Exhibit 10.29
MEADOW POINTE EAST, LLC
MEMBERSHIP INTEREST PURCHASE AGREEMENT AND ASSIGNMENT
THIS MEMBERSHIP INTEREST PURCHASE AGREEMENT AND ASSIGNMENT
("Agreement") is made this 20th day of September, 2001 between XXXXXX FINANCIAL
CORPORATION, a Delaware corporation ("Member"), and CLEARWATER BAY ASSOCIATES,
INC., a Florida corporation and CCOS FLORIDA LIMITED, LLLP, a Florida limited
partnership (collectively, "Purchasers").
WITNESSETH:
WHEREAS, Member is the sole owner of all the membership interests (the
"Membership Interests") in Meadow Pointe East, LLC, a Delaware limited liability
company (the "Company"); and
WHEREAS, Member has agreed to sell all of the Membership interests to
Purchasers in accordance with the terms and conditions of this Agreement; and
WHEREAS, Purchasers have agreed to purchase the Membership Interests on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the covenants and warranties
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
1. Sale of Membership Interests. Member agrees to sell, convey, assign,
transfer and deliver all of the Membership Interests in the Company to
Purchasers, one-half to each Purchaser, and Purchasers agree to purchase,
acquire and accept transfer and delivery thereof. The transfer and delivery of
the Membership Interests shall be made free and clear of all liens,
encumbrances, charges, claims and liabilities. Member warrants that the
Membership Interests it conveys constitutes all of the membership interests in
the Company.
2. Purchase Price. The purchase price (the "Purchase Price") for the
Membership Interests shall be EIGHT HUNDRED NINETY-ONE THOUSAND SIX HUNDRED
FORTY- EIGHT AND 82/100 DOLLARS ($891,648.82), plus interest thereon at the rate
of 7.75% per annum, calculated from July 31, 2001 to the date of Closing, and
together with the aggregate amount of any additional advances made by the
Company subsequent to July 31, 2001, at the request of Devco III, LLC, pursuant
to the Meadow Pointe General Partnership Agreement dated October 3, 1999, plus
interest thereon at the rate of 7.75% per annum, calculated from the date of
such advances to the date of Closing, payable one half by each Purchaser by wire
transfer at Closing as defined below, pursuant to instructions provided to
Purchasers prior to Closing.
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3. Closing. The closing for the purchase and sale of the
Membership Interests ("Closing") shall be on or before ________________________,
2001, at a location mutually acceptable to the parties.
4. Deliveries at Closing.
A. At Closing, Member will deliver or cause to be
delivered to Purchasers:
1. The certificate of organization of the
Company and all amendments thereof to date, the minute books correctly
reflecting all corporate actions taken and resolutions adopted at all meetings
of members, and all other corporate books and records; and
2. Corporate resolutions to evidence Member's
authority to close this transaction; and
3. Resignations of all, officers, directors,
and employees of the Company effective as of the Closing Date; and
4. Resignations of Xxxxxx X. Xxxxx as
Supervisor of the Meadow Pointe III Community Development District.
B. At Closing, each Purchaser will deliver or cause to be
delivered to Member, one half of the Purchase Price in accordance with Section 2
hereof and shall also deliver the waiver and release in the form attached.
5. Purchaser's Default. If Purchasers fail to perform their obligations
under this Agreement, Member shall be entitled to an injunction restraining such
breach, without being required to show any actual damage or to post an
injunction bond, and/or to a decree for specific performance of the provisions
of this Agreement, or a combination of specific performance and damages. No
remedy conferred upon Member is intended to be exclusive of any other remedy
provided for in this Agreement, and each remedy provided for in this Agreement
will be cumulative and in addition to every other remedy available under this
Agreement. No single or partial exercise of any remedy will preclude any other
or further exercise thereof. The terms of this Section shall survive the
Closing.
6. Member's Default. If Member fails to perform its obligations under
this Agreement, Purchasers shall be entitled to an injunction restraining such
breach, without being required to show any actual damage or to post an
injunction bond, and/or to a decree for specific performance of the provisions
of this Agreement, or a combination of specific performance and damages. No
remedy conferred upon Purchasers is intended to be exclusive of any other remedy
provided for in this Agreement, and each remedy provided for in this Agreement
will be cumulative and in addition to every other remedy available under this
Agreement. No single or partial exercise of any remedy will preclude any other
or further exercise thereof. The terms of this Section shall survive the
Closing.
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7. Brokers. Neither Member nor Purchasers have engaged or
employed any broker, agent or finder regarding this Agreement. Purchasers and
Member each agree to indemnify and hold the other harmless from and against any
liability arising from a breach of the above representation.
8. Member's Representations, Warranties and Covenants. Member
covenants, represents and warrants to Purchasers, as of the date hereof and as
of the date of Closing, as follows:
A. Member has the full power and authority to perform
its obligations under this Agreement and all agreements referred to in this
Agreement.
B. The Company is a limited liability company duly organized,
validly existing, and in good standing under the laws of the State of Delaware
and is authorized to do business in, and in good standing under the laws of, the
State of Florida.
C. Member owns, and has good, marketable and
indefeasible title to, all of the Membership Interests in the Company, free and
clear of any liens or claims.
D. The Company has, and at Closing will have, no assets,
liabilities, commitments or obligations of any nature, whether absolute,
accrued, contingent, known or unknown or otherwise, in any domestic or foreign
jurisdiction, except as a partner in the Meadow Pointe General Partnership
pursuant to the Meadow Pointe General Partnership Agreement dated October 3,
1999, as amended.
E. There are no certificates or other indicia of
ownership representing the Membership Interests and there is no Operating
Agreement currently in effect for the Company.
