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EXHIBIT 2.10
ASSET PURCHASE AGREEMENT
BY AND AMONG
AMRE, INC.,
AMERICAN REMODELING, INC.
AND
FACELIFTERS HOME SYSTEMS, INC.,
AS SELLERS,
AND
XXXXX XXXXXX,
AS PURCHASER
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TABLE OF CONTENTS
PAGE
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ARTICLE I CERTAIN DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II PURCHASE AND SALE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.1 CONTRACTS AND LEADS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.2 ASSETS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.3 CONSIDERATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.4 LIMITATIONS OF LIABILITIES ASSUMED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.5 NO WARRANTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 3.1 TIME AND PLACE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 3.2 TRANSACTIONS AT CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 4.1 CORPORATE ORGANIZATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 4.2 AUTHORITY RELATIVE TO THIS AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 4.3 NO TRANSFER OF INTELLECTUAL PROPERTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE V COVENANTS, REPRESENTATIONS AND WARRANTIES
OF PURCHASER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 5.1 AUTHORITY RELATIVE TO THIS AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 5.2 NONCONTRAVENTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 5.3 GOVERNMENTAL APPROVALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 5.4 LITIGATION, ETC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 5.5 FINANCING AND CAPITAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 5.6 BROKERAGE AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE VI ADDITIONAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 6.1 PAYMENT ON CONTRACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 6.2 PAYMENT ON LEADS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 6.3 AMOUNTS RECEIVED FROM WORK-IN-PROGRESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 6.4 CERTAIN WARRANTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 6.5 CUSTOMER ACKNOWLEDGMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 6.6 CERTAIN TAX MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 6.7 BANKRUPTCY COURT APPROVAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 6.8 NOTIFICATION OF CERTAIN MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 6.9 ANNOUNCEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 6.10 FEES AND EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 6.11 BULK SALES WAIVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 6.12 STORAGE, PROTECTION AND AVAILABILITY OF RECORDS. . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE VII CONDITIONS TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 7.1 CONDITIONS TO THE OBLIGATION OF EACH PARTY TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY. . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 7.2 ADDITIONAL CONDITIONS TO THE OBLIGATION OF SELLERS. . . . . . . . . . . . . . . . . . . . . . 9
SECTION 7.3 ADDITIONAL CONDITIONS TO THE OBLIGATION OF PURCHASER. . . . . . . . . . . . . . . . . . . . . 10
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ARTICLE VIII TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 8.1 TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 8.2 EFFECT OF TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE IX WAIVER, RELEASES AND INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 9.1 RELEASE OF AMRE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 9.2 SURVIVAL OF THIS ARTICLE IX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE X MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 10.1 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 10.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 10.3 ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 10.4 BINDING EFFECT; ASSIGNMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 10.5 AMENDMENT AND WAIVER; RIGHTS AND REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 10.6 SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 10.7 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 10.8 DESCRIPTIVE HEADINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 10.9 GENDER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 10.10 REFERENCES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 10.11 COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SCHEDULES AND EXHIBITS
SCHEDULE 2.2(a) - Furniture, Fixtures and Equipment of the Sales
Office
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is dated as of the 11th day
of April, 1997, by and among AMRE, Inc., a Delaware corporation ("AMRE"),
American Remodeling, Inc., a Texas corporation ("ARI"), Facelifters Home
Services, Inc., a Delaware corporation ("Facelifters"), and Xxxxx Xxxxxx
("Purchaser"). AMRE, ARI and Facelifters are sometimes referred to herein
individually as a "Seller" and collectively as "Sellers".
RECITALS
WHEREAS, Sellers are in the cabinet refacing, vinyl siding and window
remodeling and products business; and
WHEREAS, each Seller is currently a debtor in possession in those certain
Chapter 11 bankruptcy proceedings in the United States Bankruptcy Court for the
Northern District of Texas, Dallas Division (the "Bankruptcy Court"), styled In
re AMRE, Inc. et al., Case No. 397-30567-SAF-11 (Jointly Administered); and
WHEREAS, Purchaser desires to buy and Sellers desire to sell those portions
of the cabinet refacing, vinyl siding and window remodeling and products
business of Sellers conducted at the Sales Office (as hereinafter defined), and
to finally, irrevocably, absolutely and unconditionally terminate all rights
and obligations of Sellers, and to the extent applicable, the bankruptcy
estates of Sellers, in the Assets (as hereinafter defined);
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:
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following terms have the following
respective meanings:
"Agreement" has the meaning specified in the opening paragraph hereof.
