MEMBER INTERESTS PURCHASE AGREEMENT between CENTEX HOMES, as Centex, and CORONA LAND COMPANY, LLC, as Purchaser Dated as of March 31, 2008
Exhibit 10.29
between
CENTEX HOMES, as Centex,
and
CORONA LAND COMPANY, LLC, as Purchaser
Dated as of March 31, 2008
TABLE OF CONTENTS
| Page | ||||
ARTICLE I DEFINITIONS |
1 | |||
1.1 Definitions |
1 | |||
1.2 Certain Interpretation Matters |
3 | |||
ARTICLE II PURCHASE AND SALE OF MEMBER INTERESTS |
3 | |||
2.1 Mutual Closing Obligations |
3 | |||
2.2 Contribution Date Member Interests Purchase Price |
3 | |||
ARTICLE III REPRESENTATIONS AND WARRANTIES OF CENTEX |
4 | |||
3.1 Organization and Qualification |
4 | |||
3.2 Capitalization and Ownership |
4 | |||
3.3 Authorization; Enforceability |
4 | |||
3.4 No Conflict or Violation |
4 | |||
3.5 Employees |
5 | |||
3.6 Assets and Liabilities |
5 | |||
3.7 No Bankruptcy Proceedings |
5 | |||
3.8 Organizational Documents |
5 | |||
ARTICLE IV NO OTHER REPRESENTATIONS |
5 | |||
4.1 No Other Representations |
5 | |||
4.2 As-Is |
5 | |||
ARTICLE V COVENANTS OF CENTEX BETWEEN THE EFFECTIVE DATE AND THE CLOSING DATE |
6 | |||
5.1 Covenants of Centex |
6 | |||
ARTICLE VI CONDITIONS TO CLOSING; DELIVERIES AT CLOSING |
6 | |||
6.1 Conditions to Purchaser’s Obligations to Close |
6 | |||
6.2 Conditions to Centex’s Obligations to Close |
6 | |||
6.3 Centex Deliveries |
6 | |||
6.4 Purchaser Deliveries |
7 | |||
ARTICLE VII SURVIVAL OF REPRESENTATIONS AND COVENANTS; INDEMNIFICATION |
7 | |||
7.1 Survival of Covenants, Representations and Warranties |
7 | |||
7.2 Indemnification by Centex |
7 | |||
7.3 Exclusive Remedy; Additional Indemnification Matters; Limitation |
7 | |||
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7.4 No Limitation of Other Claims |
8 | |||
7.5 Survival |
8 | |||
ARTICLE VIII OFAC CERTIFICATE AND INDEMNIFICATION |
8 | |||
8.1 Purchaser’s OFAC Representation |
8 | |||
8.2 Centex’s OFAC Representation |
9 | |||
8.3 Survival |
9 | |||
ARTICLE IX GENERAL PROVISIONS |
9 | |||
9.1 Notices |
9 | |||
9.2 Severability |
10 | |||
9.3 Counterparts |
11 | |||
9.4 Assignment; Successors and Assigns |
11 | |||
9.5 Further Assurances |
11 | |||
9.6 No Third Party Beneficiaries |
11 | |||
9.7 Descriptive Headings |
11 | |||
9.8 Reasonable Consent Required |
11 | |||
9.9 Waivers |
11 | |||
9.10 Dispute Resolution |
11 | |||
9.11 Governing Law |
12 | |||
9.12 Enforcement |
12 | |||
9.13 Entire Agreement; Amendments |
12 | |||
9.14 Construction; Joint Drafting |
12 | |||
9.15 No Brokers, Finders, etc. |
12 | |||
9.16 Tax Characterization |
12 | |||
Exhibit A Transferred Subsidiaries |
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Exhibit B Form of Assignment of Member Interests |
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Exhibit C Procedure for Post-Closing Adjustments |
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Exhibit D Organizational Documents |
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THIS MEMBER INTERESTS PURCHASE AGREEMENT (this “Agreement”) is effective as of March 31, 2008
(the “Effective Date”), by and between CENTEX HOMES, a Nevada general partnership (“Centex”), and
CORONA LAND COMPANY, LLC, a Delaware limited liability company (“Purchaser”; each of Purchaser, on
the one hand, and Centex, on the other hand, a “Party”; collectively, the “Parties”).
