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PARTNERSHIP EXHIBIT 10.8
Asset Purchase Agreement
This Asset Purchase Agreement (the "APA") is entered into as of the
30th day of March, 2001, between Centex Development Company, L.P., a Delaware
limited partnership ("Seller") and Calton Homes, Inc., a New Jersey corporation
("Buyer").
Background
A. Seller is currently employing a portion of its assets to operate a
homebuilding business in the state of New Jersey operated under the
name of "Centex Homes" ("Seller's HB").
B. Buyer currently operates a homebuilding business in the state of New
Jersey.
C. Buyer desires to purchase the assets which Seller utilizes to operate
Seller's HB and Seller desires to sell such assets to Buyer all in
accordance with the terms of this APA.
Agreement
1. The Assets. Buyer shall acquire all of the assets, both real and
personal property, currently used by Seller to operate Seller's HB (the
"Assets"). The Assets are comprised generally of those assets described
on the preliminary balance sheet, together with supporting schedules,
attached to this APA as Exhibit A. The Assets include the following:
1.1 Real Property. The real property (the "Real Property") which
is owned or leased and used by Seller in the operation of
Seller's HB which consists of (a) platted single family
building lots, which platted lots include completed model
homes, houses under construction, completed spec homes, and
unimproved lots, (b) parcels of land, (c) all work in process
or other improvements to the platted lots and parcels of land,
(d) any real estate which is leased, licensed, or used by
Seller for office trailers or space, and (e) all rights and
appurtenances pertaining to the lots and land including
easements, development rights, permits and other entitlements.
1.1.1 Seller owns a parcel of land known as the "O & I
Land". For the purposes of this APA, the O & I Land
shall not be considered part of the Real Property
(and therefore not part of the Assets) and any
existing book value for the O & I Land shall not be
included in the calculation of the net book value of
the Assets.
1.2 Personal Property. The personal property (the "Personal
Property") which is owned and used by Seller in the operation
of Seller's HB which consists of:
(a) furniture, fixtures, equipment, machinery, trailers,
building materials
(b) cash on hand; bank and escrow accounts; accounts
receivable; refundable deposits; prepaid expenses;
development and impact fee credits, offsets or
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refunds; earnest money or other deposits, prepayments
or credits pursuant to land purchase or sale
contracts (including home sale contracts)
(c) site plans, development plans, engineering plans and
reports, property studies, home plans, floor plans
and specifications, landscape plans, other
architectural plans and specifications, and all other
plans, diagrams, studies or similar property related
to the Real Property or the operation of Seller's HB
(d) building permits, development permits and approvals,
other governmental or quasi governmental permits and
approvals, and all other similar permits and
approvals related to the Real Property or the
operation of Seller's HB
(e) contracts with land sellers, land buyers, home
buyers, vendors, subcontractors, material suppliers,
leases, and other similar written or oral contracts
related to the Real Property, any items of Personal
Property or the operation of Seller's HB (subject to
the provisions of Section 9)
(f) all other claims, rights of action, or other tangible
or intangible property related to the Real Property,
any item of Personal Property, or the operation of
Seller's HB
2. Final Balance Sheet. Attached as Exhibit A is a projection of the
balance sheet for Seller's HB as of March 31, 2001 (the "Preliminary
Balance Sheet"). As soon after Closing as the appropriate accounting
information is available, Seller shall update the Preliminary Balance
Sheet to create a final balance sheet, in accordance with generally
accepted accounting principles, reflecting a true, complete and
accurate reflection of the Assets and Seller's HB as March 31, 2001
(the "Final Balance Sheet").
3. Closing. The settlement of the conveyance of the Assets ("the Closing")
shall occur on March 31, 2001 (the "Closing Date").
4. Purchase Price. Buyer shall make the following payments to Seller, and
assume the following obligations of Seller, as the consideration for
the purchase of the Assets:
4.1 Net Book Value. The cash amount due Seller for the Assets
shall be equal to the net book value of the Assets as
reflected by the Final Balance Sheet. At Closing, Buyer shall
pay Seller the cash amount equal to the net book value of the
Assets as reflected by the Preliminary Balance Sheet. When the
Final Balance Sheet has been established, a post Closing
payment shall be made from one party to the other as may be
necessary to reflect a total cash amount paid to Seller on the
basis of the Final Balance Sheet.
4.2 Trade and Accounts Payable. Buyer shall assume all of the
trade and accounts payable related to the Assets and the
operation of Seller's HB.
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4.3 Warranty Service. Buyer shall assume the obligation to perform
the warranty service for houses delivered by Seller to
consumer home buyers as part of the operation of Seller's HB
prior to the Closing Date.
5. Conveyance of Real Property.
5.1 General Warranty Deed. At Closing or as soon as practicable
after Closing, Seller shall convey the Real Property to Buyer
by general warranty deed, free of any and all monetary liens
and encumbrances, and subject only to the following:
(a) All of those items which were listed as exceptions by
the title policies obtained by Seller when Seller
acquired the Real Property.
(b) Any easements, development agreements, restrictions
or other similar title restrictions or exceptions
imposed upon the Real Property by Seller during its
period of ownership.
5.2 Tax and Closing Cost Allocation. Buyer shall pay the cost for
preparation of the deeds, recording the deeds, the revenue
stamps or other conveyance taxes due in conjunction with
recording the deeds and the cost of any documents or
affidavits necessary to convey title as required by this APA.
