EXHIBIT 10.4
TERMINATION AGREEMENT AND MUTUAL RELEASE
THIS TERMINATION AGREEMENT AND MUTUAL RELEASE (this "Agreement") is
being executed and delivered by the undersigned parties in accordance with
Section 6.14 of the Agreement and Plan of Merger, dated as of ____________, 2002
(the "Merger Agreement"), between X.X. XXXXXX, INC., a Delaware corporation
("DHI"), and XXXXXXX HOMES, INC., a Delaware corporation (the "Company").
Capitalized terms used in this Agreement without definition have the respective
meanings given to them in the Merger Agreement.
WITNESSETH:
WHEREAS, the undersigned constitute all of the parties to the Agreement
and Plan of Reorganization, dated as of September 12, 2000 (the "Reorganization
Agreement"), and to the Stockholders Agreement, dated as of April 3, 2001 (the
"Stockholders Agreement"), pursuant to which the parties made certain
representations and warranties and entered into certain covenants and agreements
that the parties have determined to be unnecessary or undesired upon
consummation of the transactions contemplated by the Merger Agreement; and
WHEREAS, each of the undersigned acknowledges that execution and
delivery of this Agreement is a condition to DHI's and the Company's obligations
to consummate the transactions contemplated by the Merger Agreement, and that
DHI and the Company are relying on this Agreement in consummating the
transactions contemplated by the Merger Agreement.
AGREEMENT
NOW, THEREFORE, each of the undersigned, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, in order to induce DHI and the Company to
consummate the transactions contemplated by the Merger Agreement, hereby agrees
as follows:
1. Effective as of the Effective Time, the Reorganization Agreement
(other than Article I (Definitions), Section 6.7 (Public Announcements), Section
6.12 (Non-Disclosure of Proprietary Data), Section 6.13 (Section 341(f) Consent)
and Article XII (General Provisions) thereof) and the Stockholders Agreement are
each hereby terminated and shall be of no further force and effect.
2. Effective as of the Effective Time, each of the Xxxxxxx Parties (as
defined on the signature pages hereto), on behalf of themselves and their
respective Affiliates, shareholders, officers, directors, trustees, employees,
agents, representatives, subsidiaries, predecessors, successors and assigns
(collectively, the " Xxxxxxx Releasing Parties"), hereby releases and forever
discharges each of the Western Pacific Parties (as defined on the signature
pages hereto) and each of their respective Affiliates, shareholders, members,
partners, managers, officers, directors, employees, agents, representatives,
subsidiaries, predecessors, successors and assigns (collectively, "Western
Pacific Released Persons") from any and all claims, demands, proceedings,
actions, causes of action, orders, obligations, duties, costs, damages, losses,
rights, contracts, agreements, debts and liabilities whatsoever, of whatever
character, whether
contractual or non-contractual, known or unknown, suspected or unsuspected, both
at law and in equity (collectively, "Claims"), which the Xxxxxxx Releasing Party
now has, has ever had or may hereafter have against (a) the respective Western
Pacific Released Persons and (b) any other person to the extent that such other
person possesses a right of contribution, subrogation or indemnification with
respect to such Claims against any Western Pacific Released Person, in all
cases, whether arising contemporaneously with or prior to the Closing Date,
arising out of or relating to the Reorganization Agreement or the Stockholders
Agreement, whether or not relating to claims pending on, or asserted after, the
Closing Date; provided, however, that nothing contained herein shall operate to
release:
(i) any obligations of the Western Pacific Released Persons
arising under the Merger Agreement and any agreement or instrument
delivered in connection therewith and
(ii) any obligations of the Company, its subsidiaries and
their respective successors and assigns to indemnify their respective
directors, officers or managers arising under applicable law or the
Company's or such subsidiary's certificate or articles of
incorporation, bylaws or other organizational document.
Each Xxxxxxx Releasing Party hereby irrevocably covenants to refrain
from, directly or indirectly, asserting any claim or demand, or commencing,
instituting or causing to be commenced, any proceeding of any kind against any
Western Pacific Released Person, based upon any matter purported to be released
hereby.
