EXHIBIT 6.3
CONTRIBUTION AGREEMENT
----------------------
THIS CONTRIBUTION AGREEMENT, dated as of __________, 1998 (this
"Agreement"), is made by and among ▇▇▇▇▇▇▇ PRESERVATION, INC., a Florida
---------
corporation ("MPI"), BLUE RIBBON COMMUNITIES LIMITED PARTNERSHIP, a Delaware
limited partnership ("BRC"), and THE ▇▇▇▇▇▇▇ RESORT PARTNERSHIP, a Florida
---
general partnership (the "Partnership").
-----------
RECITALS
--------
A. MPI is a corporation organized under the laws of the State of Florida
to acquire the Property (as hereinafter defined), to hold the record interest
therein and to be responsible for the operation thereof pursuant to Fla. Stat.
(S) 723.071.
B. MPI and BRC have entered into the Partnership Agreement (as hereinafter
defined) forming the Partnership.
C. MPI and BRC have each agreed to contribute to the Partnership, in
exchange for Partnership Units (as hereinafter defined), certain moneys, on and
subject to the terms set forth in this Agreement.
D. The Partnership wishes to receive the aforesaid contributions of cash,
in exchange for the issuance of Partnership Units, on and subject to the terms
set forth in this Agreement.
E. MPI has also agreed to contribute to the Partnership the beneficial
interest in the Real Property (as hereinafter defined) together with all of
MPI's right, title and interest in and to the Other Property (as hereinafter
defined), subject to the Permitted Exceptions, on and subject to the terms set
forth in this Agreement, and the Partnership has agreed to accept the
contribution of the beneficial interest in the Real Property and all of MPI's
right, title and interest in and to the Other Property, subject to the Permitted
Exceptions, and to assume MPI's obligations under the Mortgage (as hereinafter
defined), on and subject to the terms set forth in this Agreement.
F. The Partnership and MPI have agreed that, pursuant to Fla. Stat.
(S)723.077, MPI shall hold the record interest in the Real Property, as nominee
and agent of the Partnership, on and subject to the terms of the Nominee
Agreement (as hereinafter defined).
NOW, THEREFORE, in consideration of the mutual agreements herein contained
and for other good and valuable consideration, the receipt and sufficiency
whereof are hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
-----------
1.1 Defined Terms. The following terms shall have the meanings
-------------
respectively assigned to them:
"Act" means the Securities Act of 1933, as amended.
"Advancing Homeowners" means, collectively, the Homeowners who, prior
to the date hereof, advanced to MPI's predecessor in interest, ▇▇▇▇▇▇▇
Preservation, Inc., a Florida not-for-profit, non-stock corporation, any portion
of the Prepaid Funds.
"Applicable Law" means, with respect to any Person, any federal, state
or local statute, law, code, ordinance, rule, administrative interpretation,
regulation, order, writ, injunction, directive, judgment, decree or other
requirement of any Governmental Authority (including any environmental laws)
applicable to such Person or any of its properties, assets, officers, directors,
employees, consultants or agents (in connection with such officer's, director's,
employee's, consultant's or agent's activities on behalf of such Person).
"Closing Date" means three (3) business days after the date upon which
the offer to sell Shares pursuant to the Prospectus expires (or such earlier
date after the offer to sell Shares has expired as shall be mutually agreed
between BRC and MPI).
"Easements" means all easements, if any, benefiting the Land.
"Governmental Authority" means any federal, territorial, state or
local governmental authority, quasi-governmental authority, instrumentality,
court, commission, tribunal or organization or any regulatory, administrative or
other agency, or any political or other subdivision, department or branch of any
of the foregoing having jurisdiction over the Property or the Partnership.
"Homeowners" means the owners of manufactured or mobile homes who
lease lots located within the Property.
"Improvements" means all improvements and structures now or at any
time hereafter on the Land.
"Intangible Property" means, collectively, the following intangible
property: business telephone numbers, the name "The ▇▇▇▇▇▇▇ Mobile Home Park
Development," logos and similar items, leases, rental agreements, prepaid rents
and maintenance fees, marketing information, deposits, contract rights, permits
and licenses, pertaining to the Real Property, the Tangible Personal Property or
the use of either thereof.
2
"Land" means all that certain tract or parcel of land situated and
lying in Palm Beach County, Florida, which is more particularly described on
Exhibit 1A attached hereto.
----------
"Lien" means, with respect to any asset, any mortgage, title defect or
objection, lien, pledge, charge, security interest, hypothecation, restriction,
encumbrance, adverse right or charge of any kind in respect of such asset.
"Mortgage" means the Mortgage, Security Agreement, Financing
Statement, Fixture Filing and Assignment of Leases and Rents dated December 18,
1997 from MPI to BRC's affiliate, MHC Lending Limited Partnership, recorded on
December 19, 1997 in Official Record Book 10145, Page 1538 of the Public Records
of Palm Beach County, Florida, as supplemented, amended or modified from time to
time.
"Nominee Agreement" means the Title Holding, Nominee and Agency
Agreement, to be entered into by and between MPI, as agent and nominee, and the
Partnership, as holder of the beneficial interest in the Real Property, at the
Closing Date, in the form attached hereto as Exhibit 1B.
----------
"Other Property" means, collectively, the Intangible Property and the
Tangible Personal Property.
"Partnership Agreement" means the General Partnership Agreement of the
Partnership, dated __________________, 1998, made by and between MPI and BRC.
"Partnership Interest" means an ownership interest in the Partnership
and includes any and all benefits to which the holder of such Partnership
Interest may be entitled as provided in the Partnership Agreement, together with
all obligations of such holder to comply with the terms and provisions of the
Partnership Agreement.
"Partnership Units" means the fractional, undivided shares of the
Partnership Interests issued pursuant to the Partnership Agreement.
"Permitted Exceptions" means, collectively, (i) those restrictions,
covenants, agreements, easements, matters and things of fact or of record
affecting title to the Property set forth on Exhibit 1C attached hereto, and
----------
(ii) real estate taxes that have accrued but are not yet due and payable.
