EXHIBIT 10.1
SALE AND PURCHASE AGREEMENT
This Sale and Purchase Agreement ("Agreement") is entered into
as of the 8th day of March, 2002, by PAACO AUTOMOTIVE GROUP, L.P. ("Paaco"), a
Texas limited partnership and successor by conversion to Paaco Automotive Group,
Inc., a Texas corporation; PREMIUM AUTO ACCEPTANCE CORPORATION ("Paaco
Acceptance"), a Texas corporation; PAACO HOLDINGS, L.L.C. ("Paaco Holdings"), a
Delaware limited liability company; ALOUETTE TRUCKING, INC. ("Alouette"), a
Texas corporation (Paaco, Paaco Acceptance, Paaco Holdings and Alouette are
referred to as the "Paaco Entities"); SMART CHOICE AUTOMOTIVE GROUP, INC.
("Smart Choice"), a Florida corporation; and MOTIVE GROUP, L.P. ("Buyer"), a
Texas limited partnership.
RECITALS:
A. Pursuant to that Forbearance Agreement (the "Forbearance
Agreement") dated as of November 8, 2001, among FINOVA Capital Corporation
("FINOVA"), a Delaware corporation; Paaco and Paaco Acceptance; Florida Finance
Group, Inc., a Florida corporation, Liberty Finance Company, a Florida
corporation, Smart Choice Receivables Holding Company, a Delaware corporation,
First Choice Auto Finance, Inc., a Florida corporation (these four parties are
referred to collectively as the "Florida Finance Entities"); and SC Holdings,
Inc., a Florida corporation, Smart Choice granted to FINOVA the "Paaco Option,"
as defined in the Forbearance Agreement.
B. Pursuant to that Option Purchase Agreement dated as of the
date hereof between Buyer and FINOVA, and acknowledged by Smart Choice, FINOVA
has assigned to Buyer all rights to the Paaco Option under the Forbearance
Agreement (but no other rights thereunder) and assigned to Buyer all rights to
the "Florida Finance Deficiency," as defined in Section 1 below.
C. By this Agreement, Buyer hereby gives notice of its
election to exercise the Paaco Option, and Smart Choice hereby accepts such
notice.
D. The parties wish to evidence the sale and purchase of the
equity interests pursuant to the Paaco Option.
NOW, THEREFORE, in consideration of the mutual agreements set
forth herein, and for other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Definitions. As used below in this Agreement, (i) terms
defined in the recitals above shall have the meanings therein set forth, and
(ii) the following capitalized terms shall have the meanings assigned below:
"Affiliate" means, with respect to any Person, another Person who (i)
owns an equity interest in the first Person, of any degree, (ii) is owned, as to
equity interest, by the first Person, in any degree, (iii) Controls the first
Person, (iv) is Controlled by the first Person, or (v) is Controlled by a Person
who also Controls the first Person.
"Claims" means any and all accounts, covenants, agreements,
obligations, claims, debts, liabilities, offsets, demands, costs, expenses,
actions or causes of action of every nature, character and description, whether
arising at law or equity or under statute, regulation or otherwise, and whether
liquidated or unliquidated, contingent or noncontingent, known or unknown,
suspected or unsuspected.
"Control" means the ability to substantially direct the policies of a
Person, whether directly or indirectly, and whether such influence exists by
right or by economic compulsion.
"Florida Finance Deficiency" means the remaining principal, interest
and expenses outstanding under (i) that Second Amended and Restated Loan and
Security Agreement executed by FINOVA and the Florida Finance Entities (the
"Florida Finance Loan Agreement") dated as of November 9, 1998, as amended by
that Third Amended and Restated Schedule to Second Amended and Restated Loan and
Security Agreement dated as of September 25, 2000, and (ii) the "Loan
Documents," as defined in the Florida Finance Loan Agreement.
"Equity Interests" means the 99% limited partner interest of Paaco;
100% of the membership interests of Paaco Holdings; and 100% of the issued and
outstanding stock of Paaco Acceptance.
