EXHIBIT 10.2
ENCORE PORTFOLIO
CONTRIBUTION AND ASSIGNMENT AGREEMENT
THIS CONTRIBUTION AND ASSIGNMENT AGREEMENT (this "Agreement") is made
and entered into as of the 17th day of February, 2004, by and among MHC-ENCORE
HOLDINGS, L.L.C. (together with its affiliates, designees and assigns, the
"Company"), a Delaware limited liability company having an address of c/o
Manufactured Home Communities, Inc., Two North Riverside Plaza, Suite 800,
Chicago, Illinois 60606, EMB/NHC, L.L.C. ("Contributor"), a Delaware limited
liability company having an address of c/o National Home Communities, L.L.C.,
6991 East Camelback Road, Suite B-310, Scottsdale, Arizona 85251, and the "New
GP Entities" (as hereinafter defined), each having an address of c/o National
Home Communities, L.L.C., 6991 East Camelback Road, Suite B-310, Scottsdale,
Arizona 85251.
R E C I T A L S:
A. EMB/NHC-NewGP-LEMB V, Inc. ("NewGP-LEMB V") owns the sole
general partner interest, and Contributor owns the sole limited partner
interest, of LEMB V, L.P., a Delaware limited partnership ("LEMB V LP"), which
owns the property known as "Park City West," located in Broward County, Florida,
on the real property more particularly described on Exhibit A-1 attached hereto
and containing all of the property described in Section 1(C) herein ("Park City
Property").
B. EMB/NHC-NewGP-LEMB VI, Inc. ("NewGP-LEMB VI") owns the sole
general partner interest, and Contributor owns the sole limited partner
interest, of LEMB VI, L.P., a Delaware limited partnership ("LEMB VI LP"), which
owns the property known as "Encore Punta Gorda," and located in Punta Gorda,
Florida, on the real property more particularly described on Exhibit A-2
attached hereto and containing all of the property described in Section 1(C)
herein ("Punta Gorda Property").
C. EMB/NHC-NewGP-FL1, Inc. ("NewGP-FL1") owns the sole general
partner interest, and Contributor owns the sole limited partner interest, of
NHC-FL1, L.P., a Delaware limited partnership ("NHC-FL1 LP"), which indirectly,
through one or more entities, owns an interest (I) in the properties known as
(i) "Encore Port Charlotte," located in Port Charlotte, Florida, on the real
property more particularly described on Exhibit A-3 attached hereto and
containing all of the property described in Section 1(C) herein ("Port Charlotte
Property"), (ii) "Encore Harlingen," located in Harlingen, Texas on the real
property more particularly described on Exhibit A-4 attached hereto and
containing all of the property described in Section 1(C) herein ("Encore
Harlingen Property"), and (iii) "Sunburst Harlingen," located in Harlingen,
Texas, on the real property more particularly described on Exhibit A-5 attached
hereto and containing all of the property described in Section 1(C) herein
("Sunburst Harlingen Property"), (iv) "Sunburst Port Richey," located in Port
Richey, Florida, on the real property more
particularly described on Exhibit A-6 attached hereto and containing all of the
property described in Section 1(C) herein ("Port Richey Property"), (v) "Encore
Vero Beach," located in Vero Beach, Florida, on the real property more
particularly described on Exhibit A-7 attached hereto and containing all of the
property described in Section 1(C) herein ("Vero Beach Property"), (vi) "Encore
Daytona Beach," located in Daytona Beach, Florida, on the real property more
particularly described on Exhibit A-8 attached hereto and containing all of the
property described in Section 1(C) herein ("Daytona Beach Property"), and (II) a
ground lease interest in the property known as "Tahoe Valley Campground,"
located in Lake Tahoe, California, on the real property more particularly
described on Exhibit A-9 attached hereto and containing all of the property
described in Section 1(C) herein ("Tahoe Property").
D. EMB/NHC-NewGP-FL2, Inc. ("NewGP-FL2") owns the sole general
partner interest, and Contributor owns the sole limited partner interest, of
NHC-FL2, L.P., a Delaware limited partnership ("NHC-FL2 LP"), which owns the
property known as "Encore Crystal River," located in Crystal River, Florida, on
the real property more particularly described on Exhibit A-10 attached hereto
and containing all of the property described in Section 1(C) herein ("Crystal
River Property").
E. EMB/NHC-NewGP-FL4, Inc. ("NewGP-FL4") owns the sole general
partner interest, and Contributor owns the sole limited partner interest, of
NHC-FL4, L.P., a Delaware limited partnership ("NHC-FL4 LP"), which owns the
property known as "Encore Orlando," located in Orlando, Florida, on the real
property more particularly described on Exhibit A-11 attached hereto and
containing all of the property described in Section 1(C) herein ("Orlando
Property").
F. EMB/NHC-NewGP-FL5, Inc. ("NewGP-FL5") owns the sole general
partner interest, and Contributor owns the sole limited partner interest, of
NHC-FL5, L.P., a Delaware limited partnership ("NHC-FL5 LP"), which owns the
property known as "Fort Myers Beach Resort," located in Fort Myers Beach,
Florida, on the real property more particularly described on Exhibit A-12
attached hereto and containing all of the property described in Section 1(C)
herein ("Fort Myers Beach Property").
G. EMB/NHC-NewGP-FL6, Inc. ("NewGP-FL6") owns the sole general
partner interest, and Contributor owns the sole limited partner interest, of
NHC-FL6, L.P., a Delaware limited partnership ("NHC-FL6 LP"), which indirectly,
through one or more entities, owns an interest in the Port Charlotte Property,
the Encore Harlingen Property, the Sunburst Harlingen Property, the Port Richey
Property, the Vero Beach Property, the Daytona Beach Property, and the Tahoe
Property.
H. EMB/NHC-NewGP-FL8, Inc. ("NewGP-FL8") owns the sole general
partner interest, and Contributor owns the sole limited partner interest, of
NHC-FL8, L.P., a Delaware limited partnership ("NHC-FL8 LP"), which owns the
property known as "Silver Dollar," located in Odessa, Florida, on the real
property more particularly described on Exhibit A-13
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attached hereto and containing all of the property described in Section 1(C)
herein ("Silver Dollar Property").
I. EMB/NHC-NewGP-FL9, Inc. ("NewGP-FL9") owns the sole general
partner interest, and Contributor owns the sole limited partner interest, of
NHC-FL9, L.P., a Delaware limited partnership ("NHC-FL9 LP"), which owns the
property known as "Sunburst Lake Placid," located in Lake Placid, Florida, on
the real property more particularly described on Exhibit A-14 attached hereto
and containing all of the property described in Section 1(C) herein ("Lake
Placid Property").
J. EMB/NHC-NewGP-FL10, Inc. ("NewGP-FL10") owns the sole general
partner interest, and Contributor owns the sole limited partner interest, of
NHC-FL10, L.P., a Delaware limited partnership ("NHC-FL10 LP"), which owns the
property known as "Encore Sarasota North," located in Sarasota North, Florida,
on the real property more particularly described on Exhibit A-15 attached hereto
and containing all of the property described in Section 1(C) herein ("Sarasota
North Property").
K. EMB/NHC-NewGP-FL11, Inc. ("NewGP-FL11") owns the sole general
partner interest, and Contributor owns the sole limited partner interest, of
NHC-FL11, L.P., a Delaware limited partnership ("NHC-FL11 LP"), which owns the
property known as "Encore Tampa North," located in Tampa North, Florida, on the
real property more particularly described on Exhibit A-16 attached hereto and
containing all of the property described in Section 1(C) herein ("Tampa North
Property").
