REDEMPTION AND DISTRIBUTION AGREEMENT
This REDEMPTION AND DISTRIBUTION AGREEMENT is made and entered into as of
the 17th day of July, 2000, by and among Damon D. Navarro ("D. Navarro"), Brian
D. Navarro ("B. Navarro"), Edmund F. Navarro ("E. Navarro"), Joseph R. LaBrosse
("LaBrosse"), GROVE REALTY, LLC, a Delaware limited liability company ("Investor
LLC"), and GROVE OPERATING, L.P., a Delaware limited partnership (the
"Partnership"). D. Navarro, B. Navarro, E. Navarro and La Brosse are sometimes
referred to herein individually as an "Investor," and collectively as the
"Investors."
R E C I T A L S:
A. The Partnership has been established and continued in existence pursuant
to a certain Agreement of Limited Partnership of Grove Operating, L.P. dated as
of March 10, 1997, as amended (the "Partnership Agreement").
B. Each of the Investors, as a limited partner in the Partnership, owns the
number of Partnership Units set forth beside said Investor's name on Exhibit A
attached hereto and by this reference made a part hereof.
C. Pursuant to a certain Agreement and Plan of Merger of even date herewith
(the "Merger Agreement"), by and between ERP Operating Limited Partnership, an
Illinois limited partnership ("ERP OP"), the Partnership and Grove Property
Trust, a Maryland real estate investment trust ("Grove"), it is contemplated
that, among other things, a limited liability company referred to as "LLC 3" in
the Merger Agreement will merge with and into the Partnership (the "Partnership
Merger"), with the Partnership as the surviving entity. Capitalized terms that
are not defined herein shall have the meanings set forth in the Partnership
Agreement or the Merger Agreement, as the case may be.
D. The Investors, collectively, own all of the membership interests in
Investor LLC. The Investors desire to assign and contribute all of their
Partnership Units to Investor LLC prior to the Partnership Merger, and Investor
LLC desires to accept said contribution and assignment, and to gain admission as
a limited partner in the Partnership in the place and stead of the Investors.
E. Following its admission as a limited partner in the Partnership,
Investor LLC desires, prior to the Partnership Merger, to withdraw from the
Partnership and surrender for redemption its Partnership Units, and the
Partnership desires to redeem such Partnership Units, all on the terms set forth
herein. The transactions described herein, including the Agreed Retail Property
Value and the mechanism for determining the Cash Redemption Payment, have been
authorized by (i) the Board of Trust Managers of Grove, and (ii) the Merger
Oversight Committee of the Board of Trust Managers of Grove.
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NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
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DEFINITIONS
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1.1 DEFINITIONS. As used in this Agreement, the following terms have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"Action" means any action, suit, arbitration, inquiry, regulatory
action, enforcement action proceeding or investigation by or before any
court, any Governmental Authority or any arbitration tribunal, including
without limitation, matters arising under or in connection with
Environmental Laws (including matters relating to Pre-Existing
Environmental Matters).
"Affiliate" means, when used with respect to a specified person,
another person that, directly or indirectly, controls, is controlled by, or
is under common control with, the person specified.
"Agreed Retail Property Value" means Twenty-One Million Six Hundred
Fifty Thousand Dollars ($21,650,000), plus all Capital Expenditures made
with respect to the Retail Properties, determined on a cash basis, from and
after June 1, 2000 other than (1) up to $120,000 of Capital Expenditures
made with respect to space leased to The Children's Place Retail Stores,
Inc., in Freeport, Maine, under and pursuant to the terms of lease dated
December 31, 1999, as amended March 31, 2000, (2) up to $10,000 of Capital
Expenditures for the Retail Property located in Longmeadow, Massachusetts,
and (3) up to $5,000 of Capital Expenditures for each Retail Property other
than the one located in Longmeadow, Massachusetts.
"Assumed Liabilities" has the meaning set forth in Section 2.2.
"Capital Expenditure" means all expenditures which would be treated as
capital expenditures in accordance with generally accepted accounting
principles, consistently applied.
"Cash Redemption Payment" shall be a dollar amount equal to (A) the
number of Partnership Units surrendered for redemption by Investor LLC
pursuant to Section 2.1, multiplied by the Partnership Cash Merger
Consideration, as and if adjusted pursuant to Section 1.12 of the Merger
Agreement, PLUS (B) the outstanding principal balance, determined as of the
Distribution Date, of the Long Meadow Mortgage Loan, LESS (C) the Agreed
Retail Property Value. The Cash Redemption Payment shall be subject to
adjustment as provided in Section 2.6.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. ss.ss. 9601 ET SEQ, as amended from time to
time.
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"Distributed LLC's" has the meaning set forth in Section 2.1.
"Distribution" has the meaning set forth in Section 2.1.
"Distribution Date" has the meaning set forth in Section 2.1.
"Effective Time" has the meaning set forth in Section 2.1
"Environmental Law" shall have the meaning set forth in the Merger
Agreement.
"Former Partner" means any partner or member (other than the
Partnership) in the Distributed LLC's or any predecessor entity that owned
a Retail Property.
"Governmental Authority" means any government or any agency, bureau,
board, commission, court, department, official, political subdivision,
tribunal or other instrumentality of any government, whether federal, state
or local, domestic or foreign.
"Hazardous Material" shall have the meaning set forth in the Merger
Agreement.
"Indemnifying Party" has the meaning set forth in Section 5.2.
"Indemnitee" has the meaning set forth in Section 5.2.
"Indemnitee Notice" has the meaning set forth in Section 5.3.
"IRS" means the Internal Revenue Service.
"Liabilities" means any and all debts, liabilities and obligations,
absolute or contingent, matured or unmatured, liquidated or unliquidated,
accrued or unaccrued, known or unknown, whenever arising, including,
without limitation, Taxes and those debts, liabilities and obligations
arising under any law (including without limitation Environmental Laws),
rule, regulation, Action, threatened Action, order or consent decree of any
court, any governmental or other regulatory or administrative agency or
commission or any award of any arbitration tribunal, and those arising
under any contract, commitment or undertaking.