"AMRE" has the meaning specified in the opening paragraph hereof.
"AMRE Released Parties" has the meaning specified in Section 9.1 hereof.
"Applicable Law" means any statute, law, rule, or regulation or any
judgment, order, writ, injunction or decree of any Governmental Entity to which
a specified person or property is subject.
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"ARI" has the meaning specified in the opening paragraph hereof.
"Assets" has the meaning specified in Section 2.2 hereof.
"Assumed Liabilities" means the completion of all Work-In-Progress.
"Bankruptcy Code" means 11 U.S.C. Section 101, et seq.
"Bankruptcy Court" has the meaning specified in the Recitals.
"Cabinet Inventory" means all inventory (including raw materials,
work-in-progress and finished goods) and related spare parts and supplies that
is owned by a Seller, used in connection with a Seller's cabinet refacing and
products business, and located at the Sales Office at the Closing, but does not
include any inventory (including raw materials, work-in-progress and finished
foods) and related spare parts and supplies subject to a valid claim for
reclamation.
"Cash Purchase Price" means the amount specified in Section 2.2(a) hereof.
"Claims" means any and all losses, claims, causes of action, lawsuits,
liabilities, demands, damages, costs and expenses, including, without
limitation, reasonable attorneys' fees and disbursements.
"Closing" means the consummation of the transactions contemplated by
Article II of this Agreement in accordance with the terms and upon the
conditions set forth in this Agreement.
"Closing Date" means the date on which the Closing occurs.
"Contracts" means all purchase orders and consumer sales contracts entered
into by a Seller and emanating from the Sales Office for which the goods have
not been delivered or construction has not begun.
"Encumbrances" means liens, charges, pledges, options, mortgages, security
interest, claims, restrictions and other encumbrances of every type and
description, whether imposed by law, agreement, understanding or otherwise.
"Facelifters" has the meaning specified in the opening paragraph hereof.
"FF&E" means the furniture, fixtures and equipment set forth on Schedule
2.2(a) hereto.
"Governmental Entity" means any court or tribunal in any jurisdiction
(domestic or foreign) or any public, governmental, or regulatory body, agency,
department, commission, board, bureau, or other authority or instrumentality
(domestic or foreign).
"Leads" means all customer leads emanating from the Sales Office.
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"Proceedings" means all proceedings, actions, suits, investigations, and
inquiries by or before any arbitrator or Governmental Entity.
"Purchaser" has the meaning specified in the opening paragraph hereof.
"Sale and Assignment Hearing" has the meaning specified in Section 6.7
hereof.
"Sale and Assignment Motion" has the meaning specified in Section 6.7
hereof.
"Sale and Assignment Order" has the meaning specified in Section 6.7
hereof.
"Sales Office" means the sales office leased by ARI and located at 2500
South 2300 West, Suites 13 & 14, West Valley City, Utah (with a business
address of 0000 X. Xxxxxx Xxxx Xxxx., #00 and #14, Salt Lake City, Utah 84119).
"Seller" and "Sellers" have the meanings specified in the opening paragraph
hereof.
"Siding Inventory" means all inventory (including raw materials,
work-in-progress and finished goods) and related spare parts and supplies that
is owned by a Seller, used in connection with a Seller's vinyl siding and
window remodeling and products business, and located at the Sales Office at the
Closing.
"Taxes" means all taxes, charges, fees, levies or other assessments,
including, without limitation, income, excise, property, sales and franchise
taxes, imposed by the United States or any state, county, local or foreign
government or subdivision or agency thereof. Such term shall include any
interest, penalties or additions attributable to such assessments.
"Trademark" means the trademark and/or tradename "Century 21."
"Work-In-Progress" means all consumer contracts entered into by a Seller
and emanating from the Sales Office for which a Seller has begun construction.
ARTICLE II
PURCHASE AND SALE
Section 2.1 Contracts and Leads. Subject to the terms and conditions set forth
in this Agreement, on the Closing Date, Sellers shall sell, assign, transfer,
convey and deliver to Purchaser, and Purchaser will purchase, acquire and
receive the Contracts and the Leads.
