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EXHIBIT 2.2
AMENDMENT TO PURCHASE AGREEMENT
THIS AMENDMENT TO PURCHASE AGREEMENT (the "Amendment") is entered
into as of January 7, 1999, by and among Xxxxxxx and Broad Home Corporation, a
Delaware corporation ("Buyer"), and the individuals and corporations identified
on the signature pages of this Amendment as "Sellers" (individually a "Seller"
and collectively the "Sellers"), with respect to that certain Purchase Agreement
dated October 20, 1998 (the "Agreement") among Buyer and Sellers. All
capitalized terms used herein and not otherwise defined have the meanings given
to them in the Agreement.
RECITALS
WHEREAS, Buyer and Sellers entered into the Agreement to provide
for the purchase and sale of the Homebuilding Business of the Homebuilding
Entities of the Xxxxx group of companies, with a Closing Date of January 7,
1999; and
WHEREAS, the Agreement contemplates the transfer of Excluded
Assets and Excluded Liabilities from the Homebuilding Entities and the transfer
of Included Assets and Included Liabilities to the Homebuilding Entities prior
to the Closing; and
WHEREAS, the Agreement contemplates that Buyer and Sellers may
assign their respective rights, but not their obligations, under the Agreement
to their respective Affiliates prior to the Closing; and
WHEREAS, the Agreement contemplates that Buyer and Sellers may
update their respective Disclosure Schedules prior to the Closing Date; and
WHEREAS, Buyer and Sellers desire to enter into this Amendment
for the purpose of memorializing the accomplishment of such pre-Closing actions
and certain other agreements among them with respect to the Agreement and the
Closing; and
NOW, THEREFORE, in consideration of the foregoing and the
covenants and agreements contained in this Amendment, Buyer and Sellers agree as
follows:
1. Amendments to Agreement. The Agreement is hereby amended as
follows:
1.1. Buyer. Buyer has assigned its right to purchase under the
Agreement to its wholly owned subsidiary KB Holdings One, Inc., a California
corporation ("KB Holdings One"). Certificates evidencing the Stock of Management
Corp. and Branching Tree, assignments of Member Interests and Partnership
Interests, and other closing certificates and documents delivered to Buyer at
the Closing will be in the name of or addressed to KB Holdings One. Buyer
remains liable for the payment of the Purchase Price and the other obligations
of Buyer under the Agreement.
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1.2 Sellers. The Partnership Sellers have assigned their rights
under the Agreement to their respective Affiliates as follows: (a) by the
Partnership Sellers of LHC to LHC Platte, LLC, a Delaware limited liability
company; (b) by the Partnership Sellers of Xxxxx Development to LDC Platte, LLC,
a Delaware limited liability company; (c) by the Partnership Sellers of LHE to
LHE Platte, LLC, a Delaware limited liability company, (d) by the Partnership
Sellers of LHN to LHN Platte, LLC, a Delaware limited liability company, and (e)
by the Partnership Sellers of Xxxxx Properties to LP Platte, LLC, a Delaware
limited liability company. Certificates evidencing Buyer Common Stock and other
closing certificates and documents delivered to the Partnership Sellers at the
Closing will be in the name of or addressed to such assignee limited liability
companies. The Partnership Sellers remain liable for the delivery of the
Partnership Interests and the other obligations of the Partnership Sellers under
the Agreement.
1.3 Updated Disclosure Schedules. At the Closing, Buyer and
Sellers shall deliver their respective Disclosure Schedules updated to the
Closing Date. Section 7.2(a) and Section 7.3(a) are each hereby amended to
delete the proviso to the first sentences thereof and to delete the second
sentences thereof.
1.4 Revised Exhibits. The Shareholder Agreement set forth as
Exhibit F to the Agreement is amended and restated in full in the form of
Exhibit A hereto. The Cost Sharing Agreement set forth as Exhibit G to the
Agreement may be amended and restated in full in the form as determined by the
parties.
1.5 Former Partnership Properties. Transferred as Excluded
Assets, contemplated by the parties to be transferred before the Closing, are
those properties listed on Exhibit B hereto (the "Former Partnership
Properties"), which will be transferred by the Homebuilding Entities to other
entities controlled by the Sellers. Representations, warranties, and indemnities
in the Agreement applicable to the Former Partnership Properties shall continue
to apply to the Former Partnership Properties, and the Homebuilding Business
shall be deemed to include the Former Partnership Properties, despite their
status as Excluded Assets.
1.6 Form of Consideration; Post-Closing Adjustment. In order to
facilitate the repayment of those certain loan agreements dated November 30,
1998 between Xxxxx Fargo Bank and LHN, LHE, Xxxxx Development, and Xxxxx
Properties (the "Xxxxx Fargo Loans"), Buyer agrees to assume (in which case
Buyer will obtain releases of guarantees and pledges by certain of the Xxxxx
group of companies relating to the Xxxxx Fargo Loans) or repay in full the Xxxxx
Fargo Loans at the Closing, and Sellers agree to reduce the cash portion of the
Purchase Price by the amount of principal, accrued interest through the Closing
Date, and any fees due upon repayment of the Xxxxx Fargo Loans by Buyer. Buyer
and Sellers further agree to adjust appropriately the benchmark Net Worth of
$215 million stated in Section 1.6 of the Agreement in order to recognize the
effects of the Xxxxx Fargo Loans and the transfers of the Former Partnership
Properties on the Net Worth of the Homebuilding Business of the Homebuilding
Entities. Buyer and Sellers expressly intend and agree that the adjustments to
reflect the Xxxxx Fargo Loans represent a mere change in form of the cash
portion of the Purchase Price (from cash consideration to debt assumption) and a
mere mathematical adjustment to the benchmark Net Worth set forth in Section
1.6, and do not represent any change in the aggregate amount of
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the cash portion of the Purchase Price; and that the adjustments to reflect the
transfers of the Former Partnership Properties represent a mere change in the
manner by which and time at which Buyer may acquire such properties, and do not
represent any change in the aggregate assets that Sellers may sell or Buyer may
acquire. This Amendment makes no change of any kind to the stock portion of the
Purchase Price, which shall be in the amount stated in the Agreement.