"Long Meadow Mortgage Loan" has the meaning set forth in Section 2.2.
"Losses" and "Loss" mean any and all losses, charges, Liabilities,
claims, damages, penalties and costs or expenses (including, without
limitation, reasonable attorney's fees and any and all expenses whatsoever
reasonably incurred in investigating, preparing or defending against any
Actions or threatened Actions).
"Partnership Merger" has the meaning set forth in the Recitals.
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"Pre-Existing Environmental Matters" means (A) all environmental
conditions (including, but not limited to, Hazardous Materials, Underground
Storage Tanks and wetlands) which (i) are on or under any of the Retail
Properties on the Distribution Date, or (ii) were on or under any of the
Retail Properties at any time prior to the Distribution Date including any
subsurface migration of Hazardous Materials from any such Retail Property
to any other site or location prior to or after the Distribution Date (B)
all actions or omissions of the Partnership, the Distributed LLC's or any
party acting by, through or under the Partnership or the Distributed LLC's
in connection with any of the matters referred to in clause (A) of this
definition and (C) all actions or omissions of the Partnership, the
Distributed LLC's or any parties acting by, through or under the
Partnership or the Distributed LLC's at any time on or before the
Distribution Date with respect to Hazardous Materials or other matters
within the scope of any Environmental Law, to the extent relating to any of
the Retail Properties, including without limitation any violations of any
Environmental Laws or permits.
"RCRA" means the Resource Conservation and Recovery Act, 42
U.S.C.ss.ss. 6901 ET SEQ. -- ---
"Retail Properties" means the land legally described on Exhibit B
attached hereto and all related improvements. Exhibit B also sets forth the
address and common name of each of the Retail Properties, which are
individually referred to as a "Retail Property."
"Taxes" means all taxes, charges and fees imposed by the United States
or any state, county, local or foreign government or subdivision or agency
thereof.
"Tenant Leases" means all leases for occupancy of space by tenants of
the Retail Properties.
"Third-Party Claim" has the meaning set forth in Section 5.3.
"Underground Storage Tanks" has the meaning assigned to that term by
Section 9001 of RCRA and shall also include the following: (A) any farm or
residential tank of 1,100 gallons or less capacity used for storing motor
fuel for non-commercial purposes; (B) any tank used for storing heating oil
for consumptive use on the premises where stored; (C) any septic tank; (D)
any tank which would be considered an underground storage tank under
Section 9001 of RCRA but for the fact that it contains hazardous wastes;
and (E) any pipes connected to items (A) through (D).
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ARTICLE 2
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REDEMPTION AND DISTRIBUTION
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2.1 REDEMPTION AND DISTRIBUTION.
(a) On the effective date of the Partnership Merger (the "Distribution
Date"), immediately prior to the filing of the certificate of merger for
the Partnership Merger (the "Effective Time"), the following transactions
shall be effectuated in the following order:
(i) First, each of the Investors shall assign, transfer and
contribute all of its Partnership Units (which shall be not
less than all of the Partnership Units set forth beside said
Investor's name on Exhibit A) to Investor LLC, pursuant to
an Assignment and Assumption of Partnership Interests in the
form attached hereto as Exhibit C. Upon the execution and
delivery of each Assignment and Assumption of Partnership
Interests, Investor LLC shall be admitted as a limited
partner in the Partnership in the place and stead of said
Investor; and
(ii) Second, Investor LLC shall withdraw from the Partnership and
surrender all of its Partnership Units (which shall be not
less than the aggregate number of Partnership Units set
forth on Exhibit A) for redemption by the Partnership
pursuant to an instrument of complete withdrawal in the form
attached hereto as Exhibit D, and in consideration thereof
the Partnership shall (x) distribute and assign to Investor
LLC all of the Partnership's membership interests (the
"Distributed Interests") in the limited liability companies
identified on Exhibit E (collectively, the "Distributed
LLC's"; said distribution being referred to herein as the
"Distribution"), pursuant to an Assignment and Assumption of
Membership Interests in the form attached hereto as Exhibit
F, (y) assign to Investor LLC, without representation or
warranty, the name "Grove," any trademarks of which the name
"Grove" forms a constituent part and any related
intellectual property rights and (z) pay to Investor LLC the
Cash Redemption Payment, as the same may be adjusted
pursuant to Section 2.6 hereof. Upon the execution and
delivery of the Assignment and Assumption of Membership
Interests, the Partnership Units surrendered by Investor LLC
shall be deemed to have been redeemed and cancelled without
the necessity of further action, and shall thereupon forever
cease to exist, and Investor LLC shall no longer be a
limited partner in the Partnership. Said redemption is not
being effectuated pursuant to Section 8.6 of the Partnership
Agreement and shall not have the consequences described
therein.
(b) Concurrently with the Distribution, Investors and Investor LLC
shall furnish the Partnership with an opinion of counsel, in form and
substance satisfactory to the Partnership in the Partnership's reasonable
discretion, with respect to the
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authorization, execution, delivery and enforceability of this Agreement and
the instruments required to be executed and delivered by Investor LLC and
Investors pursuant to this Agreement.
(c) The parties hereto agree that they shall each report the
Distribution as made pursuant to Section 736(b) of the Internal Revenue
Code of 1986, as amended.
(d) The parties hereto shall cooperate in executing and delivering the
documents referred to in this Section 2.1 so as to effectuate the
transaction described above in accordance herewith.