Real estate taxes applicable to the Real Property shall be
apportioned between the parties based on the periods of
ownership. Seller shall bear the cost of all such real estate
taxes for the period of time prior to the Closing and Buyer
shall bear the cost of the real estate taxes applicable to the
period subsequent to Closing. Real estate taxes will not be
apportioned, charged or credited at Closing but will be
apportioned between the parties when such taxes are actually
due and payable to the governmental authority. If any such
taxes have been already paid for periods subsequent to
Closing, then a post Closing adjustment shall be made when the
appropriate documentation is available to determine the actual
tax amount applicable to the appropriate ownership period for
each of the various properties.
6. Conveyance of Personal Property. At Closing or subsequent thereto upon
the request of Buyer, Seller shall execute and deliver to Buyer such
bills of sale, titles, affidavits, certifications, assignments, or
other similar ownership or conveyance documents as may be reasonably
necessary to convey or evidence conveyance of the title of the Assets
to Buyer. The Personal Property shall be conveyed to Buyer free of any
and all monetary liens or encumbrances other than the trade and
accounts payable reflected by the Final Balance Sheet.
7. Cooperation. Subsequent to Closing each party shall cooperate with the
other, and take such actions and sign such documents as may be
reasonably necessary to effectuate the intent of this APA.
8. Indemnification.
8.1 Indemnification By Seller. Seller shall defend at its cost,
indemnify and hold harmless Buyer, its affiliated entities and
their respective partners, shareholders,
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directors, officers, employees and representatives from any
all liabilities, obligations and claims (including third party
claims), contingencies, damages, losses, fines, penalties,
interest, cost and expenses (including all court costs and
reasonable attorneys' fees) which Buyer may suffer or incur as
a result of or relating to (a) the breach of this APA by
Seller or (b) any transaction, activity, liability or
obligation of Seller (other than trade and account payables
and the warranty service obligations set forth in Section 4.3)
that occurs or arises out of actions or events occurring prior
to the Closing Date.
8.2 Indemnification By Buyer. Buyer shall defend at its cost,
indemnify and hold harmless Seller, Seller's affiliated
entities and their respective partners, shareholders,
directors, officers, employees, agents and representatives
from any and all liabilities, obligations, claims (including
third party claims), contingencies, damages, losses, fines,
penalties, interest, cost and expenses (including all court
costs and reasonable attorneys' fees) that Seller may suffer
or incur as a result of or relating to (a) the breach of this
APA by Buyer or (b) any transaction, activity, liability or
obligation of Buyer after the Closing Date.
9. Archdiocese Contract. Seller is the contract purchaser of 20 lots (the
"Freehold Property") pursuant to that particular contract entered into
between Seller, as the purchaser, and The Diocese of Trenton ("Owner")
as the seller (the "Archdiocese Contract"). Seller has been in the
process of attempting to obtain entitlement for the Freehold Property,
as satisfaction of a condition precedent, before Seller closes its
acquisition of such property. The Archdiocese Contract contains a
provision which may prohibit assignment of the Archdiocese Contract by
Seller without the consent of Owner. Buyer will seek the Owner's
consent for assignment of the Archdiocese Contract to Buyer. If the
consent is given Seller will promptly assign the Archdiocese Contract
to Buyer. If Owner does not consent to an assignment of the Archdiocese
Contract to Buyer, or if in Buyer's opinion Owner will contest any such
attempted assignment or performance of the Archdiocese Contract by
Buyer, then Seller shall appoint certain employees of Buyer to act as
the authorized representative of Seller to obtain entitlement for the
Freehold Property and otherwise satisfy the conditions precedent so
that Seller would close its acquisition of the Freehold Property. Buyer
shall bear any and all cost of pursuing such entitlement or
satisfaction of conditions. Upon satisfaction of all conditions, Buyer
may direct Seller to close the acquisition of the Freehold Property and
Seller shall then immediately convey the Freehold Property to Buyer,
and Buyer shall not owe any other payment or purchase price to Seller
for the conveyance of the Freehold Property. Seller shall not take any
action with regard to the Archdiocese Contract without the prior
written approval of Buyer, which may be granted or withheld at the sole
discretion of Buyer.
10. General Provisions.
10.1 Survival and Successors. This APA and all of the covenants,
terms, and provisions set forth in this APA shall survive the
Closing and thereafter be fully effective and enforceable, and
shall bind and inure to the benefit of each party and their
respective successors and assigns.
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10.2 No Third Party Beneficiary. Seller and Buyer acknowledge that
neither intends (nor shall this APA or any of its provisions
be so construed) to vest or create in any third party any
rights or privileges under this APA except to the extent
expressly set forth herein.
"Seller": "Buyer":
CENTEX DEVELOPMENT COMPANY, L.P. CALTON HOMES, INC.
a Delaware limited partnership a New Jersey corporation
By: 3333 Development Corporation By: /s/ Melvin M. Chadwick
a Nevada corporation -------------------------------------
Its: Managing General Partner Name: Melvin M. Chadwick
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Title: Vice President, Treasurer and
Assistant Secretary
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By: /s/ Todd D. Newman
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Name: Todd D. Newman
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Title: Senior Vice President and CFO
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