RECITALS:
WHEREAS, Centex has formed the Company and is the sole owner of all right, title and interest
in all of the equity ownership interests (the “Member Interests”) in Corona Real Estate Holding
Company, L.L.C., a Delaware limited liability company (the “Company”);
WHEREAS, the Company is the sole owner of all right, title and interest in all of the equity
ownership interests in each of those certain entities (each, an “Transferred Subsidiary,” and
collectively, the “Transferred Subsidiaries”), shown on Exhibit “A” that own the real
estate projects described in Exhibit “A”;
WHEREAS, prior to the Closing Date, Centex will have conveyed to each Transferred Subsidiary
the Assets applicable to the respective Project (the “Contribution”), and, after the Contribution,
each Transferred Subsidiary will own its, respective, Assets;
WHEREAS, Centex desires to sell to Purchaser, and Purchaser desires to purchase from Centex,
all of the Member Interests owned by Centex on the terms and subject to the conditions set forth in
this Agreement; and
WHEREAS, immediately after Purchaser’s acquisition of all of the Membership Interests from
Centex, Purchaser desires to be admitted to the Company under an assignment of member interests in
the form of Exhibit “B” attached hereto (the “Assignment”).
NOW, THEREFORE, in consideration of the premises and the covenants and agreements herein
contained, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties, intending to be legally bound hereby, do hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions.
(a) Unless otherwise defined herein, any capitalized term herein shall have the same meaning
as set forth for it in the Contribution Agreement.
(b) The following terms shall have the respective meanings specified or referred to below:
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“Closing” means the settlement of the mutual obligations of Purchaser and Centex with respect
to the sale of the Member Interests to Purchaser and the performance of their respective
obligations hereunder to be performed at or prior to the Closing Date.
“Contribution Agreement” means the Contribution Agreement, dated March 29, 2008, between
Centex and the Company.
“Incurred Ownership Development Costs” is the amount of all third party costs paid by Centex
in March, 2008, in owning and developing the Properties (including costs paid related to obtaining
and preserving the Entitlements, costs related to work conducted by consultants and contractors,
costs incurred in obtaining utilities, costs paid in negotiating and entering into agreements with
adjoining landowners, costs paid under purchase agreements for the Properties and
Association-related costs) if and to the extent the Incurred Ownership Development Costs were for
work that is included in the Future LD Spend Schedules.
“Interest Rate” means annual rate of interest published in The Wall Street Journal from time
to time as the “Prime Rate” for JPMorgan Chase, N.A., plus 3%. If The Wall Street Journal ceases
to publish the “Prime Rate” for JPMorgan Chase, N.A., but publishes the “Prime Rate” for another
financial institution, the “Prime Rate” shall be such rate as published in The Wall Street Journal.
If The Wall Street Journal ceases to publish a “Prime Rate”, the parties shall select an
equivalent publication that publishes such “Prime Rate.”
“Liabilities” means indebtedness, damages, obligations, losses, debts, penalties, fines,
awards, judgments, costs or expenses.
Each of the following terms is defined in the Section of this Agreement set forth opposite
such term:
Adjustments
|
Exhibit C | |||
Agreement
|
Preamble | |||
Blocked Person
|
8.1 | |||
Centex
|
Preamble | |||
Closing Date
|
2.1 | (a) | ||
Closing Date Representations Certificate
|
6.3 | (b) | ||
Contribution
|
Recitals | |||
Effective Date
|
Preamble | |||
Executive Order
|
8.1 | |||
Final Adjustment Payment
|
Exhibit C | |||
Final Member Interests Purchase Price
|
Exhibit C | |||
Final Investment Adjustments
|
Exhibit C | |||
Investment Objections Notice
|
Exhibit C | |||
Investment Updated Schedule
|
Exhibit C | |||
Member Interests
|
Recitals | |||
Neutral Accountant
|
Exhibit C | |||
OFAC
|
8.1 | |||
Parties
|
Preamble | |||
Party
|
Preamble | |||
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Purchaser
|
Preamble | |||
Survival Period
|
7.3 | (a) | ||
1.2 Certain Interpretation Matters.
(a) Definitions contained in this Agreement apply to singular as well as the plural forms of
such terms and to the masculine as well as to the feminine and neuter genders of such terms. Words
in the singular shall be held to include the plural and vice versa, and words of one gender shall
be held to include the other gender as the context requires. The terms “hereof,” “herein,”
“hereby” and “herewith” and words of similar import shall, unless otherwise stated, be construed to
refer to this Agreement as a whole and not to any particular provision of this Agreement. The
terms “includes” and the word “including” and words of similar import shall be deemed to be
followed by the words “without limitation.” Each Exhibit, Article, Section and paragraph reference
is to the Exhibits, Articles, Sections and paragraphs to this Agreement, unless otherwise
specified.
