SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
Amendment No. 1
to
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 1, 1998
GROVE PROPERTY TRUST
(Exact name of registrant as specified in its charter)
Maryland 1-13080 06-1391084
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File No.) Identification
Number
598 Asylum Avenue, Hartford, Connecticut 06105
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code: (860) 246-1126
N/A
(Former name or former address, if changed since last report)
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EXPLANATORY NOTE
This Amendment No. 1 to the Current Report on Form 8-K the "Current
Report" of Grove Property Trust a Maryland real estate investment trust, is
being filed solely for the purpose of filing the exhibits to such Current
Report which were not available in electronic format at the time of the
filing thereof.
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Item 7. Financial Statements and Exhibits.
(a) Financial statements of business acquired. (The following financial
statements were filed with original 8K dated June 1, 1998 as
part of the Current Report.
Freeport Properties
Combined Statements of Revenues and Certain Expenses for the Three Months
Ended March 31, 1998 (Unaudited) and for the Year Ended December 31, 1997.
Coachlight Village
Statements of Revenues and Certain Expenses for the Three Months Ended March
31, 1998 (Unaudited) and for the Years Ended December 31, 1997, 1996 and 1995.
Village Park and Winchester Woods
Combined Statements of Revenues and Certain Expenses for the Three Months
Ended March 31, 1998 (Unaudited) and for the Year Ended December 31, 1997.
(b) Pro Forma Financial Statements. (The following financial statements
were filed with original 8K dated June 1, 1998.)
Pro Forma Condensed Consolidated Balance Sheet as of March 31, 1998. Pro
Forma Condensed Consolidated Statements of Income for the Three Months Ended
March 31, 1998 (Unaudited) and for the Year Ended December 31, 1997.
(c) Exhibits.
Exhibit No. Description
2.1 Purchase and Sale Agreement dated January 12, 1998 between Freeport
Merchants Limited Partnership and Grove Corporation, as Purchaser.
2.2 Contribution Agreement dated March 15, 1998 between A.N.E. Associates,
Limited Partnership and Grove Operating L.P., as Purchaser.
2.3 Purchase and Sale Agreement dated March 26, 1998 between Village Park
Holding Company, LLC and Village Park Holding Company II, LLC; and
Grove Corporation as Purchaser.
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Exhibit Index
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Exhibit No. Description
2.1 Purchase and Sale Agreement dated January 12, 1998 between Freeport
Merchants Limited Partnership and Grove Corporation, as Purchaser.
2.2 Contribution Agreement dated as of March 15, 1998 between A.N.E.
Associates, Limited Partnership and Operating L.P., as Purchaser.
2.3 Purchase and Sale Agreement dated March 26, between Village Park
Holding Company, LLC and Village Park Holding Company II, LLC; and
Grove Corporation as Purchaser.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Company has duly caused this amended report to be signed on its behalf by the
undersigned hereunto duly authorized.
GROVE PROPERTY TRUST
Date: July 23, 1998 By:/s/Joseph R. LaBrosse
----------------------------
Joseph R. LaBrosse
Cheif Financial Officer
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT made this 12th day of January, 1998 by
and between FREEPORT MERCHANTS LIMITED PARTNERSHIP, a Maine
limited partnership having an office at 45 Broad Street,
Boston, MA 02109 (hereinafter called the "Seller") and THE
GROVE CORPORATION, a Delaware corporation having an office at
598 Asylum Street, Hartford, CT (hereinafter called the
"Purchaser").
WITNESSETH:
WHEREAS, the Seller owns the fee simple title to the
property known as 42 Main Street, 6 Mill Street and 32 West
Street, Freeport, Maine and more specifically described on
Exhibit A annexed hereto and made a part hereof, and
WHEREAS, the Seller desires to sell such property to the
Purchaser, and the Purchaser desires to purchase such
property from the Seller, all in the manner and upon and
subject to the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, for and in consideration of the mutual
covenants and promises herein contained, the parties hereto
agree as follows:
1. Agreement to Buy and Sell. The Seller agrees to
sell and convey to the Purchaser, and the Purchaser agrees to
purchase from the Seller, all in the manner and upon and
subject to the terms and conditions set forth in this
Agreement, the following property:
(a) those certain pieces or parcels of land described
on Exhibit A subject only to the Permitted Encumbrances (as
defined in Section 5 hereof), together with the buildings and
improvements thereon (such land, buildings and improvements
are hereinafter collectively referred to as the "Premises");
(b) the easements, rights of-way, privileges and
appurtenances, and rights to the same, belonging to and
inuring to the benefit of the Premises (the items included in
this subsection ) are sometimes hereinafter collectively
referred to as the "Appurtenant Rights");
(c) all items normally considered fixtures acquired by
the Seller of every kind, nature and description whatsoever,
now or hereafter located on the Premises, or any part
thereof, and used or usable in connection with any present or
future occupancy of the Premises, or any part thereof (the
items included in this subsection (c) are sometimes
hereinafter collectively referred to as the "Building
Equipment"); and
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2. Purchase Price and Method of Payment. The total
purchase price is Six Million Nine Hundred Twenty-five
Thousand and 00/100 Dollars ($6,925,000.00) payable as
follows:
(a) Seventy-five Thousand 00/100 Dollars ($75,000.00)
in the execution of this Agreement (the "Initial Deposit"),
the receipt of which is hereby acknowledged by Rogin, Nassau,
Caplan, Lassman & Hirtle, LLC (hereinafter called "Escrow
Agent").
(b) Upon the expiration of the Due Diligence Period (as
defined in Paragraph 3 hereof), if the Purchaser has not
terminated this Agreement pursuant to said Paragraph 3, an
additional $75,000.00 (the "Additional Deposit") shall be
paid to the Escrow Agent. Until the Additional Deposit is
paid, the Initial Deposit shall be also referred to herein as
the "Deposit". When the Additional Deposit has been paid,
the Initial Deposit, together with the Additional Deposit,
shall be together referred to herein as the "Deposit".
(c) By the assumption by the Purchaser of the existing
first mortgage on the Premises (the "Mortgage") that is held
by Morgan Guaranty Trust Company of New York (the
"Mortgagee"), provided that the principal balance thereof is
not greater than $3,900,000.00.
3. The Purchaser's Due Diligence. The Purchaser
shall have a period ending on [forty-five (45) days from the
first business day after the date of this Agreement] (the
"Due Diligence Period") within which to inspect, examine,
and/or investigate the Premises, and all physical,
environmental, financial and legal aspects thereof, and the
obligations of the Purchaser hereunder shall be conditioned
upon the Purchaser being fully satisfied, in its sole
discretion, as to all such inspections, investigations,
and/or examinations.
The Seller shall reasonably cooperate with the Purchaser
in its inspections, examinations, and investigations
including the disclosure to the Purchaser of all available
information known by the Seller or in its possession with
respect to the Premises. Throughout the Due Diligence Period,
the Purchaser shall have access to the Premises to accomplish
the foregoing, including, without limitation, the conduct of
surface and subsurface tests and physical and environmental
appraisals and studies. The Purchaser hereby agrees to hold
the Seller harmless and indemnified against any loss, cost,
liability, or expense arising in connection with the
Purchaser's inspection of the Premises under this Section and
agrees to repair any damage to the Premises caused in
connection therewith.
In the event that the Purchaser, after performing the
above-referenced inspections, examinations, and/or
investigations, is not fully satisfied, in its sole
discretion, as to any of the foregoing, then the Purchaser
shall have the right to terminate this Agreement by written
notice to the Seller, received by the Seller (by facsimile
transmission or otherwise) on or before the expiration of the
Due Diligence Period, and thereupon this Agreement shall be
void with no recourse to the parties, except that the Deposit
shall be promptly refunded to the Purchaser.
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4. Closing. The closing of the sale and purchase of
the Premises shall take place at the offices of the
Purchaser's attorneys, Rogin, Nassau, Caplan, Lassman &
Hirtle, LLC at 10:00 am., prevailing time, on a date selected
by the Purchaser that is not more than thirty (30) days after
the expiration of the Due Diligence Period. The place, time
and date provided for herein or hereafter, as may be changed
by agreement of the parties, is sometimes referred to as the
"Closing."
5. Permitted Encumbrances. The Premises shall be sold
and conveyed by the Seller subject only to the following
items which are sometimes herein referred to as "Permitted
Encumbrances":
(a) Any and all provisions of any ordinance, municipal
regulation, or public or private law, but not violations
thereof,
(b) Real estate taxes not yet due as of the Closing,
which taxes shall be adjusted as provided in Section 12
hereof,
(c) Those encumbrances as are set forth on Exhibit E
attached hereto and made a part hereof, and
(d) The leases and tenancies as are set forth on
Exhibit F attached hereto and made a part hereof (the "Tenant
Leases").
6. Deposit. The Deposit shall be held in escrow by the
Escrow Agent pursuant to the provision of Section 7 hereof.
The Deposit shall include all interest earned thereon. In the
event that the title to the Premises shall be closed in
accordance with the provisions hereof, such Escrow Agent
shall pay over and distribute the Deposit to the Seller and
the same shall be credited to the Purchaser towards the
purchase price provided for in this agreement. In the event
that such title shall fail to close by reason of a default by
the Purchaser (whether or not willful) under this Agreement,
the Deposit shall be paid to the Seller as liquidated damages
and thereupon this Agreement shall become null and void with
neither party having any further rights or liabilities
hereunder, it being understood and agreed that the loss of
the Deposit shall be the sole liability on the part of the
Purchaser by reason of such default hereunder. The Deposit
shall be returned to the Purchaser upon the default by the
Seller hereunder or as hereinafter provided.
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7. Escrow Amount and Escrow Agent's Powers. The Seller
and the Purchaser acknowledge and agree that the Escrow Agent
shall hold the Deposit pursuant to the terms and conditions
of this Agreement subject to the following:
(a) The Escrow Agent shall act as a depository only
and, pending settlement of the transaction contemplated by
this Agreement, the Deposit shall be invested in an account
bearing interest, and shall be disbursed in accordance with
the terms of this Agreement, or as directed in writing by the
Seller and the Purchaser. In the event there occurs a
material default by the Seller under the terms of this
Agreement and the sale contemplated herein is not consummated
by reason thereof or in the event the Purchaser is, for any
other reason under this Agreement, entitled to a return of
the Deposit, the Purchaser shall be entitled to all interest
which shall accrue on the Deposit. In all other
circumstances, interest shall be paid over to the Seller.
(b) In the event either the Seller or the Purchaser
shall claim default under the terms of this Agreement, the
Escrow Agent will not be required to deliver the Deposit to
either of the parties without the written consent of the
other; or upon failure thereof, until the right of either of
the parties to receive the Deposit shall be fully determined
by a court of proper jurisdiction.
(c) In the event of controversy or litigation arising
out of this transaction which (i) results in any expense or
attorneys' fees to the Escrow Agent, by virtue of such claim
or default, controversy or litigation, or (ii) requires a
declaratory judgment by proper court as to the disbursement
of said Deposit, the Escrow Agent is hereby authorized to
deduct such expense or attorney's fees out of the sums held
in escrow and to pay any remaining balance over the part
entitled thereto as agreed upon by the parties, or as
directed by a court of competent jurisdiction.
(d) The Seller and the Purchaser hereby release and
discharge the Escrow Agent from all matters with respect to
the subject matter hereof (except for gross negligence or
intentional wrongdoing), and agree to indemnify and hold the
Escrow Agent harmless from and against all costs, damages,
judgments, attorney's fees, expenses, obligations, and
liabilities of any kind or nature which, in good faith, the
Escrow Agent may incur or sustain in connection with this
Agreement, and without limiting the generality of the
foregoing, the Escrow Agent shall not incur any liability due
to a delay in the electronic wire transfer of funds or with
respect to any action taken or omitted in reliance upon any
instrument, including any written notice or instructions
provided for in this Agreement, not only as to its due
execution and the validity and effectiveness of its
provisions, but also as to the trust and accuracy of any
information contained therein, which the Escrow Agent shall
in good faith believe to be genuine, to have been signed or
presented by a proper person or persons and to conform with
the provisions of this Agreement.
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8. Delivery of Documents. At the Closing (or earlier
if indicated below), the Seller shall deliver to the
Purchaser the following documents (the "Documents"):
(a) Quit Claim with Covenant Deed in proper form (the
"Deed"), containing full covenants of title, sufficient to
convey to the Purchaser or its designee good and marketable
fee simple title to the Premises, the Appurtenant Rights and
the Building Equipment, free from all encumbrances and
defects other than Permitted Encumbrances, together with a
Declaration of Values;
(b) Checks to the order of the appropriate governmental
authorities in amounts sufficient to pay 1/2 of any real estate
conveyance taxes payable upon the recording of the Deed; the
Purchaser shall be required to pay the other 1/2 of such real
estate transfer taxes;
(c) Affidavits customarily required by title insurance
companies in the State of Maine for the issuing of title
insurance protecting against mechanics liens and parties in
possession;
(d) Waivers of mechanics liens executed by or on behalf
of all persons, firms and corporations who shall have
finished materials or performed work or services on or at the
Premises during the period commencing one hundred twenty
(120) days prior to the Closing and from any brokers who
participated with the Seller in connection with the sale of
the Premises to the Purchaser;
(e) At least ten (10) days prior to the Closing,
Estoppel Certificates, in the form attached hereto as Exhibit
D, from all tenants of the Premises, which reflect no facts
that are inconsistent with the representations that are
contained in Sections 16(d) or 16 (e) hereof, or would
otherwise adversely affect the value of the Premises.
(f) Assignment of Leases substantially in the form
attached hereto as Exhibit H;
(g) Original, ink-signed leases for all tenants of the
Premises who shall have
signed such leases;
(h) Affidavit substantially in the form attached hereto
as Exhibit I respecting leases affecting the Premises;
(i) Original, ink-signed service, maintenance and
similar contracts and agreements affecting the Premises,
together with an assignment, substantially in the form
attached hereto as Exhibit K, as to such contracts which the
Purchaser elects to assume;
(j) Letters to all tenants of the Premises advising
them of the transfer of the Premises;
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(k) A certification of the Seller certifying that all
representations and warranties made by the Seller in this
Agreement are true and correct as of the Closing, and that
all of the Seller's covenants contained in this Agreement
have been complied with;
(l) An Affidavit of the Seller swearing that the Seller
is not a "foreign person" as defined in Section 1445(B)(2) of
the Internal Revenue Code of 1986, as amended;
(m) Photocopies of all of the Seller's books and
records and surveys and plans with respect to the Premises;
(n) An estoppel certificate from the Mortgagee in the
form attached hereto as Exhibit M; and
(o) Such other and further documents as may be
reasonably required by the Purchaser to effect the
transactions contemplated by this Agreement, including
without limitation, any documents required by the Mortgagee
to effect the assumption of the Mortgage referred to in
Paragraph 2(d) hereof.
9. Title. Within thirty (30) days after the date
hereof the Purchaser shall notify the Seller of the existence
of any encumbrances and defects in title which are not
Permitted Encumbrances and which are ascertainable from an
examination of the Cumberland County Registry of Deeds and
the records of the office of the Secretary of the State of
Maine, provided that, with respect to such encumbrances or
defects as arise after the date of such notice, the Purchaser
must notify the Seller within five (5) days after he has
notice of such encumbrance or defect. The Seller shall have
thirty (30) days after receipt of such notice from the
Purchaser to clear the title. If at the Closing the Seller
shall be unable to convey good and marketable title to the
Premises free and clear of such encumbrances or defects after
diligent, good faith efforts to do so (including, without
limitation, bonding over any lien, if possible), which title
shall be insurable as such by a reputable title insurance
company and at standard rates, without exceptions which would
adversely affect the use of the Premises as retail space, the
Purchaser shall have the option either of accepting such
title as the Seller can convey with an appropriate diminution
of the Purchase Price to reflect such encumbrances or
defects, or of terminating this Agreement, in which event the
Deposit shall be returned to the Purchaser and neither the
Purchaser nor the Seller shall have any further rights or
obligations under this Agreement.