"Person" means an individual, corporation, limited liability company,
partnership, association, trust, estate, Governmental Authority or other entity
or organization.
"Prepaid Funds " means moneys advanced by certain Homeowners to MPI's
predecessor in interest, ▇▇▇▇▇▇▇ Preservation, Inc., a Florida not-for-profit,
non-stock corporation, on account of the proposed acquisition of an ownership
interest in MPI or the Property.
3
"Property" means, collectively, the Real Property and the Other
Property.
"Prospectus" means Part I of the Registration Statement offering to
sell and issue Shares to the Homeowners.
"Real Property" means, collectively, the Land, the Improvements, the
Easements and the Rights and Appurtenances.
"Registration Statement" means a registration statement, in form and
substance acceptable to MPI and BRC, filed by MPI in accordance with the
requirements of the Act with respect to the offering of up to 2,354 Shares.
"Rescission Offer" means a rescission offer, in form and substance
acceptable to MPI and BRC, made by MPI in accordance with the requirements of
the Act with respect to the Prepaid Funds.
"Rights and Appurtenances" means, collectively, all rights and
appurtenances, if any, pertaining to the Land or the Improvements, including,
without limitation, the right, title and interest of MPI, if any, in and to the
streets, alleys or rights of way adjacent to the Land.
"SEC" means the United States Securities and Exchange Commission.
"Shares" means the authorized shares of common stock of MPI, having a
par value of $0.1.
"Subscribed Shares" means all of the Shares subscribed to by the
Homeowners pursuant to the offering made by the Prospectus including, without
limitation, Shares issued to Homeowners who reject the Rescission Offer.
"Tangible Personal Property" means, collectively, all of MPI's right,
title and interest in and to all appliances, fixtures, equipment, vehicles,
inventory from sales operations, machinery, furniture, carpet, drapes and other
personal property, if any, located on or about the Land or the Improvements or
used in the operation and maintenance thereof, including, without limitation,
the Tangible Personal Property listed on Exhibit 1D attached hereto and made a
----------
part hereof.
1.2 Other Defined Terms. Certain other terms are defined elsewhere in
-------------------
this Agreement.
ARTICLE II
REGISTRATION STATEMENT
----------------------
2.1 Filing of Registration Statement. At such time as MPI and BRC shall
--------------------------------
agree, MPI shall file the Registration Statement with the SEC. MPI shall use
its best efforts to make
4
the Registration Statement effective and to comply with the securities laws of
the states and countries where Homeowners reside in order to offer the Shares to
the Homeowners.
2.2. Delivery of Prospectus. Subject to compliance with applicable state
----------------------
laws, promptly following the date upon which the Registration Statement shall
become effective pursuant to the Act, MPI shall deliver a Prospectus to each of
the Homeowners.
ARTICLE III
CONTRIBUTIONS
-------------
3.1 Contribution of MPI. On the Closing Date, MPI shall, in
-------------------
consideration of the Partnership Units described in Section 4.1 hereof,
-----------
contribute to the Partnership all of the cash raised by MPI from the sale of
Subscribed Shares pursuant to the Registration Statement (the "MPI Cash");
--------
3.2 Additional Contribution of MPI On the Closing Date, MPI shall also:
------------------------------
(a) transfer and contribute to the Partnership all of the beneficial
interest in the Real Property, subject only to the Permitted Exceptions; and
(b) transfer and contribute to the Partnership all of MPI's right,
title and interest in and to the Other Property, subject only to the Permitted
Exceptions.
MPI shall, at the request of BRC or the Partnership, execute and deliver such
documents and instruments of transfer, conveyance and assignment and take such
further action as BRC or the Partnership shall reasonably request in order to
complete more effectively the transfer and contribution to the Partnership of
the Other Property and the transfer and contribution to the Partnership of the
beneficial interest in the Real Property.
On the Closing Date, the Partnership shall assume all of MPI's obligations under
the Mortgage.
3.3 Contribution of BRC. On the Closing Date, BRC shall, in consideration
-------------------
of the Partnership Units described in Section 4.2 hereof, contribute to the
-----------
Partnership cash in the amount of (a) Four Million Seven Hundred Seven Thousand
Five Hundred Twenty-nine 42/100 Dollars ($4,707,529.42), less (b) the MPI Cash
----
(such net amount, the "BRC Cash");
--------
3.4 Additional Contribution of BRC. On the Closing Date, BRC shall also
------------------------------
contribute to the Partnership:
(a) cash in the amount of Two Million Two Hundred Fifty-six Thousand
Dollars ($2,256,000) on account of the lots within the Real Property that are
not occupied by manufactured or mobile homes as of the date of the Partnership
Agreement; and
5
(b) Two Hundred Thousand Dollars ($200,000), to be used by the
Partnership to fund certain capital improvements to the Real Property.
3.5 Accrued Interest. On the Closing Date, MPI shall pay to MHC Lending
----------------
Limited Partnership ("MHC Lending") all interest and other amounts that have
-----------
accrued or are payable under the Mortgage through the Closing Date.
ARTICLE IV
PARTNERSHIP INTERESTS
---------------------
4.1 Interest of MPI. In consideration of the contribution of cash
---------------
described in Section 3.1 hereof, the Partnership shall issue to MPI, effective
-----------
as of the date hereof, so many Partnership Units as shall be equal to the MPI
Cash, divided by One Thousand (1,000).
-------
4.2 Interest of BRC. In consideration of the contribution of cash
---------------
described in Section 3.3 hereof, the Partnership shall issue to BRC, effective
-----------
as of the date hereof, so many of the Partnership Units as shall be equal to the
BRC Cash, divided by One Thousand (1,000).
-------
ARTICLE V
CONDITIONS PRECEDENT.