L. EMB/NHC-NewGP-FL13, Inc. ("NewGP-FL13") owns the sole general
partner interest, and Contributor owns the sole limited partner interest, of
NHC-FL13, L.P., a Delaware limited partnership ("NHC-FL13 LP"), which owns the
property known as "Sunshine Key," located in Florida Keys, Florida, on the real
property more particularly described on Exhibit A-17 attached hereto and
containing all of the property described in Section 1(C) herein ("Sunshine Key
Property").
M. EMB/NHC-NewGP-FL15, Inc. ("NewGP-FL15") owns the sole general
partner interest, and Contributor owns the sole limited partner interest, of
NHC-FL15, L.P., a Delaware limited partnership ("NHC-FL15 LP"), which owns the
property known as "Sunburst Fort Myers Beach," located in Fort Myers Beach,
Florida, on the real property more particularly described on Exhibit A-18
attached hereto and containing all of the property described in Section 1(C)
herein ("Sunburst Fort Myers Property").
N. EMB/NHC-NewGP-FL16, Inc. ("NewGP-FL16") owns the sole general
partner interest, and Contributor owns the sole limited partner interest, of
NHC-FL16, L.P., a Delaware limited partnership ("NHC-FL16 LP"), which owns the
property known as "Sunburst Florida Keys," located in Florida Keys, Florida, on
the real property more particularly described on Exhibit A-19 attached hereto
and containing all of the property described in Section 1(C) herein ("Florida
Keys Property").
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O. EMB/NHC-NewGP-FL17, Inc. ("NewGP-FL17") owns the sole general
partner interest, and Contributor owns the sole limited partner interest, of
NHC-FL17, L.P., a Delaware limited partnership ("NHC-FL17 LP"), which owns the
property known as "Sunburst North Fort Myers," located in North Fort Myers
Beach, Florida, on the real property more particularly described on Exhibit A-20
attached hereto and containing all of the property described in Section 1(C)
herein ("North Fort Myers Property").
P. EMB/NHC-NewGP-FL18, Inc. ("NewGP-FL18", and together with
NewGP-LEMB V, NewGP-LEMB VI, NewGP-FL1, NewGP-FL2, NewGP-FL4, NewGP-FL5,
NewGP-FL6, NewGP-FL8, NewGP-FL9, NewGP-FL10, NewGP-FL11, NewGP-FL13, NewGP-FL15,
NewGP-FL16, NewGP-FL17 and NewGP-FL18, collectively, the "New GP Entities," and
each, a "New GP Entity") owns the sole general partner interest, and Contributor
owns the sole limited partner interest, of NHC-FL18, L.P., a Delaware limited
partnership ("NHC-FL18 LP"), which owns the property known as "Tropical Palms,"
located in Orlando, Florida, on the real property more particularly described on
Exhibit A-21 attached hereto and containing all of the property described in
Section 1(C) herein ("Tropical Palms Property").
Q. On or about January 8, 2004, Contributor provided the
requisite notice ("Notice") under each of the partnership agreements of the
Property Owners (the "Partnership Agreements") to exercise the buy/sell
provisions contained in Section 5.4 of the Partnership Agreements (the "Buy/Sell
Provisions").
R. Property Asset Management, Inc. and/or its affiliates as
general and limited partners of the Property Owners (collectively, "PAMI")
failed to respond to the Notice in a manner sufficient to qualify as the "Buyer"
within the meaning of the Buy/Sell Provisions.
S. Contributor has represented to the Company that PAMI has
breached its obligations under the Partnership Agreements and has repudiated the
terms of the Partnership Agreements, including without limitation, the Buy/Sell
Provisions.
T. Immediately prior to this Agreement, the Company loaned to
Contributor an amount necessary to enable Contributor to acquire all of the
partnership or membership interests in each of the Property Owners owned by PAMI
(collectively, the "PAMI Interests") and to pay PAMI in full for the PAMI
Interests within the meaning of the Buy/Sell Provisions, which loan ("Loan") is
evidenced by a promissory note payable to the Company (the "Note").
U. Following the acquisition of the PAMI Interests, Contributor
directly or indirectly owns all of the issued and outstanding limited
partnership in the Property Owners (the "LP Interests"), and pursuant to the
terms of the Buy/Sell Provisions, Contributor designated the New GP Entities to
own the general partner of the Property Owners (the "GP Interests" and together
with the LP Interests, the "Interests").
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V. The Company has relied upon the foregoing events and upon
Contributor's representations that Contributor qualifies as the "Buyer" within
the meaning of the Buy/Sell Provisions in causing the Company to make the Loan
and in entering into this Agreement.
W. LEMB V LP, LEMB VI LP, NHC-FL1 LP, NHC-FL2 LP, NHC-FL4 LP,
NHC-FL5 LP, NHC-FL6 LP, NHC-FL8 LP, NHC-FL9 LP, NHC-FL10 LP, NHC-FL11 LP,
NHC-FL13 LP, NHC-FL15 LP, NHC-FL16 LP, NHC-FL17 LP, and NHC-FL18 LP are
sometimes referred to hereinafter individually as a "Property Owner" and
collectively as the "Property Owners".
X. The Park City Property, the Punta Gorda Property, the Port
Charlotte Property, the Encore Harlingen Property, the Sunburst Harlingen
Property, the Port Richey Property, the Vero Beach Property, the Daytona Beach
Property, the Tahoe Property, the Crystal River Property, the Orlando Property,
the Fort Myers Beach Property, the Silver Dollar Property, the Lake Placid
Property, the Sarasota North Property, the Tampa North Property, the Sunshine
Key Property, the Sunburst Forth Myers Property, the Florida Keys Property, the
North Fort Myers Property and the Tropical Palms Property are sometimes referred
to hereinafter individually as an "Individual Property" and collectively as the
"Properties."
Y. Contributor desires to contribute to the Company, and the
Company desires to accept such contribution from Contributor, all of the LP
Interests owned by Contributor, upon and subject to the terms and conditions of
this Agreement. Each New GP Entity desires, and Contributor shall cause each New
GP Entity, to assign to the Company, and the Company desires to accept such
assignment from Contributor, all of the GP Interests owned by such New GP
Entity, upon and subject to the terms and conditions of this Agreement
THEREFORE, in consideration of and in reliance upon the above Recitals,
which by this reference are incorporated herein, the terms, covenants,
conditions and representations contained in this Agreement, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Contributor, each New GP Entity and the Company agree as follows:
1. CONTRIBUTION AND ASSIGNMENT
A. Subject to the terms and conditions of this Agreement,
Contributor hereby agrees to contribute to the Company, at the Closing (as such
term is hereinafter defined), all of its right, title and interest in and to all
of the LP Interests held by Contributor free and clear of all liens, claims,
liabilities and encumbrances. The Company shall not assume any obligations or
liabilities of the Contributor relating the ownership of the LP Interests
arising prior to the date hereof. The Company, in reliance upon the
representations and warranties of Contributor contained herein and on the terms
and conditions herein set forth, hereby agrees to accept the contribution of the
LP Interests from Contributor at the Closing on the terms and conditions set
forth herein. Notwithstanding anything to the contrary, in the event that it is
later determined that Contributor did not acquire the PAMI Interests pursuant to
the Buy/Sell Provisions or
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otherwise, no contribution of the LP Interests shall be deemed to have been made
by Contributor and Contributor shall not be deemed to have become a Limited
Partner of the Partnership at any time.
