EXHIBIT 10.3
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT (this "Agreement"), entered into this _______
day of November, 1996, by and among FIRST CHOICE AUTO FINANCE, INC., a Florida
corporation (the "Buyer"), SUNCOAST AUTO AND BROKERS, INC., a Florida
corporation ("SABI"), SUNCOAST AUTO BROKERS ENTERPRISE, INC., a Florida
corporation ("SABEI"), and GARY SMITH (the "Stockholder");
W I T N E S S E T H:
WHEREAS, SABI and SABEI (each a "Seller" and collectively the
"Sellers") are engaged, among other things, in a business consisting of a retail
automobile dealership for both new and used automobiles and other consumer
vehicles (collectively, the "Business"); and
WHEREAS, the Stockholder is the record and beneficial owner of all of
the issued and outstanding capital stock of each of the Sellers, and as such
will derive substantial benefit from the transactions contemplated by this
Agreement; and
WHEREAS, in connection with and in furtherance of such
Business, the Sellers are the owners of certain assets and
properties; and
WHEREAS, the Sellers desire to sell substantially all of their assets
and properties to the Buyer, and the Buyer desires to purchase such assets and
properties, and the Business as a going concern, all upon the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereby agree as follows:
1. ACQUIRED ASSETS.
1.1 SABI ASSETS. Subject to the terms and conditions of this
Agreement, SABI hereby sells, transfers and delivers to the Buyer, and the Buyer
hereby purchases and receives from SABI, the following assets, properties and
business of SABI as same are constituted on the date hereof (the "SABI Assets"):
(a) All notes receivable and accounts receivable of SABI;
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(b) Subject to Section 3.1 below, all inventory of SABI,
consisting primarily of new and used vehicles, auto supplies and spare auto
parts (collectively, the "SABI Inventory");
(c) All tangible fixed assets, furniture, fixtures, machinery,
equipment, tools, vehicles and other fixed assets of SABI (the "SABI Fixed
Assets");
(d) Any and all prepaid expenses of SABI (to the extent usable
in the Business), and any and all security deposits relating to leases of real
property or personal property being assumed by the Buyer hereunder;
(e) All trade names, customer lists, supplier lists, trade
secrets, technical information, and other such knowledge and information
constituting the "know-how" of the Seller, and the good will of SABI;
(f) All contract rights, commitments and claims of the Seller,
including rights as lessee (including, without limitation, all rights in any
security deposit thereunder) under SABI's Lease (as such term is defined in
Section 4.13 below) any equipment leases and vehicle leases, and rights under
manufacturer's warranties and any licenses or license agreements relating to
patents, trademarks or other intangibles;
(g) All software, books, records, printouts, drawings, data,
files, notes, notebooks, accounts, invoices, correspondence and memoranda
relating to the Assets and/or the business of SABI; and
(h) All other rights and assets of any kind, tangible or
intangible, of SABI, whether or not reflected in SABI's financial statements or
on its books and records, including but not limited to such rights (if any) as
SABI may have with respect to its existing telephone numbers, fax numbers and
directory listings, but expressly EXCLUDING any and all cash and/or marketable
securities.
1.2 SABEI ASSETS. Subject to the terms and conditions of this
Agreement, SABEI hereby sells, transfers and delivers to the Buyer, and the
Buyer hereby purchases and receives from SABEI, the following assets, properties
and business of SABEI as same are constituted on the date hereof (the "SABEI
Assets"):
(a) All notes receivable and accounts receivable of SABEI;
(b) Subject to Section 3.2 below, all inventory of SABEI,
consisting primarily of new and used vehicles, auto supplies and spare auto
parts (collectively, the "SABEI Inventory", and collectively with the SABI
Inventory, the "Inventory");
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(c) All tangible fixed assets, furniture, fixtures, machinery,
equipment, tools, vehicles and other fixed assets of SABEI (the "SABEI Fixed
Assets", and collectively with the SABI Fixed Assets, the "Fixed Assets");
(d) Any and all prepaid expenses of SABEI (to the extent
usable in the Business), and any and all security deposits relating to leases of
real property or personal property being assumed by the Buyer hereunder;
(e) All trade names, customer lists, supplier lists, trade
secrets, technical information, and other such knowledge and information
constituting the "know-how" of the Seller, and the good will of SABEI;
(f) All contract rights, commitments and claims of the Seller,
including rights as lessee (including, without limitation, all rights in any
security deposit thereunder) under SABEI's Lease (as such term is defined in
Section 4.13 below) any equipment leases and vehicle leases, and rights under
manufacturer's warranties and any licenses or license agreements relating to
patents, trademarks or other intangibles;
(g) All software, books, records, printouts, drawings, data,
files, notes, notebooks, accounts, invoices, correspondence and memoranda
relating to the Assets and/or the business of SABEI; and
(h) All other rights and assets of any kind, tangible or
intangible, of SABEI, whether or not reflected in SABEI's financial statements
or on its books and records, including but not limited to such rights (if any)
as SABEI may have with respect to its existing telephone numbers, fax numbers
and directory listings, but expressly EXCLUDING any and all cash and/or
marketable securities.