--------------------
5.1 Conditions Precedent for MPI. The obligation of MPI to close the
----------------------------
transactions hereunder and to make the contributions of cash, property and
interests provided for in Sections 3.1 and 3.2 hereof is subject to satisfaction
--------------------
of all of the following conditions on or before the Closing Date, any one or
more of which may be expressly waived in writing by MPI:
(a) BRC shall have simultaneously made the contribution of cash
described in Sections 3.3 and 3.4 hereof and made the payment to MPI provided
--------------------
for in Section 9.3 hereof and shall have executed, as a general partner of the
-----------
Partnership, all documents required to be delivered by the Partnership pursuant
to Section 6.2 hereof
-----------
(b) Neither the Partnership nor BRC shall have made a general
assignment for the benefit of its creditors, or have admitted in writing its
inability to pay its debts as they become due, or have filed a petition in
bankruptcy or been adjudicated a bankrupt or insolvent or have filed a petition
seeking any reorganization, arrangement, composition, readjustment liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, or have filed any answer admitting or failing to reasonably contest
the material allegations of a petition filed against it in any such proceeding
or seek or consent to or acquiesce in the appointment of any trustee, receiver
or liquidator of it for any material part of its property.
(c) All of the representations and warranties given by BRC shall
remain true and correct at the Closing Date as though made on such date.
6
5.2 Conditions Precedent for BRC. The obligation of BRC to close the
----------------------------
transactions hereunder and to make the contribution of cash provided for in
Sections 3.3 and 3.4 hereof is subject to satisfaction of all of the following
--------------------
conditions on or before the Closing Date, any one or more of which may be
expressly waived in writing by BRC:
(a) MPI shall have simultaneously made the contributions of cash,
property and interests described in Sections 3.1 and 3.2 hereof.
--------------------
(b) MPI shall have executed and delivered to the Partnership all of
the agreements, documents and other items required to be delivered by MPI
pursuant to Section 6.1 hereof, and shall have executed, as a general partner of
-----------
the Partnership, all documents required to be delivered by the Partnership
pursuant to Section 6.2 hereof.
-----------
(c) Neither the Partnership nor MPI shall have made a general
assignment for the benefit of its creditors, or have admitted in writing its
inability to pay its debts as they become due, or have filed a petition in
bankruptcy or been adjudicated a bankrupt or insolvent or have filed a petition
seeking any reorganization, arrangement, composition, readjustment liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, or have filed any answer admitting or failing to reasonably contest
the material allegations of a petition filed against it in any such proceeding
or seek or consent to or acquiesce in the appointment of any trustee, receiver
or liquidator of it or for any material part of its property.
(d) No Liens shall have recorded against the title to the Real
Property other than the Permitted Exceptions.
(e) All of the representations and warranties given by MPI shall
remain true and correct at the Closing Date as though made on such date.
(f) MPI shall have paid to MHC Lending all interest and other amounts
that have accrued or are payable under the Mortgage through the Closing Date.
ARTICLE VI
DELIVERIES
----------
6.1 MPI's Deliveries. On the Closing Date, MPI shall deliver to the
----------------
Partnership the following documents and other items:
(a) The cash required to be contributed by MPI pursuant to Section
-------
3.1 hereof.
---
(b) The Nominee Agreement, duly executed by MPI.
(c) An Assignment and Assumption of Beneficial Interest, in the form
7
attached hereto as Exhibit 6.1(c) (the "Assignment of Beneficial
-------------- ------------------------
Interest"), duly executed by MPI.
--------
(d) A Warranty ▇▇▇▇ of Contribution, in the form attached hereto as
Exhibit 6.1(d), duly executed by MPI.
--------------
(e) An Assignment of Leases, in the form attached hereto as Exhibit
-------
6.1(e), duly executed by MPI.
------
(f) An Assignment of Permits, Trade Name, Warranties, and Service and
Management Contracts, and Intangible Property, in the form
attached hereto as Exhibit 6.1(f) (the "Assignment of Permits"),
-------------- ---------------------
duly executed by MPI.
(g) An Assignment and Assumption of Mortgage, in the form attached
hereto as Exhibit 6.1(g) (the "Assignment of Mortgage"), duly
--------------- ----------------------
executed by MPI.
(h) All tenant deposits held by MPI as of the date hereof.
(i) An affidavit in accordance with IRS Code Section 1445 certifying
that MPI is not a foreign person subject to the withholding rules
of the Foreign Investment in Real Property Act.
(j) The originals of all contracts pertaining to the Property,
including, without limitation, leases, deposits, rental
agreements and other agreements between MPI and its tenants and
the service contracts made by MPI listed on Exhibit 6.1(j)
--------------
attached hereto.
(k) Certificates of title to all vehicles(s) owned by MPI and
assignments thereof to the Partnership.
(l) All necessary and proper consents of MPI consenting to and
approving the transactions described in this Agreement.
6.2 Partnership's Deliveries. On the Closing Date, the Partnership shall
------------------------
deliver to MPI, each duly executed by the Partnership:
(a) The Nominee Agreement.
(b) The Assignment of Beneficial Interest.
(c) The Assignment of Permits.
(d) The Assignment of Mortgage.
8
6.3 BRC's Deliveries. On the Closing Date, BRC shall deliver to the
----------------
Partnership:
(a) The cash required to be contributed by BRC pursuant to Sections
--------
3.3 and 3.4 hereof.
-----------
(b) All necessary and proper consents of BRC consenting to and
approving the transactions described in this Agreement.
6.4 Recordation of Documents. Promptly following the delivery of the
------------------------
documents listed in Sections 6.1 and 6.2 hereof, the Partnership shall cause the
--------------------
Title Company to record among the land records of Palm Beach County, Florida the
Nominee Agreement and the Assignment of Mortgage.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
------------------------------
7.1. Representations and Warranties by MPI. MPI hereby represents and
-------------------------------------
warrants to the Partnership and BRC (in the case of the representations and
warranties set forth in Sections 7.1.1 and 7.1.2) and to the Partnership (in the
------------------------
case of the representations and warranties set forth in Section 7.1.3) that:
-------------
7.1.1 MPI is duly organized, validly existing and in good standing
under the laws of the State of Florida.
