PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
BRIAR XXXXX ASSOCIATES
and
HIGH RIDGE ASSOCIATES
AS SELLER
AND
GROVE CORPORATION
AS PURCHASER
Briar Xxxxx Apartments, Vernon, CT
Hilltop Apartments, Norwich, CT
TABLE OF CONTENTS
1. Agreement to Purchase and Sell; Simultaneous Acquisition........ 1
2. Purchase Price; Deposits........................................ 2
3. Closing Date.................................................... 3
4. Property Inspection Contingency................................. 5
5. Title Commitment and Survey..................................... 6
6. Condemnation.................................................... 8
7. Fire or Other Casualty.......................................... 8
.
8. Seller's Covenants, Representations and Warranties .............. 8
9. Purchaser's Representations and Warranties ..................... 11
10. Brokerage Commissions........................................... 11
11. Seller's Closing Deliveries..................................... 11
12. Default......................................................... 13
13. Pro-rations, Closing Costs and Adjustments ..................... 14
14. Notices......................................................... 15
15. Miscellaneous................................................... 16
16. Duties and Responsibilities of Escrow Agent .................... 18
Exhibit A-1 Description of Land-Briar Xxxxx
Exhibit A-2 Description of Land-Highridge
Exhibit B-1 Rent Roll-Briar Xxxxx
Exhibit B-2 Rent Roll-Highridge
Exhibit C Allocation of Purchase Price
Exhibit D Description of Existing Notes, Mortgages and Foreclosure Action
Exhibit E Service, Supply and Maintenance agreements
Exhibit F PBGC Lien
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of
November 12, 1997 (the "Effective Date"), by and between BRIAR XXXXX ASSOCIATES,
a Connecticut partnership ("Briar"), and HIGH RIDGE ASSOCIATES, a Connecticut
partnership ("Highridge"), each with a mailing address at c/o Richmond Realty,
000 Xxxxxx Xxxx, Xxxxxxxxxx XX 00000 Attention: Xxxxx Xxxxxxx (Briar and
Highridge are hereinafter sometimes individually and collectively referred to as
"Seller") and GROVE CORPORATION, a Connecticut corporation, with a mailing
address at 000 Xxxxxx Xxxxxx, Xxxxxxxx XX 00000 Attention: Xx. Xxxxx Xxxxxxx
("Purchaser").
R E C I T A L S:
A. Briar is the fee simple owner of that certain real and personal
property located at Route 83 and Thrall Road in the Town of Vernon, Tolland
County, Connecticut with a mailing address of 000-00 Xxxxxxxxxxxx Xxxx, Xxxxxx,
XX 00000 commonly known as the Briar Xxxxx apartment complex containing 150
residential units (the "Briar Xxxxx Property").
B. Highridge is the fee simple owner of that certain real and personal
property located in the City of Norwich, New London County, Connecticut with a
mailing address of 0X Xxxxxxxx Xxxxx, Xxxxxxx, XX 00000, commonly known as the
Hilltop apartment complex containing 120 residential units (the "Highridge
Property").
C. Subject to the terms, provisions and conditions of this Agreement,
Purchaser is willing to acquire and Seller is willing to sell the Property (as
hereinafter defined).
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser hereby agree
as follows:
