EXHIBIT 2.3
ASSIGNMENT AND ASSUMPTION AGREEMENT
REAL PROPERTY LEASE
For TEN AND NO/100 DOLLARS ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
AMRE, Inc., a Delaware corporation, American Remodeling, Inc., a Texas
corporation, and Facelifters Home Systems, Inc., a Delaware corporation
(collectively, the "ASSIGNORS"), have sold, and do hereby assign, transfer and
set over unto U.S. Remodelers, Inc., a Texas corporation (the "ASSIGNEE"),
having a principal office at 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxx 00000, its
successors and assigns, all of Assignors' estate, right, title and interest in,
to and under that certain real property lease described on Exhibit A hereto, as
modified, amended, supplemented and/or extended (the "LEASE"). Capitalized
terms used herein but not otherwise defined shall have the meanings assigned to
them in that certain Asset Purchase Agreement dated February 12, 1997 by and
among Assignors and Assignee, as amended by the First Amendment thereto dated as
of March 18, 1997.
TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns, for
the residue of the term and at the rent set forth in said Lease, and subject to
the covenants herein set forth by Assignors and the conditions therein contained
and henceforth to be performed and observed.
In consideration of the said assignment and for other good and valuable
consideration received by Assignee from Assignors, the receipt and sufficiency
of which are hereby acknowledged, Assignee hereby accepts said assignment
subject to and upon the terms and conditions set forth in this instrument and
the Lease. Assignee agrees that it shall have no claim or remedy against
Assignors by virtue of any lessor's act or failure to act under said Lease after
the effective date hereof, unless related to a failure by Assignor to fulfill
its obligation to cure all pre-assignment defaults under the Lease. Assignee
hereby releases Assignors of any liability with regard to the Lease, unless
related to a failure by Assignor to fulfill its obligation to cure all pre-
assignment defaults under the Lease, and Assignee hereby covenants with
Assignors and lessors and for the benefit of any assignee or successors in
interest of lessors, that Assignee, its successors and assigns, will henceforth
assume and agree to keep, perform, fulfill or cause to be performed all of the
terms, covenants, conditions and obligations contained in said Lease which, by
the terms thereof, are imposed upon Assignors and which accrue from and after
the effective date hereof, including, without limitation, the payment of the
rent therein reserved.
Assignors agree that within five (5) business days after receiving any
notice from any lessor relating to performance of any Assignor's or Assignee's
obligations under said Lease, Assignors shall send a copy of said notice to
Assignee at the above address, or to any other address Assignee from time to
time may designate in writing to Assignors.
It is the intention of the parties hereto that the terms and provisions of
this Agreement shall become effective and operative from and after the Closing
Date.
IN WITNESS WHEREOF, the parties hereto have executed this instrument as of
the 3/rd/ day of April, 1997.
ASSIGNORS:
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
ASSIGNEE:
U.S. REMODELERS, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
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EXHIBIT A
REAL PROPERTY LEASE
-------------------
Lease Purchase Agreement between Xxxxxxx City County and Facelifters Home
Systems, Inc. providing for the lease-purchase of the building and underlying
real estate in which the Xxxxxxx City factory is located.
Deed Book 137 Page 232
THIS LEASE-PURCHASE AGREEMENT, made as of this 16th day of February, 1994,
by and between XXXXXXX CITY COUNTY, herein referred to as "County," and
FACELIFTERS HOME SYSTEMS, INC., herein referred to as "Facelifters." Note:
This Agreement replaces in full a similar agreement recorded February 17, 1994,
in Deed Book 135, page 335, in the Clerk's Office of Xxxxxxx City County and is
exempt from recordation taxes as it is a rerecording to correct several errors
in language.
W I T N E S S E T H :
WHEREAS, County is the sole owner of the following described real estate,
to-wit:
Approximately 7.551 acres, Roxbury Industrial Center, Xxxxxxx City County,
Virginia, all as shown on the plat of Resource International, Ltd., dated
January 19, 1994, attached hereto as Exhibit A.
WHEREAS, Facelifters desires to lease the premises for the purpose of
conducting its business as a manufacturer of lumber products and related
purposes;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereby agree as follows:
DESCRIPTION OF THE PREMISES
---------------------------
County agrees to lease and Facelifters agrees to rent that certain 7.551
acres, Roxbury Industrial Center, and all improvements thereon, as shown on the
aforesaid plat, which property is hereinafter referred to as the "premises."
TERM OF LEASE
-------------
Facelifters agrees to lease the above described premises for a period of
fifteen (15) years commencing on the date hereof. Facelifters has inspected the
premises and, by its execution of
Deed Book 137 Page 233
this lease, acknowledges that County has provided the lot and improvements
thereon anticipated in an Agreement between the parties hereto dated December
15, 1993, ("the Agreement") and hereby accepts the same.
