EXHIBIT 2.2
ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT, dated May 30, 1997, by and among XXXXXX
TIRE & AUTO, INC., a Florida corporation (the "Purchaser"),
AUTOMOTIVE INDUSTRIES, INC., a Delaware corporation (the "Seller'),
and ACORN VENTURE CAPITAL CORPORATION, a Delaware corporation (the
"Stockholder").
WHEREAS, the Purchaser, the Seller and the Stockholder have
entered into an Asset Purchase Agreement, dated May 30, 1997 (the
"Asset Purchase Agreement"), pursuant to which the Seller has
agreed to sell, transfer and assign to the Purchaser, and the
Purchaser has agreed to purchase from the Seller, substantially all
of the Seller's assets (the "Assets"); and
WHEREAS, as further consideration for the sale of the Assets
to the Purchaser, the Asset Purchase Agreement requires that the
Purchaser assume, as of the date hereof, and pay, perform or
discharge when due certain liabilities and obligations of the
Seller.
NOW, THEREFORE, in consideration of the sale, transfer and
assignment by the Seller to the Purchaser of the Assets, and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as
follows (capitalized terms not otherwise defined herein shall be
defined as set forth in the Asset Purchase Agreement):
1. Assumption by the Purchaser.
1.1. Assumed Liabilities. Pursuant to and on the terms
and subject to the conditions of the Asset Purchase Agreement, the
Purchaser hereby assumes and agrees to pay, discharge or perform,
when due and otherwise pursuant to their terms, the following
liabilities and obligations of the Seller (collectively, the
"Assumed Liabilities"):
(a) all long term debt of the Seller to be set
forth on the Closing Date Balance Sheet in accordance with Section
8.1 of the Asset Purchase Agreement, other than such debt owed to
Falken in excess of Three Hundred Thousand Dollars ($300,000) and
notes payable to officers and affiliates of the Seller;
(b) all regular accounts payable of the Seller to
be set forth on the Closing Date Balance Sheet in accordance with
Section 8.1 of the Asset Purchase Agreement, including any
indebtedness to Falken of up to Three Hundred Thousand Dollars
($300,000) converted into accounts payable or into a ledger balance
in connection with the Asset Purchase Agreement;
(c) all accrued expenses of the Seller to be set
forth on the Closing Date Balance Sheet in accordance with Section
8.1 of the Asset Purchase Agreement;
(d) all current sales tax payable by the Seller to
be set forth on the Closing Date Balance Sheet in accordance with
Section 8.1 of the Asset Purchase Agreement;
(e) all deferred revenue of the Seller to be set
forth on the Closing Date Balance Sheet in accordance with Section
8.1 of the Asset Purchase Agreement;
(f) all notes payable of the Seller (including the
current portion of the Seller's long term debt) to be set forth on
the Closing Date Balance Sheet in accordance with Section 8.1 of
the Asset Purchase Agreement;
(g) all capitalized lease obligations of the Seller
to be set forth on the Closing Date Balance Sheet in accordance
with Section 8.1 of the Asset Purchase Agreement;
(h) subject to Section 1.8 of the Asset Purchase
Agreement, all liabilities and obligations of the Seller under the
Contracts accruing or to be performed from and after the Closing
Date; and
(i) all indemnities, warranties, service or other
obligations and liabilities arising out of or relating to goods
manufactured or sold or services provided by the Seller on or
before the Closing Date.
1.2. No Assumption of Other Liabilities. It is expressly
agreed that the Purchaser does not hereby assume nor agree to pay,
discharge or perform, any liability or obligation of the Seller
other than the Assumed Liabilities.
1.3. Further Assurances. The Purchaser hereby agrees
that, at any time and from time to time after the date hereof, it
will execute and deliver all such further instruments of assumption
and acknowledgements and take such other action as the Seller may
reasonably request in order to effectuate the Purchaser's
assumption of the Assumed Liabilities.
2. General.
2.1. Binding Effect. This Agreement shall inure to the
benefit of and shall be binding upon the parties hereto and their
respective successors and permitted assigns.
2.2. Severability. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this Agreement
or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction.
2.3. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an
original and all of which together shall be deemed to be one and
the same instrument.
2.4. Amendments and Waivers. This Agreement may not be
modified or amended except by an instrument or instruments in
writing signed by the party against whom enforcement of any such
modification or amendment is sought. Either party hereto may, by
an instrument in writing, waive compliance by the other party with
any term or provision of this Agreement on the part of such other
party hereto to be performed or complied with. The waiver by any
party hereto of a breach of any term or provision of this Agreement
shall not be construed as a waiver of any subsequent breach.
2.5. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Florida,
without giving effect to the choice of law principles thereof.
XXXXXX TIRE & AUTO, INC.
By: Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Chief Executive Officer
AUTOMOTIVE INDUSTRIES, INC.
By: Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, President
ACORN VENTURE CAPITAL CORPORATION
By: Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, President