(b) When calculating the period of time before which, within which or following which any act
is to be done or step taken pursuant to this Agreement, the date that is the reference date in
calculating such period shall be excluded. If the last day of such period is not a Business Day,
the period in question shall end on the next succeeding Business Day.
(c) The Exhibits and Schedules to this Agreement are hereby incorporated and made a part
hereof and are an integral part of this Agreement. All Exhibits and Schedules annexed hereto or
referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in
full herein. Any capitalized terms used in any Schedule or Exhibit but not otherwise defined
therein shall be defined as set forth in this Agreement.
ARTICLE II
PURCHASE AND SALE OF MEMBER INTERESTS
2.1 Mutual Closing Obligations.
(a) The “Closing Date” hereunder will be the Contribution Date (and in no event later than
March 31, 2008). In no event will the Closing Date be a day that is not a Business Day.
(b) Upon the terms and subject to the conditions set forth in this Agreement, at the Closing
Centex shall sell, convey, transfer, assign and deliver to Purchaser and Purchaser shall purchase
from Centex, all right, title and interest of Centex in and to the Member Interests free and clear
of all Encumbrances. The Closing will take place on the Closing Date and be effective as of 11:59
p.m., Central time, at the offices of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
unless another time and/or place is agreed to in writing by the Parties.
2.2 Contribution Date Member Interests Purchase Price.
(a) In consideration of the transfer of the Member Interests by Centex and the consummation of
the transactions contemplated herein, Purchaser shall pay and deliver to Centex
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aggregate
consideration in the amount of the Contribution Date Member Interest Purchase Price. The
Contribution Date Member Interest Purchase Price shall be paid to Centex at the Closing by wire
transfer of immediately available funds (in accordance with the wire instructions delivered by
Centex to Purchaser).
(b) Following the Closing Date, the Parties will reconcile difference between the actual and
proposed Incurred Ownership Development Costs for March, 2008, in accordance with the procedure set
forth in Exhibit C.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CENTEX
Centex hereby represents and warrants the following to Purchaser and Investor as of the
Closing Date:
3.1 Organization and Qualification. Centex is duly formed and validly existing under the
Laws of the state of Nevada. The Company is duly formed and validly existing under the Laws of the
state of Delaware.
3.2 Capitalization and Ownership.
(a) All of the Member Interests are and always have been held beneficially and of record by
Centex, free and clear of all Encumbrances. All of the Member Interests were duly authorized and
issued by the Company. The Member Interests constitute 100% of the equity interests in the
Company.
(b) Except for this Agreement and transactions contemplated hereby, there are no outstanding
agreements, arrangements, warrants, options, puts, calls, rights, subscriptions or other
commitments to which the Company is a party or by which the Company is bound, granting rights to
any Person to purchase, acquire or vote any equity or debt interest or instrument in the Company.
3.3 Authorization; Enforceability. Centex has all requisite partnership power to execute
and deliver this Agreement and to perform its obligations under this Agreement and to sell the
Member Interests to Purchaser. The execution, delivery and performance of this Agreement has been
duly authorized by all requisite action on behalf of Centex. This Agreement has been duly executed
and delivered by Centex and, assuming the due authorization, execution and delivery of this
Agreement by Purchaser, constitutes the valid and binding obligation of Centex, enforceable against
Centex, in accordance with its terms subject to (i) the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium and other similar Laws relating to or affecting creditors’
rights and remedies
generally, and (ii) the effect of general equitable principles, regardless of whether asserted in a
proceeding in equity or at Law.
3.4 No Conflict or Violation. The execution, delivery and performance by Centex of its
obligations under this Agreement and the other agreements and instruments contemplated hereby and
the consummation of the transactions contemplated hereby and thereby and the execution thereof do
not and will not (a) conflict with, violate or breach any provision of its
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Organizational
Documents, (b) conflict with, violate or breach any provision of any lease, note, bond, mortgage,
license, indenture or loan or credit agreement or other binding agreement to which Centex is a
party or by which Centex may be bound, or (c) violate any order or decree of any court, arbitrator
or other governmental authority against or binding upon Centex.
