Exhibit 2.2
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FIRST AMENDMENT TO
ASSET PURCHASE AND SALE AGREEMENT
This first amendment ("Amendment") to Asset Purchase and Sale Agreement
between the parties hereto dated effective August 21, 2001 ("Agreement"), is
entered into August 31, 2001 between Forest River, Inc. ("Purchaser") and
Starcraft Automotive Group, Inc. and National Mobility Corporation
(collectively, "Seller"), for one dollar and other good and valuable
consideration and the mutual covenants and agreements therein contained, the
adequacy of which are hereby expressly acknowledged, the parties hereto agree as
follows:
1. The "Closing" and "Closing Date" as such terms are used in the Agreement
(including each Exhibit thereto and any document delivered in connection with
Closing thereunder) shall mean August 31, 2001.
2. Section 2.1.1 is hereby restated in its entirety to read as follows:
"All machinery, equipment, patterns, fixtures, jigs, make up tables, storage
racks, and related items used in connection with the Business, except such of
the foregoing as are listed as Excluded Assets in the Schedules to Exhibit 2.0".
3. Purchaser hereby waives the provision of Section 9.2.6 and 6.22 as they
may apply to Ford Motor Company and its affiliates.
4. Seller or its parent shall sell to Purchaser or its designee, the real
estate and improvements thereon described as Tract #5 in the attachment hereto,
as additional Facilities, free of Encumbrances other than Permitted
Encumbrances, as soon as Tract #5 is fenced along the south and east lines of
Tract #4 retained by Seller as indicated in the attachment, with the fence to
end at the ingress-egress easement, for a cash purchase price of
$________________________.
5. Paragraph 5.5 and Paragraph 5.6 of the Agreement are each deleted and
the following substituted therefor in its entirety:
5.5 Closing Adjustments. Five Million Dollars ($5,000,000.00) ("Escrow
Amount") of the cash Purchase Price shall be deposited under the Escrow
Agreement attached as Exhibit 5.5 to this Agreement on the date hereof. On
the Closing Date, the Escrow Amount shall be reduced to One Million One
Hundred Thousand Dollars ($1,100,000.00), with Three Million Nine Hundred
Thousand Dollars ($3,900,000.00) cash from Escrow and Three Million Three
Hundred Thousand Dollars ($3,300,000.00) cash from Purchaser shall be paid
to Seller on the Closing Date for a total of Seven Million Two Hundred
Thousand Dollars ($7,200,000.00) of the Purchase Price due and payable on
the Closing Date. Purchaser and Seller shall complete a Business operating
net asset verification as of August 31, 2001, to be completed by September
10, 2001 (the "Adjustment Date"). The verification shall apply to the
Business operating net assets (excluding real estate) listed in the
schedules to Exhibit 5.5. If the result of the verification is Two Million
Seven Hundred Thirty-seven Thousand Dollars ($2,737,000.00) ("Operating Net
Asset Amount") or more, then the Escrow shall be terminated, the Escrow
Amount remitted to Seller as of the Adjustment Date, and the Purchase Price
increased dollar for dollar for such amount in excess of the Operating Net
Asset Amount, payable in cash to Seller, on or before September 14, 2001.
If the result of the verification is less than the Operating Net Asset
Amount, then the Purchase Price shall be adjusted dollar for dollar
downward on the Adjustment Date, and the remaining balance of the Escrow
Amount due to Seller likewise shall be adjusted downward; the revised
downward balance of the Escrow Amount shall be remitted to Seller, and the
remaining balance of the Escrow shall be released to Purchaser, and the
Escrow terminated, as of the Adjustment Date. The timing of all payments
pursuant to the results of the verification shall be as contemplated in
Section 4. of the Escrow Agreement. If the parties cannot agree, then each
hereby consents to the Adjustment Date Arbitration Procedures described in
Exhibit 5.5. The operating net asset value of the Business shall be
verified by the independent certified public accountants to the Purchaser,
as follows: "operating net asset value" shall equal Business trade
receivables plus Business inventory (raw, work in process, and finished)
plus Business machinery and equipment minus Business trade payables, as of
August 31, 2001, provided, however, the Xxxxxxxx Bus units completed and
invoiced, and awaiting inspection, shall be considered accounts receivable
and not inventory, and shall be included in the Business operating net
asset value.
5.6 Purchase Price Allocation. Purchaser and Seller shall agree to
allocate the Purchase Price to the Purchased Assets as of the Adjustment
Date. On the Closing Date, the Seven Million Two Hundred Thousand Dollars
($7,200,000.00) cash portion of the Purchase Price shall be allocated and
payable as required by the Facilities Warranty Deed described in Section
5.8, and the balance thereof to Purchased Assets described in Section 2.0.
6. The parties simultaneously herewith shall execute and deliver the
attached Joint Instructions to Escrow Agent.
7. This Amendment is made a part of the Agreement as though fully set forth
herein and, the parties ratify and confirm the Agreement attached hereto.
Dated August 31, 2001.
Forest River, Inc. Starcraft Automotive Group, Inc.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxx X. Xxxx
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Authorized Officer Authorized Officer
National Mobility Corporation
By: /s/ Xxxxx X. Xxxx
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Authorized Officer