2.2 ASSUMPTION.
(a) Subject to the terms and conditions of this Agreement,
simultaneously with the transactions contemplated by clause (ii) of Section
2.1, Investor LLC shall (and hereby does, as of the Effective Time) assume
and undertake to pay and discharge any and all Liabilities, if any, of the
Partnership, whether heretofore or hereafter incurred relating to, incurred
in connection with or arising with respect to the Retail Properties, and
any and all Liabilities of the Distributed LLC's (or any predecessor
thereto) whether heretofore or hereafter incurred (collectively, the
"Assumed Liabilities"), regardless of the manner in which said Liabilities
may have arisen or are alleged to have arisen (including, without
limitation and to the fullest extent that said assumption is permitted by
applicable law, any Liabilities arising from the negligent, willful or
fraudulent acts or omissions of the Partnership or the Distributed LLC's or
any predecessor thereto), including, without limitation, (i) all
liabilities and obligations of the Partnership or the Distributed LLC's (or
any predecessor thereto) in connection with any Pre-Existing Environmental
Matters, (ii) all liabilities and obligations of the Partnership or the
Distributed LLC's (or any predecessor thereto) pursuant to or in connection
with all agreements relating to a Retail Property, if any, to which the
Partnership or the Distributed LLC's (or any predecessor thereto) is a
party or to which the Retail Properties are subject (collectively, the
"Property-level Debt Instruments") and which evidence or secure any
indebtedness secured by mortgages, deeds of trust, pledges, collateral
assignments or security agreements with respect to one or more of the
Retail Properties (collectively, the "Property-level Debt"), (iii) claims
by employees of the Distributed LLC's (or any predecessor thereto),
including claims for accrued vacation, sick pay and other related benefits,
(iv) state, local and federal tax liabilities with respect to any tax year
or partial tax year to the extent relating to any Distributed LLC or any
Retail Property, (v) tort claims in connection with injuries sustained or
alleged by any party (individuals or entity collectively a "Third Party")
relating to a Retail Property or in connection with the negligent or
otherwise tortious acts or omissions of any Distributed LLC (or any
predecessor thereto) or its agents or employees, officers or directors,
(vi) claims made by any Third Party for breaches of contract, guaranties or
indemnities to the extent relating to any Distributed LLC or any Retail
Property, (vii) any contingent liabilities arising under guaranties,
warranties, indemnities or other undertakings not identified in an Exhibit
to this Agreement, to the extent relating to any Distributed LLC or any
Retail Property or (viii) any other pending or threatened litigation
relating in any
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manner to any Retail Property. Notwithstanding the foregoing, the parties
agree that (1) Investor LLC shall assume and undertake to discharge, in
accordance with the terms of the applicable Property-level Debt
Instruments, the mortgage loan from Webster Bank relating to the Long
Meadow Retail Property (the "Long Meadow Mortgage Loan"), but shall not be
obligated to assume or discharge the lien of the Sovereign Bank mortgages
which encumber the three other Retail Properties in order to secure the
Partnership's credit line, which credit line and related Property-level
Debt Instruments shall be discharged by ERP OP at the Effective Time of the
Partnership Merger, and (2) the Assumed Liabilities shall not include any
Liabilities voluntarily assumed by the Partnership or any successor of the
Partnership after the Effective Time of the Partnership Merger (e.g., any
consent decree entered into by the Partnership or any successor of the
Partnership relating to an environmental condition at any Retail Property,
or the settlement by the Partnership or any successor of the Partnership of
any slip and fall case relating to any Retail Property).
2.3 AS-IS, WHERE-IS; RELEASE BY INVESTOR LLC. Investor LLC and the
Investors specifically acknowledge and agree that the Partnership has made and
makes no representation, warranty or covenant of any kind with respect to the
Distributed LLC's or the assets, liabilities and business thereof, including
without limitation the Retail Properties, any environmental conditions
(including, without limitation, any Pre-Existing Environmental Matters) at, or
with respect to, the Retail Properties, the site or physical conditions
applicable to, or with respect to, the Retail Properties, the zoning regulations
or other governmental requirements applicable to, or with respect to, the Retail
Properties, the Property-level Debt or any other matter affecting the use,
occupancy, operation or condition of or with respect to the Retail Properties,
the level of income or profits with respect to the Retail Properties or any
matter whatsoever with respect to the Retail Properties or the Assumed
Liabilities. The Investors, and Investor LLC are familiar with and have
inspected the Retail Properties. Investor LLC shall accept the Distributed
Interests "AS IS," "WHERE IS" and "WITH ALL FAULTS" (whether detectable or not)
on the Distribution Date, without any adjustment to the Agreed Retail Property
Value for any change in the physical or financial condition occurring with
respect to the Retail Properties or the Distributed LLC's from and after the
date of the Merger Agreement (other than in the case of Capital Expenditures
made from and after June 1, 2000, or as otherwise provided in Section 2.6).
Investor LLC acknowledges and agrees that neither the Partnership nor its
employees and representatives nor any other person will have, or be subject to,
any liability to Investor LLC or any other person resulting from the
distribution to Investor LLC, or Investor LLC's use of, any information
pertaining to the Retail Properties or the Assumed Liabilities. Investor LLC
hereby waives, releases, relinquishes and forever discharges the Partnership,
its partners and their respective officers, directors, shareholders, trustees,
agents, employees and representatives, and the successors and assigns of all of
the foregoing from and against any and all claims, causes of action,
liabilities, losses, damages, costs and expenses (including, but not limited to,
all claims and causes of action under CERCLA for cost recovery, for natural
resources damages and for contribution, all claims and causes of action under
common law principles, and all claims under other Environmental Laws, including,
without limitation, RCRA) that Investor LLC may have against the Partnership,
its direct or indirect partners, members and shareholders or the officers,
directors, shareholders, trustees, agents, employees, representatives,
successors and assigns of any of the foregoing for and with respect to all
Pre-Existing Environmental Matters. Investor
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LLC also acknowledges that Investor LLC has had sufficient opportunity to
conduct such investigations of and with respect to the Retail Properties as it
had deemed necessary and advisable. Investor LLC has not been induced by, and
has not relied upon, any representation, warranty or statement made by the
Partnership or any officer, agent, representative, employee, broker or other
person representing the Partnership. To the fullest extent permitted by
applicable law, Investor LLC waives any requirements for the Partnership to
furnish to Investor LLC, or record against title to the Retail Properties, any
environmental disclosure documents that would otherwise be required to be
furnished or recorded under applicable law.
