AGREEMENT FOR ASSIGNMENT OF CONTRACTS
AND
COVENANT NOT TO COMPETE
This Agreement for Assignment of Contracts and Covenant Not to Compete
(the "Agreement") made between MOORINGS DEVELOPMENT AND MARKETING CORPORATION, a
Florida corporation ("MDMC"), RIVERSIDE SOD AND SUPPLY COMPANY, a Florida
corporation ("RSSC"), ▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") and COMMUNITY ACQUISITION &
DEVELOPMENT CORP., a Delaware corporation, or its assigns ("CADC").
INTRODUCTION:
A. Moorings of Manatee, Inc., a Florida corporation ("MMI") is the
owner of a manufactured housing community known as Manatee River Golf and
Boating Resort Community located in Ruskin, Florida (the "Park").
B. MMI and CADC have, concurrently with this Agreement, entered into an
Asset Purchase Agreement (the "Asset Agreement") for the sale of the Park.
C. MDMC and RSSC are parties to certain contracts that relate to the
Park. These contracts (each a contract and collectively the "Contracts") are
more particularly described in Exhibit "A".
D. MDMC and RSSC have reached an agreement for the assignment of the
Contracts to CADC.
E. MDMC is the owner of certain new mobile homes (the "Homes"). MDMC
wishes to sell to CADC, and CADC wishes to purchase from MDMC, the Homes.
▇. ▇▇▇▇▇▇▇ is the president of MDMC, RSSC and MMI. ▇▇▇▇▇▇▇ is
experienced in the development, ownership and operation of mobile home
communities. ▇▇▇▇▇▇▇ and CADC have reached an agreement whereby ▇▇▇▇▇▇▇ will
agree not to compete with CADC with regard to the Park.
G. The parties wish to set forth their agreements regarding the
Contracts and ▇▇▇▇▇▇▇'▇ refraining from competition with CADC in writing.
THEREFORE, for good and valuable consideration, the parties agree as
follows:
1. ASSIGNMENT AND ASSUMPTION. MDMC and RSSC agree to transfer
and assign to CADC, subject to the terms and conditions of this Agreement, all
of their right, title in interest in, to and under the Contracts. CADC, or its
assigns, upon closing, will assume all of the rights and obligations of MMI
under the Contracts from and after the date of closing.
2. PRICE. CADC agrees to pay to MDMC and RSSC, respectively,
the following sums for their rights under the Contracts:
a. To MDMC for the Consulting Agreement, the
sum of $350,000.
b. To MDMC for the Asset Management Agreement,
the sum of $250,000.
c. To RSSC for the Golf Course Management
Agreement, the sum of $100,000.
d. To MDMC for the Management Agreement, the
sum of $600,000.
e. To MDMC for the Marketing Agreement, the sum
of $200,000.
These sums are collectively referred to as the "Contract Purchase Price". The
Contract Purchase Price, plus the Home Price (as defined below) (collectively,
the Purchase Price), shall be paid as follows:
a. The ▇▇▇▇▇▇▇ money deposits shall be credited
toward the Purchase Price at closing;
b. The balance shall be due and payable in
certified funds, or the equivalent thereof,
at closing.
3. ▇▇▇▇▇▇▇ MONEY DEPOSIT. CADC will deliver to Livingston,
Patterson, ▇▇▇▇▇▇▇▇▇▇ & Weiner, P.A. (the "Escrow Agent") an ▇▇▇▇▇▇▇ money
deposit in the following amounts and at the following times:
a. Within two (2) business days of the
Effective Date, the sum of One Hundred
Thousand and N100 Dollars ($100,000.00).
All sums deposited with the Escrow Agent will be held in an interest
bearing trust account as the ▇▇▇▇▇▇▇ money deposit for the transaction described
herein.
In the event that the transaction contemplated hereby is consummated in
accordance with the terms and conditions hereof, the Escrow Agent shall apply
the ▇▇▇▇▇▇▇ money deposit to the purchase price due on the date of closing and
the interest shall be paid to CADC. In the event that the transaction
contemplated hereby is not so consummated, the ▇▇▇▇▇▇▇ money deposit shall be
paid to CADC unless MDMC and RSSC are entitled to it under the paragraph
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captioned "Default" due to a default by CADC. The interest shall be paid to the
party entitled to the deposit.