10. Possession. The Seller shall deliver to the
Purchaser or its designee full possession of the Premises at
the Closing, and shall take all steps requisite to put the
Purchaser or its designee in actual possession and operating
control of the Premises, subject only to the rights of
tenants in possession of portions of the Premises pursuant to
leases set forth on Exhibit F.
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11. Operation of Premises Prior to Closing. From and
after the execution of this Agreement and until the Closing,
the Seller:
(a) Shall operate the Premises in a good and prudent
manner and only in the ordinary course of business;
(b) Shall maintain the Premises, the Building Equipment
and the Personal Property in good repair, reasonable wear and
tear excepted;
(c) Shall perform all obligations required to be
performed by the Seller under all leases affecting the
Premises;
(d) Shall use its best efforts to preserve for the
Purchaser the goodwill of all of the firms and persons having
business relations in connection with the Premises;
(e) Shall duly comply with all laws, ordinances and
regulations applicable to the use and operation of the
Premises;
(f) Shall not amend, terminate, or release or relieve
any tenant of the Premises from any obligation arising under
any lease affecting the Premises without obtaining the prior
written consent of the Purchaser; and
(g) Shall not enter into new leases for all or any
portion of the Premises without obtaining the prior written
consent of the Purchaser. Under no circumstances, shall
Seller take any action which would obligate Purchaser to pay
any broker's commission or finder's fee.
12. Adjustments.
(a) Real property taxes, fuel, water, electricity,
sewer and other charges, if any, shall be prorated between
the parties as of the Closing. The Purchaser shall pay the
assumption fee due to the Mortgagee to permit the assumption
of the Mortgage, and any legal fees incurred by the Mortgagee
in connection therewith.
(b) All tenants' security deposits, if any, together
with accrued interest thereon shall be paid and delivered to
the Purchaser at the Closing.
(c) Rents shall be adjusted in the following manner:
(i) Rents received by the Seller as of the
Closing for the calendar month in which the Closing shall
occur shall be adjusted at the Closing as of the date of
Closing;
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(ii) Rents received by the Purchaser or the
Seller from a particular tenant after the date of Closing for
the calendar month in which the Closing occurs shall be
adjusted as of the date of Closing; any adjustments under
this Section 12(c)(ii) shall be made by the Seller and the
Purchaser within ten (10) days after the end of the month in
which the Closing occurs.
(iii)Except as provided in subsection
12(c)(ii) above with respect to rents received by the Seller
or the Purchaser after the date of Closing for the calendar
month in which the Closing shall occur, no adjustment shall
be made for delinquent rent owing to the Seller on the date
of Closing. Payments for rent received by the Purchaser
subsequent to the Closing shall be deemed to be for current
rent when current rent is due and payable unless specified as
being for prior rental due by the payor of the rents. As
percentage rents are paid by Tenants, they shall be
apportioned at the time they are received as of the Closing
Date based upon each respective tenant's lease year or fiscal
year and promptly paid over to the party entitled to same.
To the extent any tenant is entitled to a cumulative offset
against future rent payments due Purchaser, Purchaser shall
receive a credit against the Purchase Price for the full
amount of such offset. Purchaser will make reasonable
efforts to collect other past due rents and charges if any,
for the account of Seller and any such rents and charges, if
received, shall have been received by Purchaser for the
account of Seller and upon receipt, will be promptly remitted
to Purchaser to Seller, only if there are no outstanding
obligations owed to Purchaser by Tenant or Seller. Costs of
collection, if any, and if not collected by Purchaser from
tenants, shall be paid by Seller. Any past due rent and
charges not so collected by Purchaser within the period of
sixty (60) days following the Closing shall remain the
property of Seller who may pursue such remedies for
collection thereof, for its own account, as it may deem
advisable and available to it, but no such action shall
create a default to Purchaser under any lease and/or mortgage
agreements. Purchaser agrees, at Seller's sole cost and
expense, to cooperate with Seller in pursuing any such
remedies against such tenant. All prepaid rents, taxes and
charges for the period following the Closing and all security
or other deposits (including all accrued interest) of tenants
held by Seller shall be paid over by Seller to Purchaser, or,
if such transfer is not practical, then Purchaser shall
receive a credit against the purchaser price in the amount of
such deposits and all accrued interest thereon. Purchaser
agrees to make all rent receipt records and sales volume
records for Tenants paying percentage rent available to
Seller for inspection between Seller and Purchaser. These
provisions shall survive the closing.
13. Risk of Loss.
(a) Until the Closing, the risk of loss by fire or
other casualty to the buildings and improvements on the
Premises, and liability for personal injury or damage to
property of others at the Premises, shall be borne by the
Seller.
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(b) In the event of damage by fire or other
casualty to the Premises prior to the Closing, the Purchaser
shall have the option to terminate this Agreement. If the
Purchaser shall exercise its right to terminate this
Agreement pursuant to this Section l3 (b) the Seller shall
return the Deposit to the Purchaser, and all parties shall be
relieved of all further liabilities and obligations
hereunder. If the Purchaser does not elect to terminate this
Agreement, this Agreement shall remain in full force and
effect and in such event the Seller shall pay over and assign
or cause to be paid over and assigned to the Purchaser at the
Closing any and all proceeds and claims under any casualty
insurance policies insuring the damaged property, together
with the amount of any deductible thereunder (such option
being hereinafter referred to as the "Assignment Option").
Notwithstanding the foregoing, in the event that the cost of
restoration of any casualty is less than Two Hundred Fifty
Thousand and 00/100 Dollars ($250,000.00), the Purchaser
shall only have the right to either (i) elect the Assignment
Option, or (ii) require the Seller to restore the Premises to
substantially its former condition, in which case the Seller
shall be entitled to retain any insurance proceeds on account
of such casualty, provided that if the Purchaser elects
option (ii), then the Closing shall be adjourned until the
restoration is complete, provided further that if the
restoration is not complete within ninety (90) days after the
Purchaser notifies the Seller that it has elected to have the
Seller restore the damage, then the Purchaser shall have the
right to terminate this Agreement, in which event the Deposit
shall be returned to the Purchaser and neither the Purchaser
nor the Seller shall have any further rights or obligations
hereunder. The Purchaser shall give written notice to the
Seller of any election pursuant to this paragraph within
fifteen (15) business days following receipt by the Purchaser
of written notice of any such casualty.
(c) In the event that the Purchaser shall be
subject to a personal injury or property damage claim at any
time relating to an incident occurring at the Premises prior
to the Closing, the Seller shall defend, indemnify and hold
harmless the Purchaser from and against all losses, damages,
costs and expenses (including attorneys' fees) that the
Purchaser may suffer with respect to any such claim or
incident.
14. Condemnation. If, prior to the Closing, all or any
part of the Premises is taken by eminent domain, the
Purchaser shall have the option either (i) to elect not to
acquire the Premises, in which case the Seller shall return
the Deposit to the Purchaser, this Agreement shall terminate
and the parties shall be relieved of all further rights and
obligations with respect thereto, or (ii) to acquire the
Premises, subject to such action, without adjustment in the
Purchase Price and otherwise in accordance with the terms and
provisions of this Agreement, but the Purchaser shall upon
Closing be entitled to the proceeds of all awards made on
account of such taking which would otherwise accrue to the
Seller, provided that is such award, net of any costs
incurred by the Purchaser in connection therewith, is in
excess of $6,925,000.00, then the Seller shall be entitled to
one-half (1/2) of the excess. The Purchaser shall give
written notice to the Seller of any election pursuant to this
Section within five (5) business days following receipt by
the Purchaser of any written notice of such taking or
proposed taking. Failure of the Purchaser to make such
election within said period shall be deemed an election to
proceed to Closing pursuant to clause (ii) above.
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15. Brokers. The Seller and the Purchaser each
represent and agree to and with each other that they
respectively have had no dealings, negotiations or
consultations with any broker in connection with this
Agreement or the sale of the Premises, except for The Boulos
Company (whose commission the Seller shall pay). The Seller
and the Purchaser shall each indemnify and hold the other
free and harmless from all losses, damages, costs and
expenses (including attorneys' fees) that either may suffer
as a result of any claim or suit brought by any broker or
finder who claims that he participated with the Seller or the
Purchaser, as the case may be, in this transaction.
16. The Seller's Representations and Warranties. The
Seller represents and warrants as follows:
(a) The Seller has good and marketable title in
fee simple to the Premises and to the Appurtenant Rights and
the Building Equipment subject only to Permitted
Encumbrances. There is no Personal Property owned by the
Seller and used in connection with the occupancy, operation
or maintenance of the Premises.
(b) There are no legal or other actions,
proceedings or governmental investigations pending or
threatened which affect the Premises or which would
materially adversely affect the ability of the Seller to
carry out its obligations hereunder.
(c) To the best of the Seller's knowledge, with
respect to the current use of the Premises, the Premises
presently comply and will comply at the time of the Closing
in all material respects with all applicable restrictive
covenants, zoning and subdivision ordinances, building and
fire codes, health and environmental laws and regulations,
and all other applicable municipal, state or Federal laws,
rules and regulations ("Laws"). The transactions contemplated
herein will create no violations of any Laws affecting the
Premises or any part thereof (including, without limitation,
subdivision regulations).
(d) The Seller has performed all obligations
required to be performed by the Seller under all leases
affecting the Premises and the Seller is the owner of all the
leases free and clear of all liens, encumbrances or similar
limitations.
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(e) The rent roll information set forth on Exhibit
F attached hereto, listing all tenants of the Premises and
their respective monthly rent, security deposit, lease term
and any existing default, is complete and correct. No
brokerage or leasing commissions or other compensation shall
be or will be due and payable to any person, firm,
corporation or other entity with respect to or on account of
any of the Tenant Leases, and the Seller shall defend,
indemnify and hold the Purchaser harmless from and against
any brokerage or leasing fees due or claimed to be due in
connection with any Tenant Lease, except that a brokerage
commission in an amount equal to 5% of gross rents may be
payable to The Boulas Company upon a renewal of the
Maidenform lease (i.e. no commission agreement has been
signed with The Boulas Company). The aforesaid indemnity
shall service the Closing. Each of the leases described in
Exhibit F hereto and delivered to Purchaser is true and
complete, and each tenant listed thereon is open and
operating and Seller has not received any notice of closing
and is not aware of any bankruptcy or threatened bankruptcy
by any tenant, except that Maidenform filed for Chapter 11
Bankruptcy protection prior to signing their lease, and
although said Bankruptcy action is still outstanding, the
Bankruptcy Court approved the Maidenform lease. Except with
respect to the leases described in Exhibit F hereto, there
are no leases executed as to the Premises or any part
thereof, and no person, other than tenants, has any right of
possession of the Premises or any part thereof or any options
thereto, no presently effective rent concessions have been
given any tenant, Seller has no ownership interest, either
directly or indirectly, in any tenant, no rent has been paid
in advance by any tenant respecting a period subsequent to
the Closing (except for the month in which the Closing occurs
or except as noted in Exhibit F), no Tenant has any claim
against Seller for any deposits or any other monetary
entitlement or promised or committed improvements or
obligations other than pursuant to the terms of its lease
with respect to sums specified as security or tax deposits in
Exhibit F, no Tenant has any option to extend or renew its
Lease (except as specified in Exhibit F) or to purchase any
portion of the Premises, and no tenant has asserted or
threatened, nor does Seller have any knowledge of any defense
or offsets to rent accruing after the Closing Date. There
are no security deposits under any of the Leases described in
Exhibit F. Except as specified in Exhibit F, each of the
leases has been executed and no default or breach exists on
the part of any tenant or of the landlord thereunder. There
are no disputes or threatened disputes between any tenant and
Seller with regard to the premises occupied by tenant,
utilities required to be furnished, taxes, common area
maintenance charges, or any other charges. Seller has fully
completed all tenant improvements and repairs specified in
any lease to be the responsibility of the landlord
thereunder. Seller has not received any notice of any
default or breach on the part of the landlord under any lease
which has not been heretofore cured or satisfied and there
does not exist any such default or breach on the part of the
landlord. No commissions and/or fees have been incurred or
are owed (except for the potential commission that would be
due with respect to the Maidenform lease, as set forth
above), nor will any be incurred or owed prior to Closing
with respect to any Tenant Lease except as set forth on
Exhibit F hereto.
(f) There are no service, maintenance or similar
contracts or agreements affecting the Premises, except as set
forth on Exhibit N attached hereto.
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(g) The execution and delivery of this Agreement
and the performance by the Seller of all transactions
contemplated by this Agreement to be performed by the Seller
(including the execution and delivery of all documents
required by this Agreement to be executed and delivered by
the Seller):
(i) Will not breach any contractual covenants
or restrictions between the Seller and any third party or
affecting the Premises nor create or cause to be created any
mortgage, lien, encumbrance or charge on the Premises other
than those permitted by this Agreement;
(ii) Are not threatened with invalidity or
unenforceability by any action, proceeding or investigation
pending or threatened by or against the Seller or the
Premises.
(h) The Seller has received no notice of any
condemnation or eminent domain proceedings or negotiations
for the purchaser or any of the Premises in lieu of
condemnation and, to the best of the Seller's knowledge, no
condemnation or eminent domain proceedings or negotiations
have been commenced or threatened in connection with the
Premises or any portion of it.
(i) The Commercial Property Damage Insurance and
Commercial General
Liability Insurance presently carried by the Seller
respecting the Property is as follows: all-risk property
coverage on a 100% replacement cost basis; not less than
$1,000,000.00 of liability coverage; one year's loss of rent
coverage.
(j) All public utilities required for the
operation of the Premises (including, without limitation,
telephone, electric, gas, public water and public sanitary
sewer) enter the Premises through adjoining public streets
and are connected to and servicing the Premises.
(k) The Premises contain approximately 1.17 acres.
All buildings and improvements on the Premises are located
entirely within the boundary lines of the Premises.
(1) To the best of the Seller's knowledge, there
has been no violation of the Uncontrolled Hazardous Substance
Sites Act (38 MRSA Section 1361 et. seq.) with respect to the
Premises and/or "Hazardous Substance" (as such term is
defined in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C.
906l et seq. and/or any environmental contamination
(including, but not limited to asbestos and polychlorinated
biphenyl fluids ("PCB's") released on or onto or contained
within the Premises.
(m) All matters known to the Seller which might
have a material adverse effect on the ownership, maintenance
and operation of the Premises have been disclosed to the
Purchaser.
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<PAGE>
(n) The Premises are structurally sound and all
systems of the Property (including without limitation, septic
systems, electrical systems, heating systems, air
conditioning systems and plumbing systems) are in good
working order and condition. The Premises are free of vermin
and termites and other wood ingesting insects.
(o) Attached hereto as Exhibit O is a list of true
and correct income statements and certain fixed expense
statements for the Property for calendar years 1995 and 1996
and year-to-date through November 30th for calendar year 1997.
(p) To the best of Seller's knowledge, the
Premises do not contain lead paint, asbestos insulation or
other material, urea formaldehyde insulation, or any other
toxic, radon-containing or carcinogenic chemicals or
insecticides.