Section 2.2 Assets. Subject to the terms and conditions set forth in this
Agreement, on the Closing Date Sellers will sell, assign, transfer, convey and
deliver to Purchaser free and clear of all Encumbrances, and Purchaser will
purchase, acquire and receive an assignment,
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a conveyance and the delivery of the following assets of each of the Sellers
(all such assets included in this Section 2.2 are herein collectively referred
to as the "Assets"):
(a) all FF&E; and
(b) all Cabinet Inventory.
Section 2.3 Consideration. The aggregate consideration given by
Purchaser for the Contracts, Leads and Assets shall consist of:
(a) cash in the amount of SEVEN THOUSAND DOLLARS ($7,000) for FF&E
and Cabinet Inventory;
(b) payment for all amounts outstanding as of the date hereof and
as of the Closing Date for all utilities for the Sales Office,
including, without limitation, all charges for water, heat,
gas and electricity;
(c) cash in an amount equal to four percent (4%) of the total
amount (excluding only applicable sales Taxes) collected by
Purchaser on the Contracts;
(d) cash in an amount equal to three percent (3%) of the total
amount (excluding only applicable sales Taxes) collected by
Purchaser on sales resulting from the Leads;
(e) storage at the Sales Office, at no charge to Sellers, of all
Siding Inventory for thirty (30) days from the date of this
Agreement; and
(f) assumption of the Assumed Liabilities.
Section 2.4 Limitations of Liabilities Assumed. Except for the
obligations expressly assumed by Purchaser under this Agreement, Purchaser does
not assume or agree to pay, perform or discharge any other liabilities or
obligations of any Seller, whether accrued, absolute, contingent or OTHERWISE.
SECTION 2.5 NO WARRANTIES. SELLERS MAKE NO REPRESENTATION OR
WARRANTY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, NO WARRANTY AS TO FITNESS
FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY OF THE ASSETS, AND THE ASSETS ARE
TRANSFERRED "AS IS-WHERE IS."
ARTICLE III
CLOSING
Section 3.1 Time and Place. The Closing shall be held at 9:00 a.m.
(local time), at the offices of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., 0000
Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, on the fifth business day
following the date on which the Sale and Assignment
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Order becomes final and is no longer subject to stay, or at such other time or
place as the parties shall mutually agree in writing.
Section 3.2 Transactions at Closing.
(a) Sellers shall deliver to Purchaser at the Closing:
(i) the Contracts;
(ii) the Leads;
(iii) a xxxx of sale conveying the Assets to Purchaser,
signed by each Seller; and
(iv) the certificate contemplated by Section 7.3.
(b) Purchaser shall deliver to Sellers at the Closing:
(i) a wire transfer in the amount of the Cash
Purchase Price; and
(ii) the certificate contemplated by Section 7.2.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller represents and warrants to Purchaser as follows:
Section 4.1 Corporate Organization. Each of AMRE and Facelifters is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. ARI is a corporation duly organized, validly
existing and in good standing under the laws of the State of Texas.
Section 4.2 Authority Relative to This Agreement. Each Seller has full
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and
performance by each Seller of this Agreement, and the consummation by it of the
transactions contemplated hereby, have been duly authorized by such Seller's
Board of Directors, and no other corporate proceedings on the part of such
Seller are necessary to authorize the execution, delivery and performance by it
of this Agreement and the consummation by such Seller of the transactions
contemplated hereby.
Section 4.3 No Transfer of Intellectual Property. No Seller grants,
conveys or sublicenses any right such Seller may have or may retain with
respect to the use of the Trademark. In order to use the Trademark, Purchaser
must enter into a direct arrangement with the owner of the Trademark.
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ARTICLE V
COVENANTS, REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser covenants, represents and warrants to Sellers as follows:
Section 5.1 Authority Relative to This Agreement. This Agreement has been
duly executed and delivered by Purchaser and constitutes a valid and legally
binding obligation of Purchaser, enforceable against Purchaser in accordance
with its terms.
Section 5.2 Noncontravention. The execution, delivery and performance by
Purchaser of this Agreement and the consummation by it of the transactions
contemplated hereby do not and will not (a) conflict with or result in a
violation of any provision of, or constitute (with or without the giving of
notice or the passage of time or both) a default under, or give rise (with or
without the giving of notice or the passage of time or both) to any right of
termination, cancellation or acceleration under, any bond, debenture, note,
mortgage, indenture, lease, agreement or other instrument or obligation to
which Purchaser is a party or by which Purchaser or any of its properties may
be bound, (b) result in the creation or imposition of any Encumbrance upon the
properties of Purchaser, or (c) violate any Applicable Law (other than any
applicable "bulk sales" laws) binding upon Purchaser, except, in the cases of
clauses (c) and (d) of this Section 5.2, for any such conflicts, violations,
defaults, terminations, cancellations, accelerations or Encumbrances which
would not, individually or in the aggregate, have a material adverse effect on
the business, assets, results of operations or financial condition of Purchaser
or on the ability of Purchaser to consummate the transactions contemplated
hereby.
