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EXHIBIT 2.5
FIRST AMENDMENT
TO
ASSET PURCHASE AGREEMENT
This First Amendment (the "Amendment") to the Asset Purchase Agreement
(the "Agreement") dated February 12, 1997, by and among AMRE, Inc., Facelifters
Home 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
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 Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx
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
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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 Xxxxxxx City County, Virginia, and
Facelifters, and (l) Letter Agreement dated effective as of May 18, 1995,
between Facelifters and Xxxxxxx City County relating to Reconstruction of
Parking/Loading Areas, Contract with Xxxxxx & Company General Contractors,
Inc., as modified by the letter dated February 23, 1996, and accompanying
payment schedule, to Facelifters from Randolph, Boyd, Cherry and Xxxxxxx.
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
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
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
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
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 Closing
Date, Sellers will (a) pay any and all overdue personal property taxes and
real estate taxes owed to any taxing authority in Xxxxxxx 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."
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8. The Exhibits to the Agreement are replaced in their entirety by the
Exhibits attached to this Amendment.
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 3rd day of April, 1997.
AMRE, INC.
By: /s/ J. XXXXX XXXXXXXXX
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Name: J. Xxxxx Xxxxxxxxx
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Title: President
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FACELIFTERS HOME SYSTEMS, INC.
By: /s/ J. XXXXX XXXXXXXXX
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Name: J. Xxxxx Xxxxxxxxx
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Title: President
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AMERICAN REMODELING, INC.
By: /s/ J. XXXXX XXXXXXXXX
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Name: J. Xxxxx Xxxxxxxxx
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Title: President
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U.S. REMODELERS, INC.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: President
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OMITTED SCHEDULES
U.S. REMODELERS, INC.
FIRST AMENDMENT
TO
ASSET PURCHASE AGREEMENT
SCHEDULE CONTENTS
Exhibit A Sales Offices of the Debtors from which
U.S. Remodelers, Inc. purchased assets.
Exhibit B Furniture, fixtures, and equipment purchased by
U.S. Remodelers, Inc. pursuant to the Asset
Purchase Agreement.
Exhibit C Real property and equipment leases to be
assumed by U.S. Remodelers, Inc.
The Registrant hereby agrees to provide supplemental copies of any and all of
the above omitted schedules should the Commission so request.