(q) There are no underground oil tanks located at
the Premises.
(r) The Note, Mortgage and Assignment of Leases
that are described on Exhibit P attached hereto are true
copies of all of the loan documents that evidence the
Mortgage, and in connection therewith:
(i) Said loan documents have not been
modified or amended, except as set forth on Exhibit P.
(ii) The principal balance of the Note was
$3,877,728.00 as of December 31, 1997. The principal balance
has been further reduced as a result of the January, 1998
payment of principal and interest which was paid.
(iii)Interest on the Note has been paid
through December 31, 1997.
(iv) The Seller is not in default under the
Note and other loan documents and has not received a notice
of default thereunder from the Mortgagee, except as set forth
on Exhibit P.
(v) The Seller has received no notice that
the Mortgagee has assigned the Mortgage.
(vi) The Mortgage is assumable upon payment of
a 1% assumption fee.
(s) There are no warranties applicable to the
Premises or the Building Equipment.
17. Conditions to Closing. The Purchaser's obligations
to close hereunder are conditioned upon the following:
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(a) Delivery at the Closing of all documents
required to be delivered by the Seller pursuant to Section 8
hereof.
(b) All representations and warranties of the
Seller set forth in Section 16 hereof being true and correct
as of the Closing.
(c) the Mortgagee permitting, in writing, the
assumption of the Mortgage by the Purchaser at the Closing.
In connection therewith, the Seller shall use commercially
reasonable efforts to obtain such permission, and shall
cooperate with the Purchaser, in any reasonable way that is
necessary, in its dealings with the Mortgagee. If such
permission is not obtained on or before the Closing Date,
then the Purchaser shall have the right to terminate this
Agreement, by written notice to the Seller, in which event
this Agreement shall be void with no recourse to the parties,
except that the Deposit shall be promptly refunded to the
Purchaser.
18. Default By the Seller.
(a) The Seller shall be in default under this
Agreement in the following events:
(i) If the Seller shall fail to perform and
comply with the agreements and conditions, including, without
limitation, the conditions set forth in Paragraphs 17(a) and
(b) above, which are required to be performed or complied
with by the Seller pursuant to this Agreement; or
(ii) If the warranties and representations
contained in Section 16 above shall not be true in all
material respects on the Closing.
(b) If the Seller shall be in default under this
Agreement, then the Escrow Agent shall return the Deposit to
the Purchaser, and, in addition, the Purchaser shall be
entitled to terminate this Agreement by written notice to the
Seller and/or pursue any other remedy available to the
Purchaser in law or equity.
19. Default By the Purchaser.
(a) The Purchaser shall be in default under this
Agreement in the event that the Purchaser shall fail to
perform and comply with the agreements and conditions which
are required to be performed or complied with by the
Purchaser pursuant to this Agreement.
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<PAGE>
(b) If the Purchaser shall be in default under
this Agreement, the Seller shall be entitled to retain the
Deposit as liquidated damages, and all other rights and
liabilities of the parties hereto by reason of this Agreement
shall be deemed at an end. The parties agree that the
retention of sums paid hereunder shall be considered as full
liquidated damages by reason of the uncertainty and
impossibility of ascertaining actual damage suffered by the
Seller. Both parties agree that the aforesaid amount
constitutes a reasonable forecast of damages which would be
sustained by the Seller in the event of the Purchaser's
breach.
20. Prior Agreements. This Agreement constitutes the
entire agreement by and between the parties hereto affecting
the Premises and supersedes any and all previous agreements,
written or oral, between the parties and affecting the
Premises. This Agreement may not be modified except by an
instrument in writing signed by the parties hereto.
21. Survival of All Representations and Warranties. All
representations, warranties, covenants and agreements of the
Seller and the Purchaser contained herein shall survive the
Closing and shall not merge in the Deed to be given by the
Seller even though not inserted or otherwise included in such
Deed.
22. Applicable Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of
Maine.
23. Successors and Assigns. The rights and obligations
contained herein shall be binding upon and inure to the
benefit of the Seller, the Purchaser, and their respective
successors and assigns, provided that the Purchaser shall not
have the right to assign this Agreement, except to an entity
in which Brian Navarro has a direct or indirect ownership
interest.
24. Waiver of Conditions. Notwithstanding any provision
of this Agreement, either party may at its option waive any
provision that is a condition to his or her performance
hereunder and close the transaction.
25. Notices. Any notice, report, request or demand
required, permitted, or desired to be given under this
Agreement shall be in writing and shall be deemed to have
been properly served, for all purposes only if sent by
registered or certified mall, or nationally recognized
overnight courier, return receipt requested, to the
respective party at the addresses set forth below, and shall
be deemed to have been given or served only on the date
received or rejected:
If to the Purchaser:The Grove Corporation
598 Asylum Street
Hartford, CT 06103
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<PAGE>
Copy to: Rogin, Nassau, Caplan, Lassman &Hirtle, LLC
CityPlace I, 22nd Floor
Hartford, CT 06103
Attn: Peter S. Sorokin, Esq.
If to the Seller: Freeport Merchants Limited Partnership
c/o Gunn Financial, Inc.
45 Broad Street
Boston, MA 02109
Copy to: Abrahms, Roberts, Klickstein & Levy
265 Franklin Street
Boston, MA 02110
Attn: Franklin Levy, Esq.
IN WITNESS WHEREOF, the Seller and the Purchaser have
hereunto set their hands and seals as of the day and year
first above written.
Signed, Sealed, and Delivered in the Presence of:
THE GROVE CORPORATION
/s/ Veronica Benson By: /s/ Joseph R. LaBrosse
- ------------------- ----------------------
Veronica Benson Joseph R. LaBrosse
Its Treasurer
FREEPORT MERCHANTS LIMITED
PARTNERSHIP
By: SEXTANT, INC., general partner
By:
/s/ /s/ Robert Gunn
- --------------------- ----------------------
Robert Gunn
Its President
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<PAGE>
STATE OF CONNECTICUT)
) ss.
COUNTY OF )
On this 12th day of January, 1998 personally
appeared Joseph R. LaBrosse as Treasurer of The Grove
Corporation signer and sealer of the foregoing instrument,
and acknowledged the same to be his free act and deed and the
flee act and deed of said corporation, before me.
/s/ Patricia McBride
----------------
Notary Public/Commissioner of the Superior Court
COMMONWEALTH OF MASSACHUSETTS)
) ss:
COUNTY OF SUFFOLK)
On this 9th day of January l998 personally
appeared Robert Gunn, as President of Sextant, Inc., general
partner of Freeport Merchant Limited Partnership signer and
sealer of the foregoing instrument, and acknowledged the same
to be his free act and deed and the free act and deed of said
corporation and partnership, before me.
/s/ Margaret Milne
--------------
Notary Public
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CONTRIBUTION AGREEMENT
by and between
GROVE OPERATING, L.P.,
a Delaware limited partnership
and
the general and limited partners
of
A.N.E. ASSOCIATES LIMITED PARTNERSHIP,
a Connecticut limited partnership
DATED: As of March 15, 1998
___________________________________________________________________
<PAGE>
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (the "Agreement") is
made as of this 15th day of March, 1998, by and between:
GROVE OPERATING, L.P., a Delaware limited partnership (the
"Operating Partnership"), ANE Corp., a Connecticut
corporation with an office in Hartford, Connecticut, Arthur
Grodd, an individual with a residence in Longmeadow,
Massachusetts, Stuart Grodd, an individual with a residence
in Woodbridge, Connecticut, Damon Navarro, an individual with
a residence in Glastonbury, Connecticut, and Brian Navarro,
an individual with a residence in Glastonbury, Connecticut
(Arthur Grodd, Stuart Grodd, Damon Navarro and Brian Navarro
are sometimes individually referred to as a "Contributor,"
and collectively referred to herein as the "Contributors").
W I T N E S E T H:
WHEREAS, A.N.E. ASSOCIATES LIMITED PARTNERSHIP, a
Connecticut limited partnership (the "Project Partnership")
owns a multi-family residential project known as Coachlight
Village, located in Agawam, Massachusetts and certain other
assets; and
WHEREAS, ANE Corp. and the Contributors own all of
the limited and general partnership interests in the Project
Partnership; and
WHEREAS, the Contributors other than Stuart Grodd
desire to contribute to the Operating Partnership or its
designee all of their respective general and limited
partnership interests in the Project Partnership in exchange
for Units (as hereinafter defined) pursuant to and in
accordance with this Agreement; and
WHEREAS, simultaneous with the closing contemplated
hereunder, Grove Property Trust, a Maryland real estate
investment trust, contemplates acquiring all of the stock of
ANE Corp. from Grove Holding Company, its sole shareholder.
NOW, THEREFORE, in consideration of the foregoing
premises and the respective representations, warranties,
agreements, covenants and conditions herein contained, and
other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereby
agree as follows:
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<PAGE>
Article 1.
DEFINITIONS
1.1. Definitions. As used herein, the following
terms shall have the respective meanings indicated below:
Agreement: This Contribution Agreement, including
the schedules attached hereto, as this Contribution Agreement
may be, amended, supplemented or modified from time to time.
Amended and Restated Partnership Agreement: As
defined in Section 2.1 hereof.
Closing: As defined in Section 5.1 hereof.
Closing Date: As defined in Section 5.1 hereof.
Coachlight Interests: The partnership interests of
the Contributors in the Project Partnership, as identified in
Schedule A hereto.
Contributors: As defined in the first paragraph of
this Agreement.
Damages: Any loss, liability, claim, obligation,
damage or expense (including reasonable legal fees and
expenses).
Environment: Soil, surface waters, ground waters,
land, stream sediments, surface or subsurface strata and
ambient air.
Environmental Laws: Any and all federal, state and
local statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental
restrictions relating to the Environment or to emissions,
discharges, releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes into the Environment, or otherwise
relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling of
pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes.
ERISA: The Employee Retirement Income Security Act
of 1974, as amended from time to time.
Expenses: As defined in Section 9.1 hereof.
Hazardous Materials: As defined in Section 4.1 (j) hereof.
Improvements: As defined in Section 4.1 (d) (ii) hereof.
Intangible Property: As defined in Section 4.1 (d)(iv) hereof.
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<PAGE>
Leases: As defined in Section 4.1 (d) (v) hereof.
Material Adverse Effect: With respect to any
Person, a material adverse effect on the properties,
business, results of operation or financial condition of such
Person.
Obligations: All payments required to be made and
all representations, warranties, covenants, agreements and
commitments required to be performed under the provisions of
this Agreement by the Contributor or the Operating
Partnership, as applicable.
Operating Partnership: As defined in the caption
to this Agreement.
Permitted Exceptions: Any liens, encumbrances,
restrictions, exceptions and other matters specified on the
Searches, Title Commitment, Title Policy or Surveys, to which
title to the Real Estate may be subject on the Closing Date,
which are acceptable to the Operating Partnership.
Person: Any individual, a partnership, a joint
venture, a corporation, a trust, a limited liability company,
an unincorporated organization or a government or any
department or agency thereof.
Personalty: As defined in Section 4.1 (d) (iii) hereof.
Pledge Agreement: As defined in Section 6.1 (f) hereof.
Project: As defined in Section 4.1 (d) hereof.
Project Partnership: As defined in the first
Whereas clause of this Agreement.
Property-Related Representations and Warranties:
The representations and warranties of the Contributors set
forth in subsections 4.1 (d), (g) - (j), (l) - (w),).
Real Estate: As defined in Section 4.1 (d) (i) hereof.
Searches: As defined in Section 5.3(c) hereof.
Securities Act: As defined in Section 4.1(aa) hereof.
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<PAGE>
Service Contracts: All laundry equipment leases,
management, leasing, repair, maintenance, operating, supply,
purchase, consulting, advertising, service, equipment,
concession and other contracts, commitments and agreements
(excluding the Leases) relating to the Real Estate.
Survey: The survey for the Project delivered in
accordance with Section 5.3(a) hereof.
Title Commitment: The commitment for title
insurance delivered in accordance with Section 5.3(b) hereof.
Title Defect: Any lien, claim, charge, security
interest, restriction, title exception, defect or encumbrance
other than a Permitted Exception.
Title Policy: The policy of title insurance
delivered in accordance with Section 5.3 hereof.
Transfer: As defined in Section 4.1(aa) hereof.
Units: Units of beneficial interest in the
Operating Partnership. All Units referred to in this
Agreement shall be Units of limited partnership interest.
1.2. References. Except as otherwise specifically
indicated, all references to Section and Subsection numbers
refer to Sections and Subsections of this Agreement, and all
references to Schedules refer to the Schedules attached
hereto. The words "hereby," "hereof," "herein," "hereto,"
"hereunder," "hereinafter," and words of similar import refer
to this Agreement as a whole and not to any particular
Section or Subsection hereof. The word "hereafter" shall mean
after, and the term "heretofore" shall mean before, the date
of this Agreement. The word "including" shall mean
"including, without limitation." Captions used herein are
for convenience only and shall not be used to construe the
meaning of any part of this Agreement.
Article 2.
CONTRIBUTION AND ACCEPTANCE; OTHER TRANSACTIONS
2.1. Contribution. Subject to the terms and
conditions contained in this Agreement, each of the
Contributors hereby agrees to contribute and/or assign its
Coachlight Interests to the Operating Partnership. Effective
immediately following the execution of this Agreement, each
of the Contributors and ANE Corp. hereby consent to the
conversion of the Coachlight Interest formerly owned by
Arthur Grodd to a limited partnership interest in the Project
Partnership. At the Closing, ANE Corp. and the Operating
Partnership shall amend and restate the limited partnership
agreement of the Project Partnership in the form attached
hereto as Exhibit G (the "Amended Partnership Agreement").
The Operating Partnership shall be admitted as a substitute
limited partner, and ANE Corp., the stock of which will then
be owned by Grove Property Trust, shall be the sole general
partner of the Project Partnership.
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<PAGE>
Article 3.
CONSIDERATION
3.1. Units. In consideration of the contributions,
conveyances, assignments and transfers to be made by the
Contributors under Article 2 hereof, the Operating
Partnership agrees to issue to each Contributor other than
Stuart Grodd Units with a Market Value (as defined below)
equal to the amount set forth with respect to such
Contributor on Schedule A hereto. For purposes of this
Agreement, the Market Value of a Unit shall equal the average
closing price per share of Grove Property Trust as reported
on the AMEX composite tape on the five trading days
immediately preceding the date of the Closing contemplated
under this Agreement. In the event trading of Grove Property
Trust shares have been suspended for any reason during the
week immediately preceding the Closing, the Operating
Partnership may, in its sole discretion, upon written notice
to such effect, terminate its obligations hereunder, without
any further liability to any of the parties hereto.
3.2. Operating Partnership Agreement. At or prior
to the Closing, the Contributors receiving Units pursuant to
Section 3.1 shall enter into the Operating Partnership
Agreement with all other parties thereto.
3.3. Sale of Stuart Grodd Coachlight Interests. In
consideration of the conveyance, assignment and transfer of
the Coachlight Interests to be made by Stuart Grodd under
Article 2 hereof, the Operating Partnership agrees to pay
Stuart Grodd cash in the amount specified on Schedule A
hereto. The sale of the Coachlight Interests owned by Stuart
Grodd shall take place effective as of the Closing Date.