1.3 THE ASSETS. The SABI Assets and the SABEI Assets are
collectively referred to in this Agreement as the "Assets".
2. ASSUMED LIABILITIES.
2.1 ASSUMED SABI LIABILITIES. Subject to the terms and conditions
of this Agreement, SABI hereby assigns to the Buyer, and the Buyer hereby
assumes and agrees to pay and perform when due, all liabilities and obligations
of SABI for periods from and after the date hereof under (a) SABI's Lease, (b)
any outstanding leases for office equipment, and (c) any outstanding leases for
emissions equipment, all of which are listed on SCHEDULE 2.1 annexed hereto
(collectively, the "Assumed SABI Liabilities"). In addition, the Assumed SABI
Liabilities shall include the outstanding obligations owed by SABI under any
floor planning agreement relating to the SABI Inventory (subject to Section 3.1
below).
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2.2 ASSUMED SABEI LIABILITIES. Subject to the terms and
conditions of this Agreement, SABEI hereby assigns to the Buyer, and the Buyer
hereby assumes and agrees to pay and perform when due, all liabilities and
obligations of SABEI for periods from and after the date hereof under (a)
SABEI's Lease, (b) any outstanding leases for office equipment, and (c) any
outstanding leases for emissions equipment, all of which are listed on SCHEDULE
2.2 annexed hereto (collectively, the "Assumed SABEI Liabilities"). In addition,
the Assumed SABEI Liabilities shall include the outstanding obligations owed by
SABEI under any floor planning agreement relating to the SABEI Inventory
(subject to Section 3.2 below).
2.3 THE ASSUMED LIABILITIES. The Assumed SABI Liabilities and the
Assumed SABEI Liabilities are collectively referred to in this Agreement as the
"Assumed Liabilities".
2.4 EXCLUDED LIABILITIES. Notwithstanding anything to the
contrary contained in Sections 2.1 or 2.2 above, the Buyer shall not assume, or
become in any way liable for, the payment or performance of any debts,
liabilities or obligations (absolute or contingent) of either of the Sellers (a)
arising out of or relating to any operations of either of the Sellers prior to
the date hereof, including but not limited to trade accounts payable, customer
claims, payroll or employee claims, or obligations under any leases relating to
periods prior to the date hereof, (b) relating to any lease obligations of any
kind other than for periods from and after the date hereof under the Leases, and
the Assumed SABI Liabilities and the Assumed SABEI Liabilities, (c) relating to
any federal, state or local income, franchise, sales, use, property, excise,
transfer or other taxes payable by or in respect of either of the Sellers,
including but not limited to any such taxes which may be assessable against
either Seller arising out of, in connection with or as a result of the
transactions contemplated by this Agreement and/or the consummation thereof, (d)
relating to or arising out of any pending claims, actions, arbitrations and/or
other proceedings against either Seller, (e) relating to recapture of any
depreciation deduction or investment tax credit of either Seller, or (f) not
specifically assumed by the Buyer in Sections 2.1 and 2.2 above.
3. PURCHASE PRICE.
3.1 SABI PURCHASE PRICE. The net purchase price for the SABI
Assets is $____________ (the "SABI Purchase Price"), representing the amount
calculated as (a) $375,000, plus (b) an amount equal to the difference of (i)
the fair market value of all Inventory of SABI (valued at its fair market value
as determined by Don Cook and Bob Creeger, or two other appraisers reasonably
satisfactory to the Buyer and SABI, reasonably prior to the date hereof), minus
(ii) the outstanding obligations owed by SABI under any floor planning agreement
for such Inventory; PROVIDED, HOWEVER,
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that to the extent that either the Buyer or SABI have not accepted the
appraisers' valuation of any particular vehicles in the Inventory of SABI, then
such disputed vehicles have been excluded from the Inventory hereunder and may
hereafter be disposed of by SABI at any time and from time to time in such
manner as SABI shall deem appropriate. Such SABI Purchase Price is being paid on
the date hereof by certified or bank cashier's check, or (at SABI's option) by
wire transfer of immediately available funds to SABI's designated account.
3.2 SABEI PURCHASE PRICE. The net purchase price for the SABEI
Assets is $____________ (the "SABEI Purchase Price"), representing the amount
calculated as (a) $375,000, plus (b) an amount equal to the difference of (i)
the fair market value of all Inventory of SABEI (valued at its fair market value
as determined by Don Cook and Bob Creeger, or two other appraisers reasonably
satisfactory to the Buyer and SABEI, reasonably prior to the date hereof), minus
(ii) the outstanding obligations owed by SABEI under any floor planning
agreement for such Inventory; PROVIDED, HOWEVER, that to the extent that either
the Buyer or SABEI have not accepted the appraisers' valuation of any particular
vehicles in the Inventory of SABEI, then such disputed vehicles have been
excluded from the Inventory hereunder and may hereafter be disposed of by SABEI
at any time and from time to time in such manner as SABEI shall deem
appropriate. Such SABEI Purchase Price is being paid on the date hereof by
certified or bank cashier's check, or (at SABEI's option) by wire transfer of
immediately available funds to SABEI's designated account.
