the selling dealer could be personally as the final pay periods approach, make
liable for funding employee pension certain the receivables are deducted from
funds; while in others the dealer must the employee's final checks.
give employees advance notice of any Unfortunately, some states do not allow
closing. Also, the United States the dealer to set-off debts against
Congress passed legislation regarding wages. Your state's policy/law should be
"closings". In the instances of reviewed with your attorney before
"closings", both state and federal laws proceeding to set-off any employee
put a minimum on the number of persons debt.Customer and Vehicle ReceivablesThe
employed, usually 50 or 100, before the selling dealer should make certain that
law applies to the dealer's company. vehicle receivables and customer
Check the Hart Scott Rodino Act (HSR) and accounts, other than service and parts,
the WARN Act.With respect to wages, some are pure. Necessary adjustments and
jurisdictions have enacted statutes write-offs should be made, with the
making certain shareholders personally purpose of arriving at a receivable
liable for corporate debts owing to figure which realistically depicts the
laborers and other employees. Welfare amount of cash which can be expected.If
and pension funds also qualify as wages the dealership's service and parts policy
under New York's statute.The comptroller, has been well monitored, these accounts
or accountant should prepare a should pay in an orderly manner. In
list of these liabilities, to include addition, the dealer should decide
any amounts due the employees, with whether collections should be performed
respect to accrued vacations, withholding by dealer, and one or more employees, or
taxes, pension and profit sharing plans whether the dealer can sell the accounts
and wages, as of the date of to a factoring house.17. Leased
close.Insofar as the actual terminations EquipmentNot all leases can be cancelled.
are concerned, if the dealership is The dealer should determine which, if
"union", the dealer should talk to the any, of the leases have personal
union's representative in order to be guarantees, and with respect to such
sure that all of the conditions of the leases, make a concerted effort to
union contract are met.8. Long Term negotiate a settlement with the lessor.
DebtAll long-term debt should be itemized That assumes that the corporation is
and a method of repayment determined. insolvent. If the corporation is solvent,
Interest should be computed. When past than settlements need to be negotiated
due interest and past due payments are with respect to corporate leases.18.
added to the loan balance, the loan EPA InspectionIf the real property is
pay-offs are generally higher than owned by the closing dealer, it is
anticipated.The comptroller should important for the dealer to determine
prepare a list of these debts, to include where and what the problems are likely to
the amount owed including interest, to be. If underground gas or oil storage
who owed, purpose of debt, maturity, tanks have ever been located on the
terms and security given. In addition, dealership real property, the dealer
after the list is completed, the should, if not already available, contact
comptroller should keep a running total, a private inspection agency and obtain a
daily, through close of escrow.9. certificate of clearance, or compliance,
Other Notes PayableAs with long-term with respect to it.Be aware, no
debt, other notes payable should be agreements between the parties can
listed by amount including interest to modify, or redistribute their respective
date of close, to whom owed, purpose of liabilities, with respect to state and
note, maturity, terms and security given; federal laws.19. Expenses of
and arrangements should be made to retire TransactionThere are certain
the debt.10. The Financial extraordinary expenses, such as real
StatementsThe retail automobile business estate appraisal fees, consultant fees,
is one of the few businesses requiring a attorney and accounting fees, which are
complete closing of all books and incidental to the preparing a dealership
records, promptly, at the end of each and for closing. These expenses will be paid
every month. Factories and finance both from the dealership general account
companies require reporting on factory and directly from the closing dealer's
originated, or approved forms.In personal account. The dealer should alert
preparing the store for closing, a the bookkeeper to maintain a separate
reconciliation statement may be used, journal, in which to record these
explaining categories such as "other expenses, in order that the accountants
income & expense", warranty, finance and may readily determine the costs of sale
insurance income not shown on the and categories of expenditures, for
statement, along with extraordinary income tax purposes, both personal and
items.You will need a final financial business.Closing DateAbsent exigent
statement for tax purposes.11. circumstances, the dealer should estimate
Storage of RecordsDealerships amass a the amount of time necessary to prepare
great deal of paperwork, the safe, the store for closing, usually