The sole liability of the Escrow Agent shall be to deposit the funds in
an interest-bearing account and to disburse the funds according to the terms of
this Agreement. No fees shall be charged by Escrow Agent for setting up the
escrow and administering it. However, notwithstanding the foregoing, in the
event of a breach of this Agreement by any party, and in the event of a dispute
as to the disposition of said escrowed funds, the parties agree to allow the
Escrow Agent to hold the funds during any court proceedings, and shall indemnify
and hold harmless the Escrow Agent from all liability hereunder and shall
reimburse the Escrow Agent for all court costs and attorneys' fees incurred by
it, including attorneys' fees on appeal in the event it is joined in any legal
proceedings regarding this Agreement.
The parties acknowledge that Escrow Agent is acting as counsel for
MDMC, MMI, ▇▇▇▇▇▇▇ and RSSC. This shall not prevent Escrow Agent from
representing these parties in any action arising out of or related to this
Agreement, and the Purchaser, who represents that it has consulted with its
legal counsel as to the ramifications, expressly waives any right to object to
such representations.
4. HOMES. The Homes are described in Exhibit "B". The Homes
shall be purchased at MDMC's cost of $220,501. The purchase price for the Homes
(the "Home Price") shall be in addition to the Purchase Price.
5. INSPECTION. CADC acknowledges that it has made all
investigations with respect to the Contracts and that is satisfied with them.
MDMC and RSSC make no warranties or representations with respect to the
Contracts except that they are in full force and effect, and that MDMC and RSSC
shall make no claims for any compensation or other sums due to them under the
Contracts subsequent to closing.
6. ASSIGNABILITY. After making the Escrow Deposit, CADC shall
have the right to assign its rights and obligations under this Agreement to a
Delaware limited liability company to be formed under the name CAX Riverside,
L.L.C. or another name selected by Purchaser ("Assignee"), as long as the
representations and warranties applicable to Purchaser shall be met by Assignee.
7. NON-COMPETITION. ▇▇▇▇▇▇▇ shall enter into a non-competition
agreement (the "Non-Competition Agreement") pursuant to which ▇▇▇▇▇▇▇ shall
agree not to be engaged or employed, either directly or indirectly, in the
business of owning or operating of a mobile home community which shall include
the operation of a marina, a public golf course, or related amenities. The
Non-Competition Agreement shall be for a term of five (5) years and shall
encompass an area within fifty (50) miles of the Property. The Non-Competition
Agreement shall be in the form attached as Exhibit "C". As consideration for
this, CADC shall pay to ▇▇▇▇▇▇▇ on closing the sum of $350,000.
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8. WARRANTIES AND REPRESENTATIONS . The parties make the
following representations to one another in connection with this transaction:
MDMC and RSSC hereby warrant and represent to CADC the following. All
of the representations, warranties and agreements made by them below and
elsewhere in this Agreement shall be true upon the execution of this Agreement,
shall be deemed to be repeated at and as of the date of closing, and shall
survive the closing for a period of one year. All such warranties and
representations are made to the present actual knowledge of ▇▇▇▇▇ ▇▇▇▇▇▇▇, as
president of MDMC and RSSC, and not otherwise.
a. The Contracts are in full force and effect.
b. No claims for a breach have been asserted by
any party to the Contracts.
c. True, correct and complete copies of the
Contracts have been delivered to CADC. The
Contracts have not been modified and will
not be modified prior to closing.
d. The Contracts have not been pledged, made
subject to any lien or security interest, or
assigned.
e. The consummation of the transaction
contemplated by this Agreement will not
result in the breach of any term or
provisions of any mortgage, indenture,
instrument or agreement to which MDMC or
RSSC is a party.
f. MDMC and RSSC are corporations duly
organized, validly existing and in good
standing under the laws of the State of
Florida.
g. MDMC and RSSC have full power and authority
to enter into this Agreement and to assume
and perform all of their obligations
hereunder. The individual signing this
Agreement has the authority to do so and to
bind them by doing so. To any extent
required, the execution and delivery of this
Agreement and the performance by MDMC and
RSSC of their obligations hereunder has been
duly authorized and no further action or
approval is required in order to constitute
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this Agreement as a binding and enforceable
obligation of MDMC and RSSC.
h. MDMC is the owner of the Homes and will, at
closing, convey title to CADC free and clear
of any liens.