3.3 NET PRICE. The foregoing purchase price for the Assets shall
be in addition to the assumption of the Assumed Liabilities set forth in
Sections 2.1 and 2.2 above.
3.4 ALLOCATION OF CONSIDERATION. The purchase price specified in
Sections 3.1 and 3.2 above shall be allocated, as among the Assets, in
accordance with SCHEDULE 3.4 annexed hereto.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLERS AND THE
STOCKHOLDER.
In connection with the sale of the Assets to the Buyer, (a) SABI
and the Stockholder hereby jointly and severally represent and warrant to the
Buyer solely with respect to SABI, the SABI Assets and SABI's Business, and (b)
SABEI and the Stockholder hereby jointly and severally represent and warrant to
the Buyer solely with respect to SABEI, the SABEI Assets and SABEI'S Business,
as follows:
4.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. Each of the
Sellers is a corporation duly organized, validly existing and in good standing
under the laws of the State of Florida, with full corporate power and authority
to execute and deliver this
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Agreement and to consummate the transactions contemplated hereby, and to own its
assets and conduct its business as owned and conducted on the date hereof.
Neither of the Sellers is required to be qualified as a foreign corporation
under the laws of any jurisdiction.
4.2 AUTHORIZATION OF AGREEMENT. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby by such Seller has been duly and validly authorized by the
Board of Directors of such Seller and by the Stockholder (as sole stockholder of
such Seller). No further corporate authorization is required on the part of such
Seller to consummate the transactions contemplated hereby.
4.3 VALID AND BINDING AGREEMENT. This Agreement constitutes the
legal, valid and binding obligation of such Seller and the Stockholder,
enforceable against such Seller and the Stockholder in accordance with its
terms, except to the extent limited by bankruptcy, insolvency, reorganization
and other laws affecting creditors' rights generally, and except that the remedy
of specific performance or similar equitable relief is available only at the
discretion of the court before which enforcement is sought.
4.4 NO BREACH OF STATUTE OR CONTRACT. Except as disclosed in
SCHEDULE 4.4 annexed hereto, neither the execution and delivery of this
Agreement by such Seller and the Stockholder, nor compliance with the terms and
provisions of this Agreement on the part of such Seller and the Stockholder,
will: (a) violate any statute or regulation of any governmental authority,
domestic or foreign, affecting such Seller; (b) require the issuance to such
Seller of any authorization, license, consent or approval of any federal or
state governmental agency or any other person; (c) conflict with or result in a
breach of any of the terms, conditions or provisions of such Seller's
certificate of incorporation or by-laws or any judgment, order, injunction,
decree, agreement or instrument to which such Seller or the Stockholder is a
party, or by which such Seller or the Stockholder is bound, or constitute a
default thereunder; or (d) require the consent of any third party under any
outstanding statute, regulation, judgment, order, injunction, decree, agreement
or instrument to which such Seller or the Stockholder is a party or by which
such Seller or the Stockholder is bound.
4.5 SUBSIDIARIES AND INVESTMENTS. Such Seller does not own,
directly or indirectly, any stock or other equity securities of any corporation
or entity, or have any direct or indirect equity or ownership interest in any
person, firm, partnership, corporation, venture or business other than the
Business conducted by such Seller.
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4.6 FINANCIAL INFORMATION. Annexed hereto as SCHEDULE 4.6 are the
unaudited financial statements (including balance sheet, income statement and
statement of cash flows) for each Seller as of December 31, 1993, December 31,
1994 and December 31, 1995 and for each of the years then ended, and as of June
30, 1996 and for the six (6) months then ended (collectively, the "Financial
Statements"), all of which fairly reflect, in all material respects, the
financial condition and results of operations of the subject Seller as of the
dates thereof and for the periods then ended; and, without limitation of the
foregoing, neither of the Sellers has any material liabilities, fixed or
contingent, known or unknown, except to the extent reflected in the most recent
of such Financial Statements or thereafter incurred in the normal course of such
Seller's business.
4.7 NO MATERIAL CHANGES. Since the date of the most recent of the
Financial Statements, (a) the business of such Seller has been operated solely
in the normal course, (b) there has been no material adverse change in the
financial condition, operations or business of such Seller from that reflected
in such Financial Statements, (c) such Seller has not incurred any material
obligation or liability except in the normal course of business, (d) such Seller
has not effected or suffered any material change in its collection practices, or
with respect to the timing and manner of payment of accounts payable, and (e)
there has not been any (i) sale, assignment or transfer by such Seller of any
assets or other part of its business, excluding the sale or disposition of
inventory, and the sale of loans, in each instance in the ordinary course of
business, (ii) acquisitions or commitments to acquire (whether by purchase,
lease or otherwise) any capital assets by the Sellers (collectively) wherein the
aggregate payments will exceed $10,000, (iii) increase or commitment to increase
the compensation or benefits of any employees, (iv) implementation or
institution of any bonus, benefit, profit-sharing, pension, retirement or other
plan or similar arrangement which was not in existence on June 30, 1996, or (v)
new employment agreement, or modification of any existing employment agreement,
by such Seller.