7.1.2 MPI has the full right, power and capacity to enter into this
Agreement and to carry out the transactions contemplated hereby, no consent or
authorization of any person is required as a condition precedent to the
consummation by MPI of this Agreement or the transactions or other events
contemplated herein except those consents that have been obtained, and the
Person who executed this Agreement on behalf of MPI is duly authorized to bind
MPI.
7.1.3 All of the representations and warranties set forth in Section
8 of the Agreement of Purchase and Sale dated November 1997 by and between
H.G.G.S. Associates and ▇▇▇▇▇▇▇ Preservation, Inc. remain true and correct as of
the date hereof as if given by MPI to the Partnership herein (except that for
these purposes (a) "Seller" shall be deemed to mean MPI and "Purchaser" shall be
deemed to mean the Partnership and (b) all such representations and warranties
shall be subject to any disclosures made by MPI to BRC in writing on or before
the date hereof).
7.2 Representations and Warranties by BRC. BRC hereby represents and
-------------------------------------
warrants to the Partnership and MPI that:
7.2.1 BRC is duly formed and validly existing under the laws of the
State of Delaware.
9
7.2.1 BRC has the full right, power and capacity to enter into this
Agreement and to carry out the transactions contemplated hereby, no consent or
authorization of any person is required as a condition precedent to the
consummation by BRC of this Agreement or the transactions or other events
contemplated herein except those consents that have been obtained, and the
Person who executed this Agreement on behalf of MHC-QRS Blue Ribbon Communities,
Inc. ("MHC-QRS"), the general partner of BRC, is duly authorized to bind MHC-
-------
QRS, as general partner of BRC.
7.3 No Brokers.
----------
7.3.1 MPI and BRC each hereby represents and warrants to the
Partnership and each other that it has not dealt with, or otherwise disclosed
this Agreement or the subject matter hereof to, any broker, agent, or salesman
(collectively, a "Broker"), so as to create any legal right or claim in any
------
Broker for a commission or compensation with respect to the negotiation and/or
execution of this Agreement, the contribution of cash, interests or property to
the Partnership or the other events provided for in this Agreement. MPI and BRC
each hereby agrees to indemnify, defend and hold the Partnership and each other
harmless from any and all claims (and all expenses incurred in defending any
such claims or in enforcing this indemnity, including attorneys' fees and court
costs) made by a Broker for a sales commission or similar fee resulting out of
or in any way connected with any claimed agency or other relationship with the
indemnifying party and relating to the execution of this Agreement, the
contribution of cash or property to the Partnership or the other events provided
for in this Agreement.
7.4 Survival of Representations, Warranties and Covenants. The
-----------------------------------------------------
representations, warranties and covenants set forth in Sections 7.1, 7.2 and 7.3
-------------------------
hereof shall survive for a period of one (1) year after the date of this
Agreement.
ARTICLE VIII
COSTS
-----
8.1 Costs. The Partnership hereby agrees to pay all of the legal fees and
-----
expenses in connection with or relating to the acquisition of the Property by
MPI, the financing of such acquisition, the registration and sale of Shares, the
reorganization of MPI from a non-profit corporation into a for-profit stock
corporation, the Partnership Agreement and this Agreement, the litigation
relating to MPI's right to acquire the Property and all other agreements,
documents, writings and actions relating to any of the foregoing
ARTICLE IX
MISCELLANEOUS
-------------
9.1 Further Action. The parties hereto agree to perform any further acts
--------------
and to
10
execute and deliver any documents which may be reasonably necessary to effect
the provisions of this Agreement.
9.2 Notices. Except as otherwise specifically provided herein, any notice,
-------
payment, demand or communication required or permitted to be given by any
provision of this Agreement shall be in writing and shall be delivered
personally, or sent by nationally recognized overnight courier or registered or
certified mail,
If to BRC: Blue Ribbon Communities Limited Partnership
c/o Manufactured Home Communities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
With a copy to: Manufactured Home Communities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
If to MPI: ▇▇▇▇▇▇▇ Preservation, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
If to Partnership: to BRC and MPI
Any such notice shall be deemed to be delivered, given and received for all
purposes as of the date so delivered, if delivered personally or by nationally
recognized overnight courier, or as of the date on which the same was deposited
in a regularly maintained receptacle for the deposit of United States mail, if
sent by registered or certified mail, postage and charges prepaid. Any party
may from time to time specify a different address by notice to the other
parties.
9.3 Payment to MPI. BRC shall pay to MPI the sum of One Hundred Thousand
--------------
Dollars ($100,000) (the "MPI Payment") to be applied by MPI, among other things,
-----------
to the interest payable by MPI to the Advancing Homeowners pursuant to the
Rescission Offer. At MPI's request, BRC shall pay to MPI a portion of the MPI
Payment equal to the interest payable by MPI as aforesaid, by not later than the
date upon which such interest in payable by MPI, and shall pay any remaining
balance of the MPI Payment to MPI on the Closing Date.
9.4 Assignment. The parties' respective obligations under this Agreement
----------
may not be assigned without the written consent of the other parties hereto.
9.5 Binding Effect. Subject to the restrictions on assignment herein
--------------
contained and except as otherwise provided in this Agreement, every covenant,
term and provision of this
11
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and assigns.
9.6 Fair Meaning. Every covenant, term and provision of this Agreement
------------
shall be construed simply according to its fair meaning and not strictly for or
against either party.
9.7 Time. Time is of the essence with respect to this Agreement.
----
9.8 Headings. Section and other headings contained in this Agreement are
--------
for reference purposes only and are not intended to describe, interpret, define
or limit the scope, extent or intent of this Agreement or any provision hereof.