3.5 Employees. The Company does not have any employees.
3.6 Assets and Liabilities.
(a) As of the Closing Date, following the Contribution, the only assets and properties of the
Company will be its member interests in the Transferred Subsidiaries.
(b) The Company has not conducted any business activities prior to the Effective Date and will
not conduct any business activities prior to the Contribution.
(c) The Company is not liable for or subject to any Liabilities, except as of the Closing Date
for those which will be assigned to, and assumed by, the Company or, as applicable, the Transferred
Subsidiaries pursuant to the Contribution Agreement.
3.7 No Bankruptcy Proceedings. None of Centex, the Company, or any Transferred Subsidiary
has made any voluntary filings for relief as debtor under any state receivership Laws or federal
bankruptcy Laws, nor, to Centex’s Knowledge, has any involuntary filing with respect to Centex, the
Company or any of the Transferred Subsidiaries been made under any state receivership Laws or
federal bankruptcy Laws.
3.8 Organizational Documents. Attached as Exhibit “D” is a true and complete list
of the organizational documents for the Company.
ARTICLE IV
NO OTHER REPRESENTATIONS
4.1 No Other Representations. Purchaser acknowledges that, except for the representations
of Centex expressly given in Article III, no other representations and warranties, express or
implied, are made whatsoever by Centex in respect of the Member Interests and the Company. Without
affecting any remedies that the Company may have in respect of the representations made by Centex
in the Contribution Agreement or any of the other Transaction Documents, Purchaser has not relied
upon any statements, representations or warranties by Centex other than the representations of
Centex made in Article III. Without limiting the foregoing, Purchaser acknowledges and agrees that
Purchaser will have no right of recovery under this Agreement under any theory for any Claim
relating to the Assets or Liabilities related thereto, and that the sole basis for recovery for any
such Claim will be pursuant to the Contribution Agreement if and to the extent a Claim is permitted
thereunder.
4.2 As-Is. Purchaser agrees that, except as specifically provided in this Agreement and
the documents delivered by Centex at Closing in compliance with the provisions of this Agreement,
the Member Interests are sold “AS IS”. Without limiting the foregoing, Purchaser agrees that it
has conducted its own assessment of the value of the Member Interests and the
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underlying market
value of the Projects and acknowledges that the value of the Member Interests may be greater than
or less than the Final Member Interests Purchase Price and that the market value of the Projects
may positively or negatively change after the Effective Date and that Purchaser shall not be
entitled to an adjustment of the Final Member Interests Purchase Price or any other remedy against
Centex as a result of market value or market conditions
ARTICLE V
COVENANTS OF CENTEX BETWEEN THE EFFECTIVE DATE
AND THE CLOSING DATE
AND THE CLOSING DATE
5.1 Covenants of Centex. Centex will exercise its rights as sole member of the Company so
that between the Effective Date and the Closing Date, (a) the Company will not employ any person;
and (b) the Company will not carry on any trade or business, enter into any Contracts, acquire any
assets (other than the member interests in the Transferred Subsidiaries) or incur any Liabilities.
ARTICLE VI
CONDITIONS TO CLOSING; DELIVERIES AT CLOSING
6.1 Conditions to Purchaser’s Obligations to Close. The obligation of Purchaser to acquire the Member Interests and pay the Contribution Date Member
Interests Purchase Price is subject to the following conditions, which may be waived by Investor,
on behalf of Purchaser, in its sole discretion:
(a) Centex making the Asset Transfer to the Newly Formed Transferred Subsidiaries in
accordance with the Contribution Agreement.
(b) The Company acquiring all of the member interests in the Transferred Subsidiaries.
(c) All of Centex’s representations under Article III, Section 8.2, and
Section 9.15 are true and correct in all material respects as of the Closing Date.
(d) Centex being ready to deliver all of the items required to be delivered by it pursuant to
Section 6.3.
(e) Centex performing in all material respects all of its other covenants under this Agreement
to be performed on or before the Closing.
6.2 Conditions to Centex’s Obligations to Close. The obligation of Centex to sell the
Member Interests to Purchaser is subject to Purchaser being ready to pay the Contribution Date
Member Interests Purchase Price and delivering an executed counterpart of the Assignment.
6.3 Centex Deliveries. At Closing, Centex shall deliver to Purchaser
(a) A counterpart signed by Centex of the Assignment.
