{"id":43548,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/representation-warranty-and-indemnity-agreement-kaufman-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"representation-warranty-and-indemnity-agreement-kaufman-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/representation-warranty-and-indemnity-agreement-kaufman-and.html","title":{"rendered":"Representation, Warranty and Indemnity Agreement &#8211; Kaufman and Broad Home Corp., Cosmic Construction of Nevada Inc., South Star Development of Nevada Corp., South Star Development Corp., Hillside Construction Co. Inc. and Orchard Construction Co. Inc."},"content":{"rendered":"<pre>\n                            REPRESENTATION, WARRANTY\n                             AND INDEMNITY AGREEMENT\n\n\n\n        This Representation, Warranty and Indemnity Agreement is entered into as\nof January 7, 1999 (this 'Agreement'), among Kaufman and Broad Home Corporation,\na Delaware Corporation ('Buyer'), and the corporations identified on the\nsignature page of this Agreement (individually an 'Entity' and collectively, the\n'Entities').\n\n        WHEREAS, Buyer has entered into a Purchase Agreement, dated as of\nJanuary 7, 1999 (the 'Purchase Agreement'), with the Sellers and Corporations\nidentified in the Purchase Agreement;\n\n        WHEREAS, the Entities are former partners of one or more of the Parent\nPartnerships (as defined in the Purchase Agreement); and\n\n        WHEREAS, each of Buyer and the Entities desire to make certain\nrepresentations, warranties and agreements with respect to the Purchase\nAgreement.\n\n        NOW, THEREFORE, in consideration of the mutual promises contained herein\nand intending to be legally bound, the parties agree as follows:\n\n        1. The Entities shall be deemed to be Corporations (as that term is used\nin the Purchase Agreement) for all purposes under the Purchase Agreement,\nincluding but not limited to, for purposes of Articles II, III, VI, and IX and\nSection 10.10 and all ancillary agreements and closing documents delivered in\nconnection therewith, as if the Entities had executed and delivered the Purchase\nAgreement as Corporations; provided, however, that references in Section 3.3 of\nthe Purchase Agreement to 'this Agreement' shall be deemed to refer to this\nRepresentation, Warranty and Indemnity Agreement and not the Purchase Agreement.\n\n        2. This Agreement may be amended only by agreement in writing of all\nparties. No waiver of any provision nor consent to any exception to the terms of\nthis Agreement shall be effective unless in writing and signed by the party to\nbe bound and then only to the specific purpose, extent and instance so provided.\n\n        3. This Agreement constitutes the entire agreement among the parties\npertaining to the subject matter hereof and supersedes all prior agreements and\nunderstandings of the parties in connection therewith.\n\n        4. This Agreement, the legal relations between the parties and any\nAction (as defined in the Purchase Agreement), whether contractual or\nnon-contractual, instituted by any party with respect to matters arising under\nor growing out of or in connection with or in respect of this Agreement,\nincluding but not limited to the negotiation, execution, interpretation,\ncoverage, scope, performance, breach, termination, validity, or enforceability\nof this Agreement, shall be governed by and construed in accordance with the\nlaws of the State of California\n\n\n\napplicable to contracts made and performed in such State and without regard to\nconflicts of law doctrines.\n\n        5. Neither this Agreement nor any rights or obligations under it are\nassignable, except that Buyer may assign its rights hereunder to any Affiliates\n(as defined in the Purchase Agreement) of Buyer, in which event Buyer shall\nremain liable to the Corporations for all obligations of Buyer hereunder\nnotwithstanding a permitted assignment.\n\n        6. This Agreement may be executed in any number of identical\ncounterparts, each of which when executed and delivered shall be an original,\nbut all such counterparts shall constitute but one and the same instrument. Any\nsignature page of this instrument may be detached from any counterpart without\nimpairing the legal effect of any signatures thereof, and may be attached to\nanother counterpart, identical in form thereto, but having attached to it one or\nmore additional signature pages. Delivery by any party or its respective\nrepresentatives of telecopied (counterpart) signature pages shall be as binding\nan execution and delivery of this Agreement by such party as if the other party\nhad received the actual physical copy of the entire Agreement with an ink\nsignature from such party.