B. Subject to the terms and conditions of this Agreement, each
New GP Entity hereby agrees, and Contributor shall cause each New GP Entity, to
assign to the Company or, at the direction of the Company, its designated
affiliate, at the Closing (as such term is hereinafter defined), all of its
right, title and interest in and to all of the GP Interests held by such New GP
Entity free and clear of all liens, claims, liabilities and encumbrances.
Neither the Company nor any designee of the Company shall assume any obligations
or liabilities of the Contributor or any New GP Entity relating the ownership of
the GP Interests arising prior to the date hereof. The Company or its designated
affiliate, in reliance upon the representations and warranties of Contributor
contained herein and on the terms and conditions herein set forth, hereby agrees
to accept the contribution of the GP Interests from the New GP Entities at the
Closing on the terms and conditions set forth herein. Notwithstanding anything
to the contrary, in the event that it is later determined that Contributor did
not acquire the PAMI Interests pursuant to the Buy/Sell Provisions or otherwise,
no contribution of the GP Interests shall be deemed to have been made by
Contributor.
C. The Park City Property, the Punta Gorda Property, the Port
Charlotte Property, the Encore Harlingen Property, the Sunburst Harlingen
Property, the Port Richey Property, the Vero Beach Property, the Daytona Beach
Property, the Tahoe Property, the Crystal River Property, the Orlando Property,
the Fort Myers Beach Property, the Silver Dollar Property, the Lake Placid
Property, the Sarasota North Property, the Tampa North Property, the Sunshine
Key Property, the Sunburst Forth Myers Property, the Florida Keys Property, the
North Fort Myers Property and the Tropical Palms Property shall mean and include
all of the respective Property Owner's direct or indirect right, title and
interest in and to the following described property with respect to each
Individual Property:
(i) the real estate owned (or ground leased, as
applicable) by such Property Owner described on Exhibits A-1 through
A-21 attached to this Agreement, respectively (as applicable with
respect to each Individual Property); together with all and singular
the easements, covenants, agreements, rights, privileges, tenements,
hereditaments and appurtenances thereunto now or hereafter belonging or
appertaining (the "Individual Tract of Land");
(ii) any land lying in the bed of any street, alley, road
or avenue (whether open, closed or proposed) within, in front of,
behind or otherwise adjoining the Individual Tract of Land or any of
it, any award made or to be made as a result of or in lieu of
condemnation affecting the Individual Property or any part thereof, and
any award for damage to the Individual Property or any part thereof by
reason of casualty (all of the foregoing being included within the term
"Individual Tract of Land");
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(iii) all of the buildings, structures, fixtures,
facilities, installations and other improvements of every kind and
description now or hereafter in, on, over and under the Individual
Tract of Land, including, without limitation, any and all recreational
buildings, structures and facilities, plumbing, heating, ventilating,
air conditioning, mechanical, electrical and other utility systems,
water and sewage treatment plants and facilities (including wells and
septic systems), parking lots and facilities, landscaping, roadways,
sidewalks, swimming pools, security devices, signs and light fixtures,
which are not owned by tenants under the Individual Property Leases (as
such term is hereinafter defined) (collectively, the "Individual
Improvements") (the Individual Tract of Land and the Individual
Improvements being herein collectively referred to as the "Individual
Premises");
(iv) all manufactured homes, recreational vehicles and
park model homes, furniture, furnishings, fixtures, equipment,
machinery, maintenance vehicles and equipment, tools, parts,
recreational equipment, carpeting, window treatments, office supplies
and equipment, and other tangible personal property of every kind and
description situated in, on, over or under the Individual Premises or
used in connection therewith which are not owned by tenants under the
Individual Property Leases, together with all replacements and
substitutions therefor (together with the items described in Section
1(C)(v) below and the Individual Intangible Personal Property described
in Section 1(C)(vi) below, collectively, the "Individual Personal
Property"), a substantially complete and accurate itemization of which
may be submitted to Purchaser pursuant to Section 5(A)(iii) below;
(v) all existing surveys, blueprints, drawings, plans and
specifications (including, without limitation, structural, HVAC,
mechanical and plumbing, water and sewer plans and specifications),
construction drawings, soil tests, environmental reports, appraisals,
police reports, and other documentation for or with respect to the
Individual Property or any part thereof; all available tenant lists and
data, correspondence with past, present and prospective tenants,
vendors, suppliers, utility companies and other third parties,
stationery, brochures, booklets, manuals and promotional, marketing and
advertising materials concerning the Individual Property or any part
thereof; any declarations, by-laws, minute books and other materials
relating to any homeowners' association or similar organization
affecting the Individual Property, together with all supporting
documentation relating thereto; and such other existing books, records
and documents (including, without limitation, those relating to ad
valorem taxes and the Individual Property Leases) used in connection
with the operation of the Individual Property or any part thereof;
(vi) the Individual Property Leases and the Individual
Property Service Contracts (as such term is hereinafter defined), and
all other intangible personal property used in connection with or
arising from the business now or hereafter conducted on or from the
Individual Property or any part thereof, including, without limitation,
claims,
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choses in action, lease and other contract rights, names and telephone
exchange numbers, reservation and contact lists, software, web sites,
goodwill, going-concern value, favorable ratings and recommendations in
national, regional and local trade publications and the like
(collectively, the "Individual Intangible Personal Property"). A
summary of all current leases and other occupancy agreements affecting
the Individual Premises or any part thereof (collectively, the
"Individual Property Leases," with such summary being hereinafter
referred to as the "Individual Property Rent Roll"), including each
tenant's name, a description of the space leased, the amount of rent
due and the amount of any security deposit paid, the term of each
Individual Property Lease, and a description of any right to renew or
extend, may be submitted to the Company pursuant to Section 5(A)(i)
below. A list of all employment, union, purchase, service and
maintenance agreements, equipment leases and any other agreements,
contracts, licenses and permits, including, without limitation, cable
television and satellite master antenna television system agreements,
affecting or pertaining in any way to the Individual Property or any
part thereof (collectively, the "Individual Property Service
Contracts") may be submitted to the Company pursuant to Section
5(A)(ii) below; and
(vi) all cash, cash equivalents and inventory, including
monies held on account by lenders (the "Cash").
2. CONSIDERATION
The total consideration to be given by the Company to Contributor in
exchange for (i) Contributor's contribution of the LP Interests to the Company
and (ii) the New GP Entities' assignment of the GP Interests to the Company
shall be the issuance by the Company to Contributor of a five percent (5%)
limited liability company interest in the Company (the "Master LLC Interest")
and the extinguishment of the Note (the "Consideration").
3. CLOSING
A. CLOSING DATE. The closing ("Closing") of the transaction
contemplated by this Agreement (i.e., the contribution and assignment of the
Interests, and the satisfaction of all other terms and conditions of this
Agreement) shall be consummated at the office of the Company on or before
February 17, 2004 (the "Closing Date"); provided, however, that the Closing Date
may be accelerated or delayed upon the parties' mutual written agreement.
B. CLOSING DOCUMENTS.
(i) Contributor. At the Closing, Contributor shall
deliver to the Company the following items (the "Transaction
Documents") (each in form and substance reasonably acceptable to the
Company, if not attached to this Agreement as an Exhibit and executed
[if necessary] by Contributor):
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(a) an assignment and assumption agreement
substantially in the form attached hereto as Exhibit B,
pursuant to which (i) Contributor transfers its LP Interests
to the Company and (ii) the Company assumes all obligations of
Contributor in the applicable Property Owner in accordance
with the terms of the partnership agreement of such Property
Owner;
(b) a counterpart signature page to the Limited
Liability Company Agreement of the Company (the "Master LLC
Agreement");
(c) the originally executed Note for
cancellation by the Company;
(d) evidence of the termination of the
applicable property management or other management agreement
with respect to each Individual Property and any manufactured
home, recreational vehicle or park model home sale brokerage
agreements;
(e) all other necessary or appropriate documents
as are necessary for Contributor to comply with its
obligations under this Agreement, or as reasonably required by
the Company in order to perfect the conveyance, transfer and
assignment of the LP Interests and GP Interests to the Company
or the Company's designee.