1. Agreement to Purchase and Sell; Simultaneous Acquisition.
(a) Seller hereby agrees to sell to Purchaser, and Purchaser
hereby agrees to acquire from Seller, subject to the terms, provisions and
conditions of this Agreement, the respective fee interests of each Seller in the
two parcels of land more particularly described on Exhibit A-1, and Exhibit A-2
attached hereto, together with (i) all buildings and other improvements situated
thereon and respectively known as the Briar Xxxxx and Hilltop apartment
complexes, (ii) all easements, rights of way, reservations, privileges,
appurtenances, and other estates and rights of Seller pertaining to such land
and buildings, (iii) all right, title and interest of Seller in and to the
appliances, fixtures, machinery, equipment, supplies and other articles of
personal property attached or appurtenant to such land or buildings, or used in
connection therewith (collectively, the "Personal Property"), (iv) all right,
title and interest of Seller, if any, in and to the trade name of the buildings
(v) all right, title and interest of Seller, if any, in and to all strips and
gores, all alleys adjoining the land, and the land lying in the bed of any
street, road or avenue, opened or proposed, in front of or adjoining the land to
the center line thereof, and all right, title and interest of Seller, if any, in
and to any award made or to be made in lieu thereof and in and to any unpaid
award for any taking by condemnation or any damages to the land or the buildings
by reason of a change of grade of any street, road or avenue, (vi) all right,
title and interest of Seller under all leases, licenses or other occupancy
agreements and tenancies affecting said land and buildings, and (vii) all right,
title and interest of Seller in and to all warranties and guaranties affecting
the buildings and the Personal Property (the land, together with all of the
foregoing items listed in clauses (i)-(vii) above being hereinafter collectively
referred to herein as the "Property" or the "Properties").
(b) Purchaser and each Seller confirm and agree that the transfers of
the Property contemplated by this Agreement shall be consummated
contemporaneously in order that Purchaser shall simultaneously acquire each
Property. Each Seller confirms and agrees that Purchaser's obligation to
consummate the transactions contemplated by this Agreement shall be conditioned
and contingent upon the simultaneous acquisition of each Property. If, for any
reason (other than Purchaser's default hereunder), either Seller is unable to or
fails to convey its Property, then, in such event, Purchaser may elect to
terminate this Agreement. If Purchaser elects to terminate this Agreement based
on such inability or failure to convey, Purchaser shall, in addition to any and
all other remedies hereunder, be entitled to the return of the Deposit.
2. Purchase Price; Deposits.
(a) Purchaser agrees to pay an aggregate purchase price for
the Property (the "Purchase Price") equal to the lesser of (i) Eleven Million
One Hundred Eighty-Seven Thousand and No/100 Dollars ($11,187,000.00) or (ii) if
Seller enters into the Settlement Agreement, the sum of (A) One Million Four
Hundred Ninety-one Thousand Six Hundred and No/100 Dollars ($1,491,600.00) and
(B) the Settlement Amount (defined below), or (iii) if Purchaser enters into the
Loan Sale Agreement (defined below), One Million Three Hundred Five Thousand One
Hundred Fifty and No/100 Dollars ($1,305,150.00). For conveyance tax and other
closing purposes, the Purchase Price shall be allocated among the Properties as
set forth in Exhibit C attached hereto. The Purchase Price, plus or minus
pro-rations, credits and adjustments, if any, as hereinafter provided, shall be
payable as follows:
(i) One Hundred Sixty Seven Thousand Eight Hundred Five and
No/100 Dollars ($167,805.00) (the "Initial Deposit") shall be deposited
by Purchaser in escrow with an Commonwealth Land Title Insurance
Company (hereinafter sometimes called the "Title Company" or the
"Escrow Agent") upon the full execution and delivery of this Agreement.
(ii) Within five (5) business days after the date, if any,
that Purchaser receives notice from Seller that Seller has executed and
delivered a binding settlement agreement with the Existing Holder
(defined below) (such agreement, the "Settlement Agreement") regarding
the settlement of the Foreclosure (defined below) and the satisfaction
of the Existing Mortgages (defined below), and that Seller has obtained
the PBGC Discharge and is ready and able to consummate the Closing,
such notice to be accompanied by a true and correct copy of the
Settlement Agreement and PBGC Discharge as certified by an authorized
officer of Seller (such notice and supporting documentation, the
"Settlement Notice"), and provided that the Inspection Period
Expiration Date has occurred and Purchaser has not exercised any right
to terminate this Agreement pursuant to Section 4(c), Purchaser shall
deliver in escrow with Escrow Agent the sum of One Hundred Sixty Seven
Thousand Eight Hundred Five and No/100 Dollars ($167,805.00)(the
"Additional Deposit"; the Initial Deposit and the Additional Deposit
are sometimes individually and collectively referred to as the
"Deposit").