9.9 Severability. Every provision of this Agreement is intended to be
------------
severable. If any term or provision hereof is unenforceable, illegal or invalid
for any reason whatsoever, such unenforceability, illegality or invalidity shall
not affect the enforceability, validity or legality of the remainder of this
Agreement.
9.10 Incorporation by Reference. Every Exhibit attached to this Agreement
--------------------------
and referred to herein is hereby incorporated in this Agreement by reference.
9.11 Construction. All references to Articles, Sections or Exhibits shall
------------
be deemed to refer to the appropriate Articles or Sections of, or Exhibits to,
this Agreement. Unless otherwise specified in this Agreement, the terms
"herein," "hereof, "hereunder," and other terms of like or similar import, shall
be deemed to refer to this Agreement as a whole, and not to any particular
Article, Section, Subsection or clause hereof. Whenever required by the context,
any gender used in this Agreement shall include any other gender, the singular
shall include the plural and the plural shall include the singular.
9.12 Governing Law. The laws of the State of Florida, without reference to
-------------
its conflict of laws rules, shall govern the validity of this Agreement, the
construction of its terms, and the interpretation of the rights and duties of
the parties hereto.
9.13 Venue. Each of the parties hereto irrevocably (a) agrees that any
-----
suit, action or other legal proceeding arising out of or relating to this
Agreement shall be brought in the state of Florida in a court located in Palm
Beach County, or the Federal District Court for the Southern District of
Florida, (b) consents to the jurisdiction of each such court in any such suit,
action or proceeding and (c) waives any objection which it may have to the
laying of venue of any such suit, action or proceeding in any of such courts and
any claim that any such suit, action or proceeding has been brought in an
inconvenient forum.
9.14 Counterpart Execution. This Agreement may be executed in any number
---------------------
of counterparts with the same effect as if each of the parties hereto had signed
the same document. All counterparts shall be construed together and shall
constitute one agreement.
9.15 Entire Agreement. This Agreement and the Exhibits hereto constitutes
----------------
the entire
12
agreement between the parties hereto with respect to the subject matter hereof,
shall supersede any and all prior understandings between the parties with
respect to the subject matter hereof, and may be amended only by an amendment
effectuated in accordance with the provisions of this Agreement
9.16 Waiver. Any condition granted by this Agreement to any party may be
------
waived by such party, but no such waiver may be relied upon or asserted by any
other party unless such waiver has been made in writing by the waiving party,
except as specifically provided herein.
9.17 Third Party Beneficiaries. Nothing in this Agreement is intended or
-------------------------
shall be construed to confer upon or to give to any person, firm or corporation
other than the parties hereto and their permitted successors and assigns any
right, remedy, or claim under or by reason of this Agreement. All terms and
conditions in this Agreement shall be for the sole and exclusive benefit of the
parties hereto and their permitted successors and assigns.
9.18 Books and Record. Each party agrees that it will cooperate with and
----------------
make available to the other party, during normal business hours, all books and
records, information and personnel (without substantial disruption of
employment) retained and remaining in existence hereafter that are necessary or
useful in connection with any tax inquiry, audit, investigation or dispute, any
litigation or investigation or any other matter requiring any such books and
records, information or employees for any reasonable business purpose. The
party requesting any such books and records, information or employees shall bear
all of the out-of-pocket costs and expenses (including without limitation,
attorneys' fees, but excluding reimbursement for salaries and employee benefits)
reasonably incurred in connection with providing such books and records,
information or employees.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
day first above set forth.
BLUE RIBBON COMMUNITIES LIMITED
PARTNERSHIP, a Delaware limited partnership
Witness: By: MHC-QRS Blue Ribbon Communities, Inc., a
Delaware corporation, General Partner
By:_________________________________
Name:_______________________________
Title: _____________________________
________________________
________________________
Witness: ▇▇▇▇▇▇▇ PRESERVATION, INC., a Florida
corporation
13
By:_________________________________
Name:_______________________________
Title: _____________________________
__________________________
__________________________
THE ▇▇▇▇▇▇▇ RESORT PARTNERSHIP, a
Florida general partnership
By: Blue Ribbon Communities Limited Partnership,
a Delaware limited partnership
Witness: By: MHC-QRS Blue Ribbon Communities, Inc.,
a Delaware corporation
__________________________
__________________________
By:_________________________________
Name: ______________________________
Title: _____________________________
By: ▇▇▇▇▇▇▇ Preservation, Inc., a Florida
corporation
_________________________ By:________________________________
Name: _____________________________
_________________________ Title: ____________________________
14
EXHIBIT 1A
----------
LEGAL DESCRIPTION
-----------------
PARCEL 1
--------
From the center of ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 43 East, Palm Beach
County, Florida; thence N.0 degrees 30'10"E. along the North-South quarter line
of the said Section 5 a distance of 275 feet to the point of beginning; thence
continue N. 0 degrees 30'10"E. along the said North-South quarter line a
distance of 1050.85 feet to a point, thence S.89 degrees 51'42"W. a distance of
1323.60 feet to a point; thence S.0 degrees 47'20"W. a distance of 1252.40 feet
to a point in the Northerly right-of-way line of PGA Boulevard, as now laid out
and in use; thence S.89 degrees 07'28"E. along said northerly right-of-way line
a distance of 789.81 feet to a point; thence N.0 degrees 30'10" E. a distance of
225 feet to a point; thence S.89 degrees 07' 28"E. a distance of 540 feet to the
point of beginning.
PARCEL 2
--------
The South 636.0 feet of the North one-half of the Southwest quarter of the
Northwest quarter, of Section ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 43 East, Palm Beach
County, Florida.
TOGETHER WITH:
The North ten feet of the South 646 Feet of the North half of the Southwest
quarter of the Northwest quarter; and, the North ten feet of the South half of
the Southwest quarter of the Northwest quarter; ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇,
▇▇▇▇▇ 43 East, Palm Beach County, Florida.