4.8 TAX MATTERS.
(a) Such Seller has, to the date hereof, timely filed all tax
reports and tax returns required to be filed by such Seller, and such Seller has
paid all taxes, assessments and other impositions as and to the extent required
by applicable law. All federal, state and local income, franchise, sales, use,
property, excise and other taxes (including interest and penalties and including
estimated tax installments where required to be filed and paid) due from or with
respect to such Seller as of the date hereof have been fully paid, and all taxes
and other assessments and levies which such Seller is required by law to
withhold or to collect have been duly withheld and collected and have been paid
over to the proper governmental authorities to the extent due and
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payable. There are no outstanding or pending claims, deficiencies or assessments
for taxes, interest or penalties with respect to any taxable period of such
Seller.
(b) Except as disclosed in SCHEDULE 4.8 annexed hereto, there
are no audits pending with respect to any federal, state or local tax reports or
tax returns of such Seller, and no waiver of statutes of limitations have been
given or requested with respect to any tax years or tax filings of such Seller.
4.9 TITLE AND CONDITION OF THE ASSETS. SABI has and owns good and
marketable title to all of the SABI Assets, and SABEI has and owns good and
marketable title to all of the SABEI Assets, in each case free and clear of all
liens, pledges, claims, security interests and encumbrances of every kind and
nature. All of the Fixed Assets are in good operating condition and repair
(reasonable wear and tear excepted), are adequate for their use in the Business
as presently conducted, and are sufficient for the continued conduct of such
Business.
4.10 RECEIVABLES. All notes receivable and accounts receivable
included in the Assets (whether reflected in the Financial Statements or
thereafter created or acquired by such Seller prior to the date hereof), (a)
have arisen in the normal course of such Seller's business, (b) are not subject
to any counterclaims, set-offs, allowances or discounts of any kind, and (c)
have been, are and will be valid and generally collectible in the ordinary
course of the Business; and neither such Seller nor the Stockholder has any
knowledge of any material or unusual risk of non-payment of any of such
receivables.
4.11 INVENTORY. All of the Inventory (whether reflected in the
Financial Statements or thereafter acquired by the subject Seller prior to the
date hereof) is of a quality, age and quantity consistent with the historical
practices of the subject Seller, and is valued on such Seller's books at cost.
4.12 LEGAL COMPLIANCE. Such Seller is, and for the past three (3)
years has been, in compliance in all material respects with all laws, statutes,
regulations, rules and ordinances applicable to the conduct of its business
(including, without limitation, all applicable environmental laws, statutes,
regulations, rules and ordinances), and has in full force and effect all
licenses, permits and other authorizations required for the conduct of its
business as presently constituted; and such Seller is not in default or
violation in respect of or under any of the foregoing, and neither such Seller
nor the Stockholder is aware of any past or present condition or circumstance in
such Seller's business (including, without limitation, with respect to any real
property now or previously occupied by such Seller) which could give rise to any
material liability under any such law, statute, regulation, rule or ordinance.
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4.13 REAL PROPERTY. Such Seller does not own any real estate or
any interest therein, except to the extent of such Seller's interests as lessee
or sublessee under those leases or subleases annexed hereto as SCHEDULE 4.13
(collectively, the "Leases"). Such Seller (and, to the best of such Seller's and
the Stockholder's knowledge, the landlords thereunder) is presently in
compliance with all of its obligations under the Leases, and the premises leased
thereunder are in good condition (reasonable wear and tear excepted), and are
adequate for the operation of the Business as presently conducted. No consent of
any landlord under any of the Leases which has not previously been obtained is
required in order to effect the assignment of the Leases to the Buyer pursuant
to this Agreement.
4.14 INSURANCE. Such Seller maintains, has in full force and
effect, and has paid all premiums in respect of insurance covering its business
and assets against such hazards and in such amounts as are normal and customary
for businesses of similar size, scope and nature.
4.15 EMPLOYEES. Except as disclosed in SCHEDULE 4.15 annexed
hereto, such Seller is not a party to or bound by any collective bargaining
agreement, employment agreement, consulting agreement or other commitment for
the employment or retention of any person, and no union is now certified or has
claimed the right to be certified as a collective bargaining agent to represent
any employees of such Seller. Such Seller has not had any material labor
difficulty in the past two (2) years, and neither such Seller nor the
Stockholder has received notice of any unfair labor practice charges against
such Seller or any actual or alleged violation by such Seller of any law,
regulation, or order affecting the collective bargaining rights of employees,
equal opportunity in employment, or employee health, safety, welfare, or wages
and hours.