(ii) New GP Entities. At the Closing, each New GP Entity
shall deliver to the Company an assignment and assumption agreement
substantially in the form attached hereto as Exhibit B, pursuant to
which (i) New GP Entity transfers its GP Interests to the Company or
its designee and (ii) the Company or its designee assumes all
obligations of Contributor in the applicable Property Owner in
accordance with the terms of the partnership agreement of such Property
Owner.
(iii) Company. The Company shall deliver or cause to be
delivered to Contributor at the Closing:
(a) a copy of the Master LLC Agreement
indicating the issuance of the Master LLC Interest to
Contributor, together with a counterpart signature page to the
Master LLC Agreement; and
(b) the Note, property marked cancelled.
C. POST-CLOSING DOCUMENTS.
After the Closing, Contributor shall, at the request of the Company,
deliver to the Company the following items:
(a) a rent roll for the Individual Property
certified by the general partner of the Property Owner as
being true, complete and correct, in each case
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with respect to the Individual Property directly or indirectly
owned by the applicable Property Owner;
(b) all of the books and records of each
Property Owner or Individual Property;
(c) all of the original Individual Property
Leases, all written Individual Property Service Contracts, and
any and all building plans, surveys, site plans, engineering
plans and studies, utility plans, landscaping plans,
development plans, blueprints, specifications and drawings,
construction drawings, soil tests, environmental reports and
other documentation concerning all or any part of the
Individual Property and in the possession or control of
Contributor, and all keys for the Individual Property;
(d) to the extent that a Property Owner does not
own any Inventory Homes located at the applicable Individual
Property, an appropriate assignment and/or bill of sale,
together with certificates of title or manufacturer's
statements of origin, for any such Inventory Homes, executed
by the applicable person or entity which owns such Inventory
Homes;
(e) Contributor's affidavit stating, under
penalty of perjury, such Contributor's U.S. Taxpayer
Identification Number and that Contributor is not a "foreign
person" within the meaning of Section 1445 of the Internal
Revenue Code (the "Code");
(f) transfer tax returns as required by
applicable law (including, without limitation, a Florida
Department of Revenue Form DR-219 with respect to each
Individual Property located in Florida);
(g) an affidavit or other statement, in form and
substance acceptable to the Company, which satisfies the
requirements of any applicable statute of the state in which
the Individual Property is located (if any) which is
substantially similar to the requirements of Florida Statutes,
Section 723.072.
4. REPRESENTATIONS AND WARRANTIES OF CONTRIBUTOR
A. Contributor, with respect to the Property Owner in which
Contributor owns LP Interests, represents and warrants to the Company that the
following are true, complete and correct as of the date of this Agreement:
(i) Except for the that certain action filed against
Contributor in the Court of Chancery of the State of Delaware on
February 13, 2004, there is no material action, proceeding or
investigation pending or, to Contributor's knowledge, threatened
against Contributor, the Property Owner or the Individual Property
before any court or
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governmental department, commission, board, agency or instrumentality,
and Contributor does not know of any basis for any such action,
proceeding or investigation.
(ii) Contributor has not received from any governmental
authority any notice of any material violation of any zoning, building,
fire or health code or any other law, ordinance, rule or regulation
applicable to the Individual Property, or any part thereof, of which
the Company has not been notified.
(iii) Contributor is duly organized, validly existing,
qualified and empowered to conduct its business, and has full power and
authority to enter into and fully perform and comply with the terms of
this Agreement. Neither the execution and delivery of this Agreement
nor its performance will conflict with or result in the breach of any
contract, agreement, law, ordinance, rule or regulation to which
Contributor is a party or by which Contributor is bound, or give rise
to a right, not waived on or before the Closing, to accelerate the
maturity of an obligation secured by the applicable existing financing
which encumbers any of the Individual Properties.
(iv) To Contributor's knowledge, without independent
inquiry or investigation, there is no plan, study or effort by any
governmental authority or agency which in any way affects or would
affect the present use or zoning of the Individual Property, and there
is no existing, proposed or contemplated plan to widen, modify or
realign any street or highway or any existing, proposed or contemplated
eminent domain proceedings that would affect the Individual Property in
any way whatsoever.
(v) Each of the Property Owners has good and marketable
fee simple title to its respective Individual Properties (except for
(A) the Southern Comfort Property, the Weslaco Property, the Mercedes
Property and the Tahoe Property (collectively, the "Ground Lease
Properties") with respect to which the respective Property Owner owns
good and marketable title subject to the applicable ground leases and
(B) the Port Charlotte Property, the Encore Harlingen Property, the
Sunburst Harlingen Property, the Port Richey Property, the Vero Beach
Property and the Daytona Beach Property with respect to which the
respective Property Owner owns an indirect interest), free and clear of
all liens, claims and encumbrances, except as may exist in favor of the
lenders with respect to those certain respective loan agreements, notes
and mortgages or deeds of trust (the "Existing Loan Documents")
evidencing various mortgage and/or mezzanine loans in the outstanding
principal amounts listed on Exhibit C (the "Existing Loans").
Contributor has in its possession an ALTA Form B (1970) Owner's Title
Insurance Policy (or ground lessee's policy for the Ground Lease
Properties) issued in the name of the applicable Property Owner with
respect to each of the Individual Properties. At the Company's request,
Contributor shall cause such title policies to contain a non-imputation
endorsement with respect to the applicable Property Owner, and in the
event that said non-imputation endorsement is not available in the
state in which an Individual Property is located, Contributor shall
deliver on behalf of the applicable Property Owner a Non-Imputation
Affidavit in the form attached hereto a Exhibit D ("Non-Imputation
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Affidavit"). None of the Property Owners will own any direct or
indirect interest in any entity which is taxable as a corporation under
the Internal Revenue Code of 1986, as amended (the "Code") as of March
30, 2004.
(vi) Copies of all existing Individual Property Leases
have been previously delivered to the Company, and such copies are
true, complete and correct. Each of the Individual Property Leases is
in effect, was the result of arm's-length negotiation, and the rights
of each lessee thereunder are as tenants only. No commissions to any
broker or leasing agent are due or will become due on account of any of
the Individual Property Leases or upon extension or renewal of the
original term thereof or upon the leasing of additional space at the
Individual Property, whether or not pursuant to an option contained in
such Individual Property Lease.
(vii) With respect to the Individual Property or any part
thereof, there are no unpaid taxes, fees or assessments of any kind or
nature whatsoever that are delinquent or otherwise due and payable. All
fees and expenses required to be paid in connection with the
development and zoning of the Individual Property have been paid in
full and there are no agreements with governmental or
quasi-governmental authorities, agencies or utilities with respect to
the Individual Property or any portion thereof which would bind the
Individual Property following the Closing.
(viii) All financial information about the Individual
Property heretofore or hereafter furnished by Contributor to the
Company (including, without limitation, the operating statements to be
provided to the Company pursuant to Section 5(A)(v) below) is and shall
be true, complete and correct in all material respects as of the date
therein specified and shall present fairly the financial condition of
the Individual Property and, with respect to projections, shall be
based upon the best information available to Contributor at the time
when first delivered to the Company.