EXHIBIT 1B
----------
FORM OF TITLE HOLDING, NOMINEE AND AGENCY AGREEMENT
---------------------------------------------------
See Attached
EXHIBIT 1C
----------
PERMITTED EXCEPTIONS
--------------------
1. The Mortgage;
2. Real Property Taxes for fiscal year 1998;
3. Applicable zoning and other regulatory laws and ordinances;
4. Rights of tenants under disclosed unrecorded rental agreements;
5. Easements for provision of existing utilities services and all other
easements which benefit the Property and that are approved by Purchaser;
and
6. The title exceptions listed in Schedule B of Title Policy No. FA-35-146510
issued by First American Title Insurance Company, dated December 19, 1997.
EXHIBIT 1D
-----------
TANGIBLE PERSONAL PROPERTY
--------------------------
EXHIBIT 6.1(C)
-------------
FORM OF ASSIGNMENT OF BENEFICIAL INTEREST
-----------------------------------------
EXHIBIT 6.1(D)
-------------
FORM OF WARRANTY ▇▇▇▇ OF CONTRIBUTION
-------------------------------------
THIS WARRANTY ▇▇▇▇ OF CONTRIBUTION, made on _________________, 1998 between
▇▇▇▇▇▇▇ PRESERVATION, INC, a Florida corporation ("Transferor") and THE ▇▇▇▇▇▇▇
----------
RESORT PARTNERSHIP, a Florida general partnership ("Transferee").
----------
WITNESSETH:
WHEREAS, pursuant to that certain Contribution Agreement dated as of
____________, 1998 (the "Contribution Agreement"), Transferor has agreed to
----------------------
contribute and transfer to Transferee all of the beneficial interest in that
certain mobile home commonly known as The ▇▇▇▇▇▇▇ Mobile Home Park in Palm Beach
Gardens, Florida (the "Park"), on and subject to the terms of the Contribution
----
Agreement; and
WHEREAS, in the Contribution Agreement, Transferor agreed to transfer and
contribute to Transferee all of its right, title and interest in and to all
appliances, fixtures, equipment, vehicles, inventory from sales operations,
machinery, furniture, carpet, drapes and other personal property, if any,
located on or about the Park or the improvements thereon or used in the
operation and maintenance thereof.
KNOW ALL MEN BY THESE PRESENTS that Transferor, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, has
contributed, conveyed, transferred, assigned and delivered, and by these
presents does contribute, convey, transfer, assign and deliver to Transferee the
following goods and chattels, to wit:
SEE EXHIBIT "A" ATTACHED HERETO AND INCORPORATED HEREIN BY THIS REFERENCE.
Transferor covenants to Transferee that Transferor is the lawful owner of
the said goods and chattels; that they are free from all encumbrances; that
Transferor has good right to sell that property; and that Transferor will
warrant and defend the sale of said property, goods and chattels unto Transferee
against the lawful claims and demands of all persons whomsoever.
"Transferor" and "Transferee" shall be used for singular or plural, natural
or artificial, which terms shall include the heirs, legal representatives,
successors and assigns of Transferor and Transferee whenever the context so
requires or admits.
IN WITNESS WHEREOF, Transferor has executed this Warranty ▇▇▇▇ of
Contribution as of ________________, 1998
Signed, Sealed and Delivered
in the presence of ▇▇▇▇▇▇▇ PRESERVATION, INC., a Florida corporation
Witness:
By: __________________________
___________________________ Name: ________________________
Title: _________________________
___________________________
STATE OF Florida
COUNTY OF ____________
The foregoing instrument was acknowledged before me this ___ day of
______________, 1998 by _________________, as __________ of ▇▇▇▇▇▇▇
Preservation, Inc., a Florida corporation. He/she is personally known to me or
has produced a Driver's License as Identification.
[Notary Seal] Notary Public
Printed Name: ______________________
My Commission Expires: _____________
-2-
EXHIBIT 6.1(E)
-------------
FORM OF ASSIGNMENT OF LEASES
----------------------------
ASSIGNOR: ▇▇▇▇▇▇▇ PRESERVATION, INC., a Florida corporation
ASSIGNEE: THE ▇▇▇▇▇▇▇ RESORT PARTNERSHIP, a Florida general partnership
FOR VALUE RECEIVED, the undersigned ("Assignor") does hereby assign to THE
--------
▇▇▇▇▇▇▇ RESORT PARTNERSHIP, a Florida general partnership ("Assignee"), its
--------
entire interest and position as present lessor, by virtue of its ownership in
the premises described in Exhibit "A" attached hereto (the "Premises") with
respect to all leases, profits, security deposits, prepaid rents or rental
arrangements executed or delivered, oral leases pursuant to Chapter 723, Florida
Statutes, and the prospectus 500716P, as approved by the Department of Business
and Professional Regulation, governing the afore-referenced oral leases and
rental arrangements, now existing or hereafter made or existing (hereinafter
collectively referred to as the "Leases"), with respect to the Premises.
Assignor does hereby empower Assignee, its agents or attorneys to collect,
▇▇▇ for, settle, compromise and give acquittance for all of the rents that may
become due under the Leases from _____________, 1998 and thereafter, and to
avail itself of and pursue all remedies for the enforcement of the Leases and
Assignor's rights in and under the Leases as Assignor might have pursued but for
this assignment. All sums due under any Leases prior to _____________, 1998,
whether paid or unpaid, shall be and remain the property of Assignor hereunder.
Assignor warrants that it is the sole owner of the entire lessor's interest
in the Leases; that the Leases are valid and enforceable; that no rent reserved
in the Leases has been assigned or anticipated; and that no rent for any period
subsequent to the date of this assignment has been collected in advance of the
time when the same is due under the terms of the Leases.
This assignment is made in conjunction with the assignment of the
beneficial interest in the Premises by Assignor to Assignee.
This instrument shall be binding upon and inure to the benefit of the
respective successors and assigns of the parties hereto. The words "Assignor",
"Assignee" and "lessor", wherever used herein, shall include the persons named
herein and designated as such and their respective successors and assigns, and
all words and phrases shall be taken to include the singular or plural and
masculine, feminine or neuter gender, as may
fit the case.