4.16 EMPLOYEE BENEFITS. Such Seller does not maintain and is not
required to make any contributions to any pension, profit-sharing, retirement,
deferred compensation or other such plan or arrangement for the benefit of any
employee, former employee or other person, and such Seller does not have any
obligations with respect to deferred compensation or future benefits to any past
or present employee. SCHEDULE 4.16 annexed hereto fairly summarizes the employee
benefits currently granted by such Seller to its employees, provided that
nothing herein contained shall be deemed to obligate the Buyer to assume or
continue any such employee benefit or provide any comparable benefit.
4.17 CONTRACTS AND COMMITMENTS. Other than the Leases and those
contracts and commitments listed on SCHEDULE 4.17 annexed hereto, there is no
contract, agreement, commitment or understanding which is material to the
ongoing operation of the Business.
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4.18 LITIGATION. There is no pending or, to the best knowledge of
such Seller and the Stockholder, threatened litigation, arbitration,
administrative proceeding or other legal action or proceeding against such
Seller or relating to its business.
4.19 INTELLECTUAL PROPERTY. Such Seller has the valid right to
utilize all trade names and other intellectual property utilized in its
business, and has not received notice of any claimed infringement of any of such
intellectual property with the rights or property of any other person.
4.20 GOING CONCERN. Neither such Seller nor the Stockholder has
any knowledge of any fact, event, circumstance or condition (including but not
limited to any announced or anticipated changes in the policies of any material
supplier, referral source, client or customer) that would materially impair the
ability of the Buyer to continue the Business heretofore conducted by such
Seller in substantially the manner heretofore conducted by such Seller (other
than general, industry-wide conditions).
4.21 DISCLOSURE AND DUTY OF INQUIRY. The Buyer is not and will
not be required to undertake any independent investigation to determine the
truth, accuracy and completeness of the representations and warranties made by
the Sellers and the Stockholder in this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF THE BUYER.
In connection with the Buyer's purchase of the Assets from the
Sellers, the Buyer hereby represents and warrants to the Sellers and the
Stockholder as follows:
5.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Buyer is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Florida, with all necessary power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
5.2 AUTHORIZATION OF AGREEMENT. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby by the Buyer has been duly and validly authorized by the
Board of Directors of the Buyer. No further corporate authorization is required
on the part of the Buyer to consummate the transactions contemplated hereby.
5.3 VALID AND BINDING AGREEMENT. This Agreement constitutes the
legal, valid and binding obligation of the Buyer, enforceable against the Buyer
in accordance with its terms, except to the extent limited by bankruptcy,
insolvency, reorganization and other laws affecting creditors' rights generally,
and except that
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the remedy of specific performance or similar equitable relief is available only
at the discretion of the court before which enforcement is sought.
5.4 NO BREACH OF STATUTE OR CONTRACT. Neither the execution and
delivery of this Agreement by the Buyer, nor compliance with the terms and
provisions of this Agreement on the part of the Buyer, will: (a) violate any
statute or regulation of any governmental authority, domestic or foreign,
affecting the Buyer; (b) require the issuance of any authorization, license,
consent or approval of any federal or state governmental agency; (c) conflict
with or result in a breach of any of the terms, conditions or provisions of any
judgment, order, injunction, decree, note, indenture, loan agreement or other
agreement or instrument to which the Buyer is a party, or by which the Buyer is
bound, or constitute a default thereunder; or (d) require the consent of any
third party under any outstanding statute, regulation, judgment, order,
injunction, decree, agreement or instrument to which the Buyer is a party, or by
which the Buyer is bound.
5.5 DISCLOSURE AND DUTY OF INQUIRY. The Sellers and the
Stockholder are not and will not be required to undertake any independent
investigation to determine the truth, accuracy and completeness of the
representations and warranties made by the Buyer in this Agreement.
6. ADDITIONAL AGREEMENTS.
6.1 BILLS OF SALE; ASSUMPTION AGREEMENTS. The parties hereby
confirm that this Agreement shall be sufficient as a bill of sale in respect of
the Assets and as an assumption agreement in respect of the Assumed Liabilities;
PROVIDED, HOWEVER, that if, as and when required, or reasonably requested by any
party, the parties shall execute and deliver such supplemental agreements,
instruments, certificates of title and other documents as may be necessary or
appropriate in order to give effect to the transfer of the Assets to the Buyer
and the assignment to and assumption by the Buyer of the Assumed Liabilities.
6.2 CERTIFICATES OF TITLE. Concurrently with the execution and
delivery of this Agreement, the Sellers are delivering to the Buyer the properly
endorsed certificates of title and/or other evidences of ownership of all
vehicles in the Inventory, and any and all vehicles constituting part of the
Fixed Assets. The Buyer shall be responsible for effecting the recordation of
such certificates and the reissuance (as required) of new certificates of title
for such vehicles in the name of the Buyer; and the Sellers shall be responsible
for the payment of any applicable transfer taxes in connection therewith.