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(b) A certificate updating the representations and warranties of Centex set forth in
Article III, Section 8.2, and Section 9.15 (the “Closing Date
Representations Certificate”). The Closing Date Representations Certificate may be updated only
with respect to Section 3.6 and Section 3.7 and only with respect to such Sections
for (1) changes in circumstance or matters which arise after the Effective Date and (2) which do
not arise out of a breach of Centex’s covenants under this Agreement.
6.4 Purchaser Deliveries. At Closing, Purchaser shall pay the Contribution Date Member
Interests Purchase Price by wire transfer in immediately available funds and deliver to Centex a
counterpart of the Assignment signed by Purchaser.
ARTICLE VII
SURVIVAL OF REPRESENTATIONS AND COVENANTS; INDEMNIFICATION
7.1 Survival of Covenants, Representations and Warranties. All of the representations of
Centex set forth in Article III, Section 8.2 and Section 9.15 of this Agreement and the other
provisions of this Agreement which expressly survive Closing shall survive Closing; provided that
no Claim for breach of any representation or covenant of Centex may be asserted after the date that
is twelve (12) months following the Closing Date, except for any breach of the representation made
in Sections 3.1, 3.2 and 3.3, which shall survive indefinitely (the period
within which a Claim may be brought in accordance with this sentence is called herein the “Survival
Period”).
7.2 Indemnification by Centex. Centex shall indemnify, defend and hold harmless Purchaser
and Investor against and in respect of all Losses actually and directly incurred by the Purchaser
or Investor arising out of any breaches of any of Centex’s representations under
Article III, Section 8.2, or Section 9.15 or covenants under this
Agreement.
7.3 Exclusive Remedy; Additional Indemnification Matters; Limitation.
(a) Any notice of a Claim by the Purchaser for indemnification must be timely made by written
notice to Centex within the Survival Period. Such notice shall contain a description in reasonable
detail of the specific nature of such Claim, a good faith estimate of the amount of such Claim and
other facts as Purchaser believes necessary to properly inform Centex of such Claim. The liability
of Centex in respect of any such Claim shall terminate if proceedings in respect of it have not
been commenced within three (3) months after the receipt of notice by Centex of a Claim.
(b) The indemnification provided in this Article VII shall constitute the sole and
exclusive remedy and right of Purchaser for any breach or default under this Agreement, regardless
of whether any claims or causes of action asserted with respect to such matters are brought in
contract, tort or any other legal theory whatsoever or at Law or in equity; it being understood and
agreed that, except solely and only in the case of actual fraud by and as to Purchaser, the
indemnification provisions in this Article VII are in derogation of and replace in all
respects as the sole and exclusive remedy and right any statutory, equitable or common law
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remedy
and rights Purchaser may have for breach or default of any representation, warranty, covenant or
agreement.
(c) Notwithstanding anything in this Article VII to the contrary, prior to Centex
being required to make a payment hereunder to Purchaser, Centex shall have a period of thirty (30)
days after it receives written notice from the Indemnified Party of such a breach to cure such
breach which by its nature is capable of cure. Such thirty 30-day period shall be extended an
additional sixty (60) days if Centex is continuing to make commercially reasonable efforts to so
cure at the end of the initial 30-day period and it is reasonable to believe that the breach can be
cured by the end of the additional 60-day period.
(d) Centex’s total liability for any breach of any representation or covenant under this
Agreement, or any Claim otherwise relating to or arising under this Agreement, will in no event,
under any theory, exceed the Final Member Interest Purchase Price.
7.4 No Limitation of Other Claims.
(a) Subject to Section 7.3(d) and Section 7.4(b), nothing in this Article
VII limits either Party’s remedies or rights of enforcement against the other Party (1) for
breach by the other Party of such other Party’s obligations in respect of Closing; and (2) for
breach by the other Party of covenants under this Agreement that expressly survive Closing.
(b) Neither Party shall seek or be entitled to punitive, exemplary or special, consequential
damages or damages for lost profits in any claim for indemnification, nor shall it accept payment
of any award or judgment for such indemnification to the extent that such award or judgment
includes such Party’s punitive, exemplary, special or consequential damages or damages for lost
profits.