IMPROVEMENTS
------------
Facelifters shall be responsible for making alterations and additions to
the premises at its own expense as it may desire and as anticipated in the
aforesaid agreement, except that County shall pave with asphalt the parking
areas of the property, except for those areas where concrete pads will be
installed as required by the Agreement. The net cost of these improvements will
be repaid to County over 15 years at 7 percent interest. Facelifters'
obligation to repay such costs to the County shall be reduced by the amount of
any additional funding the County may receive under any local, state or federal
program to offset such costs.
RENT
----
Facelifters agrees to pay to County at P. 0. Xxx 000, Xxxxxxx Xxxx,
Xxxxxxxx 00000, the sum of $7,156.40 per month for the lease of the premises, to
be due and payable on the 16th day of each month beginning on the 16th day of
March, 1994.
REAL ESTATE TAXES
-----------------
During the term of this lease, Facelifters will pay to County the value of
all real and personal property taxes (including penalty and interest, if any)
which would be due on the premises and its improvements if owned by Facelifters.
Facelifters shall
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Deed Book Page 234
have the right to contest any assessment of such taxes and pay them in
installments to the extent provided by law.
SERVICES
--------
During the term of this lease, Facelifters shall be responsible for
providing heat, electricity and other utilities to the demised premises, as well
as all other improvements, repairs or modifications which may be necessary or
desirable, it being the intention of the parties that County should have no
further expense in the premises for the term of this lease, except as may be
necessary to maintain or improve any water and sewerage systems not located on
the premises.
INSURANCE
---------
Facelifters shall maintain all public and private areas in good condition,
free from all physical and fire hazards and shall adequately insure the
building, all public or common areas and its contents for fire, casualty, hazard
and liability, having a fire policy in an amount equal to at least $1,051,000.00
which shows County as a named insured, a copy of which will be delivered to
County annually. Facelifters will also maintain premises liability insurance on
the site and improvements in an amount not less than $1,000,000.00 or such other
agreeable amount and agrees to indemnify and save County harmless from all
claims and demands (including reasonable attorney's fees) arising from the use
and occupancy of the site and improvements by Facelifters. County must be a
named insured on said general liability policy.
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Deed Book Page 235
INSOLVENCY
----------
It is expressly agreed that if, at any time during the term of this lease,
Facelifters or its assigns herein shall be adjudged insolvent by any State Court
of competent jurisdiction, County may, at its option, declare this lease to be
terminated and canceled, and may take possession of the demised premises unless
Facelifters is not otherwise in default.
DAMAGE OR DESTRUCTION BY FIRE OR NATURAL CAUSES
-----------------------------------------------
If, during the term of this lease, the building on the demised premises is
destroyed by fire, natural causes or other casualty, said building shall be, by
Facelifters, repaired as quickly as is reasonably possible, and this lease shall
remain in full force and effect unless Facelifters shall determine in the
exercise of its reasonable business judgment that repair is not economically
feasible; in such event it may terminate the lease and the landlord shall be
entitled to that portion of the insurance proceeds equal to the remaining lease
payments and any other currently due payments under the terms of this lease and
the remainder of the insurance proceeds shall be paid to Facelifters.
DEFAULT
-------
If any monthly installment of rent or other payment as herein called for
remains overdue and unpaid for ten (10) days, County shall impose a penalty of
five percent (5%) of the monthly rental or other payment for each month overdue.
If any monthly installment of rent and interest or other payment as herein
called for remains overdue and unpaid for thirty (30) days following
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Deed Book 137 Page 236
written notice to Facelifters by County, County may, at its option, at any time
during such default, declare this lease terminated and take possession of
demised premises.
In the event Facelifters does not comply with any of the provisions of this
lease (other than those covered by the above paragraph), County may notify
Facelifters of such violations in writing through its registered agent. If such
violations are not corrected within sixty (60) days of receipt of said notice,
County may, at its option, declare this lease terminated and take possession of
the demised premises.
All improvements to the premises will remain a part thereof and belong to
County except such improvements as have been identified by Facelifters prior to
installation and such notification has been approved by County.
SIGNS
-----
Facelifters may display signs and shingles advertising its place of
business with the prior written consent of the County, which shall not be
unreasonably withheld, so long as such signs are in conformity with all
applicable zones and restrictive covenants.
OPTION TO PURCHASE
------------------
County hereby gives and grants to Facelifters, its heirs and assigns, the
exclusive option to purchase the property herein demised (that is 7.551 acres
with all attachments thereto and improvements thereon) at the end of the lease
period for the sum of One Hundred Dollars ($100.00) provided that all payments
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Deed Book 137 Page 237
required hereunder have been paid in full. Facelifters must notify County at
least thirty (30) days prior to the termination of this lease of its desire to
complete such a purchase; if such notice is given in writing, County will convey
the property to Facelifters by Special Warranty deed, free of all encumbrances
except such reservations, restrictions, utility and drainage easements as may
apply to the property. County warrants such restrictions and easements will be
reasonable.