Section 5.3 Governmental Approvals. No consent, approval, order or
authorization of, or declaration, filing or registration with, any Governmental
Entity is required to be obtained or made by Purchaser in connection with its
execution, delivery or performance of this Agreement or the consummation by it
of the transactions contemplated hereby.
Section 5.4 Litigation, etc. No Proceeding is pending or, to the
knowledge of Purchaser, threatened, against Purchaser (a) relating to or
affecting any of the Assets, other than the bankruptcy case referred to in the
Recitals, or (b) that questions the validity of this Agreement or challenges
any of the transactions contemplated hereby.
Section 5.5 Financing and Capital. Purchaser has, and at the Closing Date
Purchaser will have, such funds as are necessary for the consummation by
Purchaser of the transactions contemplated hereby.
Section 5.6 Brokerage Agreements. Purchaser shall hold Sellers harmless
against any broker, finder, consultant or other intermediary retained directly
or indirectly by Purchaser in connection with the transactions contemplated by
this Agreement who would be entitled to any commission or broker's or finder's
fee in connection with the transactions contemplated hereby.
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ARTICLE VI
ADDITIONAL AGREEMENTS
Section 6.1 Payment on Contracts. Purchaser shall remit to Sellers the
four percent (4%) fee due on each Contract within ten (10) days of collection
by Purchaser on such Contract.
Section 6.2 Payment on Leads. Purchaser shall remit to Sellers the three
percent (3%) fee due on each sales contract resulting from a Lead within ten
(10) days of collection by Purchaser on such contract.
Section 6.3 Amounts Received from Work-In-Progress. Purchaser shall
invoice and collect all amounts due upon completion of Work-In-Progress.
Purchaser shall remit such amounts to Sellers within ten (10) days of
collection by Purchaser.
Section 6.4 Certain Warranties. All work performed in whole or in party
by Purchaser with respect to the Work-In- Progress and the Contracts shall be
warranted by Purchaser to the same extent as if such work had been performed by
Sellers under their prebankruptcy warranty policies.
Section 6.5 Customer Acknowledgment. All work performed by Purchaser
shall be performed in the name of Purchaser and not on behalf of any Sellers,
and each customer (whether pursuant to Work-In-Progress or a Contract or
resulting from a Lead) shall acknowledge, in writing, that it is the Purchaser
that shall be the party responsible for the performance of the work and for all
warranties given, and that the Sellers and their affiliates shall not be liable
in any manner for any of the work performed by Purchaser.
Section 6.6 Certain Tax Matters. Any sales Tax or transfer Tax or similar
Tax upon the transfer of the Assets to Purchaser shall be borne by Sellers.
All other taxes with respect to the Assets shall be borne by Purchaser.
Section 6.7 Bankruptcy Court Approval. As promptly as practicable after
the date hereof, Sellers shall file a motion (the "Sale and Assignment Motion")
with the Bankruptcy Court pursuant to Sections 363 and 365 of the Bankruptcy
Code, in a form reasonably acceptable to Purchaser, seeking an order (the "Sale
and Assignment Order") approving the sale, assignment and transfer of the
Assets free and clear of all Encumbrances. Sellers shall prepare the notice
for the hearing on the Sale and Assignment Motion (the "Sale and Assignment
Hearing"), and Sellers shall provide proper notice of such motion in accordance
with applicable law. If the Sale and Assignment Order shall be appealed by any
party (or a petition for certiorari or motion for rehearing or argument shall
be filed with respect thereto), Sellers shall take all steps, as may be
reasonable and appropriate to prosecute such appeal, petition or motion, or
defend against such appeal, petition or motion, and Purchaser shall cooperate
in such efforts. Purchaser and Sellers agree to use their best efforts to
obtain an expedited resolution of any such appeal.