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6.3 AUDIT OF FINANCIAL STATEMENTS. Each of the Sellers shall,
from time to time as and when requested by the Buyer from and after the date
hereof, (a) permit the Buyer and its accountants to have access to all books and
records of the Sellers for the purpose of performing an audit of the Sellers
and/or the Financial Statements sufficient to enable such accountants to render
their unqualified opinion on the financial statements of the Business for all
periods from and after January 1, 1993 in accordance with Regulation S-X
promulgated under the Securities Act of 1933, as amended, and (b) permit the
Buyer and its accountants to obtain copies of all work papers utilized or
prepared by the Sellers' accountants in connection with their review of the
Financial Statements, and to consult with the Sellers' accountants as and to the
extent necessary or appropriate in connection with the preparation of the
audited financial statements contemplated by this Section 6.3.
6.4 YOUR CAR STORE, INC. Concurrently with the execution and
delivery of this Agreement, the Buyer is assuming the lease for the business
premises of Your Car Store, Inc. (an affiliate of the Sellers), pursuant to a
separate assignment and assumption agreement of even date herewith; and the
Buyer is paying to the Stockholder the sum of $_________________, representing
his documented expenses incurred with the start-up of the proposed Your Car
Store, Inc. dealership.
6.5 EMPLOYMENT AGREEMENT. Concurrently with the execution and
delivery of this Agreement, the Buyer and the Stockholder are entering into an
employment agreement of even date herewith, pursuant to which the Stockholder
shall be employed by the Buyer from and after the date hereof, subject to and in
accordance with the terms and conditions of such employment agreement.
7. [INTENTIONALLY OMITTED].
8. INDEMNIFICATION.
8.1 GENERAL.
(a) Without prejudice to any rights of contribution as among
each Seller and the Stockholder, (i) SABI and the Stockholder shall jointly and
severally defend, indemnify and hold harmless the Buyer from, against and in
respect of any and all claims, losses, costs, expenses, obligations,
liabilities, damages, recoveries and deficiencies, including interest, penalties
and reasonable attorneys' fees, that the Buyer may incur, sustain or suffer
("SABI Losses") as a result of (A) any breach of, or failure by SABI or the
Stockholder to perform, any of the representations, warranties, covenants or
agreements of SABI or the Stockholder contained in this Agreement or in any
Schedule(s) furnished by or on behalf of SABI or the Stockholder under this
Agreement, or (B)
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any failure by SABI to pay or perform when due any of its retained liabilities,
and (ii) SABEI and the Stockholder shall jointly and severally defend, indemnify
and hold harmless the Buyer from, against and in respect of any and all claims,
losses, costs, expenses, obligations, liabilities, damages, recoveries and
deficiencies, including interest, penalties and reasonable attorneys' fees, that
the Buyer may incur, sustain or suffer ("SABEI Losses") as a result of (A) any
breach of, or failure by SABEI or the Stockholder to perform, any of the
representations, warranties, covenants or agreements of SABEI or the Stockholder
contained in this Agreement or in any Schedule(s) furnished by or on behalf of
SABEI or the Stockholder under this Agreement, or (B) any failure by SABEI to
pay or perform when due any of its retained liabilities. The SABI Losses and the
SABEI Losses are collectively referred to in this Agreement as "Losses".
(b) The Buyer shall defend, indemnify and hold harmless the
Sellers and the Stockholder from, against and in respect of any and all claims,
losses, costs, expenses, obligations, liabilities, damages, recoveries and
deficiencies, including interest, penalties and reasonable attorneys' fees, that
the Sellers or the Stockholder may incur, sustain or suffer as a result of (i)
any breach of, or failure by the Buyer to perform, any of the representations,
warranties, covenants or agreements of the Buyer contained in this Agreement, or
(ii) any failure by the Buyer to pay or perform when due any of the Assumed
Liabilities.
8.2 LIMITATIONS ON CERTAIN INDEMNITY.
(a) Notwithstanding any other provision of this Agreement to
the contrary, (i) neither SABI nor the Stockholder shall be liable to the Buyer
with respect to SABI Losses unless and until the aggregate amount of all SABI
Losses incurred by the Buyer shall exceed the sum of $5,000 (the "SABI Basket"),
and (ii) SABI and the Stockholder shall thereafter be jointly and severally
liable for all SABI Losses in excess of the SABI Basket, provided that SABI's
and the Stockholder's maximum aggregate liability in respect of all SABI Losses
shall not, in the absence of proven fraud by SABI or the Stockholder in respect
of any particular SABI Losses, in any event exceed the limitations set forth in
Section 8.2(c)(i) below; PROVIDED, HOWEVER, that the SABI Basket and such
limitation on liability shall not be available with respect to, and there shall
not be counted against the SABI Basket or such limitation of liability, any SABI
Losses arising by reason of (A) any failure by SABI to pay or perform when due
any of its retained liabilities, or (B) any SABI Losses involving proven fraud
by SABI or any of its Stockholders.