The Deposit shall be held by the Escrow Agent in an interest bearing
escrow account. Interest earned on the Deposit, if any, shall be deemed part of
the Deposit. All references to the Deposit contained in this Agreement shall
mean and refer to the Deposit, together with any interest accrued thereon.
Except as otherwise provided herein, the Deposit shall be credited to Seller at
Closing.
(b) The balance of the Purchase Price, plus or minus
pro-rations, credits and adjustments as aforesaid, shall be payable at the
Closing (as hereinafter defined) to a bank account designated by Seller through
a wire transfer of immediately available funds.
3. Closing Date.
(a) Subject to subsection (b) (c) and (d) below, the
transaction contemplated by this Agreement shall be closed (the "Closing") at a
location in the State of Connecticut as designated by Purchaser's mortgagee, if
any, or as otherwise mutually agreed by Purchaser and Seller on the date (the
"Closing Date") which is ten (10) days after Purchaser receives the Settlement
Notice, provided, however, in the event that Seller fails to obtain the
Settlement Agreement and Purchaser elects to directly acquire the Existing
Mortgages as provided hereinbelow, the transaction contemplated hereby shall be
closed on or about the date which is thirty (30) days after the execution and
delivery of the Loan Sale Agreement (defined below). If the Closing Date
established pursuant to the preceding sentence is a Saturday, Sunday or legal
holiday, the Closing Date shall be the next business day thereafter.
Notwithstanding anything to the contrary contained in this Agreement, Purchaser
and Seller shall each have the one-time right to extend the closing hereunder
for a period of up to thirty (30) days by written notice of such election to the
other party.
(b) Notwithstanding anything to the contrary contained herein,
if Seller fails to deliver the Settlement Notice and Settlement Agreement to
Purchaser on or before February 1, 1998 (such date, the "Initial Outside Date"),
then, in such event, Purchaser, at Purchaser's option exercised in its sole and
absolute discretion by written notice to Seller on or before February 10, 1998,
may (i) terminate this Agreement by written notice to Seller, in which case the
Deposit shall be returned to Purchaser, or (ii) elect to directly acquire the
Existing Mortgages and the indebtedness secured thereby. In the event Purchaser
elects to directly acquire the Existing Mortgages and the indebtedness secured
thereby, Purchaser shall be afforded a period of sixty (60) days after the
Initial Outside Date to enter into a Loan Sale Agreement with the Existing
Holder on terms and conditions acceptable to Purchaser in its sole discretion.
If Purchaser fails to enter into a binding Loan Sale Agreement on or before the
expiration of such sixty (60) day period, then this Agreement shall
automatically terminate, whereupon Escrow Agent shall promptly return the
Deposit to Purchaser and this Agreement shall be of no further force or effect.
Seller agrees to cooperate as reasonably required by Purchaser in connection
with the aforesaid effort and agrees to execute, or cause to be executed, such
documents and instruments as are reasonably requested by Purchaser to facilitate
the transactions contemplated hereby, including, without limitation, the
execution and delivery of a general release by Seller for the benefit of the
Existing Holder releasing such holder from any and all claims of Seller arising
from or related to the Existing Indebtedness.
If, for any reason other than the default of Purchaser under the Loan
Sale Agreement, the Existing Holder is not willing or able or shall fail to
assign, transfer and convey all of its interest in the Existing Mortgages to
Purchaser on the Closing Date, then, notwithstanding anything to the contrary
contained in this Agreement, Purchaser shall have the right to extend the
closing hereunder for a period of up to thirty (30) days by written notice of
such election to Seller. In the event that the Mortgage Holder is not willing or
able or shall fail to assign, transfer and convey all of its interest in the
Existing Mortgages to Purchaser on or before the expiration of such thirty day
period, Purchaser may terminate this Agreement by giving Seller written notice
of its election to terminate this Agreement, whereupon Escrow Agent shall
promptly return the Deposit to Purchaser.
