Assets and Interest Acquisition

By April 29, 2010 October 24th, 2018 Commercial Transactions, Jorge Hurtado

RV FURNITURE MANUFACTURER GUIDED THROUGH COMPLEX BUSINESS PURCHASE

Highlights

  • Cummins & White, LLP successfully represented HTKF Holdings in an intricate business deal, negotiating with a third-party and allowing HTKF Holdings to acquire the assets and interests of its competitor.
  • In three weeks, negotiations were done and four complex transactions were completed, including an asset purchase agreement, an equipment lease, a real property lease, and an employment agreement.
  • Counsel for Cummins & White used keen negotiating skills and in-depth legal knowledge to insert a critical personal indemnification clause in the purchase agreement.

Attorneys

Case Study

Fred Whitaker of Cummins & White, LLP successfully represented HTKF Holdings, LLC an RV furniture manufacturer, in the acquisition of the assets and interests of one of its competitors. As part of the process, the acquisition target assigned its assets and interests to a third-party assignee to manage their creditor claims. Cummins & White skillfully completed negotiations with both parties and quickly closed the deal.

Background

Villa Furniture Manufacturing Co., a privately held RV furniture manufacturer doing business as Villa International (Villa), was approached by a competitor to buy out the competitor’s seating business. (Villa International is a portfolio company of the Newton Fund, a private equity group focused on manufacturing.) As part of the potential buyout, Villa formed HTKF Holdings as the entity to hold title to the assets.

At the same time, faced with shrinking discretionary spending by consumers due to a tough economy, the acquisition target executed a general assignment transferring all of its assets and interests to a third-party assignee—Credit Managers Association of California (CMA). This process is called an Assignment for the Benefit of Creditors (ABC). The ABC ensured the sale of the assets at a negotiated amount and made sure there were no creditor claims beyond the sale proceeds, yet it complicated matters as all details had to go through an approval process with CMA.

Legal Strategy

As part of the complex three-way transaction, Cummins & White actively participated in the negotiations and led the drafting of four related documents executed by the parties, including:

  • Asset Purchase Agreement, which covered inventory, raw materials, trade names, business licenses, patents, and other personal properties.
  • Equipment Lease, which included a lease with an option to buy machinery and vehicles.
  • Real Property Lease, which included a six-month lease of the acquisition target’s manufacturing site.
  • Employment Agreement, which allowed the former president of the competitor to stay on board with HTKF Holdings for two years, ensuring a smooth transition of all aspects of the business.

Result/Implication

Cummins & White joined ongoing negotiations, and in the span of three weeks, assisted HTKF Holdings in executing an agreement with CMA to purchase the products of its competitor.

A key objective was to ensure that HTKF Holdings benefitted from buying its competitor’s business while being protected from the liabilities of that business. Cummins & White was successful in negotiating and inserting a personal indemnification clause in the purchase agreement, which passed on the cost of defending any third-party lawsuits related to creditor claims, employment practice claims, and customer claims arising from events prior to the close of escrow to the competitor’s owner.

A counsel member from Cummins & White, said she was particularly pleased with the transaction because it went beyond the purchase of inventory and ensured the successful transition of customers and goods from the acquisition target to HTKF Holdings. “The deal provides immeasurable value to our client,” she states. “HTKF Holdings was able to purchase the products and assets of the competitor and also was able to limit its liabilities in the process.”

Andrew Greenthal, chief executive officer of HTKF Holdings, said, “We were very pleased that Cummins & White handled this complicated transaction for us. They took care of it on an expedited timeline, listened to our needs, and shepherded us through the deal in an efficient manner and cost-effective basis.”