FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT, dated as of
December 29, 1995 (the "Amendment") by and between XXXX FURNITURE, INC., a North
Carolina corporation ("XXXX"), and LEA LUMBER & PLYWOOD, LLC, a Delaware limited
liability company (the "Purchaser").
W I T N E S S E T H:
WHEREAS, XXXX and Purchaser entered into an Asset Purchase
Agreement dated as of November 6, 1995 (the "Agreement"), pursuant to which XXXX
agreed to sell and Purchaser agreed to acquire from XXXX, on a going concern
basis, substantially all of the assets, properties and business of XXXX'x Xxx
Lumber & Plywood Division; and
WHEREAS, the Agreement provided for a purchase price of
$4,200,000, plus an amount equal to the inventory of the Company on hand as of
the Closing Date, payable in cash at Closing; and
WHEREAS, the parties desire to amend the Agreement to provide
that $1,000,000 of the Purchase Price will be payable pursuant to a Term Note to
be delivered at Closing.
NOW, THEREFORE, in consideration of the mutual promises made
herein and of the mutual benefits to be derived herefrom, the parties hereto do
hereby agree as follows:
1. Amendment to Section 1.5 of the Agreement. Section 1.5 of
the Agreement is hereby amended and restated as follows:
1.5 Closing Date Deliveries. (a) On the Closing Date,
XXXX shall deliver to Purchaser (i) a xxxx of sale, assignment
and assumption agreement, in the form of Exhibit A,
collectively covering all of the non real estate Properties,
(ii) deeds conveying to Purchaser the parcels of real estate
identified in Schedule 2.1.6 in form reasonably satisfactory
to Purchaser, and (iii) all of the documents, instruments and
opinions required to be delivered by XXXX pursuant to Article
4.
(b) On the Closing Date, Purchaser shall deliver to
XXXX (i) by bank wire transfer of immediately available funds
to XXXX'x account, account number 000-000-000 at NationsBank,
N.A. (Carolinas), High Point, North Carolina, an amount equal
to the Purchase Price, less One Million and No/100 Dollars
($1,000,000), (ii) a Term Note in the amount of One Million
and No/100 Dollars ($1,000,000), as more particularly
described in Section 1.5(c) below, and (iii) all of the
documents, instruments
and opinions required to be delivered by Purchaser pursuant to
Section 1.3 and Article 4.
(c) One Million and No/100 Dollars ($1,000,000) of
the Purchase Price will be payable pursuant to a Term Note of
the Purchaser to be delivered at Closing. The Term Note will
bear interest at the rate of twelve percent (12%) per annum.
Interest only will be payable quarterly, in arrears, with all
principal being due and payable on a date two years after the
Closing Date. The Term Note will be subordinated in right of
payment to up to $6,500,000 of Purchaser's principal bank
financing with The First National Bank of Maryland, a national
banking association. All principal and interest on the Term
Note will be due and payable upon any refinancing of such
indebtedness to The First National Bank of Maryland prior to
the expiration of the two-year term of the Term Note.
(d) All ad valorem taxes and utilities related to the
Properties will be prorated as of Closing.
2. Purchaser acknowledges that XXXX has disclosed to Purchaser
those conditions described on Schedule I attached hereto. Purchaser agrees to
close the transaction described in the Agreement notwithstanding such conditions
and waives any rights or claims for indemnification or breach of the Agreement
caused by such conditions to the extent such disclosure is true and correct.
3. XXXX agrees to cooperate with Purchaser in seeking
recordable documentation of the timber rights described on Schedule 2.1.6 of the
Agreement.
4. Attached hereto as Schedule II is a preliminary allocation
of Purchase Price. The parties agree to negotiate in good faith to finalize such
allocation prior to January 29, 1996.
5. All other terms and conditions of the Agreement remain in
full force and effect. Any conflict between the terms of this Amendment and the
Agreement will be resolved in favor of this Amendment. All capitalized terms
used in this Amendment, unless otherwise defined herein, shall have the meanings
set forth in the Agreement.
6. This Amendment shall be governed in all respects, including
validity, interpretation and effect, by the laws of the State of North Carolina,
without giving effect to the conflict of laws rules thereof.
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IN WITNESS WHEREOF, the parties have duly executed this Amendment as of
the date first above written.
XXXX:
XXXX FURNITURE, INC.
By: (Signature of Xxxxxxx X. Xxxxx)
Chairman and Chief Executive
Officer
PURCHASER:
LEA LUMBER & PLYWOOD, LLC
By: (Signature of Xxxxx X. Xxxxx)
Title: Manager
The undersigned hereby consents and agrees to the terms and conditions
of this Amendment and reaffirms its guarantee of Purchaser's obligations under
the Agreement, as amended, all as more particularly set forth in the Agreement
and this Amendment.
FOREST PRODUCTS HOLDINGS LIMITED
PARTNERSHIP
By: Springfield Forest Products, Inc.,
Its General Partner
By: (Signature of Xxxxx X. Xxxxx)
Title: Vice President
Dated: December 29, 1995
Schedule I
to
First Amendment to Asset Purchase Agreement
(Bullet) As indicated on the attached survey, certain railroad rights of way
crossing the real property listed or described in Schedule 2.1.6 may be
owned by third parties and limit access to certain portions of such
real property.
(Bullet) As of November 22, 1995, the Company's "backlog" figures were $748,153.
SCHEDULE II
Lea Lumber & Plywood, LLC
Preliminary Allocation of Purchase Price
Inventories $826,782
Timber Cutting Rights 94,747
Fixed Assets 4,082,973
$5,004,502