(ix) The transactions contemplated by this Agreement are
the result of an unsolicited offer within the meaning of Section
723.071, Florida Statutes.
(x) To Contributor's knowledge, and without independent
inquiry or investigation, there are no Hazardous Materials (as such
term is hereinafter defined) on, in or under the Individual Property,
and the Individual Property has never been used to generate, treat,
store, dispose of, transport or in any manner deal with Hazardous
Materials. For purposes of this Agreement, the term Hazardous Materials
shall include hazardous substances as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended (42 U.S.C. Section 9601, et seq.), petroleum and petroleum
products and any other hazardous or toxic materials, substances or
wastes regulated under any federal, state or local laws or regulations
relating to protection of heath, safety or the environment. There is
excepted from the foregoing any Hazardous Materials used, kept, stored
or transported upon the Individual Property in
12
accordance with requirements of law and in the ordinary course of the
applicable Property Owner's operation of its business upon the
Individual Property.
(xi) Except as disclosed in writing to the Company by
Contributor, the ground leases for the Ground Lease Properties are in
full force and effect and there are no defaults thereunder or
conditions which the giving of notice would rise to an event of default
and the transaction contemplated by this Agreement will not cause a
default under any of the ground leases for the Ground Lease Properties.
Contributor has delivered to the Company full, complete and accurate
copies of the ground leases for the Ground Lease Properties.
(xii) Except as disclosed in writing to the Company by
Contributor, the Existing Loan Documents are in full force and effect
and there are no defaults thereunder or conditions which the giving of
notice would rise to an event of default thereunder. Contributor has
delivered to the Company full, complete and accurate copies of the
Existing Loan Documents.
(xiii) Exhibits E-1 through E-16, respectively (as
applicable), set forth (a) the issued and outstanding partnership or
membership interests of each Property Owner, (b) the capital
contributions made by Contributor to each Property Owner, and (c) the
capital account balances of Contributor in each Property Owner.
(xiv) Contributor has previously delivered to the Company
the following financial statements of each Property Owner (the
"Financial Statements"): (a) the unaudited balance sheet of such
Property Owner as of December 31 for each of the years 2002 and 2003,
and the related unaudited statements of income and cash flows for each
of such fiscal years then ended (the most recent of which, the "Balance
Sheet"), and (b) an unaudited balance sheet of such Property Owner as
of __________, 2004 (the "Interim Balance Sheet") and the related
unaudited statements of income and cash flows for the three months then
ended, including, in each case, any notes thereto. Each of the
Financial Statements is consistent with the books and records of such
Property Owner (which, in turn, are accurate and complete in all
material respects) and fairly presents such Property Owner's financial
condition, assets and liabilities as of its respective date and the
results of operations and cash flows for the period related thereto.
The Financial Statements utilize the accrual method of accounting
consistent with the method utilized to prepare the relevant tax return
of each Property Owner. The Interim Balance Sheet utilizes the cash
method of accounting.
(xv) Contributor is, and on the Closing Date will be, the
sole record and beneficial owner and holder of the LP Interests, and
have good and marketable title to the LP Interests, free and clear of
all liens, claims and encumbrances. Each New GP Entity is, and on the
Closing Date will be, the sole record and beneficial owner and holder
of its respective GP Interests, and has good and marketable title to
its respective GP Interests, free and clear of all liens, claims and
encumbrances, except as may exist in favor of the
13
lenders with respect to the Existing Loan Documents. Upon consummation
of the transactions contemplated hereby, the Company, together with its
designees, will be vested with good and marketable title to all of the
outstanding equity securities of the Property Owners free and clear of
all liens, claims and encumbrances, except as may exist in favor of the
lenders with respect to the Existing Loan Documents. There are no
contracts or other agreements relating to the issuance, sale or
transfer of any equity securities, phantom stock or appreciation
rights, profit participation, or other securities (whether or not
convertible) of the Property Owner, including options, warrants, puts
or calls, all of which will have been canceled, terminated or expired
at no expense to the Property Owner on or before the Closing. No
Property Owner (other than NHC-FL1 LP and NHC-FL6 LP) has owned, owns,
or has a contract to acquire, any equity securities or other securities
of any entity or any direct or indirect equity or ownership interest in
any other business. There are currently existing no preemptive rights
with respect to any Interests nor have any Interests been issued in
violation of then existing preemptive rights. Each Property Owner shall
have the election provided for in Section 754 of the Code in place when
Contributor acquires the sole limited partner interest of the Property
Owner and when a New GP Entity acquires the sole general partner
interest of the applicable Property Owner.
(xvi) Each Property Owner has no material liabilities or
obligations of any nature (whether known or unknown and whether
absolute, accrued, contingent or otherwise) other than (a) liabilities
or obligations specifically reflected or reserved against in the
Financial Statements, (b) current liabilities incurred in the ordinary
course of business since the date of the Balance Sheet and (c)
obligations under executory contracts that are to be performed in the
ordinary course of business and are apparent from the plain reading of
such contracts. None of the matters described in clauses (a) through
(c) hereof is a liability resulting from a breach of contract, breach
of warranty, tort, infringement or claim or proceeding.
(xvii) No representation or warranty of Contributor in this
Agreement or any of the Schedules or Exhibits attached hereto omits to
state a material fact necessary to make the statements herein or
therein, in light of the circumstances in which they were made, not
misleading.
(xviii) No Property Owner currently has any employees.
(xix) Each Property Owner has duly filed all federal,
state, county and municipal income, excise and other tax returns
required to be filed by it as of the date of this Agreement.
(xx) All federal, state, county and municipal taxes and
assessments and other governmental or quasi-governmental levies of any
kind relating to each Property Owner that have become due for payment
prior to the date of this Agreement have been paid or
14
shall be paid in full by the Property Owner together with any interest
and penalties thereon prior to the Closing.
(xxi) Subject to the truth and accuracy of the representations
of investors, if any, obtained by Contributor or Property Owner, each
offer, sale and issuance of equity interests by Contributor or such
Property Owner was or is exempt from the registration requirements of
the Securities Act of 1933, as amended, and all applicable state
securities laws, and Contributor and Property Owner has complied with,
and is currently in compliance with, in all material respects, all
applicable federal and state securities laws.
(xxii) The statements set forth in the Recitals are true and
correct.
(xxiii) (A) The aggregate amount of all Cash held by all
Property Owners and all Cash held the "Property Owners" (as defined in
the Contribution and Assignment Agreement dated as of the date hereof
by and among Contributor, MHC-Encore Holdings, L.P, and the other
parties party thereto)(the "Other Property Owners") is not less than
$5,500,000 and (B) the aggregate amount of the non-mortgage debt
liabilities, mezzanine debt liabilities and ground rent obligations of,
or relating to, the Properties held, directly or indirectly, by the
Property Owners and the Other Property Owners does not exceed
$9,800,000.
B. The foregoing representations and warranties of Contributor
shall survive the execution and delivery of this Agreement, the Closing and the
delivery of all documents and the performance of any and all covenants and
obligations in accordance with this Agreement for a period of one (1) year from
the Closing Date. Contributor shall protect, defend, indemnify and hold harmless
the Company, its affiliates, subsidiaries and designees, if any, and their
respective principals, shareholders, directors, officers, partners, members,
agents, employees, successors and assigns (collectively, the "Indemnified
Parties") from and against any and all claims, demands, losses, damages,
liabilities, fines, penalties, charges, administrative and judicial proceedings
and orders, judgments, remedial action requirements, enforcement actions of any
kind, and all costs and expenses incurred in connection therewith (including,
without limitation, reasonable attorneys' fees and expenses) resulting from or
arising out of (i) any breach of the representations and warranties set forth in
Section 4(A) above or in any Non-Imputation Affidavit, (ii) any
misrepresentation by Contributor or non-fulfillment of any covenant to be
performed or complied with by Contributor under this Agreement, or (iii) any
claim, action or proceeding of any kind whatsoever, whether instituted or
commenced prior to or after the Closing, which relates to or arises from the
conduct of Contributor's or Property Owner's business or assets on or prior to
the Closing.