(c) If either Seller shall default in the performance of any
of its covenants, agreements, conditions or obligations hereunder, and, as
result thereof, the simultaneous closing of the conveyance of the Property shall
be prevented or delayed thereby, and, in such case, Purchaser has elected to
exercise its remedy of specific performance provided hereunder, then, in such
event, the non-defaulting Seller hereby agrees to extend the Closing Date for
that period of time necessary to permit Purchaser to exercise such remedy
against the defaulting Seller, such agreement to extend by the applicable Seller
conditioned upon Purchaser's prompt commencement and diligent pursuit of any
such specific enforcement action against the defaulting Seller.
(d) Notwithstanding anything to the contrary contained herein,
if either (x) Seller has entered into the Settlement Agreement on or before the
Initial Outside Date but has not obtained and recorded the PBGC Discharge as of
the Closing Date or (ii) Seller has not entered into the Settlement Agreement on
or before the Initial Outside Date but Purchaser has elected to directly acquire
the Existing Indebtedness, has entered into a Loan Sale Agreement and as of the
Closing Date Seller has not obtained and recorded the PBGC Discharge, then, in
either such event, the Closing Date hereunder shall at Purchaser's option,
exercised in its sole and absolute discretion, be extended one or more periods
of ninety (90) days, for purposes of affording Seller additional time to obtain
the PBGC Discharge. Purchaser shall furnish notice to Seller of its election to
extend the Closing Date under this subsection (d) within ten days after then
existing Closing Date. If Purchaser elects to extend the Closing Date as
aforesaid, the extended Closing Date shall be the date which is ten (10)
business days after the date that Seller has recorded the PBGC Discharge.
Notwithstanding anything to the contrary contained herein, this Closing Date
following any extension under this subsection (d) shall not extend beyond the
earlier to occur of (i) December 31, 1998 or (ii) the full and complete
termination of the Settlement Agreement or the Loan Sale Agreement, as the case
may be. Seller covenants to exercise reasonably diligent efforts to obtain and
record the PBGC Discharge.
(e) In the event that Seller has entered into the Settlement
Agreement, then, on or before the Closing Date, Seller shall (i) record a
satisfaction and discharge of the Existing Mortgages, or shall cause a
satisfaction and discharge to be deposited with the Title Company with an
irrevocable instruction by the holder of the Existing Indebtedness to release
and record the same upon receipt of the full amount provided under the
Settlement Agreement and (ii) shall deposit such other instruments and documents
as are required by the Title Company for purposes of issuing its ALTA Owner's
Policy of Title Insurance naming Purchaser, upon consummation of the
transactions contemplated hereby, as the fee simple owner of the Property
without any exception for the Existing Mortgages, the Foreclosure, the
receivership affecting the Property or any and all other actions or proceedings
of the Existing Holder in respect of the Existing Indebtedness.
(f) For purposes of this Agreement, the following terms shall have the
following meanings:
"Existing Holder" shall mean Ocwen Federal Bank, FSB.
"Existing Indebtedness" shall mean the indebtedness evidenced
by the Existing Notes and secured by the Existing Mortgages.
"Existing Mortgages" shall mean those certain mortgages more
particularly described on Exhibit D secured by the Property.
"Existing Notes" shall mean those certain notes more
particularly described on Exhibit D evidencing the Existing Indebtedness payable
by the applicable Seller to the Existing Holder.
"Foreclosure" shall mean the foreclosure proceedings in
respect of the Existing Mortgages more particularly described on Exhibit D.
"Loan Sale Agreement" shall mean a purchase and sale agreement
by and between Purchaser and the Existing Holder with respect to the purchase by
Purchaser of the Existing Notes and Existing Mortgages on terms and conditions
acceptable to Purchaser in its sole and absolute discretion.
"Settlement Amount" shall mean the amount paid by Seller to
the Existing Holder in full satisfaction of the Existing Indebtedness, provided,
however, that if such amount is in excess of $9,695,400.00, then for purposes of
this Agreement the term "Settlement Amount" shall be deemed to mean
$9,695,400.00.