2.4 IMPUTATION OF KNOWLEDGE TO INVESTOR LLC. Investor LLC acknowledges and
agrees that certain of the key executives or principals of Investor LLC (who
have exercised responsibility for the formation of Investor LLC, and for the
negotiation, execution, delivery and performance of this Agreement) including
without limitation the Investors are, and will remain through the Effective
Time, key executives of the Partnership's general partner with responsibility
for overseeing the operation of the Distributed LLC's and the Retail Properties,
that it is fair and reasonable in the circumstances to impute to Investor LLC as
of the execution and delivery of this Agreement and as of the Effective Time,
all knowledge, if any, of the Partnership, the Distributed LLC's (and any
predecessor thereto) with respect to the Retail Properties and the Assumed
Liabilities, and that all such knowledge shall so be (and hereby is) imputed to
Investor LLC. Investor LLC's acknowledgments and agreements set forth in this
Section and in Section 2.3 shall survive the Distribution indefinitely and shall
govern in the event of any conflict, express or implied, with any of the
documents executed or delivered in connection herewith.
2.5 CONDEMNATION AND CASUALTY; PHYSICAL CHANGES. The transactions
contemplated under this Article II shall be consummated as provided in this
Agreement, without adjustment or delay of any kind, notwithstanding the
occurrence of any damage, destruction or other change in the physical condition
of one or more of the Retail Properties or the initiation or completion of any
proceedings in eminent domain (or any deeds granted by the Partnership in lieu
thereof) with respect thereto; provided that the Partnership hereby, effective
as of the Distribution Date, assigns to Investor LLC, without recourse,
representation or warranty, all rights, title and interest, if any, of the
Partnership in and to any insurance proceeds or condemnation awards or claims
therefor related to all Assumed Liabilities, including without limitation, those
relating to said damage, destruction or taking. The provisions of this Section
2.5 shall survive the consummation of the transactions contemplated in this
Agreement.
2.6 CLOSING PRORATIONS AND ADJUSTMENTS
(a) A rent roll (updated to within five (5) days prior to the
Distribution Date) and a proposed statement of prorations and other
adjustments shall be prepared by Investor LLC in conformity with the
provisions of this Agreement not less than five (5) business days prior to
the Distribution Date. For purposes of prorations, the Distribution shall
be deemed to have occurred as of 12:01 a.m. on the Distribution Date. The
following items are to be prorated or adjusted, as the case may require, as
of the Distribution Date, and shall constitute adjustments to the Cash
Redemption Payment:
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(i) real estate and personal property taxes and assessments (prorated
on the basis of 100% of the most recent ascertainable bill);
(ii) the base rent payable by tenants under the Tenant Leases for the
month in which the Distribution Date occurs; provided, however, that rent
and all other sums which are due and payable to the Distributed LLC's by
any tenant but uncollected as of the Distribution Date shall not be
adjusted, but Investor LLC shall use diligent efforts to collect said
past-due rents and shall cause the rent and other sums for the period prior
to the Distribution Date to be remitted to the Partnership if, as and when
collected. On the Distribution Date, the Partnership shall deliver to
Investor LLC a schedule (prepared by the Partnership as of the most recent
date available) of all such past due but uncollected rent and other sums
owed by tenants. Investor LLC shall promptly remit to the Partnership any
such rent or other sums paid by scheduled tenants, but only if a deficiency
in the then current rent is not thereby created. Investor LLC shall bill
tenants who owe rent for periods prior to the Distribution Date on a
monthly basis for six consecutive months following the Distribution Date.
In the case of percentage rents, it is the intent of the parties that the
Partnership (directly or through its ownership of the Distributed LLC's
prior to the Effective Time) shall be entitled to any percentage rent
payments, if any, to the extent accrued through the Distribution Date. In
the case of pass-throughs for taxes and expenses, it is the intent of the
parties that the Partnership (directly or through its ownership of the
Distributed LLC's prior to the Effective Time) shall be entitled to an
amount equal to the total payments due from tenants for the 2000 calendar
year or other collection period under the applicable Tenant Lease in which
the Distribution Date occurs, multiplied by a fraction, the numerator of
which is the actual taxes or expenses paid by the Partnership (directly or
through its ownership of the Distributed LLC's prior to the Effective Time)
or with respect to which Investor LLC has received a credit in connection
with the Distribution, and the denominator of which is the total taxes and
expenses for said calendar year or other collection period. Investor LLC
shall use diligent efforts to collect all percentage rents and
pass-throughs with respect to which the Partnership is entitled to share
pursuant to this clause (ii), and shall not waive or modify in any material
respect the obligation of any tenant under a Tenant Lease, to the detriment
of the Partnership, without the Partnership's prior written consent. If any
amount owed by a tenant under a Tenant Lease remains delinquent for more
than ninety (90) days past the date on which said amount was due, and if
the Partnership has the right to share in all or any portion of said amount
pursuant to this clause (ii), then the Partnership shall have the right, at
its sole cost, to enforce the obligation of said tenant under said Tenant
Lease (and this clause (ii), without more, constitutes an assignment of
said right of enforcement), but in no event may the Partnership seek to
evict any tenant or terminate any Tenant Lease. From and after the
Distribution Date, Investor LLC shall certify monthly, as to all income
(broken into categories of income) received under all Tenant Leases until
all of Investor LLC's obligations under this Section 2.6 have been
satisfied in full, but in no event to exceed a period equal to six (6)
months from the Distribution Date. Upon prior reasonable written notice,
the Partnership shall have the right to inspect and review Investor LLC's
books and records, and shall have the right to engage an accounting firm to
audit said books and records, which audit shall be at Investor LLC's
expense if it discloses that any category of income with respect to which
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the Partnership is entitled to share pursuant hereto was more than three
percent (3%) greater than the amounts certified by Investor LLC for the
period of time in question.