7.5 Survival. This Article VII shall survive termination of this Agreement.
ARTICLE VIII
OFAC CERTIFICATE AND INDEMNIFICATION
8.1 Purchaser’s OFAC Representation. Purchaser hereby represents and warrants to Centex
that Purchaser is not determined by the U.S. Secretary of the Treasury to be acting on behalf of, a
Person (i) described in ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Presidential Executive Order 13224 (“Executive
Order”) or (ii) listed in the “Alphabetical Listing of Blocked Persons, Specially Designated
Nationals, Specially Designated Terrorists, Specially Designated Global Terrorists, Foreign
Terrorist Organizations, and Specially Designated Narcotics Traffickers” published by the U.S.
Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), 31 C.F.R. Chapter V,
Appendix A, as in effect from time, as a “Specially Designated National or Blocked Person,” (as to
(i) and (ii), a “Blocked Person”). In addition, Purchaser is not located in, or operating from, a
country subject to U.S. economic sanctions administered by OFAC. Purchaser hereby agrees to
defend, indemnify and hold harmless Centex from and against any and all claims, damages, costs,
fines, penalties, losses, risks, liabilities and expenses (including, without limitation,
attorneys’ fees and costs) arising from or related to a breach of any of the foregoing
representations, warranties, certifications and agreements.
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8.2 Centex’s OFAC Representation. Centex hereby represents and warrants to Purchaser that
Centex is not, and to Centex’s Knowledge, neither the Company nor any Transferred Subsidiary is, or
has been determined by
the U.S. Secretary of the Treasury to be acting on behalf of, a Blocked Person. In addition, none
of Centex, the Company or any Transferred Subsidiary is located in, or operating from, a country
subject to U.S. economic sanctions administered by OFAC. Centex hereby agrees to defend, indemnify
and hold harmless Purchaser from and against any and all claims, damages, costs, fines, penalties,
losses, risks, liabilities and expenses (including, without limitation, attorneys’ fees and costs)
arising from or related to a breach of any of the foregoing representations, warranties,
certifications and agreements.
8.3 Survival. This Article VIII shall survive termination of this Agreement.
ARTICLE IX
GENERAL PROVISIONS
9.1 Notices. All notices and other communications given or made pursuant to this Agreement
shall be in writing and shall be deemed to have been duly given or made (i) upon delivery, if hand
delivered; (ii) one (1) Business Day after being sent by prepaid overnight courier with guaranteed
delivery, with a record of receipt; or (iii) upon transmission with confirmed delivery if sent by
cable, telegram, email, facsimile or telecopy, to the Parties at the following addresses (or at
such other addresses as shall be specified by the Parties by like notice):
(a) if to Centex:
Centex Homes
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Centex Homes
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to Purchaser:
Corona
Associates, LLC
c/o RSF Partners, Inc.
c/o RSF Partners, Inc.
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▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel. (▇▇▇) ▇▇▇-▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel. (▇▇▇) ▇▇▇-▇▇▇▇
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With copies to:
Farallon Capital Management, L.L.C.
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel. (▇▇▇) ▇▇▇-▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel. (▇▇▇) ▇▇▇-▇▇▇▇
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And:
Greenfield Corona, LLC
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▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
And:
Pircher, ▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
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Attn: ▇▇▇▇▇ ▇. Brat, Esq. (903382-1)
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Attn: ▇▇▇▇▇ ▇. Brat, Esq. (903382-1)
And:
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
9.2 Severability. Wherever possible, each provision hereof shall be interpreted in such
manner as to be effective and valid under applicable Law, but in case any one or more of the
provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect any other
provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision or
provisions had never been contained herein unless the
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deletion of such provisions or provisions
would result in such a material change as to cause completion of the transactions contemplated
hereby to be unreasonable.
9.3 Counterparts. The Agreement may be executed in separate counterparts, each of which
shall be considered an original instrument, and all of which shall be considered one and the same
agreement, and shall become binding when one or more counterparts have been executed and delivered
by each of the Parties.
9.4 Assignment; Successors and Assigns. Neither this Agreement nor any of the rights,
interest or obligations hereunder shall be assigned by any of the Parties without the prior written
consent of the other Party. Any purported assignment not in compliance with this Section
9.4 shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and
inure to the benefit of the Parties and their respective successors or assigns, heirs, legatees,
distributees, executors, administrators and guardians.
9.5 Further Assurances. At any time or from time to time after the Closing, each of the
Parties shall, at the request of other Party and at no additional cost or expense, execute and
deliver any further instruments or documents and take all such further action as such requesting
Party may reasonably request in order to evidence or effect the consummation of the transactions
contemplated hereby.