"Material Adverse Effect" means a material adverse effect on the
business of the Paaco Entities, taken as a whole.
"Paaco Entities" means Paaco Holdings, Paaco, Paaco Acceptance and
Alouette.
"Person" means any natural person and any legal entity with the ability
to enter into contracts.
2. Recitals. The parties warrant and represent that the
matters stated in the Recitals of this Agreement are true.
3. Valuation and Encumbrances. Smart Choice has obtained an
independent appraisal of the Equity Interests, which established a value of
$19,300,000 therefor. This independent appraisal did not take into account the
additional facts that (i) as set forth in the Forbearance Agreement, the Florida
Finance Deficiency is secured by a first priority perfected security interest in
substantially all of the assets of the Paaco Entities, and (ii) the Florida
Finance
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Deficiency exceeds the amount of $34,000,000. The parties acknowledge that the
value of the Equity Interests, even at the appraised value, is zero once the
burden of the security interest upon the assets of the Paaco Entities securing
the Florida Finance Deficiency is taken into account.
4. Sale and Purchase of Equity Interests. Subject to the
conditions stated in Section 9 of this Agreement, Smart Choice hereby sells,
assigns and conveys the Equity Interests to Buyer, and Buyer hereby purchases
and accepts the Equity Interests from Smart Choice.
5. Satisfaction of Florida Finance Deficiency. Subject to the
conditions stated in Section 9 of this Agreement, Buyer hereby deems satisfied
the entire balance of the Florida Finance Deficiency.
6. Contribution of Intercompany Balances. Smart Choice
warrants and represents to Buyer that no Paaco Entity is presently liable to
Smart Choice or to any Affiliate thereof, except for (i) subordinated debt owed
to Crown Group, Inc., which is not impaired by this transaction, and (ii) an
intercompany account (the "Paaco Intercompany Payable") owed by Paaco to Smart
Choice which, given the present encumbrance of the assets of the Paaco Entities
to secure the Smart Choice Deficiency, is only of negligible value. Smart Choice
hereby contributes the Paaco Intercompany Payable to Paaco as additional paid-in
capital. In consideration of the contribution to capital of the Paaco
Intercompany Payable, Buyer hereby agrees to, concurrently with the
effectiveness of this Agreement, (i) cause the assignment to Smart Choice of
2,292,500 shares of Smart Choice common stock, par value $.01 per share
evidenced by certificate number 1098 and 21,141,949 shares of Smart Choice
common stock, par value $.01 per share evidenced by certificate number 1105
(collectively the "Smart Choice Stock"), (ii) cause FINOVA to release SC
Holdings, Inc., a Florida corporation, from any liability under that Amended and
Restated Guaranty in favor of FINOVA executed by SC Holdings dated as of
November 18, 1999, and (iii) cause FINOVA to release Smart Choice from any
liability under that Amended and Restated Guaranty executed by Smart Choice in
favor of FINOVA dated as of November 18, 1999. It is further acknowledged that
the warranty given in the first sentence of this Section is based in part upon
Smart Choice's understanding and belief that the public foreclosure sale
conducted by FINOVA on its collateral owned by the Florida Finance Entities
included any and all accounts payable owed to Florida Finance Entities by any of
the Paaco Entities, but should it be determined for any reason that any of the
Paaco Entities do have remaining obligations to any of the Florida Finance
Entities, Smart Choice agrees to cause the appropriate Florida Finance Entities
to contribute such receivables to Paaco as additional paid-in capital via
appropriate intercompany transactions.
7. Representations and Warranties of Smart Choice and Paaco
Entities. Smart Choice and the Paaco Entities jointly and severally warrant and
represent the following to Buyer and FINOVA:
(a) Smart Choice is a duly organized corporation in
good standing under the laws of the State of Florida with full power and
authority to enter into and perform under this Agreement.
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(b) Smart Choice is the owner of the Equity Interests,
the Equity Interests are free of any security interest or other encumbrance
(except the Paaco Option), and Smart Choice has the good right to convey the
Equity Interests to Buyer.