(iii) water, electric, telephone and all other utility charges, and
any assignable deposits with utility companies (said assignable deposits
being credited to the Partnership) (to the extent possible, utility
prorations will be handled by meter readings on the Distribution Date);
(iv) amounts due and prepayments, if any, under all contracts,
agreements, leases and licenses (including equipment leases, but excluding
Tenant Leases and the Property-level Debt Instruments);
(v) assignable license and permit fees;
(vi) interest on any assumed Property-level Debt;
(vii) other expenses of operation and similar items (including
workers' compensation payments, if any) customarily prorated in connection
with real estate closings for similar properties in the locality in
question (provided that all Capital Expenditures made after June 1, 2000
shall be treated as provided in the definition of Agreed Retail Property
Value);
(viii) The Partnership shall receive a credit for all cash in any bank
accounts of the Distributed LLC's as of the Distribution Date; and
(ix) The Partnership shall be responsible for paying all premiums,
fees and other costs associated with the maintenance or termination of any
insurance policies maintained by the Partnership or the Distributed LLC's
prior to the Distribution Date with respect to the Retail Properties, and
shall be entitled to any refunds of unearned premiums with respect to
prepaid insurance amounts in connection with the termination of said
policies.
Any proration (other than general real estate and personal property taxes) which
must be estimated on the Distribution Date shall be re-prorated and finally
adjusted as soon as practicable after the Distribution Date; otherwise, all
prorations shall be final. In the case of pass-throughs for general real estate
taxes and expenses, the parties shall project in good faith what the amount of
the final proration will be at the end of the lease fiscal year in question (or
other collection period under the applicable Tenant Lease) and shall use such
projection as the basis for the proration adjustment on the Distribution Date,
subject to readjustment within thirty (30) days after the close of the fiscal
year for each Tenant Lease (or other collection period under the applicable
Tenant Lease).
2.7 CLOSING COSTS. Investor LLC shall assume and pay all transfer taxes, if
any, loan assumption fees, if any, and any and all other costs and expenses of
consummating the transactions contemplated under this Agreement. Investor LLC
shall have no responsibility to
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pay for legal, accounting or other consulting services retained by ERP OP or an
Affiliate of ERP OP in connection with said transactions.
ARTICLE 3
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REPRESENTATIONS AND WARRANTIES
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3.1 REPRESENTATIONS AND WARRANTIES OF INVESTOR LLC. Investor LLC represents
and warrants to the Partnership as follows:
(a) Investor LLC is a limited liability company duly organized and
validly existing under the laws of the State of Delaware, and has full
power and lawful authority under its organizational documents to enter into
and carry out the terms and provisions of this Agreement that are
applicable to Investor LLC. All actions necessary to confer such power and
authority upon the persons executing this Agreement (and all documents
which are contemplated by this Agreement to be executed on behalf of
Investor LLC) have been taken. Investor LLC's execution, delivery and
performance of the terms and provisions of this Agreement that are
applicable to Investor LLC will not result in any violation of, or default
under, or require any notice or consent under, any of the respective
Investor LLC's organizational documents.
3.2 REPRESENTATIONS AND WARRANTIES OF INVESTOR LLC. Investor LLC represents
and warrants to the Partnership as follows:
(a) The Partnership has never owned fee title to any of the Retail
Properties. Neither the Partnership nor the general partners of the
Partnership are liable for, or are guarantors of, any obligations or
Liabilities of the Distributed LLC's, including without limitation any
obligations under or relating to any Tenant Leases or Property-level Debt.
The Partnership is not a party to any Action involving the Retail
Properties or the Distributed LLC's.
(b) The Distributed LLC's own no real property other than the Retail
Properties. Attached hereto as Exhibit G is a true and accurate schedule of
all assets and Liabilities of each of the Distributed LLC's, including all
Property-level Debt.
(c) The Distributed LLC's have no source of income other than the
Tenant Leases. Attached hereto as Exhibit H is a true and accurate schedule
of all of the Tenant Leases.
(d) Except as set forth on Exhibit I, there are no Actions pending, or
to the knowledge of Investors threatened, with respect to the Retail
Properties or the Distributed LLC's.
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3.3 REPRESENTATIONS AND WARRANTIES OF INVESTORS. Each Investor represents
and warrants to the Partnership as follows:
(a) Exhibit A accurately sets forth the number of Partnership Units to
which said Investor holds legal title. Said Investor owns good, valid, and
marketable title to said Partnership Units, free and clear of all liens,
claims, debts, security interests, judgments, mortgages, options, call
rights, sale agreements, rights of third parties or encumbrances of any
kind whatsoever. Said Investor is not the beneficial owner of any
Partnership Units, other than the Partnership Units legally owned by said
Investor and set forth on Exhibit A. For the purposes hereof, the term
"beneficial owner" shall have the meaning set forth in Rule 13d-3 under the
Exchange Act Rules, as promulgated by the Commission.
3.4 REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES; SURVIVAL. All of the
representations and warranties made in this Article 3 shall be deemed to have
been remade and reaffirmed as of the Distribution Date, as though made on the
Distribution Date, and shall survive the consummation of the Distribution
indefinitely.
ARTICLE 4
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COVENANTS
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4.1 ENCUMBRANCE OF INTERESTS. Neither Investor LLC nor any of the Investors
shall mortgage, pledge, assign, sell, transfer, hypothecate, grant a security
interest in or otherwise encumber, directly or indirectly, all or any portion of
the respective Partnership Units owned by it from time to time.
4.2 FURTHER ASSURANCES. All of the parties hereto shall use their
reasonable best efforts, prior to, on and after the Distribution Date, to take
or cause to be taken, all actions, and to do, or cause to be done, all things,
necessary, proper or desirable under applicable laws and regulations to carry
out the purposes of this Agreement. Without limiting the foregoing, The
Partnership and Investor LLC shall use their best efforts to obtain all consents
and approvals, to enter into all amendatory agreements and to make all filings
and applications and take all other actions which may be required for the
consummation of the transactions contemplated by this Agreement, including,
without limitation, all applicable regulatory filings.
