Xxxxxxx Homes, Inc.
000 Xxxx Xxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
January 15, 2001
Apollo Real Estate Investment Fund, L.P.
Blackacre WPH, LLC
Highridge Pacific Housing Investors, L.P.
AP WP Partners, L.P.
AP Western GP Corporation
AP LHI, Inc.
Lamco Housing, Inc.
RE: AMENDMENT OF REORGANIZATION AGREEMENT
Ladies and Gentlemen:
This letter agreement (this "Agreement") sets forth our agreement to
amend certain provisions of the Agreement and Plan of Reorganization, dated as
of September 12, 2000, by and among Xxxxxxx Homes, Inc., a Delaware corporation,
Apollo Real Estate Investment Fund, L.P., a Delaware limited partnership,
Blackacre WPH, LLC, a Delaware limited partnership, Highridge Pacific Housing
Investors, L.P., a California limited partnership, AP WP Partners, L.P., a
Delaware limited partnership, AP Western GP Corporation, a Delaware corporation,
AP LHI, Inc., a California corporation, and Lamco Housing, Inc., a California
corporation (the "Reorganization Agreement"). Terms used herein and not defined
shall have the meanings assigned to them in the Reorganization Agreement.
1. Recital A of the Reorganization Agreement is hereby amended to
read in its entirety as follows:
A. The WP Partners hold all of the partnership interests in
Western Pacific Housing Development Limited Partnership, a California
limited partnership ("WPHD"), and Western Pacific Development II
Limited Partnership, a California limited partnership ("WPHD II"), and
all of the membership interests in WPH-Xxxxxx, LLC, a Delaware limited
liability company ("WPHL" and, together with WPHD and WPHD II, the "WP
Parents"; the respective limited partnership interests and non-managing
member membership interests in the WP Parents, along with the stock or
other ownership interests in APWP, AP Western, APLHI and Lamco, are
referred to herein as the "WP Interests")
2. Section 2.3(c) of the Reorganization Agreement is hereby
amended to read in its entirety as follows:
(c) NEWCO STOCK HELD BY XXXXXXX AND WPHI. At the Effective
Time of Merger A, all of the shares of Newco Class A Common Stock held
by each of Xxxxxxx and WPHI shall be redeemed by Newco and cease to be
outstanding in
consideration of a $100 payment by Newco to each of Xxxxxxx and WPHI.
3. WP Disclosure Schedule Section 6.2 is hereby amended in
accordance with Exhibit A attached hereto.
4. The first sentence of Section 6.8 of the Reorganization
Agreement is hereby amended to read in its entirety as follows:
Xxxxxxx and the WP Partners shall cooperate and promptly
prepare and file with the SEC as soon as practicable a Registration
Statement on Form S-4 (the "Form S-4") under the Securities Act, with
respect to the Newco Class A Common Stock issuable in the
Reorganization, a portion of which Registration Statement shall also
serve as the proxy statement with respect to the Xxxxxxx Stockholder
Meeting (the "Proxy Statement/Prospectus").
5. Section 6.10 of the Reorganization Agreement is hereby amended
to read in its entirety as follows:
6.10 LISTING APPLICATION. Xxxxxxx shall promptly cause Newco
to prepare and submit to NASDAQ a listing application covering the
shares of Newco Class A Common Stock issuable in the Reorganization and
the shares of Newco Class A Common Stock issuable upon conversion of
the Newco Class B Common Stock issuable in the Reorganization, and
shall use reasonable efforts to obtain, prior to the Effective Time,
approval for the listing of such Newco Class A Common Stock on The
Nasdaq Stock Market, subject to official notice of issuance.
6. A new section 6.15 is hereby added to the Reorganization
Agreement to read as follows:
6.15 FORM S-3 REGISTRATION STATEMENT. Xxxxxxx and the WP
Partners shall cooperate and prepare and file with the SEC prior to the
Closing Date a Registration Statement on Form S-3 (the "Form S-3")
under the Securities Act with respect to the resale of the Newco Class
B Common Stock issuable to Bankers Trust in the Reorganization. The
respective parties will cause the Form S-3 to comply as to form in all
material respects with the applicable provisions of the Securities Act,
the Exchange Act and the rules and regulations thereunder. Xxxxxxx and
the WP Partners shall use all reasonable efforts to have the Form S-3
declared effective by the SEC as promptly as practicable after the
Closing Date and to keep the Form S-3 effective for a period of nine
months from the date on which the SEC declares the Form S-3 effective
or such shorter period which will terminate when all securities covered
by the Form S-3 have been sold pursuant to the Form S-3. Xxxxxxx and
the WP Partners shall, as promptly as practicable, provide copies of
any written comments received from the SEC with respect to the Form S-3
to each other and advise the WP Partners of any verbal comments with
respect to the Form S-3 received from the SEC. Xxxxxxx and the WP
Partners shall use their best efforts to obtain, prior to the effective
date of the
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Form S-3, all necessary state securities law or "Blue Sky" permits
or approvals required to carry out the transactions contemplated by
this Agreement. Xxxxxxx agrees that the written information concerning
the Xxxxxxx Entities provided by it for inclusion in the Form S-3 and
each amendment or supplement thereto, at the time it is filed or
becomes effective, will not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. The WP Partners agree that
the written information concerning the WP Partners and the WP Entities
provided by it for inclusion in the Form S-3 or any amendment or
supplement thereto, at the time it is filed or becomes effective, will
not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. No amendment or supplement to the Form S-3 will
be made by Xxxxxxx or the WP Partners without the approval of the WP
Partners or Xxxxxxx, respectively. Xxxxxxx and the WP Partners will
advise the WP Partners and Xxxxxxx, respectively, promptly after it
receives notice thereof, of the time when the Form S-3 has become
effective or any supplement or amendment has been filed, the issuance
of any stop order, the suspension of the qualification of the Newco
Common Stock to be resold in connection with the Form S-3 for offering
or sale in any jurisdiction, or any request by the SEC for amendment of
the Form S-3 or comments thereon and responses thereto or requests by
the SEC for additional information.
