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Exhibit 2.2
AGREEMENT
This Agreement, dated as of August [ ], 1999, is by and
between FINOVA Capital Corporation ("FINOVA"), a Delaware corporation whose
address is 111 West 40th Street, New York, New York 10018, and Consolidated
Yacht Corporation ("Buyer"), a Florida corporation whose address is 2411 S.W. 29
Way, Fort Lauderdale, Florida 33312 (each of the foregoing parties is referred
to herein individually as a "Party" and collectively as the "Parties").
RECITALS:
WHEREAS, Revenge Marine, Inc. (a Nevada Corporation) and
Revenge Marine, Inc. (a Delaware Corporation) each having its principal place of
business at 2051 N.W. 11th Street Miami, Florida 33125 (collectively, "Revenge")
and FINOVA entered into a certain Loan and Security Agreement dated October 23,
1998 and that certain amendment thereto dated as of March 17, 1999
(collectively, the "Security Agreement"); and
WHEREAS, pursuant to the Security Agreement, FINOVA made loans
to Revenge, the current outstanding balance of which is [$2,041,500] (the
"Obligations"), that are secured by a security interest in all of the assets of
Revenge, inclusive of those assets being sold herein to Buyer; and
WHEREAS, FINOVA filed UCC-1 financing statements in the State
of Florida; and
WHEREAS, certain defaults exist under the Security Agreement
and Revenge has granted to FINOVA peaceful possession of the assets; and
WHEREAS, Buyer desires to buy the Egret Boat Company assets,
more specifically described in the Schedule attached hereto as Schedule "A"
("Egret Assets"), and FINOVA desires to cause a sale of the Egret Assets to the
Buyer.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual
representations, warranties, covenants and agreements herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, parties hereto, each intending to be legally bound, agree as
follows:
1. SALE OF ASSETS.
(a) Effective upon the Transfer Date (as hereinafter
defined), and subject to the terms and conditions set forth herein, FINOVA
hereby sells, assigns and transfers to Buyer and Buyer hereby agrees to purchase
and accept from FINOVA, all right, title and interest of FINOVA in and to the
Egret Assets. Except as expressly set forth herein, the sale,
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assignment and transfer of the Assets is and shall be made "AS IS", "WHERE IS",
"WITH ALL FAULTS".
2. PURCHASE PRICE. The purchase price for the Egret Assets is
$550,000 payable to FINOVA in accordance with the terms and conditions set forth
in the loan and security agreement, the secured promissory note and other
documents, instruments and agreements to be entered into between FINOVA and
Buyer (the "Loan Documents") not later than August __, 1999, which Loan
Documents are enumerated on Schedule "B" attached hereto and shall be in form
and substance satisfactory to FINOVA in its complete and absolute discretion.
3. CLOSING. The closing of the transactions contemplated
herein shall occur by:
(a) the delivery by each of FINOVA and the Buyer to
the other of a duly completed and executed counterpart of this Agreement;
(b) the delivery to FINOVA of the fully executed Loan
Documents, and any other documents that FINOVA in its sole and absolute
discretion shall deem necessary; and
(c) upon FINOVA's receipt of the fully executed Loan
document and the executed counterpart of this Agreement, FINOVA shall deliver to
Buyer a duly executed Bill of Sale, selling FINOVA's right, title and interest
in and to the Egret Assets in the form annexed hereto as Schedule C (the
"Transfer Date").
4. TIME IS OF THE ESSENCE. Buyer acknowledges and agrees that
each and every one of the dates, time periods and time limitations set forth in
this Agreement shall be of the essence of this Agreement as against Buyer.
5. BUYER'S REPRESENTATIONS. The Buyer hereby represents and
warrants to FINOVA as follows:
(a) BUYER'S GOOD STANDING AND AUTHORITY. It is
validly existing and in good standing under the laws of the State of Florida,
and has all requisite power and authority to execute and deliver this Agreement,
and to consummate the transactions contemplated hereby, and has obtained all
consents and approvals, and made all registrations, required to be made or
obtained by it in connection herewith.