4.3 CAPITAL EXPENDITURES. Investors shall notify the Partnership not less
than ten (10) business days prior to causing the Distributed LLC's to incur any
Capital Expenditures, which shall be subject to any limitations thereon
contained in the Merger Agreement.
4.4 MAINTENANCE OF NET WORTH. Investor LLC covenants and agrees, for a
period of two (2) years following the Distribution Date, that (i) it shall not
(and shall not permit the Distributed LLC's to) sell, assign, transfer,
mortgage, pledge, hypothecate or otherwise encumber the Retail Properties, any
interest therein, or any interest of Investor LLC in the Distributed LLC's, and
(ii) it shall not make any distribution of the proceeds of any sale or
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financing, if the effect of any of the foregoing actions in (i) or (ii) above
would be to reduce the net worth of Investor LLC below $5,000,000 as determined
in accordance with generally accepted accounting principles, consistently
applied. In the event of a violation of the foregoing covenant, Investors shall,
without further action, be deemed to have assumed, jointly and severally, the
obligations of Investor LLC under Section 2.6, Article 3 and Article 5 of this
Agreement. This Section 4.4 shall survive the consummation of the transactions
contemplated under this Agreement.
4.5 OPERATION OF PROPERTIES. The Distributed LLC's shall have the right to
lease, manage and operate the Retail Properties in whatever manner they deem
appropriate during the period between the date hereof and the Distribution Date,
to the extent consistent with the Distributed LLCs' current standards and
practices. Without limiting the definition of Capital Expenditures, leasing
commissions, tenant allowances, rent abatements and any costs of constructing
tenant improvements shall be included in the definition of Capital Expenditures.
ARTICLE 5
---------
INDEMNIFICATION
---------------
5.1 INDEMNIFICATION. Except as otherwise set forth herein, Investor LLC,
for itself, its Affiliates and its respective successors and assigns, shall
indemnify, defend and hold harmless the Partnership, each of its trustees,
officers, employees and agents, each Affiliate of the Partnership, and each of
the heirs, executors, successors and assigns of any of the foregoing (the
"Partnership Indemnitees") from and against any and all Losses and Liabilities
of and Actions against the Partnership Indemnitees arising out of, by reason of
or otherwise in connection with (i) the Assumed Liabilities, (ii) the
obligations of Investor LLC and/or the Investors under this Agreement, and (iii)
any Actions brought or joined in by any Former Partner and/or any person
claiming by or through any Former Partner, alleging that said Former Partner has
suffered or sustained any Loss or Liability, or incurred any increased expense
(including any acceleration of, or any increase in, the Taxes owed by said
Former Partner) by reason of the transactions contemplated by this Agreement or
by reason of any act of Investors.
5.2 LIMITATIONS ON INDEMNIFICATION OBLIGATIONS. The amount which any party
(an "Indemnifying Party") is or may be required to pay to any other party (an
"Indemnitee") pursuant to Section 5.1 shall be reduced (retroactively or
prospectively) by any insurance proceeds or other amounts actually recovered by
or on behalf of such Indemnitee, in reduction of the related Loss. If an
Indemnitee shall have received the payment required by this Agreement from an
Indemnifying Party in respect of a Loss and shall subsequently actually receive
insurance proceeds or other amounts in respect of such Loss, then such
Indemnitee shall pay to such Indemnifying Party a sum equal to the amount of
such insurance proceeds, net of the costs (including any fees) of recovery of
insurance proceeds, or other amounts actually received, up to the aggregate
amount of any payments received from such Indemnifying Party pursuant to this
Agreement in respect of such Loss.
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5.3 PROCEDURE FOR INDEMNIFICATION
(a) If an Indemnitee shall receive notice or otherwise learn of the
assertion by a person (including, without limitation, any Governmental
Authority) who is not a party to this Agreement or the Merger Agreement of
any claim or of the commencement by any such person of any Action (a
"Third-Party Claim") with respect to which an Indemnifying Party may be
obligated to provide indemnification pursuant to this Agreement, such
Indemnitee shall give such Indemnifying Party written notice (the
"Indemnitee Notice") thereof promptly after becoming aware of such
Third-Party Claim; PROVIDED, HOWEVER, that the failure of any Indemnitee to
give notice as provided in this Section 5.3 shall not relieve the
applicable Indemnifying Party of its obligations under this Article V,
except to the extent that such Indemnifying Party is prejudiced by such
failure to give notice. Such Indemnitee Notice shall describe the
Third-Party Claim in reasonable detail and shall indicate the amount
(estimated if necessary) of the Loss that has been or may be sustained by
such Indemnitee.
(b) The Indemnitee shall provide to the Indemnifying Party on request
all information and documentation reasonably necessary to support and
verify any Losses which the Indemnitee believes give rise to a claim for
indemnification hereunder and shall give the Indemnifying Party reasonable
access to all books, records and personnel in the possession or under the
control of the Indemnitee which would have bearing on such claim.
(c) Upon receipt of the Indemnitee Notice required by Section 5.3(a),
the Indemnifying Party shall be entitled, if it so elects, to take control
of the defense and investigation with respect to such claim and to employ
and engage attorneys of its own choice (subject to approval by the
Indemnitee, which approval shall not be unreasonably withheld) to handle
and defend the same, at the Indemnifying Party's cost, risk and expense,
upon written notice to the Indemnitee of such election within twenty (20)
days of receipt of Indemnitee's notice. The Indemnifying Party shall not
settle any third-party claim that is the subject of indemnification without
the written consent of the Indemnitee, which consent shall not be
unreasonably withheld; provided, however, that the Indemnifying Party may
settle a claim without the Indemnitee's consent if such settlement (i)
includes a complete release of the Indemnitee and (ii) does not require the
Indemnitee to make any payment or take any action or otherwise materially
adversely affect the Indemnitee. After notice from an Indemnifying Party to
an Indemnitee of its election to assume the defense of a Third-Party Claim,
such Indemnifying Party will not be liable to such Indemnitee under this
Article V for any legal or other expenses subsequently incurred by such
Indemnitee in connection with the defense thereof; provided, that, if the
defendants in any such claim include both the Indemnifying Party and one or
more Indemnitees and a conflict of interest between such Indemnitees and
such Indemnifying Party exists in respect of such claim, such Indemnitees
will have the right to employ separate counsel reasonably satisfactory to
the Indemnifying Party to represent such Indemnitees, and in that event the
reasonable fees and expenses of such separate counsel (but not more than
one separate counsel) will be paid by such Indemnifying Party.