Section 6.8 Notification of Certain Matters. Sellers shall give prompt
notice to Purchaser, and Purchaser shall give prompt notice to Sellers, of (a)
the occurrence or
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nonoccurrence of any event the occurrence or nonoccurrence of which would be
likely to cause any representation or warranty contained in this Agreement to
be untrue or inaccurate in any material respect at or prior to the Closing and
(b) any material failure of Purchaser, or Sellers, as the case may be, to
comply with or satisfy any covenant, condition or agreement to be complied with
or satisfied by it hereunder; provided, however, that neither the delivery of
nor the failure to deliver any notice pursuant to this Section 6.8 shall limit
or otherwise affect the remedies available hereunder to the party receiving
such notice.
Section 6.9 Announcement. Following the execution of this Agreement,
Purchaser shall approve an announcement of Sellers prepared to satisfy the
requirements of public disclosure applicable to Sellers, such approval not to
be unreasonable withheld by Purchaser. In addition, Sellers and Purchaser agree
to consult with each other before issuing any press release or making any
public statement with respect to this Agreement or the transactions
contemplated hereby, and, except as may be required by Applicable Law or any
listing agreement with any national securities exchange, will not issue any
such press release or make any such public statement prior to such
consultation.
Section 6.10 Fees and Expenses. All costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such costs or expenses.
Section 6.11 Bulk Sales Waiver. Purchaser and Sellers hereby waive
compliance by Sellers with the bulk sales law of Chapter 6 of the Uniform
Commercial Code or any similar Applicable Law in connection with the sale of
the Assets contemplated by this Agreement.
Section 6.12 Storage, Protection and Availability of Records. Purchaser
agrees to safeguard, protect and store at the current location all of the
contracts, books, records, customer lists, purchase orders and customer
information that is located at the Sales Office for a minimum of one hundred
twenty (120) days from the Closing Date. Purchaser agrees to xxxxx Xxxxxxx
access to, and allow Sellers to copy, all such contracts, books, records,
customer lists, purchase orders and customer information for a minimum of two
(2) years from the Closing Date.
ARTICLE VII
CONDITIONS TO CLOSING
Section 7.1 Conditions to the Obligation of Each Party to Consummate the
Transactions Contemplated Hereby. The respective obligations of the parties
hereto shall be subject to the fulfillment on or prior to the Closing Date of
each of the following conditions:
(a) Application. The Sale and Assignment Motion shall have been filed
with the Bankruptcy Court requesting approval of:
(i) the sale by Sellers to the Purchaser, free and clear
of all Encumbrances, of the Assets; and
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(ii) the releases provided for in Article IX.
(b) Good Faith. The Sale and Assignment Motion shall request a
finding that Purchaser is a good faith purchaser pursuant to
Section 363(m) of the Bankruptcy Code, and that this Agreement
constitutes an arms-length transaction between Sellers and the
Purchaser.
(c) Hearing. The Sale and Assignment Motion shall have been
brought on for the Sale and Assignment Hearing on or before
March 31, 1997.
(d) Order. The Sale and Assignment Order by the Bankruptcy Court
in form satisfactory to counsel to Purchaser shall have been
entered granting the relief requested pursuant to the Sale and
Assignment Motion, and the Sales and Assignment Order shall
have been entered by March 31, 1997 and not stayed.
(e) No Proceedings. No preliminary or permanent injunction or
other order, decree or ruling shall have been issued by a
Governmental Entity, and no statute, rule, regulation or
executive order shall have been promulgated or enacted by a
Governmental Entity, which prevents consummation of the
transactions contemplated by this Agreement and which is in
effect on the Closing Date; no Proceeding by a Governmental
Entity shall have been commenced or threatened (and be pending
or threatened on the Closing Date) against Purchaser or any of
his affiliates seeking to prevent or challenging the
transactions contemplated by this Agreement; and no Proceeding
before a court of competent jurisdiction shall have been
commenced (and be pending on the Closing Date) against
Purchaser or Sellers or any of their respective affiliates,
associates, officers or directors, as applicable, seeking to
prevent or challenging the transactions contemplated hereby
and seeking material damages in connection therewith.
Section 7.2 Additional Conditions to the Obligation of Sellers. The
obligations of Sellers to consummate the transactions contemplated by this
Agreement is also subject to the fulfillment of each of the following
conditions:
(a) The representations and warranties of Purchaser set forth in this
Agreement shall be true and correct on and as of the Closing Date
as if made on and as of such date, except as affected by
transactions contemplated or permitted by this Agreement and
except to the extent that any such representation or warranty is
made as of a specified date, in which case such representation or
warranty shall have been true and correct as of such date.