C. Contributor shall protect, defend, indemnify and hold harmless
the Indemnified Parties from and against any and all claims, demands, losses,
expenses, damages, liabilities, fines, penalties, charges, administrative and
judicial proceedings and orders, judgments, remedial action requirements,
enforcement actions of any kind, and all costs and expenses incurred in
connection therewith (including, without limitation, reasonable attorneys' fees
and expenses)
15
pursuant to any federal, state or local laws or regulations relating to
protection of health, safety or the environment ("Environmental Laws") resulting
from the following, if resulting from the acts of Contributor or the Property
Owners, their contractors, subcontractors, agents or employees: (i) the use,
generation, transportation, storage, disposal or presence, other than in the
Property Owners' ordinary course of their business upon the Individual
Properties and in compliance with law, prior to the Closing, on the Individual
Properties of any Hazardous Materials or the release or discharge of any
Hazardous Materials on, under or from the Individual Properties, (ii) any
failure, prior to the Closing, to comply with any Environmental Laws, (iii) the
treatment, storage or disposal off the Individual Properties, prior to the
Closing, of any Hazardous Materials, or (iv) any breach of the representations
and warranties set forth in Section 4(A)(ix) above. This indemnity shall survive
the Closing for a period of one (1) year from the Closing Date.
D. Contributor shall provide to the Company and its auditors (i)
prior to and following the Closing, access at all reasonable times to all
financial and other information in Contributor's possession relating to the
Properties necessary for the Company and its auditors to prepare audited
financial statements in conformity with Regulations S-X of the Securities and
Exchange Commission ("SEC") or other materials required for any registration
statement, report or other disclosure to be filed with the SEC or necessary to
comply with any SEC rule or regulation, and (ii) at the Closing (or prior
thereto if required by the Company's auditors) an executed representations
letter, as required by Generally Accepted Auditing Standards as promulgated by
the Auditing Standards Division of the American Institute of Public Accountants,
which representation is required to enable an independent public accountant to
render an opinion on such financial statements; provided, however, that MHC
Operating Limited Partnership shall pay for any actual costs incurred by
Contributor in connection with their obligations under this Section 4(D). The
obligation of Contributor to provide such access and representations letter
shall survive Closing and Contributor shall indemnify and hold the Indemnified
Parties harmless from and against any losses, costs, expenses (including,
without limitation, reasonable attorneys' fees and expenses) and liabilities
arising from the failure of Contributor to comply with these obligations.
4A. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
A. The Company represents and warrants to Contributor that the
following are true, complete and correct as of the date of this Agreement:
(i) The Company is duly organized, validly existing,
qualified and empowered to conduct its business, and has full power and
authority to enter into and fully perform and comply with the terms of
this Agreement. Neither the execution and delivery of this Agreement
nor its performance will conflict with or result in the breach of any
contract, agreement, law, ordinance, rule or regulation to which the
Company is a party or by which the Company is bound.
16
(ii) The Company or its affiliate initiated the
negotiations regarding its acquisition of the Interests, and
Contributor did not solicit the Company's offer to acquire the
Interests.
B. The foregoing representations and warranties of the Company
shall survive the execution and delivery of this Agreement, the Closing and the
delivery of all documents and the performance of any and all covenants and
obligations in accordance with this Agreement for a period of one (1) year from
the Closing Date.
5. SCHEDULES, CONSENTS AND APPROVALS
A. At the request of the Company, Contributor shall furnish to
the Company any of the following:
(i) the Individual Property Rent Rolls provided for in
Section 1(C)(v) above, and make available to the Company true, correct
and complete copies of all the Individual Property Leases;
(ii) the lists of all Individual Property Service
Contracts provided for in Section 1(C)(vi) above, together with a true,
correct and complete copy of each written Individual Service Contract
and a true, correct and complete summary of each oral Individual
Property Service Contract;
(iii) the itemizations of the tangible Individual Personal
Property as provided for in Section 1(C)(iv) above;
(iv) a schedule of all insurance policies owned by or on
behalf of each Property Owner with respect to each Individual Property
or any part thereof;
(v) copies of all operating statements for each
Individual Property which are in the possession or control of
Contributor for any time during the period commencing with the first
day of the second full calendar year preceding the date of this
Agreement and ending on the date of this Agreement;
(vi) copies of the most recent surveys of and title
policies or commitments for each Individual Premises in the possession
or control of Contributor;
(vii) copies of all environmental reports, termite
inspection reports, soil tests, appraisals and police reports (within a
three (3) year period prior to the date of this Agreement) for each
Individual Property in the possession or control of Contributor; and
(viii) copies of any and all tax returns to be filed by the
Property Owners for the period ended as of the date of this Agreement
and copies of any elections under Section 754 of the Code made or
proposed to be made by any Property Owner.
17
6. COMPANY'S CONDITIONS PRECEDENT
At the option of the Company, the obligations of the Company under this
Agreement are contingent and conditional upon any one (1) or more of the
following, the failure of any of which shall, at the election of the Company,
render this Agreement null and void:
A. Each and every representation and warranty of Contributor
contained herein is true, correct and complete in all material respects as of
the Closing.
B. As of the Closing, Contributor shall have fully performed and
satisfied in all material respects each and every obligation, term and condition
to be performed and satisfied by Contributor under this Agreement.
C. As of the Closing, Contributor shall have fully performed and
satisfied in all material respects each and every obligation, term and condition
to be performed and satisfied by Contributor under the Contribution and
Assignment Agreement of even date herewith among the parties with respect to the
contribution of partnership interests to MHC-Encore Holdings, L.P.
D. The prospectus for each Individual Property located in Florida
as required by Section 723.011, Florida Statutes, shall have been approved by
the Florida Department of Business and Professional Regulation (Division of
Florida Land Sales, Condominiums and Mobile Homes) (the "Department") as
evidenced by a letter from the Department. Contributor shall, and shall cause
the Property Owners to, promptly and timely meet all requirements to correct any
deficiencies of any such prospectus so that the approval of the Department to
said prospectus is not delayed or withheld, but no submission shall be made by
the Contributor or Property Owners in connection with said prospectus without
the prior written consent of the Company.
E. The applicable Property Owners shall have fully complied with
the provisions and requirements of Section 723.071, Florida Statutes with
respect to each Individual Property located in Florida. To the extent any
Property Owner delivers a notice to the tenants' homeowners' association at its
Individual Property located in Florida as required by Section 723.071, Florida
Statutes, the Company shall not be deemed to have consented or agreed to any
allocation of the Consideration set forth in such notice. With respect to each
Individual Property located in Florida, the applicable Property Owners shall
prepare, execute and deliver to the Company the affidavit provided for in
Section 723.072, Florida Statutes, in form suitable for recording.
If any of the foregoing conditions are not satisfied with respect to
any Individual Property, the Company shall have the right to terminate this
Agreement with respect to such Individual Property.
