Exhibit 2.2
Agreement for the Purchase and Sale of Business Assets
of Champion Trailer, Inc.
This Agreement for the Purchase and Sale of Business Assets, (hereinafter
called "Agreement") is made this 31st day of January, 2003 (the "Closing Date")
by and among Obsidian Enterprises, Inc., ("Shareholder"), Champion Trailer,
Inc., ("Seller") and Champion Trailer Acquisition Company, LLC, an Indiana
Limited Liability Company, with its principal office at 000 Xxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxxxxx, XX 00000 ("Purchaser").
WITNESSETH THAT:
WHEREAS, Seller has carried on the business of manufacturing and
distributing trailers primarily in the racing industry at its facilities located
in Lewisville, Texas; and
WHEREAS, Shareholder is the owner of all of the authorized, issued and
outstanding capital stock of Seller; and
WHEREAS, Purchaser is willing to purchase substantially all of the business
assets of Seller for the consideration of an assumption of substantially all of
Seller's liabilities and other payments described herein and Seller is willing
to convey to Purchaser substantially all of the business assets of Seller for
such consideration.
NOW THEREFORE, in consideration of the representations, warranties,
covenants and agreements hereinafter set forth, the Parties hereto covenant and
agree as follows:
1. Definitions
Where used in this Agreement or in any amendment, the following terms shall
have the following meanings respectively:
(a) "Accounts Receivable" means all accounts receivable, trade notes, notes
receivable, book debts, verified unbilled receivables and other accrued
payments and obligations or debts due or accruing due to the Seller in
connection with the Business as it existed as of January 31, 2003 (the
"Effective Date");
(b) "Agreement" means this Agreement of Purchase and Sale of Business Assets,
including all schedules, exhibits and all instruments supplemental to or in
amendment or confirmation of this Agreement;
(c) "As-Is, Where Is" means the business assets as sold to Purchaser are sold
and conveyed without any representations or warranties as to condition or
fitness for a particular purpose;
(d) "Assumption Agreement" means the Agreement executed and delivered to Seller
by Purchaser wherein Purchaser assumes and agrees to pay certain debt
obligations to DCI.
(e) "Assumed Liabilities" means all of the obligations of the Seller as of the
Effective Date assumed by the Purchaser at Closing, excluding any and all
debts and obligations Seller has now or in the future to Markpoint Equity
Growth Fund, J.V. ("Markpoint");
(f) "Business" has the meaning given to it in the fist recital to this
Agreement;
(g) "Closing" means the conclusion of the sale to and purchase by the Purchaser
of the Purchased Assets under this Agreement;
(h) "Closing Date" means the date written in the first paragraph above;
(i) "Champion" means Champion Trailer, Inc., an Indiana corporation, qualified
to do business in Texas;
(j) "DCI" means DC Investments, LLC, an Indiana limited liability company;
(k) "Obsidian" means Obsidian Enterprises, Inc., a Delaware corporation;
(l) "Effective Date" means the 31st day of January, 2003, unless otherwise
agreed to in writing by the parties;
(m) "Excluded Assets" means the following property and assets of the Seller
pertaining to the Business:
(i) all of the corporate books and records of the Seller including all
corporate minute books, board records, including all tax returns and
financial statements;
(ii) All tax attributes of the Seller and Shareholder including but not
limited to, all tax losses, carry forwards, refunds and suspended
losses;
(n) "Financial Statements" means the financial statements of the Seller with
respect to the Business together with the unaudited balance sheet, income
statement and statement of changes in financial position of the Seller with
respect to the Business for the year to date and month ended January 31,
2003, copies of which have been delivered to Purchaser;
(o) "Leased Equipment" means those assets in the possession of the Seller, if
any, by virtue of written leases of goods or other possessory rights to
goods;
(p) "Parties" means the Shareholder, Seller and Purchaser and their corporate
parents, subsidiaries, divisions and affiliates, collectively, and "Party"
means any one of them;
(q) "Person" means any individual, sole proprietorship, corporation,