(c) Paaco Holdings is a duly organized limited
liability company in good standing under the laws of the State of Delaware, is
duly qualified to conduct business in the State of Texas, and has full power and
authority to enter into and perform under this Agreement.
(d) Paaco Holdings is the 1% general partner of Paaco
and this general partner interest is free of any security interest or other
encumbrance.
(e) Paaco is a duly organized limited partnership in
good standing under the laws of the State of Texas with full power and authority
to enter into and perform under this Agreement.
(f) Paaco is the owner of 100% of the issued and
outstanding stock of Alouette, which stock is free of any security interest or
other encumbrance.
(g) Alouette is a duly organized corporation in good
standing under the laws of the State of Texas with full power to enter into and
perform under this Agreement.
(h) Paaco Acceptance is a duly organized corporation
in good standing under the laws of the State of Texas with full power and
authority to enter into and perform under this Agreement.
(i) This Agreement is binding upon and enforceable
against Smart Choice and the Paaco Entities in accordance with its terms.
(j) The execution, delivery and performance of this
Agreement by the Paaco Entities and Smart Choice have been duly approved by all
of their governing bodies, including their owners when so required, and do not
(i) violate any provision of the charter, bylaws, articles of organization,
operating agreement, or other constituent document of any of the Paaco Entities
or Smart Choice, (ii) violate any provision of applicable law or regulation,
(iii) violate any order of any court, arbitration authority or other board or
authority known to them to be binding upon any of the Paaco Entities, Smart
Choice or their properties, (iv) to the knowledge of Smart Choice and the Paaco
Entities, violate or cause a default under any other indenture or other
agreement or contract binding upon Smart Choice or any of the Paaco Entities or
their assets (except for violations of certain change-of-control provisions in
certain leases and financing documents), or (v) require the consent of any other
Person that has not been finally obtained, and the failure to obtain such
consent would have a Material Adverse Effect.
(k) There are no outstanding equity interests in the
Paaco Entities other than those conveyed hereby or owned by entities whose
entire equity interests are conveyed hereby, and there are no outstanding
warrants, options, preemptive rights, or other rights to the issuance of equity
outstanding with respect to any of the Paaco Entities.
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8. Representations and Warranties of Buyer. Buyer
warrants and represents the following to Smart Choice, the Paaco Entities and
FINOVA:
(a) Buyer is a duly organized limited partnership in
good standing under the laws of the State of Texas with full power and authority
to enter into and perform under this Agreement.
(b) This Agreement is binding upon and enforceable
against Buyer in accordance with its terms.
(c) Buyer is the owner of the Florida Finance
Deficiency, and Buyer has the right to deem the Florida Finance Deficiency
satisfied in consideration of the sale to Buyer of the Equity Interests as set
forth herein.
(d) The execution, delivery and performance of this
Agreement by Buyer do not (i) violate any provision of the articles of
organization, partnership agreement, or other constituent document of Buyer,
(ii) violate any provision of applicable law or regulation, (iii) to their
knowledge, violate any order of any court, arbitration authority or other board
or authority binding upon Buyer or its properties, (iv) violate or cause a
default under any other indenture or other agreement or contract binding upon
Buyer or its assets, or (v) require the consent of any other Person that has not
been finally obtained.
9. Conditions to Closing.
(a) Concurrently with the execution and delivery
hereof, Smart Choice and the Paaco Entities shall deliver the following
additional documents to Buyer, in form and substance acceptable to Buyer and its
counsel, as conditions to the effectiveness of this Agreement:
(i) Certificate from the Secretary of Smart
Choice certifying the adoption of resolutions by the Board of Directors of Smart
Choice to approve the execution, delivery and performance of this Agreement and
the incumbency of officers.
(ii) Certificates from the Secretaries of each
Paaco Entity certifying the adoption of resolutions by the Board of Directors or
other governing body or official and the equity owners of each Paaco Entity to
approve the execution, delivery and performance of this Agreement and the
confirming incumbency of officers.
