EXHIBIT 2.2
FIRST AMENDMENT
TO
ASSET PURCHASE AGREEMENT
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This First Amendment (the "Amendment") to the Asset Purchase Agreement (the
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"Agreement") dated February 12, 1997, by and among AMRE, Inc., Facelifters Home
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Systems, Inc., American Remodeling, Inc. and U.S. Remodelers, Inc., is made as
of April 3, 1997.
WHEREAS, the parties entered into the Agreement whereby Purchaser would
acquire certain assets of Sellers; and
WHEREAS, in preparation for the Closing certain determinations have been
made with respect to the Business Assets which the parties desire to
acknowledge;
AGREEMENTS
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NOW, THEREFORE, in consideration of the above recitals, which constitute a
part of this Agreement, the mutual promises and agreements set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Purchaser and Sellers, intending to be legally bound
hereby, agree as follows:
1. Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to such terms in the Agreement.
2. A new Section 1.9A shall be added to the Agreement, to read in its
entirety as follows:
"1.9A "Loan Documents" shall mean (a) the Economic Development
Revolving Loan Fund Agreement dated as of February 12, 1995, by and between
the Department of Housing and Community Development and the Industrial
Development Authority of the County of ▇▇▇▇▇▇▇ City, Virginia (b) the
Economic Development Revolving Loan Fund Loan Agreement dated as of April
1, 1995, by and between Facelifters and the Industrial Development
Authority of the County of ▇▇▇▇▇▇▇ City, Virginia, (c) the Security
Agreement dated as of April 1, 1995, by and between Facelifters and the
Industrial Development Authority of the County of ▇▇▇▇▇▇▇ City, Virginia,
(d) a Promissory Note dated as of April 7, 1995, by Facelifters in favor of
the Industrial Development Authority of the County of ▇▇▇▇▇▇▇ City,
Virginia, (e) an Amendment to Financing Statement (950407-7743) filed on
April 7, 1995, executed by Central Fidelity National Bank and Facelifters,
and amending an Original Financing Statement (941109-7147) filed on
November 9, 1994 and executed by Central Fidelity National Bank and
Facelifters, (f) an Original Financing Statement (950407-7742) filed on
April 7, 1995 and executed by Facelifters, (g) Loan Agreement dated as of
September 23, 1994, by and between Facelifters and Central Fidelity
National Bank, (h) Commercial Note dated as of October 20, 1994, by
Facelifters in favor of Central Fidelity National Bank, (i) Original
Financing Statement (941109-7147) filed on November 9, 1994 and executed by
Central Fidelity National Bank and Facelifters, (j) Security Agreement
dated July 28, 1994 by and between Facelifters Home Systems, Inc., a New
York corporation, and Central Fidelity National
Bank, (k) the Lease-Purchase Agreement dated as of February 16, 1994, by
and between ▇▇▇▇▇▇▇ City County, Virginia, and Facelifters, and (1) Letter
Agreement dated effective as of May 18, 1995, between Facelifters and
▇▇▇▇▇▇▇ City County relating to Reconstruction of Parking/Loading Areas,
Contract with ▇▇▇▇▇▇ & Company General Contractors, Inc., as modified by
the letter dated February 23, 1996, and accompanying payment schedule, to
Facelifters from Randolph, Boyd, Cherry and ▇▇▇▇▇▇▇.
3. Section 3.1 (c) of the Agreement is amended to read in its entirety as
follows:
"(c) Trademark and Trade Name. All right, title and interest of the
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Sellers or any of their subsidiaries in the trademarks, service marks and
trade names "Facelifters," "Facelifters Home Systems" and all related
trademarks and trade names and any goodwill of the business associated
therewith (collectively, "Trademarks")."
4. A new Section 3.3(c) is added to the Agreement, to read in its
entirety as follows:
"(c) Assumption of Certain Debt and/or Lease Obligations. Purchaser
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will assume any and all obligations of any and all Sellers under or related
to the Loan Documents. Purchaser shall use its reasonable best efforts to
obtain releases from all parties (other than Sellers) to the Loan Documents
and any related guaranties in favor of Sellers in connection with
Purchaser's assumption of the obligations under and related to the Loan
Documents."
5. A new Section 3.11 is added to the Agreement, to read in its entirety
as follows:
"3.11 Sellers' Release of Preferences. Sellers shall release any and
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all preference claims against the parties to the Loan Documents (other than
Sellers and Purchaser) with respect to the obligations that Purchaser
assumes pursuant to Section 3.3(c)."
6. Section 4.1 to the Agreement is hereby amended to read in its entirety
as follows:
"4.1 Corporate Existence and Good Standing. Each of AMRE and
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Facelifters is a corporation duly organized, validly existing and in good
standing under the laws of the state of Delaware, and ARI is a corporation
duly organized, validly existing and in good standing under the laws of the
state of Texas, and each of AMRE, ARI and Facelifters has all necessary
corporate power and authority to execute, deliver and perform this
Agreement and all other documents executed and delivered or to be executed
and delivered by it pursuant to this Agreement."
7. A new Section 6.3 is added to the Agreement, to read in its entirety
as follows:
"6.3 Additional Undertakings of Sellers at Closing. As of the
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Closing Date, Sellers will (a) pay any and all overdue personal property
taxes and real estate taxes owed to any taxing authority in ▇▇▇▇▇▇▇ City
County and (b) pay all amounts due through the Closing Date on the
agreements specified in subsections (a) and (b) of Section 1.9A."
8. The Exhibits to the Agreement are replaced in their entirety by the
Exhibits attached to this Amendment.
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9. The Agreement, as amended by this Amendment, is hereby ratified and
confirmed to be in full force and effect as of the date hereof.
10. This Amendment may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same agreement.
IN WITNESS WHEREOF, each of the parties has caused this Amendment to be
executed on its behalf by its representative thereunto duly authorized, all as
of the 3/rd/ day of April, 1997.
AMRE, INC.
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: President
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FACELIFTERS HOME SYSTEMS, INC.
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: President
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AMERICAN REMODELING, INC.
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: President
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U.S. REMODELERS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: President
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