partnership, limited liability company, trustee or trust or unincorporated
association; and pronouns have a similarly extended meaning;
(r) "Purchase Price" shall have the meaning described in paragraph 2(b);
(s) "Purchased Assets" means all the assets, personal property and Real Estate
(other than the Excluded Assets) owned by Seller and used in the operation
of the Business including, without limitation, the following properties and
assets located at 0000 X. Xxxxxxx 000, Xxxxxxxxxx, XX 00000;
(i) all impact tools, hand tools and all office equipment, computers, lap
top computers, and supplies and leased office equipment, if any, such
as telephone system, copiers, fax machines;
(ii) personal property relating to the Business and all right, title and
interest of the Seller in, to and under material contracts and
agreements to build and distribute Seller's products, if any, provided
that, the Purchaser shall in no event be liable or responsible for any
liabilities or obligations of Seller which shall be in existence, or
accruing, at the Closing Date by reason of the assignment of contracts
or agreements other than the Assumed Liabilities specifically assumed
by virtue of this Agreement;
(iii)all inventories of raw materials, component parts, warranty parts,
packaging materials, work-in-progress, finished goods, including
consigned inventory, operating supplies and office supplies of or
pertaining to the Business;
(iv) all right, title, benefit and interest of the Seller in respect of all
registered or unregistered trade marks, logos and trade names of or
pertaining to the Business or owned by the Seller and all renewals,
modifications and extensions thereof;
(v) all patterns, plans, designs, research data, patents, copyrights,
trade secrets and other proprietary know-how, processes, drawings,
technology, unpatented blueprints, flow sheets, equipment and parts
listed and descriptions and related instructions, manuals, data,
records and procedures and any and all data used in the Business, and
all licenses, agreements and other contracts and commitments relating
to any of the foregoing to which the Seller is a party;
(vi) all amounts prepaid in connection with the Business or the Purchased
Assets, to the extent same exist and are capable of transfer to
Purchaser, including, without limitation, taxes, business taxes,
rents, telephone, insurance and utility deposits; (excluding Seller's
tax attributes set forth under "Excluded Assets");
(vii)all right, title and interest of the Seller in, to and in respect of
the names "Champion Trailer" and variations thereof;
(viii) the full benefit of all warranties and warranty rights (implied,
express or otherwise) against manufacturers or sellers which apply to
any of the Purchased Assets;
(ix) all books and records and files relating to the Business, (excluding
Excluded Assets) stored on any type of media including, without
limitation, all production, inventory, sales, and customer records and
lists containing addresses, phone numbers and business contacts of
such customers and all correspondence, research materials, contract
documents, licenses and permits, except that where the Seller is
required by law to retain a particular book, record or file, it shall
retain such book, record or file and deliver to the Purchaser a copy
thereof, provided however that such books and records in the
possession of Purchaser shall be maintained by Purchaser for a period
of five years, made available to Seller for any legitimate business
purposes, including the preparation of tax returns or the response to
any litigation or other claims or requests of governamental
authorities, or for the response to creditor claims or inquiries;
(x) all cash in the accounts of Seller on Closing Date;
(xi) all Accounts Receivable of Champion Trailer as same exist on Closing
Date;
(xii) all machinery and equipment;
(xiii) the lease hold interest in Real Estate used in connection with the
Business and located at 0000 X. Xxxxxxx 000, Xxxxxxxxxx, XX 00000
including all plants, buildings, fixtures and other improvements
located therein;
(xiv)all other rights, properties and assets (other than any Excluded
Assets) of the Seller which are owned by Seller and used in connection
with the Business, of whatever nature or kind and wherever situated;
(t) "Real Estate" means all real estate used in connection with the Business
including all buildings, improvements, and fixtures located at 0000 X.