(b) Notwithstanding any other provision of this Agreement to
the contrary, (i) neither SABEI nor the Stockholder shall be liable to the Buyer
with respect to SABEI Losses unless and until the aggregate amount of all SABEI
Losses incurred by the
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Buyer shall exceed the sum of $5,000 (the "SABEI Basket"), and (ii) SABEI and
the Stockholder shall thereafter be jointly and severally liable for all SABEI
Losses in excess of the SABEI Basket, provided that SABEI's and the
Stockholder's maximum aggregate liability in respect of all SABEI Losses shall
not, in the absence of proven fraud by SABEI or the Stockholder in respect of
any particular SABEI Losses, in any event exceed the limitations set forth in
Section 8.2(c)(ii) below; PROVIDED, HOWEVER, that the SABEI Basket and such
limitation on liability shall not be available with respect to, and there shall
not be counted against the SABEI Basket or such limitation of liability, any
SABEI Losses arising by reason of (A) any failure by SABEI to pay or perform
when due any of its retained liabilities, or (B) any SABEI Losses involving
proven fraud by SABEI or the Stockholder.
(c) Except with respect to any Losses involving proven fraud
by the subject Seller or the Stockholder, or any failure by any Seller to pay or
perform when due any of its retained liabilities, (i) SABI and the Stockholder
shall not be required to pay indemnification hereunder in an aggregate amount in
excess of the SABI Purchase Price, and (ii) SABEI and the Stockholder shall not
be required to pay indemnification hereunder in an aggregate amount in excess of
the SABEI Purchase Price.
(d) The Buyer shall be entitled to indemnification by the
Sellers and the Stockholder for Losses only in respect of claims for which
notice of claim shall have been given to the subject Seller or the Stockholder
on or before December 31, 1997.
8.3 CLAIMS FOR INDEMNITY. Whenever a claim shall arise for which
any party shall be entitled to indemnification hereunder, the indemnified party
shall notify the indemnifying party or parties in writing within thirty (30)
days of the indemnified party's first receipt of notice of, or the indemnified
party's obtaining actual knowledge of, such claim, and in any event within such
shorter period as may be necessary for the indemnifying party or parties to take
appropriate action to resist such claim. Such notice shall specify all facts
known to the indemnified party giving rise to such indemnity rights and shall
estimate (to the extent reasonably possible) the amount of potential liability
arising therefrom. If an indemnifying party shall be duly notified of such
dispute, the parties shall attempt to settle and compromise the same or may
agree to submit the same to arbitration or, if unable or unwilling to do any of
the foregoing, such dispute shall be settled by appropriate litigation, and any
rights of indemnification established by reason of such settlement, compromise,
arbitration or litigation shall promptly thereafter be paid and satisfied by
those indemnifying parties obligated to make indemnification hereunder.
8.4 RIGHT TO DEFEND. If the facts giving rise to any claim for
indemnification shall involve any actual or threatened
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action or demand by any third party against the indemnified party or any of its
affiliates, the indemnifying party or parties shall be entitled (without
prejudice to the indemnified party's right to participate at its own expense
through counsel of its own choosing), at their expense and through a single
counsel of their own choosing, to defend or prosecute such claim in the name of
the indemnifying party or parties, or any of them, or if necessary, in the name
of the indemnified party. In any event, the indemnified party shall give the
indemnifying party advance written notice of any proposed compromise or
settlement of any such claim. If the remedy sought in any such action or demand
is solely money damages, the indemnifying party shall have fifteen (15) days
after receipt of such notice of settlement to object to the proposed compromise
or settlement, and if it does so object, the indemnifying party shall be
required to undertake, conduct and control, though counsel of its own choosing
and at its sole expense, the settlement or defense thereof, and the indemnified
party shall cooperate with the indemnifying party in connection therewith.
9. POST-CLOSING EVENTS.
9.1 ANNOUNCEMENTS. No party hereto shall make any disclosure or
public announcement of the consummation of the transactions pursuant to this
Agreement, or of any of the terms thereof, without the prior review and approval
thereof by the Buyer (in the case of any proposed disclosure or public
announcement by either Seller or the Stockholder) or the Stockholder (in the
case of any proposed disclosure or public announcement by the Buyer), such
approval not to be unreasonably withheld or delayed.
9.2 FURTHER ASSURANCES. From time to time from and after the date
hereof, the parties will execute and deliver to one another any and all further
agreements, instruments, certificates and other documents as may reasonably be
requested by any other party in order more fully to consummate the transactions
contemplated hereby, and to effect an orderly transition of the Business being
acquired by the Buyer hereunder. Without limitation of the foregoing, each
Seller shall cooperate with the Buyer in order to cause the local telephone
company to transfer to the Buyer's name and account all telephone numbers and
fax numbers currently held by the Sellers (provided that the Buyer acknowledges
that the transfer of such telephone numbers and fax numbers is in the discretion
of the local telephone companies).
10. COSTS.
10.1 FINDER'S OR BROKER'S FEES. Each of the Buyer, the Sellers
and the Stockholder represents and warrants that neither they nor any of their
respective affiliates have dealt with any broker or finder in connection with
any of the transactions contemplated by this Agreement, and no broker or other
person is entitled to any commission or finder's fee in connection with any
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of these transactions, except that the Buyer agrees to be solely responsible for
any compensation payable to Greyhouse Services Corporation in connection with
the transactions contemplated by this Agreement.