(iii) Original stock certificate(s)
representing all issued and outstanding stock of Paaco Acceptance, together with
customary stock powers executed in blank (this stock shall be delivered to
FINOVA pursuant to a security interest therein).
(b) Concurrently with the execution and delivery
hereof, Buyer shall deliver to Smart Choice, as a condition to the effectiveness
of this Agreement:
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(i) Original stock certificates representing
the Smart Choice Stock, together with customary stock powers executed in blank.
(ii) Original Release issued by FINOVA
respecting the liability of Smart Choice and of SC Holdings, Inc. under their
respective guaranties to FINOVA.
(iii) Certificate from the Secretary of Buyer
certifying the adoption of resolutions by the governing body and the equity
owners to approve the execution, delivery and performance of this Agreement and
the incumbency of its authorized representative.
10. Release of Smart Choice Claims Against Paaco Entities. In
consideration of Buyer's execution of and performance under this Agreement, the
sufficiency of which is acknowledged, Smart Choice hereby releases and forever
discharge the Paaco Entities and Xxxxx X. Xxxxx and the other present officers
and directors of the Paaco Entities and from any and all Claims that Smart
Choice may have against any of them as of the execution of this Agreement. Smart
Choice further agrees that it shall forever refrain and forbear from commencing,
instituting or prosecuting any lawsuit, action, or other proceeding, whether
judicial, administrative or otherwise, or otherwise attempting to collect or
enforce, any such released Claim and agree to indemnify, defend (with counsel
satisfactory to the indemnified party) and hold harmless the indemnified parties
against any and all loss, liability, claim or expense, including attorneys'
fees, that any of them might incur as a result of any breach of this Section by
Smart Choice.
11. No Impairment of Paaco Loan. This Agreement does not in
any way amend or impair the continued effectiveness of the loan agreements in
effect between FINOVA and the Paaco Entities, including, but not limited to,
that First Amended and Restated Loan and Security Agreement (the "Paaco Loan
Agreement") dated as of March 8, 1999, as amended by that Third Amended and
Restated Schedule to First Amended and Restated Loan and Security Agreement
dated as of September 25, 2000, and (ii) in the "Loan Documents," as defined in
the Paaco Loan Agreement.
12. Xxxx-Xxxxx-Xxxxxx Exception. The parties acknowledge that
this Agreement evidences an acquisition following default in connection with a
bona fide debt work-out entered into in the ordinary course of FINOVA's
business.
13. Further Assurances. Each party hereto agrees to execute
such additional instruments of conveyance, registration or other documents that
another party hereto may deem appropriate to further evidence or give effect to
the conveyances, satisfactions of indebtedness (including, without limitation,
UCC-3 termination statements) and other matters described in this Agreement.
14. Notices. All notices, demands, and requests which may be
given or which are required to be given by either party to the other, and any
exercise of a right of termination provided by this Agreement, shall be in
writing and shall be deemed effective when either: (1) personally delivered to
the intended recipient; (2) delivered by certified or registered mail, return
receipt requested, or by a recognized overnight-delivery service, addressed to
the intended recipient at the address specified below; (3) delivered in person
to the address set forth below for
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the party to which the notice was given; or (4) sent by facsimile, telegram, or
telex, provided that receipt for such facsimile, telegram, or telex is verified
by the sender and followed by a notice sent in accordance with one of the other
provisions set forth above. For purposes of this Section, the addresses of the
parties for all notices are as follows (unless changes by similar notice in
writing are given by the particular person whose address is to be changed):
If to Buyer:
Motive Group, L.P.
c/x Xxxxx Automotive Group, L.L.C., General Partner
Attn: Xxxxx X. Xxxxx, Sole Manager and Member
c/o Paaco Automotive Group, L.P.
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxxx, Xxxxx 00000
Fax #: 000-000-0000
If to Smart Choice:
0000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, President
Fax #: 321/000-0000
If to the Paaco
Entities:
C/o PAACO Automotive Group, L.P.