This assignment shall cover all leases and all rental arrangements of
Assignor relating to the Premises.
IN WITNESS WHEREOF, Assignor has executed this Assignment of Leases on the
date of acknowledgment, but the same is to be effective as of _____________,
1998.
Signed, Sealed and Delivered
in the presence of ▇▇▇▇▇▇▇ PRESERVATION, INC., a
Florida corporation
Witness:
By: ____________________________
___________________________ Name ___________________________
Title: _________________________
___________________________
EXHIBIT 6.1(F)
-------------
FORM OF ASSIGNMENT OF PERMITS, TRADE NAME, WARRANTIES, AND SERVICE AND
----------------------------------------------------------------------
MANAGEMENT CONTRACTS, AND INTANGIBLE PROPERTY
---------------------------------------------
THIS ASSIGNMENT OF PERMITS, TRADE NAME, WARRANTIES, AND SERVICE AND
MANAGEMENT CONTRACTS, AND INTANGIBLE PROPERTY (hereinafter referred to as the
"Assignment") is made and entered into this ___ day of ____________, 1998, by
-----------
and between ▇▇▇▇▇▇▇ PRESERVATION, INC., a Florida corporation (hereinafter
referred to as "Assignor"), and THE ▇▇▇▇▇▇▇ RESORT PARTNERSHIP, a Florida
--------
general partnership (hereinafter referred to as "Assignee").
--------
WITNESSETH:
For and in consideration of the sum of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration, Assignor does hereby transfer, assign,
and convey unto Assigee, and its successors and assigns, all of the right,
interest, benefits, and privileges of Assignor in and to:
(i) the trade name "The ▇▇▇▇▇▇▇ Mobile Home Park Development", and
all derivatives thereof (the "Development");
(ii) the signs servicing the Development;
(iii) any and all warranties, and agreements, to the extent that any
may exist, from any contractors, subcontractors, vendors or
suppliers regarding their performance, quality of workmanship,
and/or quality of materials supplied in connection with the
construction, manufacture, development, installation, repair
and/or operation of any and all fixtures, equipment, items of
personal property and improvements located in or used in
connection with the Development, or any portion thereof;
(iv) all Assignor's service contracts and management contracts,
identified on Attachment "A" attached hereto and incorporated
--------------
herein by this reference;
(v) any and all use, occupancy and operating permits and certificates
and all other permits, approvals and certificates obtained in
connection with the Development, or any portion thereof, to the
extent any of the foregoing may exist and to the extent the same
may be assignable;
(vi) any and all plans, specifications and permits relating to the
Development;
(vii) Intangible Property shall be defined as and include the
following: telephone numbers, logos and similar items, leases,
rental agreements, prepaid rents and maintenance fees, marketing
information, deposits, contract rights, permits and licenses,
pertaining to the Development; and
(viii) all other intangible property owned by Assignor in connection
with the Development.
This Assignment is given in accordance with that certain Contribution
Agreement dated _____________, 1998 by and among Assignor, Assignee and Blue
Ribbon Communities Limited Partnership relating to the Development.
Assignor hereby represents and warrants to Assignee that no previous
assignment of its interest in such items covered hereby has been made.
Dated the day and year first above written.
WITNESSES: ▇▇▇▇▇▇▇ PRESERVATION, INC., a Florida
corporation
________________________ By: _______________________________
Name:______________________________
________________________ Title: ____________________________
_____________________________
)
STATE OF FLORIDA ) ss:
)
________ COUNTY )
____________________________ )
The foregoing instrument was acknowledged before me this __ day of ___________,
1998, by ____________________ as ____________________ of ▇▇▇▇▇▇▇ Preservation,
Inc., a Florida corporation. He/She is personally known to me or has produced
driver's license as identification.
________________________________
Notary Public
Name of Notary Printed:
EXHIBIT 6.1(G)
FORM OF ASSIGNMENT AND ASSUMPTION OF MORTGAGE
---------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF MORTGAGE ("Agreement") effective as of
---------
the __ day of __________, 1998, by and among ▇▇▇▇▇▇▇ Preservation, Inc., a
Florida corporation, whose address is ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ("MPI"), The ▇▇▇▇▇▇▇ Resort Partnership, a Florida general
partnership whose address is c/o Manufactured Home Communities, Inc., Two ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Partnership"), and MHC
-----------
Lending Limited Partnership, whose address is Two ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Lender").
------
WITNESSETH:
WHEREAS, MPI is the owner of the record and beneficial interests in that
certain real property located at the northwest corner of PGA Boulevard and
Prosperity Farms Road in Palm Beach County, Florida, and commonly known as The
▇▇▇▇▇▇▇ Mobile Home Park, including all improvements thereon, more particularly
described in EXHIBIT A attached hereto (the "Property"), and
--------
WHEREAS, Lender has previously made a loan to MPI in the original principal
amount of Twelve Million Three Hundred Forty-one Thousand Six Hundred Ninety-
three Dollars and No Cents ($12,341,693.00) (with all accrued interest thereon,
the "Loan"), which is evidenced by a Promissory Note executed by MPI in favor of
----
Lender dated December 18, 1998, in the amount of the Loan (the "Note"), and
----
which Note is secured by, among other things, a Mortgage, Security Agreement,
Financing Statement, Fixture Filing and Assignment of Leases and Rents dated
December 18, 1997 and recorded on December 19, 1997 in Official Record Book
10145, Page 1538 of the Public Records of Palm Beach County, Florida, as
extended by a Mortgage Extension Agreement, dated March 30, 1998, and recorded
as aforesaid on May 14, 1998 in Official Record Book 10403, Page 97 and as
further extended and amended by a Mortgage Extension and Amendment Agreement,
dated August 19, 1998, and recorded as aforesaid on September 3, 1998 in
Official Record Book 10620, Page 1335 (collectively, the "Mortgage"); and
--------
WHEREAS, MPI, Partnership and Lender have agreed to a further extension of
the Note and Mortgage as hereinafter set forth; and
WHEREAS, MPI and Partnership intend that the beneficial interest in the
Property will be conveyed to Partnership by MPI as of the date hereof, but that
MPI will retain the record interest in the Property; and
WHEREAS, the Mortgage provides that MPI shall not convey the Property or
any direct or indirect interest therein without the prior written consent of the
Lender; and
WHEREAS, Lender is willing to consent to the conveyance of the beneficial
interest in the Property, provided that Partnership assumes liability for the
payment of the Loan and responsibility for the performance of all obligations
under the Note and Mortgage;
NOW, THEREFORE, as an inducement to cause Lender to consent to the assignment,
and for other valuable consideration, the receipt and sufficiency of which are
acknowledged, it is agreed as follows:
1. Consent to Assignment of Beneficial Interest. Lender hereby consents
--------------------------------------------
to the assignment of the beneficial interest in the Property from MPI to the
Partnership, subject to the Mortgage.