accessible, storage of which will present approximately thirty days. If possible,
a necessary problem to the selling the closing should be on a payday.The
dealer. No dealership record will be as Comptroller's ResponsibilitiesThe
important as it is on the day it cannot Dealer's comptroller should prepare, or
be found. Former dealers have related be responsible for the preparation of,
stories of attempting to retrieve the following items and documents, for
documents from mini-storage facilities, transfer:The Books & Records;All Purchase
in both rain and snow.The appropriate Orders and Deposits;The Franchise
time period should be determined, only Termination Letter and the Factory's, or
after the dealer's accountant and Distributor's Acceptance of the Buyer's
attorney have considered and advised the Resignation;The Accounts Receivable
dealer with respect to statute of List;Prepaid Expenses;Preparing a Leased
limitations problems and other document Equipment Inventory;Securing Old Credit
retention regulations, peculiar to the card plates and Machines;The Parts and
political area in which dealership is Accessories Return, Vehicle Return, and
located.12. In-House Service Rent Assistance Demand Letters;The
ContractsIf the dealer has sold any Transfer and/or cancellation of various:
"in-house service contracts", the selling Telephone Numbers; Post Office Boxes;The
dealer will not want former customers insurance arrangements: life, garage
calling at his or her home for repairs, keeper's tail, real and personal
or complaints; therefore, a system of property, health, etc.The Dealer's
service, along the following lines, ResponsibilitiesThe Dealer should
should be negotiated with a dealer prepare, or be responsible for reviewing
located in close proximity to the closing and supervising all of the items in the
store.13. The Hard AssetsParts and checklist and for the preparation of the
AccessoriesEach factory has its own following items:Decide on the employees
definition of "returnable" parts and that are required to stay in order to
returnable accessories. Most also include complete the closing of the store.Check
a discount for packing and shipping.Just for sold orders decide whether to
prior to closing, a computer printout deliver, cancel, or refer to another
ought to be obtained listing all parts dealer.Cancel company credit cards,
and accessories, their purchase date and including any phone credit cards and any
cost in invoice.Parts and Accessories mobile phones - except your own.Secure
need to be segregated into "returnable" telephone service. Set a Voice Mail
and "non-returnable" categories. message regarding a dealership
Returnable parts and accessories need to referral.DETERMINE THE FACTORY'S
be inventoried and packaged according to OBLIGATIONS WITH RESPECT TO ITS RIGHTS TO
the factory's LEASE AND PURCHASE. BE SURE TO MAKE
specificationsNon-returnable items need CLAIMS AND REQUESTS FOR ASSISTANCE WITHIN
to be marketed to other dealers or parts THE TIME PERIOD SPECIFIED IN THE SALES
houses such as "Napa". Note: Some AND SERVICE AGREEMENT.If necessary, talk
"non-returnable" parts may in fact be to a Realtor and list the facility on the
returnable to the supplier from who it market (lease or sale).Find out where
was purchased, such as Delco, MotorCraft, credit card monies are deposited and move
Mopar, Napa, etc.Do not mark on or damage the account if it is in the same bank
original packages when inventorying or where the company's general account
packing as some factories will not resides.Close out, or transfer to another
classify items in marked packages as dealer all active service ROs. If
"returnable".Be sure to account for possible, negotiate a referral fee.Create
aftermarket items such as Gas, Oil & a press release for store closing.Cancel
Grease, Nuts, Bolts, Supplies, Work in all new vehicle orders that are not
Process and Repair Order (Need to collect scheduled, do not order any new
A/Rs), Signs, Tools, Miscellaneous cars.Close out all service ROs so that
Equipment & Supplies.Furniture, Fixtures work is completed by date of close. Do
and EquipmentThe hard assets fall into not accept any work that can't be
two categories: (a) Those repurchased by completed by store shutdown date.As
the factory, such as special tools, parts always, when closing a dealership, you
equipment, signs, some computer systems, should always consult with a qualified
etc.; and those not repurchased by the attorney and accountant.For additional
factory, such as desks, chairs, information on this and other automobile
etc.Repurchased and non-repurchased items dealership subject matters, go to: Pico
should be segregated and an inventory / has a Doctorate of Jurisprudence and is a
auction service contacted to bid the vice president of Automotive Advisors. He
auction on the non-repurchased items. has completed over 1,000 dealership
When considering the auction, terms such transactions, and published the first
as advertising time, location, minimum books copyrighted in the Library of
bids, guaranteed minimums from the Congress on Buying and Selling Automobile
auctioneer, and so forth, must be dealerships.




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