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(d) If an Indemnifying Party elects to defend or to seek to compromise
any Third-Party Claim, the appropriate Indemnitee shall (x) cooperate in
all reasonable respects with the Indemnifying Party in connection with such
defense and (y) not admit any liability with respect to, or settle,
compromise or discharge, such Third-Party Claim without the Indemnifying
Party's prior written consent.
(e) If the Indemnifying Party shall decline to assume the defense of
any such Third-Party Claim, or shall fail to notify the Indemnitee that it
will defend such claim within twenty (20) days after receipt of the
Indemnitee Notice, the Indemnitee shall have the right to defend against
such claim. The reasonable expenses of all proceedings, contests or
lawsuits in respect of such claims shall be borne by the Indemnifying Party
but only if the Indemnifying Party is responsible pursuant to this Article
V to indemnify the Indemnitee in respect of the Third-Party Claim.
(f) In the event of payment by an Indemnifying Party to any Indemnitee
in connection with any Third-Party Claim, such Indemnifying Party shall be
subrogated to and shall stand in the place of such Indemnitee as to any
events or circumstances with respect to which such Indemnitee may have any
right or claim relating to such Third-Party Claim against any claimant or
plaintiff asserting such Third-Party Claim. Such Indemnitee shall cooperate
with such Indemnifying Party in a reasonable manner, and at the cost and
expense of such Indemnifying Party, in prosecuting any subrogated right or
claim.
(g) With respect to any Third-Party Claim for which the Indemnifying
Party assumes responsibility for defense, the Indemnifying Party shall
inform the Indemnitee, upon the reasonable written request of the
Indemnitee, of the status of efforts to resolve such Third-Party Claim.
With respect to any Third-Party Claim for which the Indemnifying Party does
not assume such responsibility, the Indemnitee shall inform the
Indemnifying Party, upon the reasonable written request of the Indemnifying
Party, of the status of efforts to resolve such Third-Party Claim.
5.4 SURVIVAL OF INDEMNITIES. The obligations of Investor LLC under this
Article V shall survive the consummation of the Distribution indefinitely, and
shall also survive the sale or other transfer by it or them of any assets or
businesses or the assignment or purported assignment by it or them of any
Liabilities.
ARTICLE 6
---------
CONDITIONS TO THE CONTRIBUTION AND THE DISTRIBUTIONS
----------------------------------------------------
6.1 CONDITIONS PRECEDENT TO THE DISTRIBUTIONS. The obligation of the
Partnership to effectuate the Distribution pursuant to Article II shall be
subject, at the option of the Partnership, to the fulfillment or waiver, of each
of the following conditions:
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(a) NO PROHIBITIONS. Consummation of the transactions contemplated
hereby shall not be prohibited by applicable law and no Governmental
Authority of competent jurisdiction shall have enacted, issued,
promulgated, enforced or entered any statute, rule, regulation, executive
order, decree, injunction or other order (whether temporary, preliminary or
permanent) which is in effect and which materially restricts, prevents or
prohibits consummation of the Distribution, the Partnership Merger or any
transaction contemplated by this Agreement or the Merger Agreement, it
being understood that the parties hereto hereby agree to use their
reasonable best efforts to cause any such decree, judgment, injunction or
other order to be vacated or lifted as promptly as possible.
(b) CONDITIONS PRECEDENT TO PARTNERSHIP MERGER SATISFIED. Each
condition to the closing of the Partnership Merger set forth in Sections
6.1, 6.2 and 6.3 of the Merger Agreement shall have been satisfied or
waived.
(c) ACCURACY OF REPRESENTATION. The representations and warranties in
Article 3 shall be true and complete in all material respects, and
Investors and Investor LLC shall not be in breach of their respective
covenants under Section 4.2.
(d) Execution and delivery of the instruments required to be executed
and delivered pursuant to Section 2.1(a).
(e) The Partnership and Investor LLC shall take all reasonable steps
necessary and appropriate to cause the conditions set forth in this Section
6.1 to be satisfied and to effect the Distribution on the Distribution
Date. Any party shall have the right to waive any condition that is for its
exclusive benefit.
ARTICLE 7
---------
MISCELLANEOUS
-------------
7.1 COMPLETE AGREEMENT; CONSTRUCTION. This Agreement, including the
Exhibits and Schedules, constitutes the entire agreement between the parties
with respect to the subject matter hereof, and supersedes all previous
negotiations, commitments and writings with respect to such subject matter.
7.2 SURVIVAL OF AGREEMENTS. Except as otherwise contemplated by this
Agreement, all representations, warranties, covenants and agreements of the
parties contained in this Agreement will survive the Distribution Date.
7.3 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the
principles of conflicts of laws thereof.