However, the parties hereto consent to the earlier transfer
of title to Stuart Grodd's Coachlight Interests to the
Operating Partnership in the event both parties find it more
convenient. However, the Operating Partnership shall not be
admitted as a substitute limited partner with respect to
Stuart Grodd's transferred Coachlight Interests until April
1, 1998.
Article 4.
COVENANTS, REPRESENTATIONS AND WARRANTIES
4.1. Representations and Warranties of the
Contributors. To induce the Operating Partnership to
execute, deliver and perform this Agreement, each of the
Contributors severally represents and warrants to the
Operating Partnership, on and as of the date hereof and on
the date of the Closing contemplated hereunder as follows:
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<PAGE>
(a) Existence. Each Contributor that is not
a natural person (i)is duly organized and validly existing
under the laws of the state of its organization; (ii)has all
requisite power, and has all material governmental licenses,
authorizations, consents and approvals necessary to own its
assets and carry on its business as now being or as proposed
to be conducted; and (iii) is qualified to do business in all
jurisdictions in which the nature of the business conducted
by it makes such qualification necessary, except where the
failure to be so qualified would not have a Material Adverse
Effect on such Contributor.
(b) Authorization, Execution, Etc.. Each
Contributor has, in the case of any Contributor other than an
individual, all necessary power and authority, and in the
case of a natural person, the legal capacity to execute,
deliver and perform its obligations under this Agreement; the
execution, delivery and performance by each Contributor of
this Agreement have been duly authorized by all necessary
action on its part; and this Agreement has been duly and
validly executed and delivered by each Contributor and
constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms, subject to
bankruptcy, insolvency, moratorium or other similar laws
affecting the enforcement of creditors' rights in general and
to general principles of equity.
(c) No Breach. None of the execution and
delivery of this Agreement, the consummation of the
transactions contemplated hereby and compliance with the
terms and provisions hereof by the Contributors will conflict
with or result in a breach of, or require any consent (except
such consents as have been obtained) under (i) the
organizational documents of any Contributor or the Project
Partnership, (ii) any material applicable law or regulation,
or any order, writ, injunction or decree of any court or
governmental authority or agency, or (iii) any material
agreement or instrument to which any Contributor or the
Project Partnership is a party or by which it is bound or to
which it is subject, or constitute a default under any such
agreement or instrument, or result in the creation or
imposition of any lien upon any of the revenues or assets of
any Contributor or the Project Partnership pursuant to the
terms of any such agreement or instrument.
(d) Title. The Project Partnership is the
sole beneficial owner of, and has good and marketable title
to, the Project, free and clear of all Title Defects. The
"Project" includes:
(i) All of the land described on
Schedule B attached hereto and made a part hereof, together
with all of the rights, privileges, easements and
appurtenances belonging or appertaining to such land,
including all oil, gas and mineral rights belonging to the
Project Partnership, all right, title and interest of the
Project Partnership in and to all land lying in any street,
alley, road or avenue, open or proposed, in front of or
adjoining such land, to the centerline thereof, all
rights-of-way adjacent to such land and all right, title and
interest of the Project Partnership in and to any award made
or to be made in lieu thereof and in and to any unpaid award
for damage to such land by reason of change of grade of any
street (such land and all such rights, privileges, easements
and appurtenances are collectively referred to herein as the
"Real Estate").
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<PAGE>
(ii) The apartment complex,
ancillary parking lots, and any and all other improvements
and structures located on the Real Estate (hereinafter
collectively called the "Improvements").
(iii)All fixtures and other
personal and tangible property or interest therein owned by
the Project Partnership, including the heating, sprinkler,
plumbing, air conditioning and ventilation systems,
furniture, appliances, blinds, office equipment and
furniture, supplies, replacements, machinery, equipment, and
any other personal property or interest therein owned by the
Project Partnership, now or hereafter located on the Real
Estate, or on any portion thereof, or in any of the
Improvements, or used in connection with the ownership,
operation, management or use of the Real Estate, or any
portion thereof, or any of the Improvements (all of the
foregoing are hereinafter collectively called the
"Personalty").
(iv) All intangible property or
interest therein now or hereafter owned or held by the
Project Partnership between the date hereof and the date of
the Closing in connection with the Real Estate (or any
portion thereof), the Improvements, the Personalty or any
business or businesses conducted on the Real Estate, or on
any portion thereof, or in connection with the ownership,
operation, management or use thereof, including (1) any trade
style or trade name used in connection with the Real Estate;
(2) any assignable Service Contracts; (3) all "as-built"
plans and specifications or other construction drawings of
any type in the Project Partnership's possession or control
prepared in connection with the construction of the
Improvements; (4) all tests, studies and reports in the
Project Partnership's possession or control prepared with
respect to the Real Estate or the Improvements (including any
environmental reports); (5) all of the Project Partnership's
books and records with respect to the Real Estate or the
Improvements; and (6) all assignable guarantees and
warranties (including guarantees and warranties pertaining to
the construction of the Improvements or pertaining to the
acquisition of the Real Estate, or any parcel thereof, or any
of the Improvements by the Project Partnership) licenses and
other governmental permits, approvals and permissions
(including the certificate of occupancy) relating to the Real
Estate, or any portion thereof, the Improvements, or the
ownership, operation, management or use thereof (all of the
foregoing are hereinafter collectively called the "Intangible
Property").
(v) All leases or occupancy
agreements for any units in the Improvements or for any other
portion of the Real Estate or the Improvements (the "Leases").
(e) Litigation. There are no legal or
arbitration proceedings or any proceedings by or before any
governmental or regulatory authority or agency, now pending
or, to the knowledge of the Contributor, threatened against
any of the Contributors or the Project Partnership, except
for such proceedings which, if decidedly adversely to such
Person, would not have a Material Adverse Effect on such
Person.
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<PAGE>
(f) Approvals. The Contributors have
obtained all material authorizations, approvals or consents
of, and have made all material filings or registrations with,
any governmental or regulatory authority or agency that are
necessary for the execution, delivery or performance by the
Contributors of this Agreement or for the validity or
enforceability thereof.
(g) Rent Roll. Schedule C hereto is a true
and correct list of the rent roll for the Project as of
________, 1997. The rent roll is a true and correct rent
roll for the Project, showing, for each apartment unit the
following information: (i) whether the unit is occupied and,
if occupied, (ii) the name(s) of the tenant(s), (iii) the
amount of rent, (iv) the amount of any security deposit and
(v) the starting and termination date of the lease term.
(h) Parties In Possession. Except as shown
on the rent roll listed on Schedule C, no Person is in
possession of the Project or any portion thereof, and no
Person has any interest in the Project, or any portion
thereof, except for the Project Partnership.
(i) Leases. A correct and complete copy of
each Lease (including all amendments thereto) has been
provided to the Operating Partnership and each Lease is
unmodified (except for such amendments provided to the
Operating Partnership) and in full force and effect and
neither the Project Partnership nor, to the Contributor's
knowledge, any other party to any thereof is in default
thereunder, other than rental delinquencies in the normal
course of business.
(j) Hazardous Materials. To the
Contributor's knowledge, except as disclosed in Schedule D
hereto or in any environmental reports or audits furnished to
the Operating Partnership prior to the date hereof, the
Project Partnership has obtained all permits, licenses and
other authorizations which it is required to obtain under all
Environmental Laws, and the Project Partnership is in
compliance with the terms and conditions of all such permits,
licenses and authorizations, and is also in compliance in all
material respects with all other limitations, restrictions,
conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any
applicable Environmental Law or in any regulation, code,
plan, order, decree, judgment, injunction, notice or demand
letter issued, entered, promulgated or approved thereunder.
In addition, to the Contributor's knowledge, except
as disclosed in Schedule D hereto or in any environmental
reports or audits furnished to the Operating Partnership
prior to the date hereof:
No notice, notification, demand, request for
information, citation, summons or order has been issued, no
complaint has been filed, no penalty has been assessed and no
investigation or review is pending or threatened, by any
governmental or other entity with respect to any alleged
failure by the Project Partnership to have any permit,
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license or authorization required in connection with the
conduct of its business with respect to any generation,
treatment, storage, recycling, transportation, release or
disposal, or any release as defined in 42 U.S.C. 9601(22),
of any substance regulated under Environmental Laws
("Hazardous Materials") generated by the Project Partnership.
The Project Partnership has not handled any
Hazardous Material, other than such as would be customary in
the normal course of operating multi-family apartment
complexes, on any property now or previously owned or leased
by it.
No polychlorinated biphenyls are or have been
present at the Project.
No asbestos or, to Contributor's knowledge, any
lead paint is or has been present at the Project.
There are no underground storage tanks for
Hazardous Materials, active or abandoned, at the Project.
No Hazardous Materials have been released and
continue to affect the subject property, in a reportable
quantity, where such a quantity has been established by
statute, ordinance, rule, regulation or order.
No Hazardous Materials have been otherwise released
at, on or under the Project.
The Project Partnership has not transported or
arranged for the transportation of any Hazardous Material to
any location which is listed on the National Priorities List
under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended ("CERCLA"), listed for
possible inclusion on the National Priorities List by the
Environmental Protection Agency in CERCLIS or on any similar
state list or which is the subject of federal, state or local
enforcement actions or other investigations which may
reasonably be expected to lead to claims against the Project
Partnership for clean-up costs, remedial work, damages to
natural resources or for personal injury claims, including
claims under CERCLA.
No notification of a release of a Hazardous
Material has been filed by or on behalf of the Project
Partnership and the Project is not listed or proposed for
listing on the National Priority List promulgated pursuant to
CERCLA, on CERCLIS or on any similar state list of sites
requiring investigation or clean-up.
There are no liens arising under or pursuant to any
Environmental Laws on the Project, and no government actions
have been taken or are in process which could subject the
Project to such liens and the Project Partnership is not
required to place any notice or restriction relating to the
presence of Hazardous Materials at the Project.
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There have been no environmental investigations,
studies, audits, tests, reviews or other analyses conducted
by or which are in the possession of the Project Partnership
in relation to the Project which have not been made available
to the Operating Partnership.
(k) Financing Arrangements. Except as
described in Schedule E attached hereto, the Project
Partnership is not obligated for any material indebtedness.
(l) Employees. The Project Partnership has
complied in all material respects with all laws relating to
the employment of labor, including any provisions thereof
relating to wages, hours, collective bargaining and the
payment of social security and similar taxes (in each case
except where any statute of limitations applicable to
non-compliance has expired without any claim having been made
with respect to such non-compliance), and is not liable for
any arrearage of wages, taxes or penalties for failure to
comply with any of the foregoing.
(m) Solvency. None of the transactions
contemplated by this Agreement will be or have been made with
an actual intent to hinder, delay or defraud any present or
future creditors of the Contributors, and the Contributors
are not and will not be rendered insolvent by such
transactions or will have received fair and reasonably
equivalent value in good faith for the contribution and sale
of assets pursuant to this Agreement. The Contributors
receiving Units are able to pay their debts as they become
due, including contingent obligations reasonably likely to
become due.
(n) Delinquent Property Liens. Except for
claims which are not material in amount or which are
expressly permitted to exist under this Agreement or which
otherwise constitute Permitted Exceptions, there is no
delinquent tax, sewer rent, water charge, assessment or other
outstanding charges against the Project. Except as shown in
the title policy, there are no mechanics' liens or similar
Title Defects or, to the Contributor's knowledge, claims for
overdue payment for work performed by or on behalf of the
Project, labor or material affecting the Project and there
are no mechanics' liens or similar Title Defects or claims
affecting the Project which have not been insured or endorsed
over by the Title Company issuing the Title Policy.
(o) Insurance. The Project is covered by
insurance of the type and in the amounts set forth on
Schedule F.
(p) Improvements. Except as disclosed in the
Survey or Title Commitment, all the Improvements lie wholly
within the boundary and building restriction lines of the
Real Estate and no improvements on adjoining properties
encroach upon the Real Estate in any respect.
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(q) Casualty; Condemnation. The Project is
free of material damage and waste and there is no proceeding
pending or, to the best of the Contributor's knowledge,
threatened, for the total or partial taking of the Project,
and there has not occurred with respect to the Project any
(i) damage or destruction which would cost more than $100,000
to repair, (b) any taking by condemnation or eminent domain
or other similar proceeding involving loss in excess of
$100,000 or (c) any taking by condemnation or eminent domain
or other similar proceeding of all or substantially all
thereof (other than for temporary use).
(r) Zoning and Other Laws. To the
Contributor's knowledge, the Project and the use and
operation thereof, separate and apart from any other
properties, constitute a legal use under applicable zoning
regulations and comply in all material respects with all
applicable requirements of law and all applicable insurance
requirements, and, except as provided in any engineering
reports furnished to the Operating Partnership prior to the
date hereof, comply in all material respects with the
applicable provisions of the Americans with Disabilities Act
and the Fair Housing Amendments Act of 1988 and all
applicable regulations issued thereunder and each similar
applicable state law and regulation.
(s) Service Contracts. Each Service Contract
relating to the Project has been entered into in the normal
course of business in an arm's-length transaction and is on
terms and conditions customary for multi-family apartment
complexes. Each such Service Contract is in full force and
effect and neither the Project Partnership nor, to the
Contributor's knowledge, any other party to any thereof is in
default thereunder.
(t) Permits. Except for permits relating to
Hazardous Materials (which are addressed in Section 4.1(j)
above), there have been issued in respect of the Project all
permits and governmental approvals necessary or required to
own, operate, use and occupy the Project in the manner
currently operated. Each such permit is in full force and
effect and the Project Partnership has not received any
notice of violation or revocation thereof. No other permits
are required from any governmental entity in order to operate
the Project as it is now operated.
(u) Utilities. The Project Partnership has
not received any notice of actual or threatened reduction or
curtailment of any utility service now supplied to the
Project.
(v) Certificates of Occupancy. The Project
Partnership has not received any notice of actual or
threatened cancellation or suspension of the certificate of
occupancy for any portion of the Project and each such
certificate of occupancy is in full force and effect.
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(w) Assessments. The Project Partnership has
not received any notice of actual or threatened special
assessments or special reassessments of the Project.
(x) Activities of Property Partnership. The
sole activity of the Project Partnership is (i) the ownership
of the Project, (ii) the operation, leasing, financing and
management of the Project, and (iii) activities incidental to
such ownership, operation, leasing, financing and management.
(y) Property Partnership Agreement. The
Contributors have delivered to the Operating Partnership true
and correct copies of the partnership agreements with respect
to the Project Partnership, including all modifications,
amendments or supplements thereto. All such partnership
agreements are in full force and effect in accordance with
their respective terms.
(z) Title to Contributed Interests. Subject
to the provisions of the partnership agreement of the Project
Partnership, the Contributors are the owners of the
Coachlight Interests set forth opposite their respective
names on Schedule A free and clear of all security interests,
liens or other encumbrances.
(aa) Accredited Investor; Acquisition for
Investment Purposes. Each Contributor other than Stuart
Grodd and each direct and indirect owner of such Contributor
is an "accredited investor" as defined in Rule 501 of the
General Rules and Regulations promulgated under the
Securities Act of 1933, as amended (the "Securities Act").
Each of the Contributors other than Stuart Grodd is acquiring
the Units solely for its own account for the purpose of
investment and not as a nominee or agent for any other Person
and not with a view to, or for offer or sale in connection
with, any distribution of any Units (other than in a
transaction which is either registered under the Securities
Act or exempt from such registration, and in compliance with
all applicable Blue Sky or state securities laws or exempt
therefrom). Each Contributor other than Stuart Grodd agrees
and acknowledges that it will not, directly or indirectly,
offer, transfer, sell, assign, pledge, hypothecate or
otherwise dispose of (hereinafter, "Transfer") any of the
Units unless such Transfer complies with the Operating
Partnership Agreement and is either (i) pursuant to an
effective registration statement under the Securities Act and
qualification or other compliance under applicable Blue Sky
or state securities laws, or (ii) exempt from registration
under the Securities Act and qualification or other
compliance under applicable Blue Sky or state securities laws.