(b) Purchaser shall have performed each obligation to be performed by
him hereunder on or prior to the Closing Date.
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(c) Sellers shall have received such certificates of Purchaser dated
the Closing Date, signed by officers of Purchaser and others, to
evidence compliance with the conditions set forth in Section 7.1
and this Section 7.2 as may be reasonably requested by Sellers.
Section 7.3 Additional Conditions to the Obligation of Purchaser. The
obligation of Purchaser to consummate the transactions contemplated hereby is
also subject to fulfillment of each of the following conditions:
(a) Sellers shall have performed each obligation to be performed by
them hereunder on or prior to the Closing Date.
(b) Purchaser shall have received such certificates of Sellers, dated
the Closing Date, signed by officers of Sellers and others, to
evidence compliance with the conditions set forth in Section 7.1
and this Section 7.3 as may be reasonably requested by Purchaser.
(c) Purchaser shall have received a copy of the Sale and Assignment
Order authorizing the execution, delivery and performance by the
Sellers of this Agreement.
ARTICLE VIII
TERMINATION
Section 8.1 Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to the
Closing:
(a) by mutual written consent of Purchaser or Sellers;
(b) by either Purchaser or Sellers if there shall be any Applicable
Law that makes consummation of the transactions contemplated
hereby illegal or otherwise prohibited or a Governmental Entity
shall have issued an order, decree or ruling or taken any other
action permanently restraining, enjoining or otherwise prohibiting
the consummation of the transactions contemplated hereby, and such
order, decree, ruling or other action shall have become final and
nonappealable; or
(c) by Sellers if Sellers receive, and the Bankruptcy Court approves,
a bona fide third-party offer to acquire all or substantially all
of the Assets on terms and conditions determined in good faith by
Sellers which third-party offer represents a higher and better
offer than the transaction set forth herein (which determination
shall include reference to price and contractual terms and
conditions).
Section 8.2 Effect of Termination In the event of the termination of
this Agreement pursuant to Section 8.1 by Purchaser or Sellers, written notice
thereof shall forthwith be given to the other party specifying the provision
hereof pursuant to which such termination is made, and
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this Agreement shall become void and have not effect, and there shall be no
liability hereunder on the part of Purchaser or Sellers or any of their
respective directors, officers, employees, stockholders or representatives, as
applicable, except that the agreements contained in this Section 8.2 and in
Sections 6.10 and 9.1 shall survive the termination hereof. Nothing contained
in this Section 8.2 shall relieve any party from liability for any breach of
this Agreement.
ARTICLE IX
WAIVER, RELEASES AND INDEMNIFICATION
Section 9.1 Release of AMRE. Purchaser, on behalf of himself and his
respective successors, assigns, employees, agents, heirs, attorneys and
representatives, hereby releases and discharges AMRE and its affiliates
(including, without limitation, ARI and Facelifters) and their respective
officers, directors, employees and agents (the "AMRE Released Parties") from
any and all Claims now existing or which may hereafter accrue, whether known or
unknown, liquidated or unliquidated, direct or indirect, whether suspected or
unsuspected, whether having arisen or hereafter to arise, in each case in any
way relating to any acts, events, facts or circumstances associated with or
relating to AMRE, ARI, Facelifters or the transactions contemplated hereby.
Purchaser shall indemnify the AMRE Released Parties against any and all Claims
relating to Purchaser's work and operations in connection with the Contracts
and Work-In-Progress. In addition, Purchaser shall indemnify Sellers against
any and all damages, costs, expenses, obligations or liabilities, including,
without limitation, the reasonable attorneys' fees and disbursements, arising
out of any breach by Purchaser of the representations and warranties of
Purchaser contained herein.
Section 9.2 Survival of This Article IX. The provisions of this
Article IX shall survive the Closing indefinitely.
ARTICLE X
MISCELLANEOUS
Section 10.1 Notices. All notices, requests, demands and other
communications required or permitted to be given or made hereunder by any party
hereto shall be in writing and shall be deemed to have been duly given if
delivered personally or transmitted by first class registered or certified
mail, postage prepaid, return receipt requested, or sent by prepaid overnight
delivery service, or sent by cable, telegram, or facsimile, to the parties at
the following addresses (or at such other addresses as shall be specified by
the parties by like notice):
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If to Purchaser:
Xxxxx Xxxxxx
------------------------------------
------------------------------------
Telephone No.:
----------------------
Facsimile No.:
----------------------
with a copy to:
------------------------------------
------------------------------------
------------------------------------
Telephone No.:
----------------------
Facsimile No.:
----------------------
If to Sellers:
AMRE, Inc.