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxx, President
Fax #: 000-000-0000
15. Not Partners; Third Party Beneficiaries. Nothing contained
herein or in any related document shall be deemed to render the parties partners
for any purpose. This Agreement has been executed for the sole benefit of the
parties and there are no third party beneficiaries hereof, except that FINOVA is
an intended beneficiary hereof.
16. Assignment. This Agreement shall be binding upon and inure
to the benefit of the respective heirs, successors and assigns of the parties.
Smart Choice and the Paaco Entities are granting to FINOVA a first priority
perfected security interest in their rights under this Agreement.
17. Entire Agreement. This Agreement and the other written
agreements among the parties represent the entire agreement between the parties
concerning the subject matter hereof, and all oral discussions and prior
agreements are merged herein.
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18. Amendment and Waiver in Writing. No provision of this
Agreement can be amended or waived, except by a statement in writing signed by
the party against which enforcement of the amendment or waiver is sought.
19. Severability. Should any provision of this Agreement be
invalid or unenforceable for any reason, the remaining provisions hereof shall
remain in full effect.
20. Gender and Number. Words used herein indicating gender or
number shall be read as context may require.
21. Captions Not Controlling. Captions and headings have been
included in this Agreement for the convenience of the parties, and shall not be
construed as affecting the content of the respective sections.
22. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS AND DECISIONS OF THE STATE OF ARIZONA,
WITHOUT GIVING EFFECT TO CHOICE OF LAW PRINCIPLES.
23. JURISDICTION AND VENUE. THE PARTIES HEREBY AGREE THAT ALL
ACTIONS OR PROCEEDINGS INITIATED BY ANY OF THEM AND ARISING DIRECTLY OR
INDIRECTLY OUT OF THIS AGREEMENT SHALL BE LITIGATED IN THE SUPERIOR COURT OF
MARICOPA COUNTY, ARIZONA AND THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF ARIZONA, AND THE PARTIES HEREBY EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO
SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN ANY OF SUCH COURTS.
THE PARTIES WAIVE ANY CLAIM THAT MARICOPA COUNTY, ARIZONA OR THE DISTRICT OF
ARIZONA IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF VENUE.
THE EXCLUSIVE CHOICE OF FORUM FOR THE PARTIES SET FORTH IN THIS SECTION SHALL
NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT BY A PARTY OF ANY JUDGMENT OBTAINED IN
ARIZONA ANY OTHER FORUM TO THE EXTENT SUCH FORUM HAS JURISDICTION FOR THE TAKING
OF ANY ACTION TO ENFORCE THE SAME, AND THE PARTIES HEREBY WAIVE THE RIGHT TO
COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.
24. WAIVER OF JURY TRIAL. THE PARTIES HEREBY ACKNOWLEDGE AND
AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR WITH RESPECT
TO THE TRANSACTIONS CONTEMPLATED HEREBY WOULD BE BASED UPON DIFFICULT AND
COMPLEX ISSUES AND, ACCORDINGLY, EACH SUCH PERSON HEREBY KNOWINGLY AND
VOLUNTARILY, WITH THE BENEFIT OF COUNSEL, WAIVES TRIAL BY JURY IN ANY ACTIONS,
PROCEEDINGS, CLAIMS OR COUNTER-CLAIMS, WHETHER IN CONTRACT OR TORT OR OTHERWISE,
AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT.
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Executed as of the date first written above.
MOTIVE GROUP, L.P.
By: Xxxxx Automotive Group, L.L.C.,
General Partner
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By:
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Xxxxx X. Xxxxx, Manager
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PAACO AUTOMOTIVE GROUP, L.P.
By: PAACO HOLDINGS, L.L.C.,
General Partner
By:
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Title:
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PAACO HOLDINGS, L.L.C.
By:
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Title:
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PREMIUM AUTO ACCEPTANCE CORPORATION
By:
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Title:
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SMART CHOICE AUTOMOTIVE GROUP, INC.
By:
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[Signature page to Sale and Purchase Agreement]
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Title:
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ALOUETTE TRUCKING, INC.
By:
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Title:
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