4.2. Representations and Warranties of the
Operating Partnership. To induce the Contributors to
execute, deliver and perform this Agreement, the Operating
Partnership represents and warrants to the Contributors on
and as of the date hereof as follows:
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(a) Existence. The Operating Partnership:
(i) is a limited partnership duly organized and validly
existing under the laws of the State of Delaware; (ii) has
all requisite power, and has all material governmental
licenses, authorizations, consents and approvals necessary to
own its assets and carry on its business as now being or as
proposed to be conducted; and (iii) is qualified to do
business in all jurisdictions in which the nature of the
business conducted by it makes such qualification necessary,
except where the failure to be so qualified would not have a
Material Adverse Effect on the Operating Partnership.
(b) Authorization, Execution, Etc.. The
Operating Partnership has all necessary power and authority
to execute, deliver and perform its obligations under this
Agreement; the execution, delivery and performance by the
Operating Partnership of this Agreement have been duly
authorized by all necessary action on its part; and this
Agreement has been duly and validly executed and delivered by
the Operating Partnership and constitutes its legal, valid
and binding obligation, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, moratorium or other
similar laws affecting the enforcement of creditors' rights
in general and to general principles of equity.
(c) No Breach. None of the execution and
delivery of this Agreement, the consummation of the
transactions contemplated hereby and compliance with the
terms and provisions hereof will conflict with or result in a
breach of, or require any consent (except such consents as
have been obtained) under (i) the organizational documents of
the Operating Partnership, (ii) any material applicable law
or regulation, or any order, writ, injunction or decree of
any court or governmental authority or agency, or (iii) any
agreement or instrument to which the Operating Partnership is
a party or by which it is bound or to which it is subject, or
constitute a default under any such agreement or instrument,
or result in the creation or imposition of any lien upon any
of the revenues or assets of the Operating Partnership
pursuant to the terms of any such agreement or instrument.
(d) Approvals. The Operating Partnership has
obtained all material authorizations, approvals or consents
of, and has made all material filings or registrations with,
any governmental or regulatory authority or agency that are
necessary for the execution, delivery or performance by the
Operating Partnership of this Agreement or for the validity
or enforceability thereof.
(e) Units; Common Shares. The Units, when
issued to the Contributor, will not be subject to any lien,
claim, encumbrance, restriction upon voting right, preemption
right or other claim of any third party, other than pursuant
to federal or state securities laws or the Operating
Partnership Agreement. The Units, when issued to the
Contributor, will be duly and validly issued partnership
units in the Operating Partnership. Any shares of common
stock of Grove Property Trust, a Maryland real estate
investment trust, which may be issued in redemption of Units
will, when issued, be duly and validly issued, fully paid,
non-assessable and shall not be subject to any preemptive or
similar rights.
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(f) Securities Act Compliance. Assuming the
truth and accuracy of the representations and warranties in
Section 4.1(aa) hereof, the issuance of Units to the
Contributors pursuant to this Agreement is exempt from the
registration requirements of the Securities Act.
4.3. Survival of Representations and Warranties.
The representations and warranties of the parties contained
in this Article 4 shall survive the Closing; provided, that
any claim for breach by the Contributor of any
Property-Related Representation and Warranty must be asserted
within one (1) year of discovery by the party asserting same,
and in any event within two (2) years after the Closing Date.
Article 5.
CLOSING MATTERS
5.1. Closing. The closing of the transactions
contemplated hereby (the "Closing") shall take place
effective as of April 1, 1998 (the "Closing Date"). The
parties acknowledge that the Operating Partnership has been
given the opportunity to conduct a broad range of due
diligence with respect to the Project. As of the Closing
Date, the Title Company shall be willing to approve and
insure title to the Real Estate, through endorsement to the
Project Partnership's existing Title Policy or through the
issuance of a new policy, subject only to the Permitted
Exceptions, at regular premium rates, under its ALTA Form
Owner's Policy.
5.2. New York Style Closing. The transactions
contemplated hereby shall be closed by means of a so-called
"New York Style Closing," with the concurrent delivery of the
documents of title, transfers of interests, delivery of the
Title Policy and transfer of the Units and all other
consideration to be paid to the Contributors pursuant to this
Agreement. The Contributors shall provide any undertaking to
the Title Company necessary for the New York Style Closing to
occur or for the satisfaction of any other requirement for
Closing.
5.3. Surveys, Title Commitment and Searches. At or
prior to the Closing, the Contributors shall deliver to the
Operating Partnership the following:
(a) Surveys. A plat of Survey of the Project
prepared by a surveyor licensed by the state in which such
Project is located in conformity with such standards as are
required by the Operating Partnership and the Title Company.
(b) Title Commitment. A Title Commitment for
the Project for an ALTA Form Owner's Policy issued by the
Title Company showing title to the Real Estate in the Project
Partnership, subject only to the Permitted Exceptions, which
Title Commitment shall include such endorsements as may be
reasonably requested by the Operating Partnership.
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(c) Searches. UCC, judgment and tax lien
searches on the names of the Contributors and the Project
Partnership (the "Searches") showing no Title Defect as to
the Project or liens on any of the Coachlight Interests
unless the same is to be paid and released at or prior to
Closing.
Article 6.
CLOSING DELIVERIES
6.1. The Contributors' Deliveries. At the Closing,
the Contributors shall deliver to the Operating Partnership,
the following, all in form and substance reasonably
satisfactory to the Operating Partnership:
(a) assignments, duly executed and
acknowledged by each Contributor, conveying to the Operating
Partnership, free and clear of all liens, encumbrances,
claims and security interests, of such Contributor's
interests in the Project Partnership, as set forth on
Schedule A;
(b) an original executed copy of the Leases
and Service Contracts;
(c) a certification by Contributors stating
such Contributor's U.S. Taxpayer identification number and
that such Contributor is not a "foreign person" or a "foreign
corporation" (as defined under Internal Revenue Code
Section 1445 and Section 7701);
(d) any state, county and city documentary
stamp declarations or transfer tax forms required to be
signed by any Contributor, duly executed by the applicable
Contributor, as necessary or customary in the jurisdiction in
which the Project is located;
(e) a counterpart of the Operating
Partnership Agreement duly executed by or on behalf of each
Contributor;
(f) a duly executed Pledge Agreement, in the
form attached as Exhibit H hereto (the "Pledge Agreement");
and
(g) all such further instruments and
documents as may be necessary, expedient, proper, or
appropriate in the reasonable opinion of the Operating
Partnership, in order to complete the transactions
contemplated hereby.
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6.2. The Operating Partnership's Deliveries. At
the Closing, the Operating Partnership shall deliver to the
Contributors the following, all in form and substance
reasonably satisfactory to the Contributors:
(a) the Units to the Contributors other than
Stuart Grodd, and cash to Stuart Grodd, in accordance with
Sections 3.1 and 3.3 hereof; and
(b) countersigned copies of any documents
listed in Section 6.1 hereof which are required to be signed
by the Operating Partnership.
6.3. Concurrent Transactions. All documents or
other deliveries required to be made pursuant to this
Agreement at or prior to Closing shall be deemed to have been
delivered and to have been consummated simultaneously with
all other transactions and all other deliveries, and no
delivery shall be deemed to have been made, and no
transaction shall be deemed to have been consummated, until
all deliveries required by all the parties hereto shall have
been made.
6.4. Further Assurances. The parties hereto, at
the Closing, or at any time or from time to time thereafter,
upon request of either party, will execute such additional
instruments, documents or certificates as any other party
deems reasonably necessary in order to effect the
transactions contemplated hereby.
6.5. Possession. The Contributors shall relinquish
all rights to possession of the Project at Closing.
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Article 7.
APPORTIONMENTS
7.1. Apportionments. Adjustments in respect of the
partnership interests in the Project Partnership shall be
made between the Contributors and the Operating Partnership
as follows, as of midnight of the day preceding the Closing
Date:
(a) The Contributors shall be entitled to all
revenues of the Project Partnership from all sources,
including, without limitation, from the proceeds of
operations, leasing and financing (collectively, "Revenues")
payable or accruing to the Project Partnership through the
Closing Date (whether or not actually received prior to the
Closing Date). The Project Partnership shall be entitled to
all Revenues accruing to the Project Partnership on and after
the Closing Date (whether or not actually received on or
after the Closing Date).
(b) The Contributors shall bear all expenses,
obligations and liabilities of the Project Partnership
accruing through the Closing Date. Expenses, obligations and
liabilities of the Project Partnership accruing on or after
the Closing Date, shall be the responsibility of the Project
Partnership after the Closing Date.
(c) Subject to the contrary provisions of its
partnership agreement, all income, gains, losses, deductions
and credits of the Project Partnership accruing prior to the
Closing Date shall be allocated to the Contributors. After
the Closing Date, the respective shares of the partners in
the Project Partnership in the revenues, distributions,
expenses, income, gains, losses, deductions and credits of
the Project Partnership shall be in accordance with its
Amended and Restated Partnership Agreement.
Article 8.
INDEMNITIES
8.1. The Contributors' Indemnity.
(a) Contributors. Subject to the limitations
on liability set forth in Section 8.4 and 8.5 hereof, each
Contributor agrees severally (and not jointly) to indemnify,
defend (with counsel mutually acceptable to the Operating
Partnership and such Contributor) and hold the Operating
Partnership harmless from and against any Damages to the
Operating Partnership resulting from any inaccuracy in or
breach of any representation or warranty of such Contributor
or resulting from any breach or default by such Contributor
of any Obligation of such Contributor under this Agreement.
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8.2. The Operating Partnership's Indemnity.
Subject to the limitation on liability set forth in
Section 8.4 hereof, the Operating Partnership agrees to
indemnify, defend (with counsel mutually acceptable to the
Operating Partnership and the applicable Contributor) and
hold the Contributor harmless from and against any Damages to
the Contributor resulting from any inaccuracy in or breach of
any representation or warranty of the Operating Partnership
or resulting from any breach or default by the Operating
Partnership of any Obligation of the Operating Partnership
under this Agreement.
8.3. Notice of Claims; Pledge. Each Contributor
and the Operating Partnership, as applicable, shall promptly
notify the other in the event any claim is made against it as
to which the other party has agreed to indemnify and the
indemnitor shall thereupon undertake to defend and hold the
indemnitee harmless therefrom. Claims by the Operating
Partnership against any of the Contributors pursuant to
Section 8.1(a) above may be made, at the option of the
Operating Partnership, under the Pledge Agreement dated as of
the Closing, between the Operating Partnership and the
Contributor.
8.4. Limitation on Liability.
(a) The Contributors shall look solely to the
assets of the Operating Partnership for satisfaction of any
liability of the Operating Partnership in respect of this
Agreement and all documents, agreements, understandings and
arrangements relating to this transaction and will not seek
recourse or commence any action against any of the partners,
officers, directors, shareholders or employees of the
Operating Partnership.
(b) The Operating Partnership (i) shall look
solely to the applicable Contributor's Units issued to such
Contributor pursuant to this Agreement (together with any
securities issuable with respect to such Units), and (ii)
with respect to Stuart Grodd, agrees to limit all of its
claims to an amount equal to the purchase price for Stuart
Grodd's Coachlight Interests specified on Schedule A hereto,
for satisfaction of any liability of the Contributor in
respect of this Agreement and all documents, agreements,
understandings and arrangements relating to this transaction
and will not seek recourse or commence any action against any
of the Contributors or the partners, officers, directors,
shareholders or employees of any Contributor, other than
Stuart Grodd as expressly set forth above.
8.5. Limitations on Indemnification Obligations.
(a) Each Contributor shall not have any
liability under this Agreement for Damages resulting from any
inaccuracy in or breach of any Property-Related
Representation and Warranty unless the aggregate of all
Damages for which such Contributor would, but for this
sentence, be liable exceeds $25,000 on a cumulative basis,
and then such Contributor shall be liable only for amounts
exceeding such amount.
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(b) Claims for indemnification for any
Damages resulting from a breach of any Property-Related
Representation and Warranty shall not be brought or made
after one year from discovery of such breach or, in any
event, after two years from the date of the Closing; provided
that such time limitation shall not apply to any item as to
which the party to be indemnified shall have, before the
expiration of such period, previously made a claim by
delivering a notice (stating, in reasonable detail, the basis
of such claim) to the indemnifying party.
Article 9.
MISCELLANEOUS
9.1. Expenses. The Operating Partnership shall be
responsible for all costs incurred by the Contributors and
the Operating Partnership directly or indirectly relating to
the transactions contemplated hereby (collectively, the
"Expenses"), including all sales, use, recording and transfer
taxes, all costs of the Surveys, all title insurance premiums
and charges for the issuance of the Title Policy, including
the charges for title endorsements, the charges for the New
York Style Closing, all testing and inspection costs, and all
legal, accounting, consulting and engineering fees. The
Operating Partnership shall reimburse the Contributors for
all of the Expenses paid or payable by the Contributors.
9.2. Brokerage. The Contributors and the Operating
Partnership each hereby represent and warrant to the other
that neither has dealt with any broker or finder in
connection with the transactions contemplated hereby, and
each hereby agrees to indemnify, defend and hold the other
harmless of and from any and all manner of claims,
liabilities, loss, damage, attorneys' fees and expenses,
incurred by either party and arising out of, or resulting
from, any claim by any such broker or finder in contravention
of its representation and warranty herein contained.
9.3. Survival. Except as expressly provided or
limited to the contrary herein or in any instrument delivered
pursuant hereto, the representations, warranties,
obligations, covenants, agreements, undertakings and
indemnifications of the parties contained herein or in any
instrument required to be delivered pursuant hereto shall
survive the Closing.
9.4. Construction. This Agreement shall not be
construed more strictly against one party than against the
other merely by virtue of the fact that it may have been
prepared primarily by counsel for one of the parties, it
being recognized that both the Operating Partnership and the
Contributors have contributed substantially and materially to
the preparation of this Agreement.
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9.5. General. This Agreement may be executed in
any number of counterparts, each of which shall constitute an
original but all of which, taken together, shall constitute
but one and the same instrument. This Agreement (including
all Schedules hereto) contains the entire agreement between
the parties with respect to the subject matter hereof,
supersedes all prior understandings, if any, with respect
thereto and may not be amended, supplemented or terminated
except by written agreement between the parties hereto, nor
shall any Obligation hereunder or condition hereof be deemed
waived, except by a written instrument to such effect signed
by the party to be charged. The warranties, representations,
agreements and undertakings contained herein shall not be
deemed to have been made for the benefit of any Person, other
than the parties hereto and their permitted successors and
assigns.
9.6. Headings. The headings preceding the text of
the paragraphs and subparagraphs hereof are inserted solely
for convenience of reference and shall not constitute a part
of this Agreement, nor shall they affect its meaning,
construction or effect.
9.7. Governing Law; Parties at Interest. This
Agreement will be governed by the law of the State of
Connecticut, and will bind and inure to the benefit of the
parties hereto and their respective heirs, executors,
administrators, successors, assigns and personal
representatives.
