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EX. 2.3
CLOSING PRORATION AGREEMENT
THIS CLOSING PRORATION AGREEMENT ("Agreement") is made and entered
into by and among AMRE, INC., AMERICAN REMODELING, INC., and FACELIFTERS HOME
SYSTEMS, INC. (collectively, "Sellers") and REDO, L.L.C. ("Purchaser") on the
31st day of March, 1997, upon the following terms, provisions and conditions:
WHEREAS, Sellers and Purchaser entered into that certain Asset
Purchase Agreement dated February 27, 1997 (the "Asset Purchase Agreement")
among Amre, Inc., American Remodeling, Inc. and Facelifters Home Systems, Inc.,
as sellers, and Redo, L.L.C., as purchaser, and Xxxxxx Xxxxxxxx;
WHEREAS, Sellers are Debtors under the jurisdiction of the United
States Bankruptcy Court for the Northern District of Texas, Dallas Division,
jointly administered under Case No. 397-30567-SAF-11 (the "Court");
WHEREAS, the Court entered an Order Approving Assumption and
Assignment of Executory Contracts in Connection With the Sale of Assets on
March 21, 1997 and further entered an Order (i) Pursuant to Sections 105 and
363 of the Bankruptcy Code Authorizing the Emergency Sale of Certain Assets of
the Debtors Free and Clear of Liens, Claims, and Encumbrances Subject to the
Terms of an Asset Purchase Agreement and (ii) Pursuant to Sections 105 and 363
of the Bankruptcy Code Approving Asset Purchase Agreement (collectively, the
"Orders");
WHEREAS, prior to the entry of the Orders and the formation of
Purchaser, Xxxxxx Xxxxxxxx and Sellers entered into that certain letter
agreement dated February 10, 1997 creating an Interim Period Subcontract
Arrangement (the "Interim Operating Agreement") which was approved by the Court
by Order Approving Out-of-the Ordinary Course of Business Interim Operating
Procedures and Agreements and Xxxxxx X. Xxxxxxxx and Affiliates entered
February 19, 1997 (the "Interim Order"), and Xxxxxx X. Xxxxxxxx has delegated
his performance thereunder to Redo, L.L.C.;
WHEREAS, Section 6.1 of the Asset Purchase Agreement provides that
certain taxes shall be prorated as of the Closing Date;
WHEREAS, Section 2 of the Interim Operating Agreement provides that
Purchaser shall be responsible for all costs and expenses incurred from the
commencement of the Interim Period (as defined in the Interim Operating
Agreement) in connection with the Managed Business (as defined in the Interim
Operating Agreement); and
WHEREAS, the Orders authorize closing of the transaction contemplated
by the Asset Purchase Agreement, and the parties hereto desire to memorialize
certain closing prorations and agreements concerning those prorations and
agreements;
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NOW, THEREFORE, for and in consideration of the premises, the parties
hereby agree as follows:
1. Within five (5) days of the date hereof, Sellers shall provide
to Purchaser a tax proration schedule (the "Schedule") setting forth the amount
of total estimated taxes (the "Estimated Tax Amount") on the property
transferred to Purchaser by Sellers pursuant to the Asset Purchase Agreement,
based upon (a) current tax information, in the case of property for which such
current information is available as of the date of the Schedule, and (b) last
year's actual tax rates and taxes, in the case of property for which no such
current information was available as of the date of the Schedule.
2. Seller's share of the taxes, and the adjustment to the Cash
Purchase Price (as defined in the Asset Purchase Agreement) pursuant to Section
6.1 of the Asset Purchase Agreement, shall be equal to the fraction 41/365
multiplied by the Estimated Tax Amount (the "Proration Amount").
3. Purchaser shall be allowed to hold back on the date hereof
$50,000 of the Cash Purchase Price due to Sellers under the Asset Purchase
Agreement.
4. If the Proration Amount is less than $50,000, within three (3)
days of receipt of the Schedule, Purchaser shall pay to Sellers in immediately
available funds the difference between (a) $50,000 less (b) the Proration
Amount. If the Proration Amount is greater than $50,000, within three (3) days
of delivering the Schedule to Purchaser, Sellers shall pay to Purchaser in
immediately available funds the difference between (a) the Proration Amount
less (b) $50,000.
5. This Agreement and the other writings referred to herein or
delivered pursuant hereto constitute the entire agreement between the parties
hereto with respect to the subject matter hereof and supersede all prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof.
6. This Agreement may be amended, superseded, canceled, renewed
or extended only by a written instrument signed by the parties.
7. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND FORCED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF; PROVIDED, HOWEVER, THAT THE BANKRUPTCY
COURT SHALL RETAIN EXCLUSIVE JURISDICTION AS TO ALL MATTERS PERTAINING TO THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY UNTIL THE LATTER OF (a) THE
CLOSING AND (b) THE PAYMENT OF ALL FUNDS DUE HEREUNDER.
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8. This Agreement may be executed by facsimile signature and in
any number of counterparts, each of which shall be deemed an original, but all
of which shall constitute one and the same agreement.
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EXECUTED this 31st day of March, 1997.
AMRE, INC.
By: /s/ J. XXXXX XXXXXXXXX
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J. Xxxxx Xxxxxxxxx, President
AMERICAN REMODELING, INC.
By: /s/ J. XXXXX XXXXXXXXX
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J. Xxxxx Xxxxxxxxx, President
FACELIFTERS HOME SYSTEMS, INC.
By: /s/ J. XXXXX XXXXXXXXX
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J. Xxxxx Xxxxxxxxx, President
REDO, L.L.C.
By: AMERICAN INTERIORS, INC.,
MANAGER
By: /s/ XXXXXX XXXXXXXX
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Its: President
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OMITTED SCHEDULES
REDO, L.L.C.
PRORATION AGREEMENT
There are no schedules to this Agreement.