Xxxxxxx 000, Xxxxxxxxxx, XX 00000 whether owned by Seller or others;
(u) "DCI Debt" means the obligations of Seller to DC Investments, LLC, as
described in certain Promissory Notes executed by Seller to the benefit of
DCI;
(v) "Shareholder" means Obsidian Enterprises, Inc., a Delaware Corporation, and
the sole shareholder of Champion Trailer, Inc.;
2. Agreement to Purchase and Purchase Price
(a) Agreement to Purchase and Purchase Price. Upon the terms and subject to the
conditions of this Agreement, the Seller agrees to sell, convey, assign,
transfer and deliver to the Purchaser and the Purchaser agrees to purchase
from the Seller, the Purchased Assets on the Closing Date for the "Purchase
Price."
(b) Purchase Price. The Purchase Price shall be Purchaser's assumption and
agreement to pay all the liabilities as same exists as of January 31, 2003
and the payment of one dollar ($1.00) (the "Purchase Price").
(c) Allocation of Purchase Price. The Seller and the Purchaser covenant and
agree that the Purchase Price for the Purchased Assets shall be allocated
as to be agreed to by the parties.
3. Non-Assumption of Liabilities
It is understood and agreed between the parties that the Purchaser is not
assuming any liability with respect to any currently existing or future
liability with respect to Markpoint. Seller and Shareholder agree to indemnify
and defend Purchaser with respect to any claims by Markpoint.
4. Payment of Purchase Price and Transfer and Delivery of Purchased Assets
(1) Payment of Purchase Price. The Purchase Price for the Purchased Assets
shall be paid and satisfied by the Purchaser as follows:
(a) by the execution and delivery of this Agreement and the Assumption
Agreement and payment of one dollar ($1.00).
(2) Transfer and delivery of Purchased Assets. The Seller shall execute and
deliver or cause to be executed and delivered to the Purchaser a Xxxx of Sale,
and such other assignments, instruments of transfer, assurances, consents and
other documents as shall be necessary to effectively transfer to the Purchaser
As-Is Where-Is all the Seller's right, title and interest in, to and under, or
in respect of, the Purchased Assets which documents shall have been prepared by
Purchaser. Seller shall execute and deliver all assignments, and other
instruments of transfer as shall be necessary to effectively transfer Seller's
interest in the Real Estate to Purchaser. The Seller and Shareholder shall
co-operate with the Purchaser, at such time or thereafter, in effecting the
registrations, recordings and filings with public authorities as may be required
in connection with the transfer of ownership of the Purchased Assets and Real
Estate to the Purchaser. All costs in connection with such registrations and
filings and any mortgage and/or transfer taxes shall be borne by Purchaser.
5. Representations and Warranties
(1) Representations and warranties of the Seller and Shareholder. The
Seller and Shareholder represent, warrant, covenant and agree to and with the
Purchaser that:
(a) The Seller and Shareholder are corporations duly incorporated, organized
and validly existing under the laws of their jurisdictions of
incorporation.
(b) The Seller and Shareholder have all necessary corporate power, authority
and capacity to own the Purchased Assets and to carry on the Business as
presently conducted and are in good standing in each jurisdiction in which
the nature of the Business or the Purchased Assets makes qualification
necessary.
(c) The Shareholder and Seller have all necessary corporate power, authority
and capacity to enter into this Agreement and to carry out their
obligations under this Agreement and the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein have
been duly authorized by all necessary corporate action on the part of the
Seller and Shareholder.
(d) The Seller and/or Shareholder are the owners of the Purchased Assets,
(excluding any leasehold interest in real estate personality) with good and
valid title subject to any and all existing liens and encumbrances.
(e) This Agreement constitutes the valid and binding obligation of the Seller
and Shareholder, enforceable against the Seller and Shareholder in
accordance with the terms of this Agreement subject, however, to
limitations with respect to enforcement imposed by law in connection with
bankruptcy or similar proceedings and to the extent that equitable remedies
such as specific performance and injunction are in the discretion of the
court from which they are sought.
(2) Seller and Shareholder make no further representations or warranties.