9.8. Power of Attorney. Each Contributor does
hereby make, constitute and appoint Brian Navarro, Damon
Navarro, Edmund Navarro and Joseph LaBrosse, and each of
them, its true and lawful attorney-in-fact, with full power
of substitution and resubstitution, to negotiate, execute and
deliver any and all other documents which such attorney deems
necessary or desirable in order to consummate the
transactions contemplated hereby in accordance with this
Agreement. Such attorney (and any substitute named by such
attorney) shall have full power and authority to do and
perform in the name and on behalf of such Contributor in any
and all capacities, every act whatsoever necessary or
desirable to be done in connection with the foregoing as such
Contributor might or could do in person. Each Contributor
hereby ratifies and approves the acts of such attorney and
any substitute therefor.
9.9. Further Assurances. The parties shall execute
and deliver all documents, provide all information and take
or refrain from taking action as may be necessary or
appropriate to achieve the purposes of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have
executed or caused this Agreement to be executed, all as of
the day and year first above written.
GROVE OPERATING, L.P.
By: GROVE PROPERTY TRUST
Its General Partner
By:/s/Damon Navarro
-------------------
Damon Navarro
President
ANE CORP.
By:Brian Navarro
President
/s/ Arthur Grodd
----------------
ARTHUR GRODD
/s/ Stuart Grodd
----------------
STUART GRODD
/s/ Damon Navarro
-----------------
DAMON NAVARRO
/s/ Brian Navarro
-----------------
BRIAN NAVARRO
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STATE OF CONNECTICUT )
) ss: Hartford
COUNTY OF HARTFORD )
I, Patricia McBride,
a Notary Public in and for said County, in the State
aforesaid, do hereby certify that Damon Navarro, known to me to
be the President of Grove Property Trust, the corporate
general partner of Grove Operating, L.P. (a Delaware Limited
Partnership), appeared before me this day in person, and
acknowledged and swore that he signed, sealed and delivered
the said instrument on behalf of said entities for the uses
and purposes therein set forth, and that the statements
contained therein are true.
Given under my hand and notarial seal as of the 15th
day of March, 1998.
/s/ Patricia McBride
--------------------
Notary Public Signature
My Commission expires:
STATE OF CONNECTICUT)
) ss: Hartford
COUNTY OF HARTFORD)
On this 15th day of March, 1998, personally appeared
Brian Navarro, as President of ANE Corp., general partner of
A.N.E. Associates Limited Partnership, signer and sealer of
the foregoing instrument, and acknowledged the same to be his
free act and deed and the free act and deed of said
corporation, before me.
Patricia McBride
----------------
Notary Public
STATE OF )
) ss: March /s/, 1998
-------------------------
COUNTY OF )
Personally appeared Arthur Grodd, signer and sealer of
the foregoing instrument, who acknowledged the same to be
his/her free act and deed, before me.
/s/
-------
Notary Public
My Commission Expires:
-22-
<PAGE>
STATE OF )
) ss: March /s/, 1998
-------------------------
COUNTY OF )
Personally appeared Stuart Grodd, signer and sealer of
the foregoing instrument, who acknowledged the same to be
his/her free act and deed, before me.
/s/
______________________________
Notary Public
My Commission Expires:
STATE OF )
) ss: March 15, 1998
COUNTY OF )
Personally appeared Damon Navarro, signer and sealer of
the foregoing instrument, who acknowledged the same to be
his/her free act and deed, before me.
Patricia McBride
----------------
Notary Public
My Commission Expires:
STATE OF )
) ss: March 15, 1998
COUNTY OF )
Personally appeared Brian Navarro, signer and sealer of
the foregoing instrument, who acknowledged the same to be
his/her free act and deed, before me.
Patricia McBride
----------------
Notary Public
My Commission Expires:
-23-
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made
as of the 26th day of March, 1998 by and between VILLAGE PARK
HOLDING COMPANY, LLC., a Rhode Island limited liability company,
and VILLAGE PARK HOLDING COMPANY II, LLC, a Rhode Island limited
liability company (collectively the "Seller") having a mailing
address of c/o The Koffler Group, One Providence Washington
Plaza, 9th floor, Providence, Rhode Island 02903 and GROVE
CORPORATION, a Delaware corporation, with a mailing address of
598 Asylum Avenue, Hartford, Connecticut 06105, Attention: Mr.
Brian Navarro ("Purchaser").
RECITALS
1.Seller is the fee simple owner of certain real and
personal property currently utilized as residential
apartment complexes and located as follows:
A.Village Park Apartments, 40 Village Green North, East
Providence, Rhode Island -- 416 units; and
B.Winchester Woods Apartments, 80 Village Drive, East
Providence, Rhode Island -- 62 units.
1.Subject to the terms, provisions, and conditions of this
Agreement, Purchaser is willing to purchase and Seller is
willing to sell the Property (as hereinafter defined).
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Seller
and Purchaser hereby agree as follows:
-1-
<PAGE>
1.Agreement to Purchase and Sell
1.Seller hereby agrees to sell to Purchaser, and
Purchaser hereby agrees to purchase from Seller,
subject to the terms, provisions, and conditions of
this Agreement, the land more particularly described on
Exhibit A attached hereto, together with (i) all
buildings and other improvements situated thereon;
(ii) all easements, rights of way, reservations,
privileges, appurtenances, and other estates and rights
of Seller pertaining to such land and buildings;
(iii) all right, title, and interest of Seller in and
to the appliances, fixtures, machinery, equipment,
materials, supplies, and other articles of personal
property attached or appurtenant to such land or
buildings or used in connection therewith and owned by
Seller, including, without limitation, the property
listed on Exhibit B attached hereto (collectively the
"Personal Property"); (iv) all right, title, and
interest of Seller, if any, in and to the trade name of
the buildings; (v) all right, title, and interest of
Seller, if any, in and to all alleys adjoining the
land, and the land lying in the bed of any street,
road, or avenue, opened or proposed, in front of or
adjoining the land to the center line thereof, and all
right, title, and interest of Seller, if any, in and to
any award made or to be made in lieu thereof and in and
to any unpaid award for any taking by condemnation or
any damages to the land or the buildings by reason of a
change of grade of any street, road, or avenue;
(vi) all right, title, and interest of Seller under
licenses, permits, leases, or other occupancy
agreements and tenancies affecting said land and
buildings; and (vii) all right, title, and interest of
Seller in and to all warranties and guaranties
affecting the buildings and the Personal Property (the
land, together with all of the foregoing items listed
in clauses (i) to (vii) above being hereinafter
collectively referred to as the "Property").
-2-
<PAGE>
1.Purchase Price; Deposits
1.Purchaser agrees to pay a purchase price of Nineteen
Million Dollars ($19,000,000) (the "Purchase Price")
for the Property. The Purchase Price, plus or minus
prorations, credits, and adjustments, if any, as
hereinafter provided, shall be payable as follows:
1.Ten Thousand Dollars ($10,000) shall
have been deposited by Purchaser in escrow
with Adler Pollock & Sheehan P.C. (the
"Escrow Agent") with the execution of the
Offer to Purchase accepted by Seller on
March 19, 1998.
2.An additional One Hundred Forty
Thousand Dollars ($140,000) will be deposited
by Purchaser in escrow with said Escrow Agent
upon the full execution and delivery of this
Agreement.
3.An additional One Hundred Fifty
Thousand Dollars ($150,000) will be deposited
by Purchaser in escrow with said Escrow Agent
within five (5) business days after the
Inspection Period Expiration Date (defined
below), provided that Purchaser has not
exercised its right to terminate this
Agreement on or before such date as provided
in Section 4 below. All deposits made under
said Offer to Purchase or under this
Agreement shall collectively be referred to
as the "Deposit".
The Deposit shall be held by the Escrow Agent in an
interest-bearing escrow account. Interest earned on the
Deposit shall be deemed part of the Deposit; provided,however,
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<PAGE>
that Purchaser shall not be entitled to a credit at
the Closing for such interest earned and paid to Seller.
All references to the Deposit contained in this Agreement
shall mean and refer to the Deposit, together with any
interest accrued thereon. Except as otherwise provided
herein, the Deposit shall be credited to Seller at the
Closing.
1.The balance of the Purchase Price, Eighteen Million
Seven Hundred Thousand Dollars ($18,700,000), plus or
minus prorations, credits, and adjustments as
aforesaid, shall be payable at the Closing (as
hereinafter defined) to a bank account designated by
Seller through a wire transfer of immediately available
funds.
2.Seller and Purchaser agree that the allocation of the
Purchase Price shall be $15,250,000 to Village Park
Apartments and $3,750,000 to Winchester Woods
Apartments.
3.The Purchase Price shall be adjusted further pursuant
to the provisions of Section 17 below.
1.Closing Date
(a) The transaction contemplated by this Agreement shall be
closed (the "Closing") at the offices of Adler Pollock &
Sheehan, 2300 Hospital Trust Tower, Providence, Rhode Island
at 10:00 a.m. on May 28, 1998. Subject to subsection (b)
below, time is of the essence as to such Closing Date.
(b) Purchaser and Seller shall each have the right to
adjourn the closing for a period or periods not to exceed,
in the aggregate, fifteen (15) days.
-4-
<PAGE>
1.Property Inspection Contingency. For a period of forty
(40) days after the execution and delivery of the Offer to
Purchase (March 19, 1998) (hereinafter called the
"Inspection Period", and the last day thereof which is April
28, 1998, the "Inspection Period Expiration Date"),
Purchaser and its employees, consultants, agents, and
independent contractors shall have the right and permission:
1.To review originals or photocopies of the following
documents which Seller shall furnish or cause to be
furnished to Purchaser for review not later than five
(5) days after the full execution and delivery of this
Agreement, unless provided otherwise below:
1.All existing leases and all new leases and tenancies
permitted pursuant this Agreement, copies of which new
leases and tenancies shall be delivered to Purchaser
within five (5) days after Purchaser's request therefor.
2.Financial Information:
1.Federal and state tax
returns of Seller for the last three (3)
full calendar or fiscal years, including
all schedules and appendages thereto.
2.Operating statements of the
operation of the Property for the last
three (3) full calendar or fiscal years,
showing in reasonable detail all income
and expenses of the Property for each
such period, such statements to be fully
consistent in all material respects with
any such statements as may have been
appended to the tax returns of Seller.
-5-
<PAGE>
3.Copies of the 1996 and 1997
real estate and personal property tax
bills; bills for water and sewer
usage and other utilities consumption
for the preceding 12-month period and
such other relevant information relating
to the operation of the Property which
Purchaser deems reasonably necessary to
its review of income and expenses of the
Property.
Seller shall furnish or cause to be furnished to Purchaser
for review not later than ten (10) business days after the full
execution and delivery of this Agreement copies of the documents
and materials listed in clauses (i) and (ii) above or, in the
alternative, Seller shall make such documents available to
Purchaser for inspection during the aforesaid ten day period at
the offices of Seller. In the event that Seller fails to furnish
or make available as aforesaid the documents and materials listed
in clauses (i) and (ii) above prior to the expiration of such ten
day period, Purchaser shall furnish a notice to Seller itemizing
those documents and materials not so furnished or made available
within five (5) business days after the expiration of such ten
day period. The failure of Purchaser to deliver such notice
prior to the expiration of such five day period shall be deemed
an acknowledgment by Purchaser that Seller has satisfied its
obligation to furnish the aforesaid documents and materials as
required by this subsection (a).
Notwithstanding anything in this Agreement to the contrary,
the Inspection Period Expiration Date and closing Date shall be
extended for a period of one (1) day for each day of delay by
Seller in furnishing the foregoing documents to Purchaser,
provided, however, that if Seller shall fail to deliver all of
the foregoing documents to Purchaser within thirty (30) days
after the full execution and delivery of this Agreement, then
Purchaser shall have the right to terminate this Agreement and
Escrow Agent shall thereupon promptly return the Deposit to
Purchaser.
-6-
<PAGE>
1.To enter upon the Property at reasonable times for
the purpose of conducting studies, inspections and
tests, including, without limitation, physical,
geotechnical and environmental tests and inspections
and such other tests and inspections as Purchaser deems
appropriate. The foregoing studies, inspections and
tests shall be conducted at the sole cost and expense
of Purchaser. In conducting the studies, inspections
and tests contemplated hereby, Purchaser (i) will not
unreasonably interfere with the existing uses of the
Property by persons in possession thereof, (ii) shall
afford reasonable prior notice, but in no event less
than 48 hours, to Seller with respect to the timing and
scope of any tests or inspections, and (iii) will
restore promptly any physical damage caused by such
studies, inspections or tests. Purchaser hereby agrees
to indemnify, defend, and hold Seller free and harmless
from any loss, injury, damage, claim, lien, cost or
expense, including reasonable attorneys' fees and
costs, resulting from or arising out of any such study,
inspection or test; provided, however, that such
indemnity shall not extend to claims arising with
respect to any conditions existing on the Property not
caused by Purchaser or its employees, agents,
consultants or independent contractors, or arising from
the actions thereof hereunder. During all of such
studies, inspections and tests, Purchaser and its
agents and employees shall observe strict
confidentiality as to the nature of the transaction for
which such tests, studies and inspections are being
conducted.
-7-
<PAGE>
2.If, as a result of its various investigations,
Purchaser determines in its sole and absolute
discretion that the Property is not a suitable
investment for its purposes, Purchaser shall have the
right to terminate this Agreement by giving written
notice of its election to terminate (the "Termination
Notice") at any time prior to the Inspection Period
Expiration Date. If Purchaser fails to deliver a
Termination Notice on or before the expiration of such
period, Purchaser shall conclusively be deemed to have
waived its right to terminate this Agreement based on
this Section 4 and the Deposit shall thereafter be
non-refundable to Purchaser except in the event of
default by Seller. If Purchaser delivers the
Termination Notice to Seller prior to the Inspection
Period Expiration Date, Escrow Agent shall thereupon
promptly return the Deposit to Purchaser.
3.Purchaser acknowledges that upon the expiration of
the Inspection Period and provided Purchaser has not
delivered a Termination Notice, Purchaser will have
been granted access to and will have inspected the
Property and, in such case, Purchaser agrees and
represents that Purchaser is purchasing and will accept
the Property "as-is" as existed at the time of
expiration of the Inspection Period, subject to
reasonable wear and tear, without any covenants,
representations or warranties, express or implied,
including without limitation, those of merchantability,
habitability or fitness for any particular purpose
(other than those representations and warranties
contained in Section 8 hereof).
1.Title Commitments and Surveys
1.Purchaser shall, at Purchaser's expense, obtain (i) a
title commitment (the "Commitment") for an Owner's
Title Insurance Policy issued by a title insurance
company reasonably satisfactory to Purchaser in the
amount of the Purchase Price, covering title to the
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<PAGE>
Property and (ii) a survey of the Property (the
"Survey"). Purchaser shall have until the expiration
of the Inspection Period to provide written notice to
Seller of any matters shown by the Commitment and
Survey affecting the Property which are not
satisfactory to Purchaser, which notice (a "Title and
Survey Notice") must specify the reason such matter(s)
are not satisfactory and the curative steps necessary
to remove the basis for Purchaser's disapproval. The
parties shall then have thirty (30) days after the date
of such Title and Survey Notice to make such
arrangements or take such steps as they shall mutually
agree to satisfy Purchaser's objection(s). The Closing
hereunder shall be extended by the period of time (not
to exceed 30 days) that Seller and Purchaser cooperate
for purposes of agreeing to such arrangement or steps
to satisfy Purchaser's objectives. If the parties fail
to agree on the necessary steps, Purchaser shall have a
right to terminate this Agreement during the ten (10)
day period following the expiration of the aforesaid
thirty (30) day period. If Purchaser exercises such
right, Escrow Agent shall thereupon promptly return the
Deposit to Purchaser. Thereafter, neither party shall
have any further liability to the other under this
Agreement. Seller, however, shall be required, either
at or prior to the Closing, to discharge mortgages or
other liens upon the Property as hereinafter provided
or to use the Purchase Price to so discharge such
mortgages unless otherwise assigned to or assumed by
Purchaser pursuant to the terms hereof. Purchaser
agrees to accept title subject to residential tenant
leases and all matters of record (other than liens)
which do not materially interfere with the current use
of the Property and uses permitted under applicable
zoning laws.