18
7. BROKERAGE
No brokerage commissions shall be due for services rendered in
connection with the contribution and assignment of the Interests. Contributor
and the Company shall indemnify and hold each other harmless from and against
any and all claims of all brokers and finders claiming by, through or under
Contributor or the Company, as applicable, and in any way related to the
contribution and assignment of the Interests, pursuant to this Agreement or
otherwise, including, without limitation, reasonable attorneys fees incurred by
the indemnified party in connection with such claims.
8. DEFAULT AND REMEDIES
A. Notwithstanding anything to the contrary contained in this
Agreement, if Contributor or any New GP Entity fails to perform in accordance
with the terms of this Agreement and such failure has not been cured within ten
(10) days after the delivery of written notice to Contributor and the New GP
Entities, then at the Company's option, the Company may terminate this Agreement
and this Agreement shall be null and void and no party shall have any further
rights or obligations under this Agreement, or the Company may sue for specific
performance of this Agreement.
B. Notwithstanding anything to the contrary contained in this
Agreement, if the Company fails to perform in accordance with the terms of this
Agreement and such failure has not been cured within ten (10) days after the
delivery of written notice to the Company, then Contributor may terminate this
Agreement and this Agreement shall be null and void and no party shall have any
further rights or obligations under this Agreement.
9. MISCELLANEOUS
A. This Agreement shall not be canceled or merged upon
consummation of the Closing.
B. Prior to the Closing, no party shall release to the public any
information with respect to the transactions contemplated herein unless required
to do so by applicable law.
C. Neither this Agreement nor any interest hereunder shall be
assigned or transferred by Contributor or any New GP Entity. The Company may
assign or otherwise transfer all or any portion of its interest under this
Agreement, including, without limitation, assignments of the right to purchase
any manufactured homes or recreational vehicles to Realty Systems, Inc., or any
other affiliate of the Company; provided however that no such assignment shall
release the Company from any liability hereunder. As used in this Agreement, the
term "Company" shall be deemed to include any assignee or other transferee of
the Company. Subject to the foregoing, this Agreement shall inure to the benefit
of and shall be binding upon Contributor and the Company and their respective
successors and assigns.
19
D. This Agreement constitutes the entire agreement between
Contributor, the New GP Entities and the Company with respect to the
contribution and assignment of the Interests and shall not be modified or
amended except in a written document signed by Contributor, the New GP Entities
and the Company. Any prior agreement or understanding between Contributor, New
GP and the Company concerning the contribution and assignment of the Interests
is hereby rendered null and void. All Exhibits attached to this Agreement are
hereby incorporated herein and made a part of this Agreement.
E. This Agreement constitutes an offer by the Company which must
be accepted by Contributor and the New GP Entities within one (1) business day
after the date execution copies of this Agreement are submitted by the Company
to Contributor and the New GP Entities for execution. If this Agreement is not
so accepted and returned to the Company within said one (1) business day period,
this offer shall be deemed revoked.
F. Time is of the essence of this Agreement. In the computation
of any period of time provided for in this Agreement or by law, the day of the
act or event from which the period of time runs shall be excluded, and the last
day of such period shall be included, unless it is a Saturday, Sunday or legal
holiday, in which case the period shall be deemed to run until the end of the
next day which is not a Saturday, Sunday or legal holiday.
G. All questions regarding the construction, validity and
interpretation of this Agreement shall be governed and interpreted in accordance
with the laws of the State of Illinois.
H. All notices, requests, demands or other communications
required or permitted under this Agreement shall be in writing and delivered
personally (including delivery by overnight courier such as Airborne Express) or
by facsimile, addressed as follows:
(i) If to Contributor:
EMB/NHC, L.L.C.
6991 East Camelback Road
Suite B310
Scottsdale, Arizona 85251
Telephone: (480) 423-5700
Telecopy: (480) 423-5777
Attention: David A. Napp
with a copy to:
Gallagher & Kennedy, P.A.
2575 East Camelback Road
Phoenix, Arizona 85016
Telephone: (602) 530-8524
20
Telecopy: (602) 530-8500
Attention: James B. Connor
(ii) If to the Company:
MHC-ENCORE HOLDINGS, L.L.C.
c/o Manufactured Home Communities, Inc.
Two North Riverside Plaza, Suite 800
Chicago, Illinois 60606
Telephone: (312) 279-1400
Telecopy: (312) 279-1710
Attention: President
With a copy to:
Manufactured Home Communities, Inc.
Two North Riverside Plaza, Suite 800
Chicago, Illinois 60606
Telephone: (312) 279-1400
Telecopy: (312) 279-1715
Attention: General Counsel
and to:
Katten Muchin Zavis Rosenman
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661
Telephone: (312) 902-5532
Telecopy: (312) 577-8668
Attention: Daniel J. Perlman
All notices given in accordance with the terms hereof shall be deemed received
when delivered personally or, if sent by facsimile, as of the date of
transmission provided an original of such facsimile is also sent by personal
delivery. Any party hereto may change its address for receiving notices,
requests, demands or other communications by notice sent in accordance with the
terms of this Section 9(H).
I. At the Closing, Contributor shall deliver to the Company its
affidavit stating, under penalty of perjury, Contributor's U.S. taxpayer
identification number and that Contributor is not a foreign person within the
meaning of Section 1445 of the Code. The purpose of this affidavit is to assure
the Company that the withholding of taxes by the Company is not required by said
Section 1445 upon Contributor's disposition of the Interests, and such
certification shall be in form prescribed by said Section 1445 or regulations
promulgated pursuant thereto.
21
J. This Agreement may be executed in any number of identical
counterparts, any or all of which may contain the signatures of fewer than all
of the parties but all of which shall be taken together as a single instrument.
K. Notwithstanding anything herein to the contrary, except as
reasonably necessary to comply with applicable securities laws, each party (and
each employee, representative or other agent of each party) hereto may disclose
to any and all persons, without limitation of any kind, any information with
respect to the United States federal income "tax treatment" and "tax structure"
(in each case, within the meaning of Treasury Regulations Section 1.6011-4) of
the transactions contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are provided to such parties (or their
representatives) relating to such tax treatment and tax structure; provided that
with respect to any document or similar item that in either case contains
information concerning the tax treatment or tax structure of the transaction as
well as other information, this sentence shall only apply to such portions of
the document or similar item that relate to the United States federal income tax
treatment or tax structure of the transactions contemplated hereby.