County further gives Facelifters, its heirs and assigns, the exclusive
option to accelerate this lease and purchase said property by giving County
written notice of its intent to accelerate and purchase. Within sixty (60) days
of the receipt of such notice, upon payment of the purchase price described
below, County will convey the property to Facelifters as set out above.
The purchase price of the property prior to the end of this lease will be
the current principal balance at the time of transfer shown on the amortization
schedule attached hereto as Exhibit B, assuming the rental payments required by
this lease were the monthly interest and principal payments shown on the
attached schedule, plus such amounts as are necessary to reimburse County for
any paving costs as set out above. The payoff of the paving costs will be
calculated by a similar amortization schedule.
SEWERAGE AND WATER
------------------
Facelifters will pay County its normal water rates and sewerage rates for
water and sewer services.
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Deed Book 137 Page 238
ADDITIONAL LAND
---------------
County hereby grants to Facelifters the option to purchase 9.09 acres of
land adjacent to the subject property for 2 years from the date hereof so long
as this lease agreement is in effect or Facelifters (or its assigns) has
purchased the subject property. The option price will be $2,500.00 per acre and
the land covered by this option is shown as lots 30, 31, 32 and 33 on the sketch
attached hereto as Exhibit C. Facelifters must pay for the cost of a survey if
none exists at the time of exercise. Notice of exercise of the option must be
in writing and given to County at the address set out below in the Notice
provision. Conveyance will be by Special Warranty with Facelifters to bear all
recording, costs or other costs of the transfer, except for the cost of
preparing the deed.
In the event this option is not exercised, Facelifters will retain a right
of first refusal on the subject 9.09 acres for an additional 8 years, provided
that this Agreement is still in effect or Facelifters (or its assigns) has
purchased the subject property. This right of first refusal means that County
must offer to Facelifters the right to purchase the property at every price for
which County is willing to sell the property. Such offer must be in writing and
sent to Facelifters (or its assigns) at its address in the Notice provision; if
the offer of sale is not accepted in writing within 30 days of its mailing
(certified mail, return receipt requested), County may then sell the subject
property to a third party at the offered price. In the event
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Deed Book 137 Page 239
Facelifters accepts the offer, it will have 60 additional days to close the
purchase. This obligation to buy will be subject to Facelifters right to conduct
due diligence in examination of the property, the results of which must be
reasonably satisfactory to Facelifters.
ASSIGNMENT
----------
This Agreement is assignable only with the express written consent of
County, which consent shall not be unreasonably withheld.
ADDITIONAL FINANCING
--------------------
In the event Facelifters employs in excess of an average of 75 full-time
employees for a period of not less than three (3) years from date of occupancy,
and if additional financing is required by Facelifters and such financing is
available by the County to other companies locating into the area, then such
financing will be made available for Facelifters on terms no less favorable than
what may be made available for other companies.
APPLICABILITY
-------------
The parties, having read and understood the provisions of this lease, agree
for themselves, their heirs, administrators, personal representatives, executors
and assigns to be bound thereby. This agreement will be construed according to
the laws of the Commonwealth of Virginia.
NOTICES
-------
Unless otherwise provided herein, all notices required hereunder must be in
writing and sent to the respective addresses
8
Deed Book 137
set out below. The addresses set forth here may be changed by the addressee
giving notice to the other party of a new address.
To Xxxxxxx City County:
County Administrator
P. 0. Xxx 000
Xxxxxxx Xxxx, Xxxxxxxx 00000
To Facelifters:
Facelifters Home Systems, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attn: Xxxx Xxxxxxxxxx
IN WITNESS WHEREOF, the parties have executed this lease.
XXXXXXX CITY COUNTY
By: /s/ Xxxx X. Xxxxxxx (SEAL)
------------------------------
FACELIFTERS HOME SYSTEMS, INC.
By: /s/ X. X. Xxxxxx (SEAL)
------------------------------
STATE OF VIRGINIA
COUNTY OF XXXXXXX CITY, to-wit:
The foregoing instrument, bearing date of February 16, 1994, was
acknowledged before me this 22/nd/ day of March, 1994, by Xxxx X. Xxxxxxx for
Xxxxxxx City County.
My commission expires: March 31, 1997.
/s/ B. Xxxxxxxx Xxxx
----------------------------------
Notary Public
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Deed Book 137 Page 000
XXXXX XX Xxx Xxxx
XXXXXX XX Xxxxx to-wit:
The foregoing instrument, bearing date as of February 16, 1994, was
acknowledged before me this 14/th/ day of March, 1994, by Mac X. Xxxxxx for
Facelifters Home Systems, Inc.
My commission expires: April 25, 1994.
/s/ Xxxxxx X. Xxxxx
----------------------------------
Notary Public
Xxxxxx X. Xxxxx
Notary Public, State of New York
No. 00-0000000
Qualified in Nassau County
Commission Expires April 25, 1994
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