7.4 NOTICES. All notices and other communications hereunder must be in
writing and must be delivered by hand, mailed by registered or certified mail
(return receipt requested) or
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sent by facsimile transmission to the parties at the following addresses (or at
such other addresses for a party as may be specified by like notice) and will be
deemed given on the date on which such notice is received:
To the Partnership:
Before the Distribution Date, to:
Grove Property Trust
598 Asylum Avenue
Hartford, Connecticut 06105
Fax No.: (860) 527-0401
With a copy to:
Cummings & Lockwood
Four Stamford Plaza
107 Elm Street
Stamford, Connecticut 06904
Attention: Michael J. Hinton
After the Distribution Date, to:
ERP Operating Limited Partnership
Two North Riverside Plaza, Suite 400
Chicago, Illinois 60606
Fax No. (312) 454-0434
With a copy to:
Piper Marbury Rudnick & Wolfe
203 North LaSalle Street
Suite 1800
Chicago, Illinois 60601
Attention: Errol R. Halperin
To Investor LLC:
Grove Property Trust
598 Asylum Avenue
Hartford, Connecticut 06105
Fax No.: (860) 527-0401
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With a copy to:
Cummings & Lockwood
Four Stamford Plaza
107 Elm Street
Stamford, Connecticut 06904
Attention: Michael J. Hinton
Prior to the Distribution Date, copies of all notices sent to either party
shall be sent to ERP OP at:.
ERP Operating Limited Partnership
Two North Riverside Plaza, Suite 400
Chicago, Illinois 60606
Fax No. (312) 454-0434
7.5 AMENDMENTS. This Agreement may not be modified or amended except by an
agreement in writing signed by the parties.
7.6 SUCCESSORS AND ASSIGNS. Except in connection with the Partnership
Merger, this Agreement shall not be assignable, in whole or in part, directly or
indirectly, by either party hereto without the prior written consent of the
other, and any attempt to assign any rights or obligations arising under this
Agreement without such consent shall be void; PROVIDED, HOWEVER, that the
provisions of this Agreement shall be binding upon, inure to the benefit of and
be enforceable by the parties and their respective successors and permitted
assigns; PROVIDED, FURTHER, that the rights or the Partnership under this
Agreement may be assigned after the Partnership Merger to any Affiliate of the
Partnership.
7.7 NO THIRD-PARTY BENEFICIARIES. Except for the provisions of Article V
relating to Indemnitees and as otherwise expressly provided herein, the
provisions of this Agreement are solely for the benefit of the parties hereto
and their respective successors and permitted assigns and should not be deemed
to confer upon third parties any remedy, claim, liability, reimbursement, claim
of action or other right in excess of those existing without reference to this
Agreement.
7.8 TERMINATION ON TERMINATION OF MERGER AGREEMENT. This Agreement shall
terminate in the event of the termination or expiration of the Merger Agreement
prior to the consummation of the Partnership Merger.
7.9 TITLE AND HEADINGS. Titles and headings to sections herein are inserted
for the convenience of reference only and are not intended to be a part of or to
affect the meaning or interpretation of this Agreement.
7.10 LEGAL ENFORCEABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any such
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prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. Without prejudice
to any rights or remedies otherwise available to any party hereto, each party
hereto acknowledges that damages would be an inadequate remedy for any breach of
the provisions of this Agreement and agrees that the obligations of the parties
hereunder are specifically enforceable.
7.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which when executed shall be deemed an original, but all
of which together shall constitute one and the same instrument.
7.12 NON-RECOURSE TO PARTNERS OF THE PARTNERSHIP. Investor LLC and the
Investors shall look solely to the assets of the Partnership for satisfaction of
any liability of the Partnership with respect to this Agreement and all
documents, agreements, understandings and arrangements relating to this
Agreement and will not seek recourse or commence any action against any general
partner or limited partner or the Partnership or the trustees or officers of any
of the foregoing for the performance or payment of any obligation of the
Partnership hereunder or thereunder.
7.13 LIMITED RECOURSE TO INVESTORS. The Partnership shall look solely to
the assets of Investor LLC for satisfaction of any liability of Investor LLC
with respect to this Agreement and all documents, agreements, understandings and
arrangements relating to this Agreement and will not seek recourse or commence
any action against any member of Investor LLC or the trustees or officers of any
of the foregoing for the performance or payment of any obligation of Investor
LLC hereunder or thereunder; provided, however, that nothing contained in this
Section 7.13 shall limit the liability of the Investors under Section 3.3 or, to
the extent applicable, Section 4.4.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
GROVE OPERATING, L.P., a Delaware limited
partnership
By: GROVE PROPERTY TRUST, a Maryland real
estate investment trust, General partner
By: /s/ Joseph R. LaBrosse
-------------------------------------
Name: Joseph LaBrosse
-----------------------------------
Title: Chief Financial Officer
----------------------------------
GROVE REALTY LLC, a Delaware limited liability
company
By: /s/ Joseph R. LaBrosse
------------------------------------------
Name: Joseph LaBrosse
----------------------------------------
Title: Chief Financial Officer
---------------------------------------
/s/ DAMON D. NAVARRO
---------------------------------------------
DAMON D. NAVARRO
/s/ BRIAN A. NAVARRO
---------------------------------------------
BRIAN A. NAVARRO
/s/ EDMUND F. NAVARRO
---------------------------------------------
EDMUND F. NAVARRO
/s/ JOSEPH R. LaBROSSE
---------------------------------------------
JOSEPH R. LABROSSE
<PAGE>
SCHEDULE OF EXHIBITS
--------------------
Exhibit A - Schedule of Partnership Units
Exhibit B - Schedule of Retail Properties (including Legal Descriptions)
Exhibit C - Form of Assignment and Assumption of Partnership Interests
Exhibit D - Form of Instrument of Withdrawal
Exhibit E - Schedule of Distributed LLC's
Exhibit F - Form of Assignment of Membership Interests
Exhibit G - Schedule of Assets and Liabilities
Exhibit H - Schedule of Tenant Leases
Exhibit I - Schedule of Pending Actions
<PAGE>
CONSENT OF GROVE
----------------
The undersigned, in its capacity as General Partner of the Partnership,
hereby consents to the transactions described in Section 2.1(a) of this
Agreement and waives any right of first refusal under Section 11.3(A)(a) of the
Partnership Agreement.
GROVE PROPERTY TRUST, a Maryland real
estate investment trust
By: /s/ Joseph R. LaBrosse
-------------------------------------
Name: Joseph LaBrosse
-----------------------------------
Title: Chief Financial Officer
----------------------------------