\n\n        7. All information disclosed by any party (or its representatives)\nwhether before or after the date hereof, in connection with the transactions\ncontemplated by, or the discussions and negotiations preceding, this Agreement\nto any other party (or its representatives) shall be kept confidential by such\nother party and its representatives and shall not be used by any such Persons\n(as defined in the Purchase Agreement) other than as contemplated by this\nAgreement, except to the extent that such information (i) was known by the\nrecipient when received, (ii) it is or hereafter becomes lawfully obtainable\nfrom other sources, (iii) is necessary or appropriate to disclose to a\nGovernmental Entity (as defined in the Purchase Agreement) having jurisdiction\nover the parties, (iv) as may otherwise be required by law or (v) to the extent\nsuch duty as to confidentiality is waived in writing by the other party;\nprovided, however, that following the Closing Date (as defined in the Purchase\nAgreement) nothing in this section shall apply to or restrict the use of\ninformation by Buyer or the Homebuilding Entities (as defined in the Purchase\nAgreement) in their businesses.\n\n        8. In the event of any dispute or disagreement between the Entities and\nBuyer as to the interpretation of any provision of this Agreement or the\nPurchase Agreement, or the performance of obligations hereunder, the matter\nshall be determined in the manner provided in Section 10.10 of the Purchase\nAgreement and, if an Arbitration (as defined in the Purchase Agreement) has been\nrequested or instituted, shall be determined as part of that Arbitration with\nthe Entities participating to the same extent as the Corporations could\nparticipate.\n\n        9. Any notice or other communication hereunder must be given in writing\nand delivered in person or sent by telecopy, by a nationally-recognized\novernight courier service or by certified or registered mail, postage prepaid,\nreceipt requested, addressed as follows:\n\n\n                                       2\n\n\n               IF TO BUYER, ADDRESSED TO:\n\n               Kaufman and Broad Home Corporation\n               10990 Wilshire Boulevard\n               Los Angeles, California  90024\n               Attention:  Michael F. Henn\n                           Chief Financial Officer\n                           Barton P. Pachino\n                           General Counsel\n               Fax No.:   (310) 231-4280\n\n               with a copy to\n\n               Munger, Tolles &amp; Olson LLP\n               355 South Grand Avenue\n               Los Angeles, California  90071\n               Attention:  R. Gregory Morgan, Esq.\n               Fax No.: (213) 687-3702\n\n               IF TO THE ENTITIES, ADDRESSED TO:\n\n               John M. Goodman\n               Lewis Operating Corp.\n               1156 N. Mountain Avenue\n               Upland, California  91785\n               Fax No.: (909) 912-6770\n\n               with a copy to:\n\n               O'Melveny &amp; Myers LLP\n               400 S. Hope Street\n               Los Angeles, California  90071\n               Attention:  Richard A. Boehmer, Esq.\n               Fax No.: (213) 430-6407\n\nor to such other address or to such other person as any party shall have last\ndesignated by such notice to the other party. Each such notice or other\ncommunication shall be effective (i) if given by telecommunication, when\ntransmitted to the applicable number so specified in (or pursuant to) this\nSection 9 and an appropriate answer back is received, (ii) if given by overnight\ncourier, one business day following delivery by sender to such overnight\ncourier, (iii) if given by mail, three days after such communication is\ndeposited in the mails with first class postage prepaid, addressed as aforesaid\nor (iv) if given by any other means, when actually received at such address.\n\n        10. The Entities and Buyer shall each pay their own expenses incident to\nthe negotiation, preparation and performance of this Agreement and the\ntransactions contemplated\n\n\n                                       3\n\n\nhereby, including but not limited to the fees, expenses and disbursements of\ntheir respective investment bankers, accountants and counsel. Any such expenses\nof the Homebuilding Entities (as defined in the Purchase Agreement), or any\nexpenses paid by the Homebuilding Entities on behalf of the Entities, shall be\npaid by the Entities prior to or concurrently with the Closing (as defined in\nthe Purchase Agreement).\n\n        11. To the extent permitted by Law (as defined in the Purchase\nAgreement), all rights and remedies existing under this Agreement are cumulative\nto and not exclusive of, any rights or remedies otherwise available under\napplicable Law. No failure on the part of any party to exercise or delay in\nexercising any right hereunder shall be deemed a waiver thereof, nor shall any\nsingle or partial exercise preclude any further or other exercise of such or any\nother right.