THE XXXXXXX PARTIES FURTHER WAIVE, TO THE FULLEST EXTENT POSSIBLE, ANY
RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542 (OR ANY SIMILAR PROVISION UNDER
THE LAW OF ANY OTHER JURISDICTION), WHICH PROVIDES: "A GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM, MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
3. Effective as of the Effective Time, each of the Western Pacific
Parties, on behalf of themselves and their respective Affiliates, shareholders,
members, partners, managers, officers, directors, employees, agents,
representatives, subsidiaries, predecessors, successors and assigns
(collectively, the "Western Pacific Releasing Parties"), hereby releases and
forever discharges each of the Xxxxxxx Parties and each of their respective
Affiliates, shareholders, officers, directors, trustees, employees, agents,
representatives, subsidiaries, predecessors, successors and assigns
(collectively, "Xxxxxxx Released Persons") from any and all Claims, which the
Western Pacific Releasing Party now has, has ever had or may hereafter have
against (a) the respective Xxxxxxx Released Persons and (b) any other person to
the extent that such other person possesses a right of contribution, subrogation
or indemnification with respect to such Claims against any Xxxxxxx Released
Person, in all cases, whether arising contemporaneously with or prior to the
Closing Date, arising out of or relating to the Reorganization Agreement or the
Stockholders Agreement, whether or not relating to claims pending on, or
asserted after, the Closing Date; provided, however, that nothing contained
herein shall operate to release:
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(i) any obligations of the Xxxxxxx Released Persons arising
under the Merger Agreement and any agreement or instrument delivered in
connection therewith and
(ii) any obligations of the Company, its subsidiaries and
their respective successors and assigns to indemnify their respective
directors, officers or managers arising under applicable law or the
Company's or such subsidiary's certificate or articles of
incorporation, bylaws or other organizational document.
Each Western Pacific Releasing Party hereby irrevocably covenants to
refrain from, directly or indirectly, asserting any claim or demand, or
commencing, instituting or causing to be commenced, any proceeding of any kind
against any Xxxxxxx Released Person, based upon any matter purported to be
released hereby.
THE WESTERN PACIFIC PARTIES FURTHER WAIVE, TO THE FULLEST EXTENT
POSSIBLE, ANY RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542 (OR ANY SIMILAR
PROVISION UNDER THE LAW OF ANY OTHER JURISDICTION), WHICH PROVIDES: "A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM,
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
4. Each of the undersigned hereby represents and warrants to each of
the other parties hereto (i) that, as of the date hereof, there are no pending
or threatened claims by such party or any of such party's Releasing Parties
asserting any rights to indemnification under the Reorganization Agreement and,
to the knowledge of such party, no reasonable basis exists for any such claim
and (ii) that this Agreement has been duly and validly executed and delivered by
such party and, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a legal, valid and binding obligation of such party
and release by such party's Releasing Parties, enforceable against such party
and such party's Releasing Parties in accordance with its terms.
5. The parties hereto have entered into this Agreement in reliance
solely upon the representations, warranties and agreements set forth in this
Agreement and not upon any other representation or statement, written or oral.
6. If any provision of this Agreement is held invalid or unenforceable
by any court of competent jurisdiction, the other provisions of this Agreement
will remain in full force and effect. Any provision of this Agreement held
invalid or unenforceable only in part or degree will remain in full force and
effect to the extent not held invalid or unenforceable.
7. This Agreement may not be amended except in a writing signed by the
person(s) against whose interest such change shall operate.
8. IT IS THE EXPRESS INTENTION OF THE PARTIES TO THIS AGREEMENT THAT
EACH RELEASED PARTY BE RELEASED FROM HIS, HER, OR ITS OWN NEGLIGENCE.
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9. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF
THE STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT
WOULD APPLY ANY OTHER LAW.
10. This Agreement contains the entire agreement of the parties hereto
with respect to the subject matter hereof and supersedes any prior
understandings and agreements of the parties with respect to the subject matter
hereof.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the undersigned has executed and delivered this
Agreement as of ________________________, 2002.
XXXXXXX PARTIES
XXXXXXX HOMES, INC.
By:
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Name:
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Title:
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THE XXXXX AND XXXXXXXX XXXXXXX FOUNDATION
By:
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Name:
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Title:
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XXXXX X. XXXXXXX,
as trustee for the Xxxxx X. Xxxxxxx 1998
Qualified Annuity Trust and the Xxxxx X. Xxxxxxx
Revocable Living Trust
By:
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Name:
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Title:
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WESTERN PACIFIC PARTIES
APOLLO REAL ESTATE INVESTMENT FUND, L.P.
By: APOLLO REAL ESTATE ADVISORS, L.P.
Its General Partner
By: APOLLO REAL ESTATE
MANAGEMENT, INC.
Its General Partner
By:
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Name:
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Title:
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BLACKACRE WPH, LLC
By: BLACKACRE CAPITAL GROUP, L.P.
Its Managing Member
By: BLACKACRE CAPITAL MANAGEMENT, CORP.
Its General Partner
By:
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Name:
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Title:
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HIGHRIDGE PACIFIC HOUSING INVESTORS, L.P.
By: WPH ACQUISITIONS, INC.
Its General Partner
By:
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Name:
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Title:
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AP WP PARTNERS, L.P.
By: AP WP OPERATING CORPORATION
Its General Partner
By:
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Name:
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Title:
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AP WESTERN GP CORPORATION
By:
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Name:
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Title:
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AP LHI, INC.
By:
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Name:
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Title:
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LAMCO HOUSING, INC.
By:
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Name:
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Title:
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X.X. Xxxxxx, Inc. hereby consents to and, from and after the Effective
Time, agrees to be bound by the provisions of this Agreement.
X.X. XXXXXX, INC.
By:
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Name:
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Title:
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