(b) NO CONTRAVENTION. The execution, delivery and
performance of this Agreement, delivered by it in connection herewith does not
violate (i) any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having applicability to it,
(ii) any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which it may be bound or to which any of its assets is subject, or
(iii) any provision of its charter or by-laws.
(c) VALIDITY. This Agreement is binding upon and is
enforceable against the Buyer in accordance with its terms.
(d) REGISTRATION. No registration with or consent or
approval of, or any other action by, any governmental authority or any other
person is required in connection
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with its execution, delivery and performance of, or is necessary for the
validity or enforceability of this Agreement.
(e) NO INVESTMENT ADVICE. It acknowledges that FINOVA
has not given any investment advice, credit information or rendered any opinion
as to whether the purchase of the Assets is prudent.
(f) SOPHISTICATED BUYER. Buyer is a sophisticated
purchaser with respect to the Assets and has adequate information to make
informed decisions regarding the purchase of the Assets and has, independently
and based upon such information as it has deemed appropriate, made its own
independent decision to enter into this Agreement. Buyer acknowledges and
understands that no employee, agent, representative or attorney of FINOVA has
been authorized to make, and that the Buyer has not relied upon and shall not be
entitled to rely upon, any statements or representations other than those
specifically contained in this Agreement.
(g) DUE DILIGENCE. Prior to executing this Agreement,
Buyer has made or has been given the opportunity to make such examinations,
reviews and investigations as it deems necessary or appropriate in making its
decision to purchase the Assets. Buyer has obtained legal counsel, and has such
knowledge or experience in the business of Revenge and related business matters
as to be able, either alone or with its representatives, advisors or legal
counsel, to calculate the merits and risks of purchasing the Assets. Buyer has
been and will continue to be solely responsible for the making of its own
independent investigation as to all aspects of the Assets.
(h) NO REPRESENTATIONS. FINOVA does not and will not
make any oral or written representations, warranties, promises or guarantees
whatsoever, whether expressed or implied, concerning or with regard to, and
expressly disclaims any liability or obligation with respect to, concerning or
relating to, any of the Assets.
(i) NO BROKER. FINOVA shall not be liable for any
broker, finder or other person or entity acting pursuant to the authority of
Buyer in connection with the transactions contemplated hereby.
(j) NO RECOURSE. Buyer acknowledges that the
assignment and transfer of the Assets to Buyer is irrevocable and Buyer has no
recourse to FINOVA, except as may otherwise be provided herein.
6. NO WAIVER. Each of the Guarantors of the debts and
obligations of Revenge, each of whom is a signatory hereto ("Guarantors"),
agrees and acknowledges that they shall remain liable to FINOVA under the terms
of their respective guarantys delivered to FINOVA with respect to any deficiency
resulting from the sale of assets to Buyer and to any other third parties and
that nothing herein shall be deemed a waiver by FINOVA of its rights against the
Guarantors and each of the Guarantors agrees and acknowledges that with respect
to the calculation of any deficiency resulting from the sale of the assets of
Revenge, only cash proceeds actually received by FINOVA from the purchaser(s) or
transferee(s) of the assets shall be credited against the Obligations and that
any non-cash consideration shall not be credited against the Obligations unless
and until such non-cash consideration results in FINOVA receiving actual cash
proceeds.
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7. COSTS AND EXPENSES.
Each Party shall bear its own costs, out-of-pocket fees and
expenses, including attorneys' fees, incurred in connection with the
preparation, negotiation and consummation of this Agreement. Buyer shall pay any
transfer, conveyance, real property transfer, mortgage or mortgage recording,
sales, use, value added, stock or note transfer and stamp taxes, any recording,
registration or other similar taxes, expenses or fees and any penalties,
interest and fees thereon, imposed by any taxing authority, recording officer or
register, or other governmental authority in connection with the transactions
contemplate
8. NOTICES. All notices between parties shall be in writing.
Notices delivered personally or by telecopier shall be deemed received on the
same business day if delivered personally or by telecopier before 5:00 p.m. on
such day, and otherwise on the next day. Notices deposited with an overnight
courier service prior to this deadline on any business day shall be deemed
received on the next business day. Notices deposited in the mail, postage
prepaid, on any business day shall be deemed received on the third business day
following such deposit. All notices to the FINOVA shall be given to:
FINOVA Capital Corporation
111 West 40th Street
New York, New York 10018
Attention: James Bradley
Telephone: (212) 403-0731
Telecopier: (212) 403-0913
With a copy to:
Ruskin, Moscou, Evans & Faltischek
170 Old Country Road
Mineola, New York 11510
Attention: Vincent J. Coyle, Jr.