[Signature Page Follows]
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
WITNESSES: COMPANY:
___________________________ MHC-ENCORE HOLDINGS, L.L.C.,
Name:______________________ a Delaware limited liability company
___________________________
Name:______________________ By: MHC OPERATING LIMITED
PARTNERSHIP, an Illinois limited
partnership, its sole Member
By: MANUFACTURED HOME COMMUNITIES, INC.,
a Maryland corporation, as its General
Partner
By:_____________________________________
Name:_________________________________
Title:________________________________
WITNESSES:
CONTRIBUTOR:
___________________________ EMB/NHC, LLC, a Delaware limited liability
Name:______________________ company
___________________________
Name:______________________ By: ________________________________________
David A. Napp
Manager
[SIGNATURES CONTINUE ON NEXT PAGE]
WITNESSES:
NEW GP ENTITIES:
___________________________ EMB/NHC-NEWGP-LEMB V, INC., a Delaware
Name:______________________ corporation
___________________________
Name:______________________ By:_________________________________________
David A. Napp, Authorized Signatory
WITNESSES:
EMB/NHC-NEWGP-LEMB VI , INC., a Delaware
corporation
___________________________
Name:______________________ By:_________________________________________
___________________________ David A. Napp, Authorized Signatory
Name:______________________
WITNESSES:
EMB/NHC-NEWGP-FL1, INC., a Delaware
corporation
___________________________
Name:______________________ By:_________________________________________
___________________________ David A. Napp, Authorized Signatory
Name:______________________
WITNESSES:
EMB/NHC-NEWGP-FL2, LLC, a Delaware
corporation
___________________________
Name:______________________ By:_________________________________________
___________________________ David A. Napp, Authorized Signatory
Name:______________________
[SIGNATURES CONTINUE ON NEXT PAGE]
WITNESSES:
EMB/NHC-NEWGP-FL4, INC., a Delaware
corporation
___________________________
Name:______________________ By:_________________________________________
___________________________ David A. Napp, Authorized Signatory
Name:______________________
WITNESSES:
EMB/NHC-NEWGP-FL5, INC., a Delaware
corporation
___________________________
Name:______________________ By:_________________________________________
___________________________ David A. Napp, Authorized Signatory
Name:______________________
WITNESSES:
EMB/NHC-NEWGP-FL6, INC., a Delaware
corporation
___________________________
Name:______________________ By:_________________________________________
___________________________ David A. Napp, Authorized Signatory
Name:______________________
WITNESSES:
EMB/NHC-NEWGP-FL8, INC., a Delaware
corporation
Name:______________________
___________________________ By:_________________________________________
Name:______________________ David A. Napp, Authorized Signatory
[SIGNATURES CONTINUE ON NEXT PAGE]
WITNESSES:
EMB/NHC-NEWGP-FGL9, INC., a Delaware
corporation
___________________________
Name:______________________ By:_________________________________________
___________________________ David A. Napp, Authorized Signatory
Name:______________________
WITNESSES:
EMB/NHC-NEWGP-FL10, INC., a Delaware
corporation
___________________________
Name:______________________ By:_________________________________________
___________________________ David A. Napp, Authorized Signatory
Name:______________________
WITNESSES:
EMB/NHC-NEWGP-FL11, INC., a Delaware
corporation
___________________________
Name:______________________ By:_________________________________________
___________________________ David A. Napp, Authorized Signatory
Name:______________________
WITNESSES:
EMB/NHC-NEWGP-FL13, INC., a Delaware
corporation
Name:______________________
___________________________ By:_________________________________________
Name:______________________ David A. Napp, Authorized Signatory
[SIGNATURES CONTINUE ON NEXT PAGE]
WITNESSES:
EMB/NHC-NEWGP-FGL15, INC., a Delaware
corporation
___________________________
Name:______________________ By:_________________________________________
___________________________ David A. Napp, Authorized Signatory
Name:______________________
WITNESSES:
EMB/NHC-NEWGP-FL16, INC., a Delaware
corporation
___________________________
Name:______________________ By:_________________________________________
___________________________ David A. Napp, Authorized Signatory
Name:______________________
WITNESSES:
EMB/NHC-NEWGP-FL17, INC., a Delaware
corporation
___________________________
Name:______________________ By:_________________________________________
___________________________ David A. Napp, Authorized Signatory
Name:______________________
WITNESSES:
EMB/NHC-NEWGP-FL18, INC., a Delaware
corporation
Name:______________________
___________________________ By:_________________________________________
Name:______________________ David A. Napp, Authorized Signatory
SCHEDULE OF EXHIBITS
EXHIBITS A-1 through A-21 Legal Descriptions of Land.
EXHIBIT B Form of Assignment and Assumption Agreement.
EXHIBIT C Schedule of Existing Loans
EXHIBIT D Form of Non-Imputation Affidavit.
EXHIBIT E-1 through E-11 Description of Interests
EXHIBIT "A"
LEGAL DESCRIPTION OF LAND
[A-1 THROUGH A-21]
EXHIBIT "B"
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment") is made as
of _______ __, 2004 by __________________ ("Assignor"), a limited partner of
______________, L.P., a ___________ limited partnership (the "Partnership"), in
favor of ____________________________, ____________________________a
("Assignee"). This Assignment is being entered into pursuant to that certain
Contribution and Assignment Agreement (the "Agreement") dated as of February
____, 2004, by and among Assignee, Assignor and ______________.
A. Assignor hereby assigns, sets over, transfers, grants and
conveys unto Assignee all of Assignor's right, title and interest in and to the
Partnership, including, without limitation, Assignor's interest as a limited
partner of the Partnership (collectively, the "Interest"), free and clear of all
liens, claims and encumbrances.
B. Assignee hereby accepts such assignment of the Interest from
Assignor and assumes all of the liabilities of Assignor with respect to the
Interest arising on and after the date hereof and agrees to perform all of the
duties and obligations to be performed by Assignor under the Agreement of
Limited Partnership of the Partnership, dated as of ________________, as the
same may be amended from time to time (with Assignor remaining responsible for
all such liabilities, duties and obligations accruing or arising prior to the
date hereof).
C. The foregoing assignments, setting over, transfers, grants and
conveyances are made without representation or warranty of any kind or nature
whatsoever, except as may otherwise be expressly set forth in the Agreement. The
parties agree to take any further actions and execute and deliver any additional
documents which may be necessary or appropriate to evidence and/or effect the
transfer and assignment of the Interest from Assignor to Assignee.
IN WITNESS WHEREOF, the undersigned have caused this Assignment to be
executed as of the date first above written.
ASSIGNOR:
____________________________________________
By:________________________________
Name:______________________________
Its:_______________________________
ASSIGNEE:
____________________________________________
By:________________________________
Name:______________________________
Its:_______________________________
EXHIBIT "C"
SCHEDULE OF EXISTING LOANS
EXHIBIT "D"
FORM OF NON-IMPUTATION AFFIDAVIT
State of )
) ss
County of )
The undersigned, after being first duly sworn, states as follows:
1. The undersigned are all of the members of _________, a __________
("Company") which owns the properties described in Exhibit A attached hereto
("Properties").
2. To the best of the knowledge of the undersigned, there exists no
unrecorded deed, land contract, lease, option to purchase, mortgage, deed of
trust, judgment lien, tax lien, agreement or other instrument or encumbrance
affecting title to any of the Properties, other than as described in Title
Insurance Commitment Number___________ issued by ____________ on _____________
(the "Title Commitment").
3. Neither the Company nor any of its members have done anything to create
any deed, land contract, lease, option to purchase, mortgage, deed of trust,
judgment lien, tax lien, agreement or other instrument or encumbrance affecting
title to any of the Properties, other than as disclosed in the Title Commitment.
4. There exists no litigation nor threatened litigation against the
Company which purports to affect the Properties.
5. An independent examination of the business records of the Company would
reveal that the records would not disclose or suggest the existence of any
unrecorded legal or equitable interests in the Properties.
6. The undersigned make this affidavit for the purpose of inducing MHC
Operating Limited Partnership, an Illinois limited partnership ("MHC") to close
the transactions contemplated by that certain Contribution and Assignment
Agreement dated as of February ____, 2004 between MHC, as purchaser, and
________________, LLC, a Delaware limited liability company, and the Contributor
(as defined therein), as amended from time to time, with the knowledge that MHC
and its affiliate ___________, L.L.C., a Delaware limited liability company (the
"Membership Interest Purchaser") to which the partnership interests are being
contributed or assigned will rely on the assurances and representations made
herein.
[Remainder of page intentionally left blank]
Each of the undersigned certify under penalty of perjury that the foregoing is
true and correct.
____________________________________________
By:________________________________
Name:______________________________
Title:_____________________________
EXHIBIT "E-1" THROUGH "E-11"
DESCRIPTION OF EQUITY INTERESTS
[SEE ATTACHED]