4. Property Inspection Contingency.
(a) For a period of twenty-one (21) days after November 17, 1997 (such
period, the "Inspection Period"; the last day of such period, December 8, 1997,
the "Inspection Period Expiration Date"), Purchaser and its employees,
consultants, agents and independent contractors shall have the right and
permission to enter upon the Property at reasonable times for the purpose of
conducting studies, inspections and tests, including, without limitation,
physical, geotechnical and environmental tests and inspections and such other
tests and inspections as Purchaser deems appropriate. The foregoing studies,
inspections and tests shall be conducted at the sole cost and expense of
Purchaser. Notwithstanding the foregoing, Seller shall be responsible for fifty
percent (50%) of Purchaser's out-of-pocket costs in the event that (a) Seller
shall fail to procure the Settlement Agreement, or (b) Purchaser shall elect to
terminate this Agreement under the provisions of Paragraph 5(e) below; provided
that in no event shall Seller's liability for such costs exceed Ten Thousand
Dollars ($10,000.00). Such reimbursement by Seller, if applicable, shall be made
within five (5) business days after Purchaser provides Seller with written
evidence of such out-of-pocket costs. The aforesaid liability of Seller, if any,
is cumulative with the liability, if any, of Xxxx Xxxxx pursuant to that certain
letter executed by Xxxx Xxxxx for the benefit of Purchaser.
(b) In conducting the studies, inspections and tests contemplated hereby,
Purchaser (i) shall not unreasonably interfere with the existing uses of the
Property by persons in possession thereof, (ii) shall afford reasonable prior
notice to Seller with respect to the timing and scope of any physically
intrusive tests or inspections, and (iii) shall restore promptly any physical
damage caused by such studies, inspections or tests. Purchaser hereby agrees to
indemnify, defend, and hold Seller free and harmless from any loss, injury,
damage, claim, lien, cost or expense, including reasonable attorney's fees and
costs, resulting from or arising out of any such study, inspection or test;
provided, however, that such indemnity shall not extend to claims arising with
respect to any conditions existing on the Property not caused by Purchaser or
its employees, agents, consultants or independent contractors. To the extent
that the scope of work in conducting such studies, inspections and tests entails
physically intrusive work, Purchaser shall provide Seller with evidence of
liability insurance naming Seller as an additional insured for each consultant
or contractor performing such physically intrusive work on the Property.
(c) If, as a result of its various investigations, Purchaser determines in
its sole and absolute discretion that the Property is not a suitable investment
for its purposes, Purchaser shall have the right to terminate this Agreement by
giving written notice of its election to terminate (the "Termination Notice") at
any time prior to the Inspection Period Expiration Date. If Purchaser fails to
deliver a Termination Notice on or before the expiration of such period,
Purchaser shall conclusively be deemed to have waived its right to terminate
this Agreement based on this Section 4. If Purchaser delivers the Termination
Notice to Seller prior to the Inspection Period Expiration Date, Escrow Agent
shall thereupon promptly return the Deposit to Purchaser.
(d) Purchaser acknowledges that upon the expiration of the
Inspection Period and provided Purchaser has not delivered a Termination Notice,
Purchaser will have been granted access to and will have inspected the Property
and, in such case, Purchaser agrees and represents that Purchaser is purchasing
and will accept the physical condition of the Property "as-is" as existed at the
time of expiration of the Inspection Period, subject to reasonable wear and
tear, without any covenants, representations or warranties, express or implied,
including without limitation, those of merchantability, habitability or fitness
for any particular purpose (other than those representations and warranties
contained in Section 8 hereof). Notwithstanding the foregoing, if, as of the
Closing Date, a material adverse change in the condition of the Property has
occurred after the expiration of the Inspection Period, then, in such event,
Purchaser shall have the right to terminate this Agreement and Escrow Agent
shall thereupon promptly return the Deposit to Purchaser.