Except for the representations and warranties made by the Seller and Shareholder
in this Agreement, the Seller and Shareholder make no further representations or
warranties to the Purchaser of any kind, character or nature, whether express or
implied, statutory or otherwise, with respect to the Purchased Assets, the Real
Estate or the Business including, without limitation, any representations or
warranties regarding merchantability or fitness for a particular purpose, and
the Purchased Assets and Real Estate are transferred to Purchaser "As-Is
Where-Is", and Seller makes no representation as to what assets are transferred
herein other than that the purpose of the transfer documents delivered herewith
is to transfer all of the Seller's right title and interest to all the assets
owned and used in the Business, with the exception of the Excluded Assets.
(3) Representations and warranties of Purchaser. The Purchaser represents,
warrants, covenants and agrees to and with the Seller and Shareholder that:
(a) The Purchaser is a limited liability company organized and validly existing
under the laws of the State of Indiana.
(b) The Purchaser has all necessary power, authority and capacity to enter into
this Agreement and to perform its obligations under this Agreement; the
execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement have been duly authorized by
all necessary Member action on the part of the Purchaser.
(c) This Agreement constitutes a valid and binding obligation of the Purchaser,
enforceable against it in accordance with the terms of this Agreement,
subject, however, to limitations with respect to enforcement imposed by law
in connection with bankruptcy or similar proceedings and to the extent that
equitable remedies such as specific performance and injunction are in the
discretion of the court from which they are sought.
7. Nature and survival of representations and warranties. All
representations and warranties, contained in this Agreement on the part of each
of the Parties shall survive the Closing for a period of one year.
8. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed to be an original, and all
such counterparts shall together constitute one and the same document.
IN WITNESS WHEREOF the Parties have duly executed this agreement as of the
date first written.
"SHAREHOLDER" "SELLER"
OBSIDIAN ENTERPRISES, INC. CHAMPION TRAILER, INC.
/s Xxxxx X. Xxxxxxxxx /s/ Xxxx Xxxxxxx
--------------------------------- ----------------------------
By: Xxxxx X. Xxxxxxxxx, President By: Xxxx Xxxxxxx, President
"PURCHASER"
Champion Trailer Acquisition Company, LLC
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
By: Xxxxxxx X. Xxxxxx, Member
ASSUMPTION AGREEMENT
THIS AGREEMENT is made effective as of the 31st day of January, 2003, among
Champion Trailer, Inc., an Indiana corporation ("Seller"), Champion Trailer
Acquisition Company, LLC, an Indiana limited liability company ("Purchaser"),
and DC Investments, LLC ("Lender").
W I T N E S S E T H: That
- - - - - - - - - -
WHEREAS, Seller and Lender are parties to certain Promissory Notes as
attached hereto (collectively "Notes");
WHEREAS, Seller and Purchaser are entering into an Agreement for Purchase
and Sale of Business Assets and related documentation effective as of January
31, 2003 providing for the Seller selling to Purchaser certain personal property
(collectively, the "Sale Assets"), and in connection therewith Purchaser has
agreed to assume the debt and the Seller's obligations set forth in the Notes,
all as provided herein; and
WHEREAS, the parties hereto desire to agree to various other matters in
connection with the Notes and the transfer of the Sale Assets, all as provided
herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and the acts to be performed hereunder, the parties hereto agree as follows:
1. ASSUMPTION AND SECURITY INTEREST GRANT
(a) Assumption. Purchaser hereby assumes repayment of all Outstanding
Indebtedness and all other principal and interest payment obligations which
accrue from and after January 31, 2003 under the Notes, and the performance of
all of the other terms and conditions of the Notes.
(b) Security Interest. Purchaser hereby grants to Lender a security
interest in all of the Sale Assets and all other property of the Purchaser now
existing or hereafter acquired to secure all of Purchaser's obligations under
the Notes and to the extent provided in the Notes. In connection therewith,
Lender is authorized to file such financing statements and record such documents
as Lender deems necessary or appropriate in connection therewith, and Purchaser
will execute such documents in connection therewith as reasonably requested by
Lender.
2. CONSENT TO SALE
Lender hereby consents to the sale and transfer of the Sale Assets by
Seller to Purchaser, accepts Purchaser as its obligor and shall amend its
records to indicate the transfer of the Sale Assets from the name of Seller to
the name of Purchaser.