7. Section 7.9 of the Reorganization Agreement is hereby amended
to read in its entirety as follows:
7.9 LISTING. The Newco Class A Common Stock to be issued in
connection with the Reorganization and the Newco Class A Common Stock
issuable upon conversion of the Newco Class B Common Stock to be issued
in connection with the Reorganization shall have been approved for
listing on The Nasdaq Stock Market, subject only to official notice of
issuance.
8. Section 8.9 of the Reorganization Agreement is hereby amended
to read in its entirety as follows:
8.9 LISTING. The Newco Class A Common Stock to be issued in
connection with the Reorganization and the Newco Class A Common Stock
issuable upon conversion of the Newco Class B Common Stock to be issued
in connection with the Reorganization shall have been approved for
listing on The Nasdaq Stock Market, subject only to official notice of
issuance.
9. Section 11.1(b) of the Reorganization Agreement is hereby
amended to read in its entirety as follows:
(b) by either Xxxxxxx, on the one hand, or the WP Partners, on
the other hand, if (i) the approval of Xxxxxxx'x stockholders required
by Sections 7.7
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and 8.7 shall not have been obtained at a meeting duly convened
therefor or at any adjournment thereof, or (ii) a United States federal
or state court of competent jurisdiction or United States federal or
state governmental, regulatory or administrative agency or commission
shall have issued an order, decree or ruling or taken any other action
permanently restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement and such order, decree,
ruling or other action shall have become final and non-appealable;
PROVIDED, HOWEVER, that the party seeking to terminate this Agreement
pursuant to this clause (ii) shall have used all reasonable efforts to
remove such injunction, order or decree; or (iii) if the Closing shall
not have occurred by April 30, 2001; PROVIDED, HOWEVER, that the right
to terminate this Agreement pursuant to this subsection shall not be
available to any party or parties whose failure to fulfill any
obligation under this Agreement shall have been the cause of, or shall
have resulted in, the failure of the Closing to occur prior to such
date; or
10. Except as otherwise expressly set forth herein, all terms,
provisions, covenants and conditions of the Reorganization Agreement remain in
full force and effect.
11. This Agreement may be executed in one or more counterparts,
and by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
[Signature Page Follows]
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To accept this Agreement and to become legally bound hereby, please
sign this Agreement where indicated below and return it to me.
Very truly yours,
XXXXXXX HOMES, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxxx, President
Agreed and Accepted as of the Date First Written Above:
APOLLO REAL ESTATE INVESTMENT FUND, L.P.,
a Delaware limited partnership
By: APOLLO REAL ESTATE ADVISORS, L.P.,
a Delaware limited partnership,
Its General Partner
By: APOLLO REAL ESTATE MANAGEMENT, INC.,
a Delaware corporation,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------------
Xxxxxxx X. Xxxxxx
Its Vice President
BLACKACRE WPH, LLC,
a Delaware limited liability company
By: BLACKACRE CAPITAL GROUP, L.P.,
a Delaware limited partnership,
Its Managing Member
By: BLACKACRE CAPITAL MANAGEMENT CORP.
a Connecticut corporation,
Its General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Xxxxxx X. Xxxxxx
Its Vice President
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HIGHRIDGE PACIFIC HOUSING INVESTORS, L.P.,
a California limited partnership
By: WPH ACQUISITIONS, INC.,
a California corporation,
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------------
Xxxxxx X. Xxxxxxxxx
Its CFO and Secretary
AP WP PARTNERS, L.P.,
a Delaware limited partnership
By: AP WP OPERATING CORPORATION,
a Delaware corporation,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------------
Xxxxxxx X. Xxxxxx
Its Vice President
AP WESTERN GP CORPORATION,
a Delaware corporation
By:
------------------------------------------------
Name:
Title:
AP LHI, INC.,
a California corporation
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------------------
Xxxxxx Xxxxxxxx
Its Vice President
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LAMCO HOUSING, INC.
a California corporation
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------------------
Xxxxxx Xxxxxxxx
Its Vice President
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EXHIBIT A
Item 3 of WP Disclosure Schedule Section 6.2 is hereby amended to read in its
entirety as follows:
3. WPH, in accordance with the terms of its partnership agreements and its
operating agreement, plans on making distributions to its partners totalling
$43.8 million prior to the Closing Date, based on an estimate by WPH of its
cumulative taxable income through March 31, 2001.
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