2. Assignment of the Loan: Assumption by Partnership. MPI hereby
-------------------------------------------------
assigns to the Partnership, effective as of the date hereof, all of MPI's
rights, duties and obligations in, to, and arising out of the Loan together with
the Note and Mortgage (other than MPI's obligation to pay interest and other
amounts accrued or payable through the date hereof), subject to the covenants,
conditions, and provisions of the Loan as provided in the Note and the Mortgage.
The Partnership hereby assumes, as of the date hereof, all liability for the
payment of the outstanding principal amount of the Loan and for the payment of
all interest and other amounts due thereon or in connection therewith (other
than interest or other amounts that accrued or are payable through the date
hereof) and the performance of all of the obligations of MPI with respect to the
Loan, the Note and the Mortgage.
If Lender so requests, the Partnership shall execute an allonge to the Note
to further evidence the Partnership's liability for the payment thereof.
3. Ratification. The Partnership hereby remakes, ratifies and confirms
------------
in each and every respect all terms, provisions, conditions, representations,
warranties, liabilities, obligations and/or indebtedness contained in or
evidenced by the Note, the Mortgage or the Loan, as hereby specifically modified
and amended.
4. Amendment and Waiver in Writing. No provision of this Agreement can
-------------------------------
be amended or waived, except by a statement in writing signed by the party
against which enforcement of the amendment or waiver is sought.
5. Assignment. This Agreement and all related documents shall be
----------
binding upon and inure to the benefit of the respective successors and assigns
of MPI and the Partnership and the successors and assigns of Lender. This
provision does not, however, modify or impair the restrictions on transfers of
the Property or interests therein set forth in the Mortgage.
6. Entire Agreement/Counterparts. This Agreement and the documents
-----------------------------
referenced herein and those executed concurrently herewith represent the entire
agreement among the parties concerning the Loan referenced herein, and each such
document may be executed in one or more counterparts, all of which counterparts
of any such document shall constitute one and the same instrument.
7. Severability. Should any provision of this Agreement be invalid or
------------
unenforceable for any reason, the remaining provisions hereof shall remain in
full effect.
8. Applicable Law. The validity and construction of this Agreement and
--------------
all other documents executed with respect to the Loan shall be determined
according to the laws of the state of Florida applicable to contracts executed
and performed within that state.
9. Gender and Number. Words used herein indicating gender or number
-----------------
shall be read as the context may require.
10. Captions Not Controlling. Captions and headings have been included
------------------------
in this Agreement for the convenience of the parties, and shall not be construed
as affecting the content of the respective paragraphs.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
▇▇▇▇▇▇▇ PRESERVATION, INC., a Florida
WITNESS: corporation
___________________________ By: ____________________________
Name: __________________________
___________________________ Title: ___________________________
BLUE RIBBON COMMUNITIES LIMITED
PARTNERSHIP, a Delaware limited partnership
WITNESS: By: MHC-QRS Blue Ribbon Communities, Inc.,
a Delaware corporation, General Partner
___________________________ By: ____________________________
Name: __________________________
___________________________ Title: ___________________________
MHC LENDING LIMITED PARTNERSHIP, an
Illinois limited partnership
WITNESS: By: MHC Lending-QRS, Inc., an Illinois
___________________________ By: ____________________________
Name: __________________________
___________________________ Title: ___________________________
__________________________
)
STATE OF FLORIDA ) ss:
)
__________ COUNTY )
__________________________)
The foregoing instrument was acknowledged before me this __ day of ___________,
1998, by ____________________ as ____________________ of ▇▇▇▇▇▇▇ Preservation,
Inc., a Florida corporation. He/She is personally known to me or has produced
driver's license as identification.
________________________________
Notary Public
Name of Notary Printed:
__________________________
)
STATE OF ILLINOIS ) ss:
)
▇▇▇▇ COUNTY )
__________________________)
The foregoing instrument was acknowledged before me this __ day of ___________,
1998, by ____________________ as ____________________ of MHC-QRS Blue Ribbon
Communities, Inc., General Partner of Blue Ribbon Communities Limited
Partnership, a Delaware limited partnership. He/She is personally known to me
or has produced driver's license as identification.
________________________________
Notary Public
Name of Notary Printed:
__________________________
)
STATE OF ILLINOIS ) ss:
)
▇▇▇▇ COUNTY )
__________________________)
The foregoing instrument was acknowledged before me this __ day of __________,
1998, by ____________________ as ____________________ of MHC Lending-QRS, Inc.,
General Partner of MHC Lending Limited Partnership, an Illinois limited
partnership. He/She is personally known to me or has produced driver's license
as identification.
________________________________
Notary Public
Name of Notary Printed:
EXHIBIT 6.1(J)
CONTRACTS PERTAINING TO THE PROPERTY
------------------------------------
1. Management Agreement with MHC Management Limited Partnership