3. OTHER LIENS
Purchaser certifies to Lender that no lien or other charge upon the Sale
Assets, or any other property of Purchaser, has been given or executed by
Purchaser or has been contracted or agreed to be so given or executed.
4. CERTAIN _PURCHASER WARRANTIES AND COVENANTS
To induce Lender to enter into this Agreement, Purchaser represents to
Lender as follows:
(a) Purchaser represents that it is an Indiana limited liability company
which is duly organized and existing under and by virtue of the laws of the
State of Indiana and that it will qualify to do business as a foreign limited
liability company in the State of Texas. Purchaser further represents that it is
duly authorized to assume the subject loan, that those persons acting on its
behalf are duly authorized to execute and deliver this Agreement and the Loan
Documents to which they are signatories and that Purchaser has taken all
necessary action to authorize the assumption upon the terms and conditions of
this Agreement and to authorize delivery of the documents herein referenced.
(b) The consummation of the transactions contemplated hereby and
performance of the Loan Documents have not and will not result in any breach of,
or constitute a default under, any mortgage, deed of trust, lease, bank loan or
credit agreement, charter document or other instrument to which Purchaser is a
parry or by which it may be bound or affected.
(c) Purchaser represents that to the best of Purchaser's knowledge, no
statement of fact made by or on behalf of Purchaser in this Agreement or by
Purchaser in any agreement, certificate or schedule furnished to the tender
pursuant hereto or in connection herewith, contains any untrue statement of
material fact or omits to state any material fact necessary to make statements
contained therein or herein not misleading.
5. CERTAIN SELLER WARRANTIES AND COVENANTS
To induce Lender to enter into this Agreement, Purchaser represents to
Lender that Seller and those persons acting on its behalf have represented and
warranted to Purchaser that they are duly authorized to execute and deliver this
Agreement and the other Notes to which they are signatories and have taken all
necessary action to authorize the assumption under the terms and conditions of
this Agreement and to authorize delivery of the documents herein referenced.
6. NO WAIVER
The execution of this Agreement by Lender is not intended nor shall it be
construed as an actual or implied waiver of (i) any default under any Notes;
(ii) any requirement under any of the Notes except to the extent specified in
this Agreement; (iii) any right contained in any of the Notes to demand payment;
or (iv) any rights Lender may have against any person not a party hereto.
7. NOVATION
The parties acknowledge and agree that this Agreement shall constitute a
novation of the indebtedness evidenced and secured by the Notes.
8. NOTICE ADDRESS
Purchaser's Notice Address for purposes of the Loan Documents shall be the
address set forth below:
Champion Trailer Acquisition Company, LLC
STE. 4800
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Managing Member
9. FURTHER ASSURANCES
Each of the parties hereto shall, from time to time, at the other parties'
reasonable request, and without further consideration, perform such acts and
execute and deliver to the other parties such other and further instruments and
documents as such other parties may reasonably request for the more effective
consummation of the transactions contemplated by this Agreement.
10. CONSTRUCTION; BINDING EFFECT; MISCELLANEOUS
All provisions of the Notes remain in full force and effect as therein
written, except as expressly modified by this Agreement. To the extent of any
conflict between the Notes (or any earlier modification of them) and this
Agreement, this Agreement shall control. This Agreement binds and benefits the
parties hereto and their respective successors and assigns; provided, however,
that no party but Lender may assign its rights hereunder without Lender's prior
written consent. This Agreement may be executed in several identical
counterparts all of which shall constitute one and the same instrument. This
Agreement shall be governed by and construed by the laws of the State of
Indiana.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first set forth above.
CHAMPION TRAILER, INC.
By: /s/ Xxxx Xxxxxxx
------------------------------------------
Xxxx Xxxxxxx, President
"Seller"
CHAMPION TRAILER ACQUISITION CO., LLC
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxxxx, Member
"Purchaser"
DC INVESTMENTS, LLC
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxx, Managing Member
"Lender"