CADC hereby warrants and represents to MDMC and RSSC the following. All
of the representations, warranties and agreements made by it below and elsewhere
in this Agreement shall be true upon the execution of this Agreement, shall be
deemed to be repeated at and as of the date of closing, and shall survive the
closing for a period of one year. All such warranties and representations are
made to the present actual knowledge of the officer signing this Agreement on
behalf of CADC and not otherwise.
a. CADC is a corporation duly organized,
validly existing and in good standing under
the laws of the State of Delaware.
b. The consummation of the transaction
contemplated by this Agreement will not
result in the breach of any term or
provisions of any mortgage, indenture,
instrument or agreement to which CADC is a
party.
f. CADC has full power and authority to enter
into this Agreement and to assume and
perform all of its obligations hereunder.
The individual signing this Agreement has
the authority to do so and to bind CADC by
doing so. To any extent required, the
execution and delivery of this Agreement and
the performance by CADC of its obligations
hereunder has been duly authorized and no
further action or approval is required in
order to constitute this Agreement as a
binding and enforceable obligation of CADC.
9. CONDITIONS TO CLOSING. The following shall constitute
conditions precedent to the liability of the parties to consummate the closing
described herein:
a. All of the warranties and representations
set forth herein shall be true as of the
date of closing.
b. Simultaneous closing of the transaction
contemplated in the Asset Agreement.
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10. CLOSING. The closing of the transaction contemplated
hereby shall be held simultaneously with the Closing of the Asset Purchase
Agreement. The closing shall be held at at the offices of the attorney for MDMC
and RSSC, or at such other time, date and location as is mutually agreeable to
the parties.
11. CLOSING EVENTS. At the time and place of closing, MDMC and
RSSC, as appropriate, shall cause to be delivered to CADC or, if appropriate,
execute in favor of CADC, the following documents:
a. An assignment of the Contracts; and
b. Certificates of Title or, if titles have not
been issued as of the Closing Date, a ▇▇▇▇
of Sale and Manufacturers' Statements of
Origin for the Homes.
Also, ▇▇▇▇▇▇▇ shall cause to be delivered to CADC or, if appropriate, execute in
favor of CADC, the following documents:
a. A Non-Competition Agreement;
12. COMMISSIONS. MDMC, RSSC and ▇▇▇▇▇▇▇ and CADC represent to
each other that they have not dealt with any real estate broker or other broker
in regard to the Park and this transaction except for Horizon Real Estate &
Investment Corporation ("Broker"). Each party agrees to indemnify, defend and
hold harmless the other party from and against any real estate commission as a
result of such representation by the representing party being untrue. Broker is
entitled to a commission on the closing of the sale of the Park by MMI to CADC
as set forth in the Asset Agreement, but not otherwise. CADC and MDMC and RSSC
acknowledge that Broker is representing and acting on CADC's behalf with regard
to the sale of the Park.
13. DEFAULT. In the event of a default by MDMC or RSSC
hereunder, CADC may, at its option, elect to enforce the terms hereof, or demand
and be entitled to an immediate refund of its entire ▇▇▇▇▇▇▇ money deposit,
together with any interest thereon, or CADC may exercise any other right or
remedy, in equity or in law, all of which rights and remedies shall be
cumulative. MDMC and RSSC agree that CADC, among its remedies, shall be entitled
to specific performance of this Agreement. In the event of default by CADC,
Seller may declare a forfeiture hereunder and retain the ▇▇▇▇▇▇▇ money deposit,
together with any interest thereon, as its sole remedy and as agreed liquidated
damages. This shall constitute the only remedy of MDMC and RSSC, and they shall
have no further rights against CADC. However, if any party (including any
brokers executing this Agreement) are required to take any legal action to
enforce this Agreement, the prevailing party or parties shall be entitled to
recover reasonable attorneys fees from the other party or parties.
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14. GOVERNING LAW AND AMENDMENT. This Agreement shall be
governed by and construed in accordance with the laws of the State of Florida
without regard to principles of conflicts of laws. No amendment or modification
of this Agreement shall be valid or enforceable unless confirmed in writing and
signed by each of the parties hereto.
15. BINDING EFFECT AND SURVIVAL. This Agreement shall inure to
the benefit of and shall be binding upon the successors and assigns of the
parties hereto. All of the terms and conditions of this Agreement shall survive
the closing. Which party prepared this Agreement shall have no bearing on its
interpretation. There are no third parties that are beneficiaries of this
Agreement.