5. Title Commitments and Surveys.
(a) Purchaser shall, at Purchaser's expense, obtain (i) title commitments
(the "Commitments") for an Owner's Title Insurance Policy issued by a title
insurance company satisfactory to Purchaser in an amount determined by
Purchaser, covering title to each Property and (ii) a survey of each Property
(the "Surveys"). Purchaser shall have until the expiration of the Inspection
Period to provide written notice to Seller of any matters shown by the
Commitments and Surveys affecting the Property which are not satisfactory to
Purchaser, which notice (a "Title and Survey Notice") must specify the reason
such matter(s) are not satisfactory and the curative steps necessary to remove
the basis for Purchaser's disapproval. The parties shall then have thirty (30)
days after the date of such Title and Survey Notice to make such arrangements or
take such steps as they shall mutually agree to satisfy Purchaser's
objection(s). If the parties fail to agree on the necessary steps, Purchaser
shall have a right to terminate this Agreement during the ten (10) day period
following the expiration of the aforesaid thirty (30) day period. If Purchaser
exercises such right, Escrow Agent shall thereupon promptly return the Deposit
to Purchaser.
(b) Except as otherwise provided herein, Seller shall have no
obligation whatsoever to expend any funds or cure any title or survey
objections, and Seller shall not be deemed to have any obligation to cure unless
Seller expressly undertakes such an obligation by a written notice to or written
agreement with Purchaser. Notwithstanding anything to the contrary herein, if a
Commitment shall disclose interests, encumbrances or liens of definite or
ascertainable amounts (other than the PBGC Lien, as defined below) which may be
removed by the payment of money ("Ascertainable Interests"), Seller shall clear
such item(s) (i) prior to the Closing Date, by using its own funds, or (ii) on
the Closing Date, by using the Purchase Price payable to Seller by Purchaser.
(c) From and after the execution of this Agreement until the Closing Date
or termination of this Agreement, Seller covenants and agrees that no
encumbrance, lien or other interest shall be created with respect to the
Property (other than in the ordinary course of business) without first obtaining
the prior written consent of Purchaser thereto, such consent not to be
unreasonably withheld by Purchaser, provided, however, that no such consent
shall be required in respect of new leases at the Property entered into by or on
behalf of Seller in accordance with the terms, provisions and conditions set
forth in Section 8(i) below. On the Closing Date, Purchaser shall conduct a
search of title for the Property from the date of the Commitments through the
Closing Date. Any new matters appearing of record during such rundown period not
previously approved by Purchaser in writing shall constitute title defects
hereunder. If any such title defects exist on the Closing Date, Purchaser may
exercise its remedies for breach by Seller as provided in Section 12 below.
(d) All notes or notices of violations of law or municipal
ordinances, orders or requirements noted in or issued by any health or other
federal, state or municipal departments having jurisdiction against or affecting
the Property, excluding, however, the PBGC Lien (collectively, the
"Violations"), shall be complied with by Seller prior to the Closing Date and
the Property shall be conveyed free thereof. Notwithstanding the foregoing,
should (i) such notice, order, or requirement necessitate the payment of Fifty
Thousand Dollars ($50,000) or more by Seller, and (ii) Seller in good faith
disputes the amount of such notice, order, or requirement, then Seller shall,
prior to the Inspection Period Expiration Date, notify Purchaser of its election
to either (a) terminate this Agreement, in which event all Deposits shall
immediately be returned to Purchaser and, except as otherwise provided in
Section 4(a), this Agreement shall be of no further force or effect; or (b)
clear such item prior to or on the Closing Date. In the event that Seller elects
to terminate this Agreement in accordance with this subsection (d), Purchaser
shall then have the right to nullify Seller's termination notice by written
notice, given to Seller within five (5) business days of Seller's election,
declaring that Purchaser will assume responsibility for all amounts over Fifty
Thousand Dollars ($50,000) to be paid in connection with such disputed notice,
order, or requirement. In such event, the Agreement shall be reinstated and
continue in full force and effect.
