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
___________________________________________________________________
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, Xxxxxx
Xxxxx, an individual with a residence in Longmeadow,
Massachusetts, Xxxxxx Xxxxx, an individual with a residence
in Woodbridge, Connecticut, Xxxxx Xxxxxxx, an individual with
a residence in Glastonbury, Connecticut, and Xxxxx Xxxxxxx,
an individual with a residence in Glastonbury, Connecticut
(Xxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxx Xxxxxxx and Xxxxx Xxxxxxx
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 Xxxxxx Xxxxx
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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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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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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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
Xxxxxx Xxxxx 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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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
Xxxxxx Xxxxx 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 Xxxxxx Xxxxx Coachlight Interests. In
consideration of the conveyance, assignment and transfer of
the Coachlight Interests to be made by Xxxxxx Xxxxx under
Article 2 hereof, the Operating Partnership agrees to pay
Xxxxxx Xxxxx cash in the amount specified on Schedule A
hereto. The sale of the Coachlight Interests owned by Xxxxxx
Xxxxx shall take place effective as of the Closing Date.
However, the parties hereto consent to the earlier transfer
of title to Xxxxxx Xxxxx'x 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
Xxxxxx Xxxxx'x 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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(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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(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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(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 Xxxxxx
Xxxxx 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 Xxxxxx Xxxxx 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 Xxxxxx Xxxxx 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
Xxxxxx Xxxxx, and cash to Xxxxxx Xxxxx, 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 Xxxxxx Xxxxx, agrees to limit all of its
claims to an amount equal to the purchase price for Xxxxxx
Xxxxx'x 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
Xxxxxx Xxxxx 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.
-19-
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 Xxxxx Xxxxxxx, Xxxxx
Xxxxxxx, Xxxxxx Xxxxxxx and Xxxxxx XxXxxxxx, 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/Xxxxx Xxxxxxx
-------------------
Xxxxx Xxxxxxx
President
ANE CORP.
By:Xxxxx Xxxxxxx
President
/s/ Xxxxxx Xxxxx
----------------
XXXXXX XXXXX
/s/ Xxxxxx Xxxxx
----------------
XXXXXX XXXXX
/s/ Xxxxx Xxxxxxx
-----------------
XXXXX XXXXXXX
/s/ Xxxxx Xxxxxxx
-----------------
XXXXX XXXXXXX
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STATE OF CONNECTICUT )
) ss: Hartford
COUNTY OF HARTFORD )
I, Xxxxxxxx XxXxxxx,
a Notary Public in and for said County, in the State
aforesaid, do hereby certify that Xxxxx Xxxxxxx, 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/ Xxxxxxxx XxXxxxx
--------------------
Notary Public Signature
My Commission expires:
STATE OF CONNECTICUT)
) ss: Hartford
COUNTY OF HARTFORD)
On this 15th day of March, 1998, personally appeared
Xxxxx Xxxxxxx, 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.
Xxxxxxxx XxXxxxx
----------------
Notary Public
STATE OF )
) ss: March /s/, 1998
-------------------------
COUNTY OF )
Personally appeared Xxxxxx Xxxxx, 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-
STATE OF )
) ss: March /s/, 1998
-------------------------
COUNTY OF )
Personally appeared Xxxxxx Xxxxx, 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 Xxxxx Xxxxxxx, signer and sealer of
the foregoing instrument, who acknowledged the same to be
his/her free act and deed, before me.
Xxxxxxxx XxXxxxx
----------------
Notary Public
My Commission Expires:
STATE OF )
) ss: March 15, 1998
COUNTY OF )
Personally appeared Xxxxx Xxxxxxx, signer and sealer of
the foregoing instrument, who acknowledged the same to be
his/her free act and deed, before me.
Xxxxxxxx XxXxxxx
----------------
Notary Public
My Commission Expires:
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