2.Except as otherwise provided herein, Seller shall
have no obligation whatsoever to expend any funds or
cure any title or survey objections, and Seller shall
not be deemed to have any obligation to cure unless
Seller expressly undertakes such an obligation by a
written notice to or written agreement with Purchaser.
-9-
<PAGE>
Notwithstanding anything to the contrary herein, if the
Commitment shall disclose mortgages or other liens of
definite or ascertainable amounts which may be removed
by the payment of money, Seller shall clear such
item(s) (i) prior to the Closing Date, by using its own
funds, or (ii) on the Closing Date, by using the
Purchase Price payable to Seller by Purchaser.
3.From and after the execution of this Agreement until
the Closing Date or termination of this Agreement,
Seller covenants and agrees that no encumbrance, lien
or other interest shall be created with respect to the
Property, nor shall any lease previously presented to
Purchaser for inspection be materially amended, without
first obtaining the prior written consent of Purchaser
thereto, such consent to be granted or denied by
Purchaser in its sole and absolute discretion,
provided, however, that no such consent shall be
required in respect of new leases at the Property
entered into by or on behalf of Seller in accordance
with the terms, provisions and conditions set forth in
Section 8(g) below or other financing of the Property
to be assumed by Purchaser and as set forth herein.
On the Closing Date, Purchaser shall conduct a search
of title for the Property from the date of the
Commitment through the Closing Date. Any new matters
appearing of record during such rundown period not
previously approved by Purchaser in writing, or not
otherwise permitted hereunder, shall constitute title
defects hereunder. If any such title defects exist on
the Closing Date, and is not cured by Seller within a
reasonable time thereafter, Purchaser may exercise its
remedies for breach by Seller as provided in Section 12
below.
4.If the Seller has received, or shall receive
hereafter, notices of violations of law or municipal
ordinances, orders or requirements noted in or issued
by any health or other federal, state or municipal
departments having jurisdiction against or
-10-
<PAGE>
affecting the Property (collectively, the "Violations"), Seller
shall immediately notify Purchaser in writing of such
Violations. Purchaser shall have a period of fifteen
(15) days within which it may elect to terminate this
Agreement, and upon such termination, the Escrow Agent
shall refund the Deposit to Purchaser. Thereafter,
neither party shall have any further liability to the
other under this Agreement. If Purchaser does not
elect to terminate within said fifteen (15) day period,
then Purchaser shall be deemed to have agreed to accept
the conveyance of the Property subject to such
Violations. Notwithstanding the foregoing, in the
event such Violation shall be able to be remediated by
Seller for an amount less than $50,000, Seller shall
cause such remediation prior to the Closing.
1.Condemnation. If prior to the Closing Date, all or any
portion of the Property is taken by eminent domain,
Purchaser shall have the option to terminate this Agreement,
in which event the Deposit shall be promptly returned to
Purchaser. In the event that Purchaser has not elected to
terminate this Agreement within thirty (30) days after
receiving notice from the taking authority of such taking,
then Purchaser shall be deemed to have elected to proceed
with the Closing without any reduction or adjustment to the
Purchase Price. In such case, Seller shall assign to
Purchaser, at the Closing, all rights that Seller has to
portions of the proceeds which do not exceed the Purchase
Price from such eminent domain proceedings. Seller and
Purchaser agree to deliver any notice of condemnation
proceedings or any actual knowledge thereof to the other
promptly upon receipt thereof.
2.Fire or Other Casualty. If, prior to the Closing Date, all or any portion
of the Property shall be destroyed or damaged by fire or other
casualty, Seller shall give to Purchaser written notice thereof. If
the loss does not exceed One Hundred Fifty Thousand Dollars
($150,000), Purchaser shall not have the option to terminate this
Agreement; provided
-11-
<PAGE>
that Seller shall be required to assign to Purchaser at the Closing the
proceeds of any insurance policy(ies) payable to Seller by reason of
such fire or other casualty.
Provided, however, if such loss shall exceed One Hundred Fifty
Thousand Dollars ($150,000), Purchaser shall have the option
to (i) terminate this Agreement within thirty (30) days
after receiving notice from Seller of such fire or other
casualty, in which event, the Escrow Agent shall promptly
return the Deposit to Purchaser; (ii) proceed with the
Closing without any reduction or adjustment to the Purchase
Price, and in such case, Seller shall assign to Purchaser at
the Closing the proceeds of any insurance policy(ies)
payable to Seller by reason of such fire or other casualty;
(iii) elect to have Seller repair and replace the Property
to its condition as of the date hereof; provided, however,
that Seller shall not be obligated to proceed with such
repair in the event it shall take Seller longer than 6
months to cause such repair, or in the event the cost of
such repair shall exceed insurance proceeds actually
received by Seller plus any applicable deductible. Seller
shall maintain throughout the term of this Agreement
casualty insurance with respect to the buildings and the
contents thereof in an amount not less than one hundred
percent (100%) of the full replacement cost of such
buildings and contents, excluding foundations.
3.Seller's Covenants and Representations. Seller covenants
and represents to Purchaser as follows:
1.Seller (i) is comprised of limited liability
companies, duly organized, validly existing and in good
standing under the laws of the State of Rhode Island;
(ii) has the authority and power to enter this
Agreement and to consummate the transactions
contemplated hereby; and (iii) has duly authorized the
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<PAGE>
execution and delivery of this Agreement and is duly
bound to consummate the transactions contemplated
hereby.
2.Neither this Agreement, nor the consummation of the
transaction contemplated hereby, will constitute or
result in a violation or breach by Seller of any
agreement or contact to which Seller is bound or the
Property is subject, or any judgment, order, writ,
injunction, or decree issued against or imposed upon
it, or will result in a violation of any applicable
law, order, rule, or regulation of any government
authority.
3.Seller has not received any notification of any
pending or threatened condemnation, requisition, or
similar proceeding affecting the Property or any
portion thereof.
4.Except as otherwise disclosed in writing to
Purchaser, Seller has not received and, to the best of
Seller's knowledge, there are no notices, orders,
decrees, or judgments issued, pending issuance, or
threatened relating to any alleged or actual violation
of fire, health, safety, traffic, sanitation, water
pollution, environmental or other laws affecting,
against or with respect to the Property. Seller has
not received any written notification of any action,
suit, proceeding, or investigation pending or
threatened which might become a cloud on the title to
the Property or any portion thereof. From and after
the date hereof, Seller shall send to Purchaser (within
three (3) days of delivery to or receipt by Seller)
copies of all correspondence, notices, or other
communications delivered to or received by Seller from
federal, state, or local governmental authorities or
agencies in connection with the Property.
-13-
<PAGE>
5.To the best of Seller's knowledge, there are no
defaults or breaches by Seller or the Property of any
of the covenants, conditions, restrictions,
rights-of-way, or easements or other instruments
encumbering the Property or any portion thereof.
6.No special taxes or assessments have been levied,
assessed or imposed on or against the Property or any
part thereof that have not been fully and finally paid,
and neither Seller, nor any of its agents or employees
have received any notice, or have any knowledge, of
contemplated, threatened, or pending special taxes or
assessments affecting the Property or any part
thereof. Without limiting the generality of the
preceding sentence, and to the best of Seller's
knowledge, there is no pending assessment made by
municipalities wherein the Property is located or any
other authority with respect to the repair, maintenance
or expansion of any water or sewage systems that may be
located in any public right of way adjacent to the
Property, or for any other public improvements or
betterments of any type which would or could give rise
to an assessment against the Property.
7.Attached hereto as Exhibit C is a true, correct and
complete rent roll for the Property including each and
every lease, license or other occupancy agreement
affecting any portion of the Property as of the date
hereof. Prior to Closing, Seller will not, without
Purchaser's prior written consent (i) collect any rent
for more than the then current month; (ii) give any
rent concessions or agree to do any work for, or give
any consideration other than possession to, any tenant
except in the ordinary course of business; (iii) lease
any units at the Property for a term in excess of
twelve (12) months; or (iv) lease any units to any
person(s) other than at market rates.
-14-
<PAGE>
8.There is no union contract affecting the Property or
the employees thereat and Seller will not enter into
any such contract prior to Closing.
9.To the best of Seller's knowledge, there are no
permits, licenses, other than ordinary business
licenses, or consents required by any governmental
authority in connection with the use and occupancy of
the Property that have not already been obtained.
10.From the date of this Agreement until Closing,
Seller (i) shall maintain and repair the Property in
its normal course of operations; (ii) shall operate the
Property in its normal course of operations, including
continuing to make units ready and continuing leasing;
(iii) will pay all obligations arising from the
Property, as payment becomes due; (iv) shall make no
material alterations to the Property; and (v) shall
maintain each of the apartment units at the Property in
its current conditions, reasonable wear and tear
excepted.
11.Seller and Purchaser shall cooperate in good faith
to determine whether any employees of Seller are
appropriate to be employed by Purchaser after the
Closing with respect to the Property. Purchaser agrees
not to solicit any such employees without the
permission of Seller. Notwithstanding any provisions
of this Agreement to the contrary, if any, Seller shall
not be obligated to cause the termination of any
employees employed by Pillar Property Management, LLC,
an affiliate of Seller
12.No portion of the Property (including, without
limitation, rental, security, or damage deposits to be
conveyed to the Purchaser hereunder) shall be subject
at the Closing to the burdens or obligations of any
management agreement respecting the Property, so that
Purchaser shall receive the Property free and clear of
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<PAGE>
any such burdens or obligations and shall be free to
enter into a management agreement or arrangement with a
manager of its own choice. As of the Closing, and
except as set forth on Exhibit D, there will not be any
service, supply or maintenance agreements with respect
to the Property or any portion thereof unless the same
can be canceled upon thirty (30) days notice without
the necessity of payment of any termination penalty or
premium. Purchaser agrees to accept and assume the
contracts set forth on Exhibit D.
13.Seller has the right to convey and transfer the
Property.
14.To the best of Seller's knowledge, there are no
causes of action or claims of any kind or character
either pending or threatened against the Property or
against the Seller relating to the Property.
15.As of the Closing Date, no work will have been
performed on or at the Property which might result in
the imposition of a mechanic's or materialmen's lien
against the Property.
The representations and covenants of Seller set forth above
shall be true, accurate, and correct on all material
respects upon the date of execution of this Agreement and
shall be deemed remade by Seller as of the Closing Date with
the same force and effect as if first made as of and on such
date.
1.Purchaser's Representations and Warranties. Purchaser
represents and warrants to Seller that Purchaser is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, has duly
authorized the execution and performance of this Agreement,
and such execution and performance will not violate any
terms of its organizational documents.
-16-
<PAGE>
2.Brokerage Commissions. Each party represents and warrants
to the other that it has not dealt with any entity or person
who would be entitled to a brokerage commission, finder's
fee, or other similar compensation in connection with the
transactions described herein payable from or in respect of
the Purchase Price. Each party agrees to indemnify, defend,
protect and hold forever harmless the other from and against
any and all loss, liability, cost, damage and reasonable
expense, including, without limitation, reasonable
attorneys' fees, which the other may incur, suffer or
sustain by reason of any other right, claim, demand or
damage made or asserted by any person or persons for the
payment of a brokerage commission, finder's fee or similar
compensation on account of a breach of this representation
and warranty. The terms of this Section shall survive
Closing.
3.Seller's Closing Deliveries. On the Closing Date, Seller
shall deliver to Purchaser the following documents and
instruments with respect to the Property (collectively
"Seller's Closing Deliveries"), duly executed by Seller,
acknowledged where appropriate and otherwise in form and
content reasonably satisfactory to Purchaser's and Seller's
counsel. Seller, not later than fifteen (15) days prior to
the Closing Date, shall deliver to Purchaser's counsel, for
approval thereby, draft photocopies of Seller's Closing
Deliveries:
1.A general quitclaim deed for the Property (the
"Deed"), which shall be in proper statutory form for
recording, subject only to the matters permitted herein
so as to convey to Purchaser fee simple title to the
Property. If Purchaser has caused property-line
surveys of the Property to be prepared by a Rhode
Island registered land surveyor or engineer, Seller
will convey by use of a metes and bounds description
prepared by said surveyor or engineer.
2.A bill of sale conveying the Personal Property.
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3.An Assignment and Assumption of Leases, assigning the
leases in effect as of Closing and any new leases
entered into in accordance with the terms of this
Agreement, together with (i) copies of such Leases, and
(ii) a Notice to Tenants in form and substance approved
by Purchaser and in accordance with Rhode Island law.
4.Original counterparts of all the Leases (including a
memorandum, certified to Purchaser, setting forth the
terms of oral tenancies and oral rights for use or
occupancy of the Property or any portion thereof).
5.All keys in the possession of Seller to all locks of
the Property.
6.An Assignment of Security Deposits, assigning to
Purchaser all of Seller's right, title and interest in
and to the tenant security deposits, together with a
listing of the security deposit obligations of Seller
pursuant to the Leases, certified as true, correct and
complete by an officer of Seller.
7.A Certificate of Seller with respect to (i) prepaid
rents held by Seller with respect to the Property, and
(ii) those tenants in arrears with respect to the
payment of rent and other amounts payable under the
Leases, certified as true, correct, and complete by an
officer of Seller.
8.Copies of all contracts relating to the Property, if
any, which Purchaser has agreed to assume, together
with an assignment of such contracts to Purchaser.
9.Such documents and instruments in respect of Seller's
authority to sell the Property (including, without
limitation, resolutions, incumbency certificate(s), and
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a certificate of good standing from the state of
Seller's incorporation (including the taxing
authorities of such state), and any entity signing any
of Seller's Closing Deliveries), in the form
customarily required by title insurance companies in
the State of Rhode Island.
10.An assignment of all transferable warranties and
guarantees then in effect, if any, with respect to the
improvements located on the Property or any repairs or
renovations to such improvements and Personal Property
being conveyed hereunder.
11.All books and records at the Property held by or for
the account of Seller, including in respect of
Seller's, including, without limitation, plans and
specifications and lease applications, if available.
However, if Seller shall, after the Closing, require
copies of any documents or records turned over to
Purchaser, for Seller's legitimate business purposes,
then Purchaser shall provide such copies to Seller at
Seller's expense.
12.Proof of residency for purposes of R.I.G.L. Section
44-30-71.3.
13.Such additional instruments, agreements, and other
documents as may be necessary or convenient in order to
effectuate the provisions of this Agreement.
14.An updated rent roll reflecting rents of the
Property as of the Closing. In the event such rent
roll shall reflect rents which deviate from the rents
reflected in the rent roll delivered herewith by more
than10%, Purchaser shall have the right to terminate
this Agreement, in which event the Deposit shall be
returned to Purchaser and the parties shall have no
further obligations hereunder.