F. Neither the Member nor the Company has taken any action
that it has not disclosed in writing to Purchasers that would impose any
liability, commitment or obligations of any nature, whether absolute, accrued,
contingent, known or unknown or otherwise, in any domestic or foreign
jurisdiction, on the Meadow Pointe General Partnership.
9. Representations of Purchasers.
A. Each Purchaser has the full power and authority to perform
its obligations under this Agreement and all agreements referred to in this
Agreement. The person who has executed this Agreement on behalf of each
Purchaser has the authority to do so, and no further action is required to be
taken by either Purchaser.
B. Purchasers acknowledge and agree that except as explicitly
set forth herein, Member has not made, does not make and specifically negates
and disclaims any representations or warranties of any kind or character
whatsoever, whether express or implied, oral or written, past, present or
future, regarding the Company, and regarding Meadow Pointe General Partnership.
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10. Assignment of Membership Interests. Upon the full payment of the
purchase price described in Paragraph 2 hereof, this Agreement shall constitute
a full and complete assignment of all right, title and interest of Member in the
Membership Interests and Member shall be deemed to have assigned such Membership
Interests to the following parties: one-half of its interest in the Company to
Clearwater Bay Associates, Inc. and one-half of its interest in the Company to
CCOS Florida Limited, LLLP. No further instrument shall be necessary to
effectuate such assignments. However, upon the written request of either
Purchaser, Member shall execute, acknowledge, and deliver a separate Assignment
of Membership Interests to the Purchaser making the request.
11. Survival. The representations, warranties or covenants set
forth in this Agreement shall survive the Closing for a period of one (1) year
following the Closing.
12. Notices. Any notice required to be given hereunder shall be given
in writing and shall be served in person, by nationally recognized overnight
express delivery service, by United States registered or certified mail, with
postage prepaid, or by facsimile transmission with a hard copy sent on the same
day by a nationally recognized overnight express delivery service, properly
addressed and directed to the party to receive the same at the following address
or at such other address as may hereafter be substituted by notice in writing
thereof.
To Purchasers:
Clearwater Bay Associates, Inc.
Attention: Xxx X. Xxxxxx, Xx., President
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
And
CCOS Florida Limited, LLLP
Attention: Xxxxxx X. Xxxx
00000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000)000-0000
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With a copy to:
Xxxxx X. Xxxxxxxxxxx, Esq.
Bricklemyer Smolker & Bolves
000 X. Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
And
Xxxxxxx Xxxxxxx, Jr., Esq.
Johnson, Blakely, Pope, Bokor, Xxxxxx & Xxxxx, P.A.
000 Xxxxxxxx Xxxxxx
X. X. Xxx 0000
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
To Member:
Xxxxxx Financial Corporation
c/o B.F. Enterprises, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a Copy to:
Xxxxx X. Xxxxxxx, Esq.
Gunster, Yoakley & Xxxxxxx, P.A.
000 Xxxxx Xxxxxxx Xx,, Xxxxx 000X
Xxxx Xxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
13. Entire Agreement. This Agreement contains the entire
agreement between Member and Purchasers and there are no other terms,
obligations, covenants, representations, statements or conditions, oral or
otherwise, of any kind whatsoever. This Agreement may be amended only by a
writing signed by all parties.
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14. Further Assurances. The parties hereto hereby agree to
execute and deliver to one another any and all other documents and to take such
other actions reasonably necessary to effectuate the terms of this Agreement.
15. Condition Precedent.
A. Purchasers' obligations hereunder are contingent upon
Purchasers receiving on or before Closing, an Estoppel Certificate from Meadow
Pointe General Partnership (MPGP), in the form attached hereto as Exhibit "A"
confirming the obligations between the Company and MPGP.
B. Member's obligations to close under this Agreement is
contingent upon Member receiving from each Purchaser a Waiver and Release in the
forms attached hereto as Exhibit "B".
16. Miscellaneous.
A. Time shall be of the essence of this Agreement.
B. This Agreement may be signed in one or more counterparts
(or with counterpart signature pages) which, taken together, shall constitute a
fully executed Agreement and shall be considered a single document. Faxed
signature pages followed by hard copies shall also be valid and binding.
C. If any date on which a time period scheduled to
expire herein is a Saturday, Sunday or holiday, the subject date shall be
extended to the next business day.
D. In connection with any litigation or other effort to
enforce or interpret this Agreement, the prevailing party shall be entitled to
recover from the non-prevailing party the costs and expense of litigation,
including reasonable attorneys' fees which it has incurred, whether before
trial, at trial, on appeal, and in bankruptcy or creditors' rights proceedings,
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
Member:
WITNESSES: XXXXXX FINANCIAL CORPORATION, a
Delaware corporation
/s/ Xxxxx X. Xxxxxxx
--------------------
By: /s/ Xxxxx X. Xxxxx
----------------------
Name: Xxxxx X. Xxxxx
Title: President
Date of Execution: 9/17/01
Purchasers:
WITNESSES: CLEARWATER BAY ASSOCIATES, INC.,
a Florida corporation
/s/ Xxxxx Xxxx
--------------
By: /s/ Xxx Xxxxxx
/s/ Xxxxxx X'Xxxxxx ------------------
-------------------
Name: Xxx Xxxxxx
Title: President
Date of Execution: 9/20/01
WITNESSES: CCOS FLORIDA LIMITED, LLLP, a Florida
limited partnership
/s/ Xxxx Xxxxx By: Arreis, Inc., a Florida corporation,
-------------- General Partner
By: /s/ Xxxxxx X. Xxxx
----------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
Date of Execution: 9/20/01
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