16. NOTICES. Any and all notices required to be delivered
hereunder shall be deemed properly delivered if (i) personally delivered, or
(ii) mailed by registered or certified mail, return receipt requested, or sent
by Federal Express or another express mail service to the following addresses,
or (iii) sent by facsimile to the following numbers with a copy mailed within
two (2) business days thereafter to the following numbers:
If to ▇▇▇▇▇▇▇, MDMC and RSSC:
c/o ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Fax # (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esquire
LIVINGSTON, PATTERSON, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Fax # (▇▇▇) ▇▇▇-▇▇▇▇
If to CADC: Community Acquisition & Development Corp.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Att'n: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax #
With copies to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax # (▇▇▇) ▇▇▇-▇▇▇▇
If to Broker: Horizon Real Estate & Investment Corp.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Fax # (▇▇▇) ▇▇▇-▇▇▇▇
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Any party hereto may change the name and address or other information regarding
the designee to whom notice shall be sent by giving written notice of such
change to the other party hereto in the same manner as all other notices are
required to be delivered hereunder.
17. TIME. Time is of the essence of this agreement. However,
if a date for the performance of an obligation falls on a Saturday, Sunday or
legal holiday, the date for performance shall be extended to the next business
day that is not a Saturday, Sunday or legal holiday.
18. EFFECTIVE DATE. The Effective Date shall be the date all
parties have executed this Agreement.
19. CONFIDENTIALITY. CADC shall maintain in strict confidence
all information obtained from MDMC and RSSC. These matters shall only be
disclosed to CADC's officers, directors, lenders and professional advisors, all
of whom shall be instructed of the confidential nature of the information.
Additionally, CADC, prior to the Effective Date, shall not make any public
announcements regarding this transaction without the prior written consent,
prior to the Effective Date, of MDMC and RSSC. Provided, however, that none of
the foregoing shall operate to interfere with the obligations of CADC or its
assignee for reporting under applicable securities laws or agreements with its
lenders.
20. ATTORNEYS' FEES AND VENUE. In addition to any remedies
provided by law, the prevailing party (which term shall include the broker) in
any action to enforce this Agreement shall be entitled to recover all costs and
expenses, including reasonable attorney's fees, from the other party. Venue for
any litigation arising hereunder shall be in Hillsborough County, Florida.
21. ENTIRE AGREEMENT. This Agreement contains the entire
agreement of the parties and supersedes all negotiations, tentative agreements,
representations, commitments, or arrangements made prior to the date hereof. All
prior agreements are merged into this Agreement, and all representations and
warranties, whether oral or written, are hereby disclaimed and disavowed unless
expressly contained herein.
22. COUNTERPARTS. This Agreement and any amendments to it may
be executed in multiple copies, each of which shall for all purposes constitute
one agreement, binding upon the parties. Each party shall send to all other
parties by facsimile transmission a copy of the page of the Agreement with their
signature within one business day from the date of execution.
23. CROSSDEFAULT. A default by a party to this Agreement shall
be a default by that party under the Asset Agreement, and visa versa. MMI joins
in this Agreement for the purposes of agreeing to this provision.
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IN WITNESS of this Agreement, the parties hereto have signed it on the
dates set forth below.
WITNESSES: ▇▇▇▇▇▇▇
/s/ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------- ----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/
-----------------------------
MDMC
MOORINGS DEVELOPMENT & MARKETING
CORPORATION, a
Florida corporation
/s/ By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------- -------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ Its President
----------------------------- Taxpayer I.D. Number:
▇▇-▇▇▇▇▇▇▇
Signed on November 20, 1998
RSSC
RIVERSIDE SOD AND SUPPLY COMPANY,
a Florida corporation
/s/ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------- -------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ Its President
---------------------------- Taxpayer I.D. Number:
▇▇-▇▇▇▇▇▇▇
Signed on November 20, 1998
CADC
WITNESSES: COMMUNITY ACQUISITION &
DEVELOPMENT CORP., a Delaware
corporation
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------- -------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Its President
----------------------------- Taxpayer I.D. Number:
▇▇-▇▇▇▇▇▇▇
Signed on November 17, 1998
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JOINDER
The undersigned real estate broker joins in this Agreement and
acknowledges that it is not entitled to any commission under this Agreement.
HORIZON REAL ESTATE & INVESTMENT
CORPORATION
By: /s/ N. J. ▇▇▇▇▇▇▇▇
-------------------------------
N. J. ▇▇▇▇▇▇▇▇
Its President
JOINDER
The undersigned joins in this Agreement for the purpose of agreeing to
be bound by the provisions of the paragraph captioned Cross-Default.
MOORINGS OF MANATEE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its President
w:\moorings\▇▇▇▇▇▇\asset\sup.agr
11-14-98
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