Telephone: (516) 663-6517
Telecopier: (516) 663-6678
All notices to the Buyer shall be given to:
Consolidated Yacht Corporation
2411 SW 29 Way
Fort Lauderdale, Florida 33312
Attention: Jim Gardiner
Telephone No.:
Telecopier No.:
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With a copy to:
Attention:
Telephone:
Telecopier:
9. FINAL INTEGRATION. All exhibits referred to in this
Agreement and incorporated herein and made a part hereof. This Agreement and the
exhibits hereto shall serve as a final integration and expression of all
agreements between FINOVA and the Buyer with respect to the subject matter
hereof, and any previous agreement, representation or warranty, whether oral or
written, shall have no force effect.
10. CHOICE OF LAW; JURISDICTION. This Agreement shall be
governed by and interpreted in accordance with the internal laws of the State of
Arizona. Each Party hereby irrevocably consents to the personal jurisdiction in
any state or federal court located in Maricopa County, Arizona in any action to
enforce, interpret or construe any provision of this Agreement or of any other
agreement or document delivered in connection with this Agreement. EACH PARTY
WAIVES ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY ACTION, PROCEEDING OR
COUNTERCLAIM INSTITUTED WITH RESPECT TO THIS AGREEMENT.
11. SURVIVAL OF REPRESENTATIONS. All representations,
warranties, covenants, disclaimers, acknowledgements and agreements made by the
parties hereto shall be considered to have been relied upon by the Parties and
shall survive the execution, delivery and performance of this Agreement and all
other documents contemplated herein.
12. AMENDMENTS. No amendments of any provision of this
Agreement shall be effective unless it is in writing and signed by FINOVA and
the Buyer, and no waiver of any provision of this Agreement nor consent to any
departure by the FINOVA or the Buyer therefrom, shall be effective unless it is
in writing and signed by each of the other parties, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
13. HEADINGS. The headings of the sections and subsections of
this Agreement are for informational purposes only, do not constitute a part of
this Agreement and shall not affect the interpretation hereof.
14. COUNTERPARTS. This Agreement may be executed in
counterparts each of which when so executed shall be original but all such
counterparts shall together constitute but one and the same instrument.
Transmission by telecopier of an executed counterpart of this Agreement shall be
deemed to constitute due and sufficient delivery of such counterpart, PROVIDED
that the Party so delivering such counterpart shall, promptly after such
delivery, deliver the original of such counterpart of this Agreement to each of
the other Parties.
15. NO THIRD PARTY BENEFICIARIES. This Agreement is intended
to govern certain rights and obligations among the Parties hereto and it is the
intent of the Parties that there shall be no third-party beneficiaries
hereunder.
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16. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of, and be enforceable by the Parties and their
respective successors and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute this Agreement on the date first above written.
FINOVA CAPITAL CORPORATION
By:
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Name: James Bradley
Title: Assistant Vice President
CONSOLIDATED YACHT CORPORATION
By:
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Name: Jim Gardiner
Title: President
AGREED AND
CONSENTED TO:
Revenge Marine, Inc. (A Delaware Corporation)
Revenge Marine, Inc. (A Nevada Corporation)
By:
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Name: William Robinson,
Title: President
Egret Boat Company, Inc., Guarantor
By:
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Consolidated Marine, Inc., Guarantor
By:
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Allied Capital Corporation, Guarantor
By:
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Capital Markets Alliance, Guarantor
By:
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Revenge Marine, Inc. (Oklahoma), Guarantor
By:
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William Robinson, Guarantor
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Scott Flanders, Guarantor
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Jim Gardiner, Guarantor
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James Bradley, Assistant Vice President
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