2. Integrated Purchase Agreement. Solely for the convenience of the
parties and in order to avoid confusion or ambiguity in implementing the
foregoing amendments in the Agreement, and to memorialize other understandings
among the parties, the Agreement will be amended and restated in full in the
form of Exhibit C hereto and signed by all appropriate parties on or before the
Closing Date. Thereafter, references to the "Purchase Agreement dated January 7,
1999" appearing in closing or other documents delivered among the parties shall
mean the Purchase Agreement dated October 20, 1998 as amended and restated in
full in the form of Exhibit C hereto and signed by the appropriate parties.
3. General.
3.1 Incorporation by Reference. Sections 10.1 (Amendments;
Waivers), 10.4 (Governing Law), 10.6 (Headings), 10.7 (Counterparts), 10.10
Alternative Dispute Resolution), 10.13 (Notices), 10.15 (Remedies; Waiver),
10.16 (Attorneys' Fees), and 10.18 (Severability) of the Purchase Agreement in
the form of Exhibit C hereto are hereby incorporated by reference in full into
this Amendment with the same force and effect as if stated in full herein.
3.2 Further Assurances. Subject to the specific terms of this
Amendment, each of the parties hereto shall make, execute, acknowledge and
deliver such other instruments and documents, and take all such other actions,
as may be reasonably required in order to effectuate the purposes of this
Amendment.
3.3 Entire Agreement. The exhibits to this Amendment constitute a
part of this Amendment. This Amendment contains the entire understanding of the
parties with respect to the amendment of the Agreement. This Amendment
supersedes all prior agreements and understandings between the parties, whether
written or oral, with respect to the amendment of the Agreement.
3.4 Assignment. Neither this Agreement nor any rights or
obligations under it are assignable.
3.5 Representation by Counsel. Buyer and Sellers each acknowledge
that each party to this Amendment has been represented by counsel in connection
with this Amendment. Accordingly, any rule of law, including but not limited to
Section 1654 of the California Civil Code, or any legal decision that would
require interpretation of any claimed ambiguities in this Amendment against the
party that drafted it has no application and is expressly waived. The provisions
of this Amendment shall be interpreted in a reasonable manner to effect the
intent of Buyer and Sellers.
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IN WITNESS WHEREOF, Buyer and Sellers have executed this
Amendment, by their duly authorized officers as applicable, as of the date first
written above.
BUYER
XXXXXXX AND BROAD HOME CORPORATION
By: /s/ XXXXXXX X. XXXX
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Its: Senior Vice President and Chief
Financial Officer
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SELLERS
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Xxxxx X. Xxxxx
By: /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
/s/ XXXXXX X. XXXXX ON
BEHALF OF XXXXX X. XXXXX
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Xxxxx X. Xxxxx
/s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
/s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
/s/ XXXXX X. XXXXX
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Xxxxx X. Xxxxx
/s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
/s/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx
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ROSEBUD CONSTRUCTION, INC.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: President
WESTERN SUPPLY CORP.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: President
KIMMEL ENTERPRISES, INC.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: President
REPUBLIC SALES CO., INC.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: President
HILLSIDE CONSTRUCTION CO., INC.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: President
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PARKSIDE CONSTRUCTION CO., INC.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: President
REGAL CONSTRUCTION CO., INC.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: President
ORCHARD CONSTRUCTION CO., INC.
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: President
SOUTH STAR DEVELOPMENT CORP.
By: /s/ XXXXXXX X. XXXXX
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Name:
Title:
XXXXXXXX DEVELOPMENT CORP.
By: /s/ XXXX X. XXXXXXX
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Name:
Title:
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COLLINE ENTERPRISES, INC.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: President
TERRAIN ENTERPRISES, INC.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: President
MARMOT ENTERPRISES, INC.
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: President
GITAN ENTERPRISES, INC.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: President
TOPSPIN ENTERPRISES, INC.
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
Title: President
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REVERS ENTERPRISES, INC.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: President
EMPIRE BUILDING CORP.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: President
ROSEMONT OF NEVADA, INC.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: President
LARKWOOD DEVELOPMENT OF NEVADA, INC.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: President
FLAGSTONE DEVELOPMENT OF NEVADA, INC.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: President
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XXXXXXXXX XXXXXXXXXXXX XX XXXXXX, INC.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: President
CORONET CONSTRUCTION OF NEVADA, INC.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: President
COSMIC CONSTRUCTION OF NEVADA, INC.
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: President
BACKHAND DEVELOPMENT CORP.
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
Title: President
SOUTH STAR DEVELOPMENT OF NEVADA,
CORP.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: President
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