1
EXHIBIT 2.9
ASSET PURCHASE AGREEMENT
BY AND AMONG
AMRE, INC.,
AMERICAN REMODELING, INC.
AND
FACELIFTERS HOME SYSTEMS, INC.,
AS SELLERS,
AND
REVIVE REMODELING, INC.,
AS PURCHASER
2
TABLE OF CONTENTS
Page
----
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. ........................................... 3
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. ................................. 4
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 ............................................... 5
Section 5.1 Corporate Organization. .................................. 5
Section 5.2 Authority Relative to This Agreement. .................... 5
Section 5.3 Noncontravention. ........................................ 6
Section 5.4 Governmental Approvals. .................................. 6
Section 5.5 Litigation, etc. ......................................... 6
Section 5.6 Financing and Capital. ................................... 6
Section 5.7 Brokerage Agreements. .................................... 6
ARTICLE VI. ADDITIONAL AGREEMENTS ...................................... 6
Section 6.1 Payment on Contracts. .................................... 6
Section 6.2 Payment on Leads. ........................................ 6
Section 6.3 Customer Acknowledgment. ................................. 7
Section 6.4 Certain Tax Matters. ..................................... 7
Section 6.5 Bankruptcy Court Approval. ............................... 7
Section 6.6 Notification of Certain Matters. ......................... 7
Section 6.7 Announcement. ............................................ 7
Section 6.8 Fees and Expenses. ....................................... 8
Section 6.9 Bulk Sales Waiver. ....................................... 8
Section 6.10 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. .... 9
ARTICLE VIII. TERMINATION .............................................. 10
Section 8.1 Termination. ............................................. 10
Section 8.2 Effect of Termination. ................................... 10
3
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. ............................. 12
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. ................................................. 13
Section 10.10 References. ............................................ 13
Section 10.11 Counterparts. .......................................... 14
Exhibit A: Form of Amendment to Customer Contract
ii
4
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is dated as of the 21st
day of March, 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 Revive Remodeling,
Inc., an Alabama corporation ("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 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 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.
5
"ARI" has the meaning specified in the opening paragraph hereof.
"Assets" has the meaning specified in Section 2.2 hereof.
"Bankruptcy Code" means 11 U.S.C. Section 101, et seq.
"Bankruptcy Court" has the meaning specified in the Recitals.
"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 that is owned by a
Seller and located at the Sales Office.
"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).
"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 and located at the Sales Office, but does not include (a) any inventory
(including raw materials, work-in-progress and finished goods) and related
spare parts and supplies that is subject to a valid claim for reclamation or
(b) any inventory that is specified by Sellers for use in connection with
work-in-progress on consumer contracts emanating from the Sales Office.
"Leads" means all customer leads emanating from the Sales Office.
2
6
"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 6.5
hereof.
"Sale and Assignment Motion" has the meaning specified in Section 6.5
hereof.
"Sale and Assignment Order" has the meaning specified in Section 6.5
hereof.
"Sales Office" means the sales office leased by ARI and located at ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Seller" and "Sellers" have the meanings specified in the opening
paragraph hereof.
"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."
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, 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 Inventory.
Section 2.3 Consideration. The aggregate consideration given by
Purchaser for the Contracts, Leads and Assets shall consist of:
3
7
(a) cash in the amount of FIVE THOUSAND DOLLARS ($5,000) for FF&E
and Inventory;
(b) cash in an amount equal to four percent (4%) of the total
amount (excluding only applicable sales Taxes) collected by
Purchaser on the Contracts; and
(c) 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.
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, ▇▇▇▇▇ & ▇▇▇▇, L.L.P., ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, on the fifth business day
following the date on which the Sale and Assignment 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.
(i) Sellers shall deliver to Purchaser at the Closing:
(ii) the Contracts;
(iii) the Leads;
(iv) a ▇▇▇▇ of sale conveying the Assets, signed by each Seller; and
(v) the certificate contemplated by Section 7.3.
(a) 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.
4
8
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.
ARTICLE V.
COVENANTS, REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser covenants, represents and warrants to Sellers as follows:
Section 5.1 Corporate Organization. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Alabama.
Section 5.2 Authority Relative to This Agreement. Purchaser 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 Purchaser of this Agreement, and the consummation by it of the
transactions contemplated hereby, have been duly authorized by the Board of
Directors of Purchaser, and no other corporate proceedings on the part of
Purchaser are necessary to authorize the execution, delivery and performance by
it of this Agreement and the consummation by Purchaser of the Transactions
contemplated hereby. 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.
5
9
Section 5.3 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 the charter or bylaws of Purchaser, (b) 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, (c) result in the creation or imposition of
any Encumbrance upon the properties of Purchaser, or (d) violate any Applicable
Law (other than any applicable "bulk sales" laws) binding upon Purchaser,
except, in the cases of clauses (b), (c) and (d) of this Section 5.3, 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 5.4 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 5.5 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 5.6 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 5.7 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.
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.
6
10
Section 6.3 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 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. With respect to each Contract, Purchaser
and the applicable customer(s) shall enter into an amendment to such Contract
in the form of Exhibit A attached hereto.
Section 6.4 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 6.5 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 6.6 Notification of Certain Matters. Sellers shall give prompt
notice to Purchaser, and Purchaser shall give prompt notice to Sellers, of (a)
the occurrence or 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 6.7 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.
7
11
Section 6.8 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 6.9 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 6.10 Storage, Protection and Availability of Records. Purchaser
agrees to safeguard, protect and store 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇ 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
(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.
8
12
(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 its affiliates, associates, officers or directors 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 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.
(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 this Section 7.2 as may
be reasonably requested by Sellers.
(d) Sellers shall have received a copy of the resolutions of the Board of
Directors of Purchaser authorizing the execution, delivery and
performance by Purchaser of the transactions contemplated hereby,
certified by a secretary or an assistant secretary of Purchaser.
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.
9
13
(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 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 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 6.8 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.
10
14
ARTICLE IX.
WAIVER, RELEASES AND INDEMNIFICATION
Section 9.1 Release of AMRE. Purchaser, on behalf of itself and its
successors, assigns, employees, agents, officers, directors, 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.
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):
If to Purchaser:
Revive Remodeling, Inc.
The Bessemer Business Center
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
11
15
with a copy to:
Sirote & Permutt
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Sellers:
AMRE, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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.
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.
12
16
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.
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.
13
17
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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
14
18
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. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
AMERICAN REMODELING, INC.
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
FACELIFTERS HOME SYSTEMS, INC.
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
REVIVE REMODELING, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
15
19
OMITTED SCHEDULES
REVIVE REMODELING, INC.
ASSET PURCHASE AGREEMENT
SCHEDULE CONTENTS
Exhibit A Form of Contract Amendment between ReVive
Remodeling, Inc. and customers indicating that
all work and warranties are the responsibility
of ReVive Remodeling, Inc.
The Registrant hereby agrees to provide supplemental copies of any and all of
the above omitted schedules should the Commission so request.