10.2 EXPENSES. The Buyer, the Sellers and the Stockholder shall
each pay all costs and expenses incurred or to be incurred by them,
respectively, in negotiating and preparing this Agreement and in closing and
carrying out the transactions contemplated by this Agreement.
11. FORM OF AGREEMENT.
11.1 EFFECT OF HEADINGS. The Section headings used in this
Agreement and the titles of the Schedules hereto are included for purposes of
convenience only, and shall not affect the construction or interpretation of any
of the provisions hereof or of the information set forth in such Schedules.
11.2 ENTIRE AGREEMENT; WAIVERS. This Agreement and the other
agreements and instruments referred to herein constitute the entire agreement
between the parties pertaining to the subject matter hereof, and supersede all
prior agreements or understandings as to such subject matter. No party hereto
has made any representation or warranty or given any covenant to the other
except as set forth in this Agreement, the Schedules hereto, and the other
agreements and instruments referred to herein. No waiver of any of the
provisions of this Agreement shall be deemed, or shall constitute, a waiver of
any other provisions, whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver shall be binding unless executed in writing by the
party making the waiver.
11.3 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12. PARTIES.
12.1 PARTIES IN INTEREST. Nothing in this Agreement, whether
expressed or implied, is intended to confer any rights or remedies under or by
reason of this Agreement on any persons other than the parties to it and their
respective heirs, executors, administrators, personal representatives,
successors and permitted assigns, nor is anything in this Agreement intended to
relieve or discharge the obligations or liability of any third persons to any
party to this Agreement, nor shall any provision give any third persons any
right of subrogation or action over or against any party to this Agreement.
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12.2 NOTICES. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given (a) on the date of service if served personally on the
party to whom notice is to be given, (b) on the day after the date sent by
recognized overnight courier service, properly addressed and with all charges
prepaid or billed to the account of the sender, or (c) on the third day after
mailing if mailed to the party to whom notice is to be given, by first class
mail, registered or certified, postage prepaid, and properly addressed as
follows:
(i) If to SABI and/or the Stockholder:
c/o Suncoast Auto and Brokers, Inc.
8101 66th Street North
Pinellas Park, Florida 34665
(ii) If to SABEI and/or the Stockholder:
c/o Suncoast Auto Brokers Enterprise, Inc.
3445 34th Street North
St. Petersburg, Florida 33713
(iii) If to the Buyer:
c/o Smart Choice Holdings, Inc.
625 Main Street, Suite 25
Windermere, Florida 34786
Attn: Tom Conlan
or to such other address as any party shall have specified by notice in writing
given to the other party.
13. MISCELLANEOUS.
13.1 AMENDMENTS AND MODIFICATIONS. No amendment or modification
of this Agreement or any Schedule hereto shall be valid unless made in writing
and signed by the party to be charged therewith.
13.2 NON-ASSIGNABILITY; BINDING EFFECT. Neither this Agreement,
nor any of the rights or obligations of the parties hereunder, shall be
assignable by any party hereto without the prior written consent of all other
parties hereto. Otherwise, this Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors and permitted assigns.
13.3 GOVERNING LAW; JURISDICTION. This Agreement shall be
construed and interpreted and the rights granted herein governed in accordance
with the laws of the State of Florida applicable to
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contracts made and to be performed wholly within such State. Except as otherwise
provided in Section 8.3 above, any claim, dispute or controversy arising under
or in connection with this Agreement or any actual or alleged breach hereof
shall be settled exclusively by arbitration to be held before a single
arbitrator in Orlando, Florida, or in any other locale or venue as legal
jurisdiction may otherwise be had over the party against whom the proceeding is
commenced, in accordance with the commercial arbitration rules of the American
Arbitration Association then obtaining. As part of his or her award, the
arbitrator shall make a fair allocation of the fee of the American Arbitration
Association, the cost of any transcript, and the parties' reasonable attorneys'
fees, taking into account the merits and good faith of the parties' claims and
defenses. Judgment may be entered on the award so rendered in any court having
jurisdiction. Any process or other papers hereunder may be served by registered
or certified mail, return receipt requested, or by personal service, provided
that a reasonable time for appearance or response is allowed.
IN WITNESS WHEREOF, the parties have executed this Agreement on and as
of the date first set forth above.
FIRST CHOICE AUTO FINANCE, INC.
By:_________________________________
SUNCOAST AUTO AND BROKERS, INC.
By:_________________________________
SUNCOAST AUTO BROKERS ENTERPRISE, INC.
By:_________________________________
___________________________________
GARY SMITH
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The undersigned, SMART CHOICE HOLDINGS, INC., being the corporate
parent of First Choice Auto Finance, Inc. (the Buyer under the foregoing
Agreement), hereby guarantees the payment and performance by the Buyer of all of
the Buyer's obligations under this Agreement.
SMART CHOICE HOLDINGS, INC.
By: _________________________________
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