9.6 No Third Party Beneficiaries. Except as to Investor, nothing in this Agreement,
express or implied, is intended to or shall confer upon any other Person (including without
limitation any Purchaser Indemnified Party that is not a Party to this Agreement) any rights,
benefits or remedies of any nature whatsoever under or by reason of this Agreement.
9.7 Descriptive Headings. Titles and headings to Articles and Sections herein are inserted
for convenience of reference only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement.
9.8 Reasonable Consent Required. Where any provision of this Agreement requires a Party to
obtain the consent, approval or other acquiescence of any other Party, such consent, approval or
other acquiescence shall not be unreasonably conditioned, withheld or delayed by such other Party,
except as otherwise provided in this Agreement.
9.9 Waivers. Any term or provision of this Agreement may be waived, or the time for its performance may be
extended, by the Party or Parties entitled to the benefit thereof. The failure of any Party to
enforce at any time any provision of this Agreement shall not be construed to be a waiver of such
provision, nor in any way to affect the validity of this Agreement or any part hereof or the right
of any Party thereafter to enforce each and every such provision. No waiver of any breach of this
Agreement shall be held to constitute a waiver of any other or subsequent breach.
9.10 Dispute Resolution. Any dispute arising out of or relating to this Agreement,
including the breach, termination or validity thereof, which has not been resolved through good
faith negotiations between the parties hereto, shall be finally resolved by arbitration
administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures then
currently in effect, by a sole arbitrator. The arbitrator shall have the power to award specific
performance
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and injunctive relief and award attorneys’ fees and costs. The judgment upon the award
rendered by the arbitrator may be entered by any court having jurisdiction thereof. The place of
arbitration shall be Dallas, Texas.
9.11 Governing Law. This Agreement shall be governed by and construed in accordance with
the Laws of the State of Texas, without regard to the laws that might be applicable under conflicts
of laws principles.
9.12 Enforcement. The Parties agree that irreparable damage would occur in the event that
any of the provisions of this Agreement were not performed in accordance with their specific terms
or were otherwise breached. It is accordingly agreed that the Parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to specifically enforce the
terms and provisions of this Agreement, in addition to any other remedy to which any Party is
entitled at Law or in equity.
9.13 Entire Agreement; Amendments. This Agreement, including the Disclosure Schedule and
Exhibits annexed hereto, contains the entire understanding of the Parties with regard to the
subject matter contained herein. This Agreement may only be amended, modified or supplemented by
written agreement of the Parties.
9.14 Construction; Joint Drafting. The Parties acknowledge that they have participated
jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed consistent with the
joint drafting hereof by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.
9.15 No Brokers, Finders, etc. Each Party hereby represents to the other that no other broker(s) or agent(s) were or are
involved in this transaction or the negotiations leading up to this transaction and no Party has
incurred, nor will it incur, directly or indirectly, any liability for brokerage or finders’ fees
or agents’ commissions or investment bankers’ fees or any similar charges in connection with this
Agreement or any transactions contemplated hereby. Purchaser and Centex agree to hold the other
harmless and indemnify the other from and against any and all damages, costs or expenses
(including, but not limited to, reasonable attorneys’ fees and disbursements) suffered by the other
as a result of any claims by any other broker claimed to have acted on behalf of such Party.
9.16 Tax Characterization. The Parties acknowledge that, for U.S. federal tax purposes,
the Company is treated as a disregarded entity (within the meaning of U.S. Treasury Regulation
Section 301.7701-3) and the Parties agree that the sale of the Member Interests are properly
treated for U.S. federal tax purposes (and, where applicable, state income tax purposes) as a sale
of the Assets by Centex to the Purchaser. Centex and the Purchaser shall report the sale hereunder
on their respective U.S. federal (and, where applicable, state income) tax returns in a manner
consistent with such treatment.
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IN WITNESS WHEREOF, the Parties have caused this Member Interests Purchase Agreement to be
executed to be effective as of the day and year first above written.
| CENTEX: | ||||||||
| CENTEX HOMES, a Nevada general partnership |
||||||||
| By: | Centex Real Estate Corporation, a Nevada corporation, its managing general partner |
|||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||||
| Title: | Senior Vice President | |||||||
[Signature Page to Member Interests Purchase Agreement]
| PURCHASER CORONA LAND COMPANY, LLC, a Delaware limited liability company |
||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: | Senior Vice President and Secretary | |||
[Signature Page to Member Interests Purchase Agreement]