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1.Default
1.If Purchaser shall default under this Agreement, the
Deposit shall be retained by Seller as liquidated
damages, and both parties shall be relieved of and
released from any further liability hereunder, except
for the indemnification obligations of Purchaser
pursuant to Section 4(b) above. In such case, Seller
and Purchaser agree that the Deposit is a fair and
reasonable amount to be retained by Seller as agreed
and liquidated damages in light of Sellers removal of
the Property from the market and the costs incurred by
Seller and shall not constitute a penalty or a
forfeiture.
2.Seller acknowledges that the Property is of a
special, unique and extraordinary character, and that
any violation of this Agreement by Seller would be
highly injurious to Purchaser, and therefore, if Seller
shall default in the performance or observance of any
of its covenants, agreements, or obligations for any
reason other than a default by Purchaser, or if Seller
shall violate any of its representations, warranties or
covenants contained in this Agreement, Purchaser shall,
in addition to the rights hereinafter provided, be
entitled to the immediate return of the Deposit. Upon
Seller's default, Purchaser, at Purchaser's election,
may exercise any and all rights and remedies available
to Purchaser at law or in equity, including, without
limitation, the right to enforce specific performance
by Seller. If this Agreement is terminated by
Purchaser following Seller's default, Escrow Agent
shall promptly return the Deposit to Purchaser.
3.For purposes hereof, a breach by either party
hereunder shall constitute a "default" only after
written notice by the non-defaulting party to the other
specifically stating the alleged breach and the failure
of the defaulting party to thereafter cure such breach
within five (5) days after the receipt of such written
notice.
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1.Prorations, Closing Costs, and Adjustments
1.Subject to the terms of Section 17 below, the
following items shall be apportioned between Seller and
Purchaser as of midnight of the day preceding the
Closing Date:
1.Real estate taxes, assessments, and
sewer and water use charges.
2.Rent, parking charges, laundry
machine, and vending machine revenues and
other amounts paid by tenants if, as, and
when received.
3.Fuel and other utilities (including,
without limitation, electricity, water, and
gas).
4.Personal property taxes, if any.
5.Such other items as are customarily
adjusted in connection with commercial real
estate transactions of this type.
1.Purchaser shall receive a credit at Closing against
the Purchase Price for the aggregate security deposit
liability under the Leases.
2.Seller shall pay the conveyance taxes applicable to
the transfer of the Property. Purchaser shall pay
recording fees, except such as relate to the discharge
of liens or other encumbrances on the Property. The
fees and expenses of the Escrow Agent in connection
with the administration of this Agreement, if any,
shall be borne equally by Seller and Purchaser.
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3.All prorations, adjustments and credits made and
determined as provided herein shall be final as of the
Closing Date; provided, however, that if subsequent to
the Closing Date, an error or omission in the
determination or computation of any of such prorations,
adjustments or credits shall be discovered, immediately
upon discovery thereof the appropriate adjustments
required to correct such error or omission shall be
made. Except as expressly provided herein, the purpose
and intent as to the provisions of prorations and
apportionments set forth herein is that Seller shall
bear all expenses of ownership and operation of the
Property accruing through midnight at the end of the
day preceding the Closing Date and Purchaser shall bear
all such expenses accruing thereafter. Any items not
specifically listed herein, but requiring adjustment,
shall be adjusted as aforesaid at Closing. This
provision shall survive the Closing.
4.Prior to or on the Closing Date, Seller shall deliver
to Purchaser a certificate, signed by Seller, setting
forth the name of each tenant delinquent in the payment
of any rents and setting forth the amount of such
delinquent rents (the "Delinquent Rents") and, with
regard to such Delinquent Rents:
1.the first rents received by Purchaser
after the Closing Date from any tenant on
such certificate shall be applied first to
then current rents due from such tenant and
any amount remaining after such application
(but in no event in excess of two month's
rents payable by such tenant) shall be paid
by Purchaser to Seller on account of such
Delinquent Rents;
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2.Purchaser shall not be obligated to
incur any expense or institute any action or
proceeding to collect any such Delinquent
Rents, nor shall Purchaser be prohibited from
terminating any Lease as the result of such
delinquencies; and
3.in the event any tenant shall pay any
rents with an indication that it intends to
contest such rents or the amount thereof,
such rents shall not be apportioned, but
shall be held by Purchaser subject to the
outcome of the tenants contest.
1.Notices. Any notice regarding this Agreement, or any
transaction or other matter arising in connection herewith,
shall be in writing and be served upon the party to which it
is directed at the following addresses:
If to Seller: Village Park Holding Company, LLC and
Village Park Holding Co., II, LLC
c/o The Koffler Group
One Washington Plaza, 9th floor
Providence, RI 02903
Attn: Anthony J. DeLuca, COO
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<PAGE>
With a copy to: Robert I. Stolzman, Esq.
Adler Pollock & Sheehan, P.C.
2300 Hospital Trust Tower
Providence, RI 02903
If to Purchaser: Grove Corporation
598 Asylum Avenue
Hartford, CT 06105
Attn: Mr. Brian Navarro
With a copy to: Edward J. McNamara, Esq.
Kroll, McNamara & Evans
29 South Main Street
West Hartford, Ct 06107
Escrow Agent: Adler Pollock & Sheehan, P.C.
2300 Hospital Trust Tower
Providence, RI 02903
Attn: Robert I. Stolzman, Esq.
Any notice may be served personally or be sent by certified
mail, return receipt requested, or by Airborne, UPS, Federal
Express, or similar overnight express service or by
facsimile. If sent by certified mail, a notice shall be
deemed to have been given the next day following the date
deposited with the United States Postal Service, postage
prepaid. If sent by overnight express service, a notice
shall be deemed to have been given one (1) business day
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after pickup by such overnight service. If sent via
facsimile, a notice shall be deemed to have been given on
confirmation of receipt. The address at which notice is to
be given to either party may be changed by giving notice to
the other party as provided above.
1.Miscellaneous
1.Entire Agreement. The Recitals set forth at the
beginning of this Agreement and the Exhibits attached
hereto are incorporated in and made a part of this
Agreement by this reference. This Agreement is the
entire agreement between the parties with respect to
the subject matter hereof, and no alteration,
modification or interpretation hereof shall be binding
unless in writing and signed by Seller and Purchaser.
With respect to all time periods and dates referred to
in this Agreement, time shall be of the essence.
2.Severability. If any provision of this Agreement or
application to any party or circumstances shall be
determined by any court of competent jurisdiction to be
invalid and unenforceable to any extent, the remainder
of this Agreement or the application of such provision
to such person or circumstances, other than those as to
which it is so determined invalid or unenforceable,
shall not be affected thereby, and each provision
hereof shall be valid and shall be enforced to the
fullest extent permitted by law.
3.Applicable Law. This Agreement shall be construed
and enforced in accordance with the laws of the State
of Rhode Island.
4.Assignability. Purchaser shall have the right, on or
before the Closing Date, to transfer or assign its
rights and obligations under this Agreement to its
designee, without the consent of Seller. Purchaser
shall provide to Seller a copy of the executed
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<PAGE>
instrument of assignment effectuating any such
assignment, together with the name and address of the
assignee. Any permitted assignee shall be deemed to
have assumed, agreed to, and be bound by all of
Purchaser's obligations and liabilities under this
Agreement. Upon any such assignment, the Purchaser
named in and which signed this Agreement shall continue
to be obligated under this Agreement.
5.Successors Bound. This Agreement shall be binding
upon and inure to the benefit of Purchaser and Seller
and their respective heirs, executors, administrators,
personal representatives, successors, and assigns.
6.Captions. The captions in this Agreement are
inserted only as a matter of convenience and for
reference and in no way define, limit, or describe the
scope of this Agreement or the scope or content of any
of its provisions.
7.Attorneys' Fees. In the event of any litigation
arising out of this Agreement, the prevailing party
shall be entitled to reasonable attorneys' fees and
costs.
8.No Partnership or Joint Venture. Nothing contained
in this Agreement shall be construed to create a
partnership or joint venture relationship among Seller
and Purchaser.
9.Recordation. Purchaser and Seller agree not to
record this Agreement or any memorandum hereof.
10.Survival. The provisions of this Agreement
expressly stating that they survive the Closing shall
survive the Closing and shall not merge with the deed
to be delivered at the Closing.
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11.Knowledge of Seller. Except as otherwise provided,
whenever a representation is made in this Agreement on
the basis of the knowledge of Seller, such
representation is made after inquiry and investigation
by Seller of its officers, employees, agents and
representative having responsibility for the Property.
12.Construction. This Agreement shall be construed
without regard to any presumption or other rule
requiring construction against the party causing this
Agreement or any part hereof to be drafted.
13.Like Kind Exchange. At the election of Seller,
Purchase shall cooperate with Seller by amending,
modifying or altering the terms of this Agreement to
allow Seller to effectuate an exchange of like kind
property; provided that such activity shall not
increase the Purchase Price or alter the cost of
acquiring the Property for Purchaser.
1.Duties and Responsibilities of Escrow Account
1.Seller and Purchaser acknowledge and agree that
Escrow Agent (i) shall not be responsible for any of
the agreements referred to herein, but shall be
obligated only for the performance of such duties as
are specifically set forth herein; (ii) shall not be
obligated to take any legal or other action hereunder
which might in its judgment involve any expense or
liability unless it shall have been furnished with
acceptable indemnification; and (iii) may rely on and
shall be protected in acting, or refraining from
acting, upon any written notice, instruction,
instrument, statement, request or document furnished to
it hereunder and believed by it to be genuine and to
have been signed or presented by the proper person, and
shall have no responsibility for determining the
accuracy thereof.
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2.Said Escrow Agent shall not be liable to anyone for
any action taken or omitted to be taken by it except in
the case of gross negligence or willful misconduct.
Seller jointly and severally, covenant and agree to
indemnify Escrow Agent and hold said Agent harmless
without limitation from and against any loss, liability
or expense of any nature incurred by Escrow Agent
arising out of or in connection with the administration
of said Agent's duties hereunder, including but not
limited to legal fees and other costs and expenses of
defending or preparing to defend against any claim or
liability, unless such loss, liability or expense shall
be caused by Escrow Agent's willful misconduct or gross
negligence.
3.Seller and Purchaser, jointly and severally, agree to
assume any and all obligations imposed now or hereafter
by any applicable tax law with respect to the payment
of Deposit under this Agreement, and to indemnify and
hold Escrow Agent harmless from and against any taxes,
interest, penalties and other expenses, that may be
assessed against Escrow Agent on any such payment or
other activities under this Agreement. Seller and
Purchaser, jointly and severally, agree to indemnify
and hold Escrow Agent harmless from any liability on
account of taxes, assessments or other governmental
charges, including without limitation the withholding
or deduction or the failure to withhold or deduct same,
and any liability for failure to obtain proper
certifications or to properly report to governmental
authorities, to which Escrow Agent may be or become
subject in connection with or which arises out of this
Agreement, including costs and expenses (including
reasonable legal fees), interest and penalties.
4.Seller agrees to pay or reimburse Escrow Agent for
any costs incurred in connection with the services
hereunder.
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5.Upon written notice from either Seller or Purchaser
that a dispute has arisen with respect to the delivery,
ownership, right of possession, or disposition of the
Deposit, Escrow Agent shall and is authorized and
directed to retain in its possession without liability
to anyone, all of the Deposit until such dispute shall
have been settled either by the mutual agreement of the
parties involved or by a final order, decree or
judgment of a Court in the United States of America,
the time for perfection of an appeal of such order,
decree or judgment having expired. Escrow Agent may,
but shall be under no duty whatsoever to, institute or
defend any legal proceedings which relate to the
Deposit.
6.Escrow Agent hereby agrees and covenants that
following the Inspection Period Expiration Date, Escrow
Agent shall not without the prior written consent of
both Seller and Purchaser disburse the Deposit to any
person or entity other than at and in conjunction with
the Closing.
7.Nothing herein contained shall prevent Adler Pollock
& Sheehan, P.C., the Escrow Agent, from continuing to
act as legal counsel to the Seller.
1.Mortgage Contingency and Additional Purchase Price Adjustment.
1.Not later than 10 days after the Inspection Period
Expiration Date, Seller shall have the right to notify
Purchaser that Seller will assign to Purchaser mortgage
financing rights of Seller with CIGNA upon the
following terms:
(i) with respect to Village Park Apartments,
$10,000,000 at a rate per annum of 6.84% and an
amortization schedule of 25 years with a term of 7
years; and/or
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(ii) with respect to Winchester Woods Apartments,
$2,400,000 at a rate per annum of 7.05% and an
amortization schedule of 25 years with a term of 7
years.
(b) Purchaser shall have until the Inspection Period
Examination Date to satisfy itself to its reasonable
satisfaction with respect to the terms and conditions
of such CIGNA financing to be assigned to and assumed
by Purchaser. Seller represents that such terms and
conditions will be substantially similar to the
existing financing package of Seller with CIGNA secured
by the Winchester Woods portion of the Property.
Seller shall use its reasonable efforts to assist
Purchaser in evaluating such financing terms, and
Purchaser agrees to direct all inquiries and
communications to CIGNA by and through Seller. Seller
represents that at the time of such assignment, such
financing with CIGNA shall be current and in good
standing.
(c) In the event CIGNA charges a fee or other charge for
such assignment of Seller's financing to Purchaser,
each of Seller and Purchaser shall share equally in
paying such fee a charge by making the appropriate
adjustments and credits to the Purchase Price at the
Closing; provided, however, that in no event shall
Purchaser's share of such fees or charges exceed
$35,000. Any assignment and assumption documents
required shall be reasonably satisfactory to Seller and
Purchaser.
(d) Seller and Purchaser acknowledge that Seller has
pending before the City of East Providence a request
for abatement of ad valorem taxes assessed against
the Property. In consideration of Seller's efforts
in this regard, Purchaser agrees to
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pay to Seller, in addition to the Purchase Price, an amount equal
to the product of 9 multiplied by the difference between the amount
of annual tax due based upon the December 31, 1997 assessment
with respect to the Property and the amount of annual tax due
upon notice from the City of East Providence of any reduction of
annual taxes due to a change of the assessment of the Property or
otherwise. Purchaser shall pay such amount to Seller upon the
earlier of the Closing or within 10 days of notice from Seller or
the City of East Providence of such reduction; provided, however,
that this Section 17(d) shall survive the Closing for a period
not to exceed 90 days. By way of illustration and not to limit
the terms hereof, in the event that the City of East Providence
reduced the annual tax obligation with respect to the Property by
an amount equal to $10,000, Purchaser shall pay to Seller an
amount equal to $90,000.
1.All matters relating to this Agreement shall be kept
absolutely confidential prior to the Closing Date.
Purchaser agrees not to contact any tenant, employee, or
other party without the express written authorization of
Seller, which authorization shall not be unreasonably
withheld when necessary for Purchaser to conduct its
studies, inspections, and tests during the Inspection
Period. Seller recognizes that Purchaser shall be required
to employ outside title examiners, surveyors, engineers, and
other professional and technical persons as part of its
Inspection Period studies, and Seller consents that such
persons shall have reasonable access to the Property and to
the records thereof for the purposes of such studies.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
SELLER:
VILLAGE PARK HOLDING COMPANY, LLC
By: /s/ Anthony J. DeLuca
--------------------------
Name:Anthony J. DeLuca
Its: Manager
VILLAGE PARK HOLDING COMPANY II,
LLC
By: /s/ Anthony J. Deluca
---------------------------
Name: Anthony J. DeLuca
Its: Manager
PURCHASER:
GROVE CORPORATION
By: /s/ Brian Navarro
-----------------------
Print Name: Brian Navarro
Its: President
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