\n\n        12. In the event of any Action by any party arising under or out of, in\nconnection with or in respect of, this Agreement or the transactions\ncontemplated hereby, the prevailing party shall be entitled to reasonable\nattorney's fees, costs and expenses incurred in such Action. Attorney's fees\nincurred in enforcing any judgment in respect of this Agreement are recoverable\nas a separate item. The parties intend that the preceding sentence be severable\nfrom the other provisions of this Agreement, survive any judgment, and to the\nmaximum extent permitted by Law, not be deemed merged into such judgment.\n\n        13. The Entities and Buyer each acknowledge that each party to this\nAgreement has been represented by counsel in connection with this agreement and\nthe transactions contemplated by this Agreement. Accordingly, any rule of Law,\nincluding but not limited to Section 1654 of the California Civil Code, or any\nlegal decision that would require interpretation of any claimed ambiguities in\nthis Agreement against the party that drafted it has no application and is\nexpressly waived. The provisions of this Agreement shall be interpreted in a\nreasonable manner to effect the intent of Buyer and the Entities.\n\n        14. If any provision of this Agreement or the Purchase Agreement as it\nwould apply to the Entities is determined to be invalid, illegal or\nunenforceable by any Governmental Entity, the remaining provisions of this\nAgreement or the Purchase Agreement, as applicable, shall remain in force and\neffect provided that the economic and legal substance of the transactions\ncontemplated is not affected in any manner materially adverse to any party. In\nthe event of any such determination, the parties agree to negotiate in good\nfaith to modify this Agreement to fulfill as closely as possible the original\nintents and purposes hereof. To the extent permitted by Law, the parties hereby\nto the same extent waive any provision of Law that renders any provision hereof\nprohibited or unenforceable in any respect.\n\n\n                                       4\n\n\n        IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement\nto be executed by its duly authorized officers as of the day and year first\nabove written.\n\n                                        BUYER\n\n                                        KAUFMAN AND BROAD HOME CORPORATION\n\n\n\n                                        By: \/s\/ MICHAEL F. HENN\n                                           -------------------------------------\n                                        Its: Senior Vice President &amp; Chief Financial Officer\n\n\n\n                                        ENTITIES\n\n                                        COSMIC CONSTRUCTION OF NEVADA, INC.\n\n\n\n                                        By: \/s\/ ROGER G. LEWIS\n                                           -------------------------------------\n                                            Name: Roger G. Lewis\n                                            Title:President\n\n\n                                        SOUTH STAR DEVELOPMENT OF NEVADA, CORP.\n\n\n\n                                        By: \/s\/ ROBERT E. LEWIS\n                                           -------------------------------------\n                                            Name: Robert E. Lewis\n                                            Title: President\n\n\n                                        SOUTH STAR DEVELOPMENT CORP.\n\n\n\n                                        By: \/s\/ RICHARD A. LEWIS\n                                           -------------------------------------\n                                            Name: Richard A. Lewis\n                                            Title: President\n\n\n                                       5\n\n\n                                        HILLSIDE CONSTRUCTION CO., INC.\n\n\n\n                                        By: \/s\/ RICHARD A. LEWIS\n                                           -------------------------------------\n                                            Name: Richard A. Lewis\n                                            Title: President\n\n\n                                        ORCHARD CONSTRUCTION CO., INC.\n\n\n\n                                        By: \/s\/ ROGER G. LEWIS\n                                           -------------------------------------\n                                            Name: Roger G. Lewis\n                                            Title: President\n\n\n                                       6\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7964],"corporate_contracts_industries":[9480],"corporate_contracts_types":[9623,9622],"class_list":["post-43548","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-kb-home","corporate_contracts_industries-construction__contractors","corporate_contracts_types-planning__asset","corporate_contracts_types-planning"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43548","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43548"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43548"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43548"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43548"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}