0000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Mr. J. Xxxxx Xxxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention G. Xxxxxxx Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Section 10.2 Survival of Representations and Warranties. The
representations and warranties contained in this Agreement and in any
instrument delivered pursuant hereto shall survive beyond the Closing or a
termination of this Agreement for a period of one (1) year.
Section 10.3 Entire Agreement. This Agreement, including the Schedules
and 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.
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Section 10.4 Binding Effect; Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any of the parties hereto (by operation of law or otherwise)
without the prior written consent of the other parties. Except as provided in
Article IX, nothing in this Agreement, express or implied, is intended to or
shall confer upon any person other than Purchaser and Sellers any rights,
benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
Section 10.5 Amendment and Waiver; Rights and Remedies. This Agreement
may be amended, superseded, canceled, renewed or extended, and the terms hereof
may be waived, only by a written instrument signed by the parties or, in the
case of a waiver, by the party waiving compliance. No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of either party of any such
right, power or privilege, or any single or partial exercise of any such right,
power or privilege, preclude any further exercise thereof or the exercise of
any other such right, power or privilege. The rights and remedies herein
provided are cumulative and are not exclusive of any rights or remedies that
any party may otherwise have at law or in equity. The rights and remedies of
any party based upon, arising out of or otherwise in respect of any inaccuracy
in or breach of any representation, warranty, covenant or agreement contained
in this Agreement shall in no way be limited by the fact that the act,
omission, occurrence or other state of facts upon which any claim of any such
inaccuracy or breach is based may also be the subject matter of any other
representation, warranty, covenant or agreement contained in this Agreement (or
in any other agreement between the parties) as to which there is no inaccuracy
or breach.
Section 10.6 Severability. If any provision of this Agreement is held
to be unenforceable, this Agreement shall be considered divisible and such
provision shall be deemed inoperative to the extent it is deemed unenforceable,
and in all other respects this Agreement shall remain in full force and effect;
provided, however, that if any such provision may be made enforceable by
limitation thereof, then such provision shall be deemed to be so limited and
shall be enforceable to the maximum extent permitted by applicable law.
SECTION 10.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED 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 CLOSING.
SECTION 10.8 Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only, do not constitute a part of this
Agreement, and shall not affect in any manner the meaning or interpretation of
this Agreement.
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Section 10.9 Gender. Pronouns in masculine, feminine and neuter
genders shall be construed to include any other gender, and words in the
singular form shall be construed to include the plural and vice versa, unless
the context otherwise requires.
Section 10.10 References. All references in this Agreement to Articles,
Sections and other subdivisions refer to the Articles, Sections and other
subdivisions of this Agreement unless expressly provided otherwise. The words
"this Agreement," "herein," "hereof," "hereby," "hereunder," and words of
similar import refer to this Agreement as a whole and not to any particular
subdivision unless expressly so limited.
Section 10.11 Counterparts. 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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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its representative thereunto duly authorized, all as
of the day and year first above written.
AMRE, INC.
By: /s/ J. XXXXX XXXXXXXXX
----------------------------------
Name: J. Xxxxx Xxxxxxxxx
----------------------------
Title: President
---------------------------
AMERICAN REMODELING, INC.
By: /s/ J. XXXXX XXXXXXXXX
----------------------------------
Name: J. Xxxxx Xxxxxxxxx
----------------------------
Title: President
---------------------------
FACELIFTERS HOME SYSTEMS, INC.
By: /s/ J. XXXXX XXXXXXXXX
----------------------------------
Name: J. Xxxxx Xxxxxxxxx
----------------------------
Title: President
---------------------------
/s/ XXXXX XXXXXX
-------------------------------------
XXXXX XXXXXX
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OMITTED SCHEDULES
XXXXX XXXXXX, AS PURCHASER
ASSET PURCHASE AGREEMENT
SCHEDULE CONTENTS
-------- --------
Schedule 2.2(a) Assets purchased by Xxxxx Xxxxxx pursuant to the
Asset Purchase Agreement
The Registrant hereby agrees to provided supplemental copies of any and all of
the above omitted schedules should the Commission so request.