(e) Seller has disclosed to Purchaser the existence of a lien
on the Property in favor of the Pension Benefit Guaranty Corporation (the "PBGC
Lien"), a copy of which is attached hereto as Exhibit F. Notwithstanding
anything contained herein to the contrary, if Seller fails to obtain and record
a release, discharge, or other similar instrument fully discharging the PBGC
Lien on or before the Closing Date (the "PBGC Discharge"), Purchaser, at
Purchaser's option, may elect to either (i) consummate the transactions
contemplated hereby, or (ii) terminate this Agreement. If Purchaser elects to so
terminate, all Deposits shall be immediately returned to Purchaser, and except
as otherwise provided in Section 4(a), this Agreement shall have no further
force or effect.
6. Condemnation. If, prior to the Closing Date, all or any portion of
the Property is taken by eminent domain, Purchaser shall have the option to
terminate this Agreement, in which event the Deposit shall be promptly returned
to Purchaser. In the event that Purchaser has not elected to terminate this
Agreement within thirty (30) days after receiving notice from the taking
authority of such taking, then Purchaser shall be deemed to have elected to
proceed with the Closing without any reduction or adjustment to the Purchase
Price. In such case, Seller shall assign to Purchaser, at the Closing, all
rights that Seller has to any of the proceeds from such eminent domain
proceedings. Seller and Purchaser agree to deliver any notice of condemnation
proceedings or any actual knowledge thereof to the other promptly upon receipt
thereof.
7. Fire or Other Casualty. If, prior to the Closing Date, all
or any portion of the Property shall be destroyed or damaged by fire or other
casualty, Seller shall give to Purchaser written notice thereof. Purchaser shall
have the option to terminate this Agreement within thirty (30) days after
receiving notice from Seller of such fire or other casualty, in which event the
Escrow Agent shall promptly return the Deposit to Purchaser. In the event that
Purchaser has not elected to terminate this Agreement as aforesaid, then
Purchaser shall be deemed to have elected to proceed with the Closing with an
equitable reduction or adjustment to the Purchase Price by reason of such
casualty. Alternatively, so long as Seller has maintained replacement cost
insurance sufficient for purposes of effectuating the aforesaid equitable
adjustment, Seller shall assign to Purchaser, at the Closing, the proceeds of
any such insurance policy(ies) payable to Seller by reason of such fire or other
casualty. Seller agrees to maintain throughout the term of this Agreement
casualty insurance with respect to the buildings and the contents thereof in an
amount not less than one hundred percent (100%) of the full replacement cost of
such buildings and contents.
8. Seller's Covenants, Representations and Warranties.
Seller covenants, represents and warrants to Purchaser as follows:
(a) Briar (i) is a partnership, duly organized, validly existing and in
good standing under the laws of the State of Connecticut; (ii) has the authority
and power to enter this Agreement and to consummate the transactions
contemplated hereby; and (iii) has duly authorized the execution and delivery of
this Agreement and is duly bound to consummate the transactions contemplated
hereby.
(b) Highridge (i) is a partnership, duly organized, validly existing
and in good standing under the laws of the State of Connecticut; (ii) has the
authority and power to enter this Agreement and to consummate the transactions
contemplated hereby; and (iii) has duly authorized the execution and delivery of
this Agreement and is duly bound to consummate the transactions contemplated
hereby.
(c) Neither this Agreement nor the consummation of the transaction
contemplated hereby will constitute or result in a violation or breach by Seller
of any agreement or contract to which Seller is bound or the Property is
subject, or any judgment, order, writ, injunction or decree issued against or
imposed upon it, or will result in a violation of any applicable law, order,
rule or regulation of any government authority.
(d) Seller has not received any notification of any pending or
threatened condemnation, requisition or similar proceeding affecting the
Property or any portion thereof other than as disclosed herein.
(e) Seller has not received and, to the best of Seller's knowledge,
there are no notices, orders, decrees or judgments issued relating to any
alleged or actual violation of fire, health, safety, traffic, sanitation, water
pollution, environmental or other laws affecting, against or with respect to the
Property. Except for the Foreclosure, Seller has not received any written
notification of any action, suit, proceeding or investigation pending or
threatened which might become a cloud on the title to the Property or any
portion thereof. From and after the date hereof, Seller shall send to Purchaser
(within three (3) days of delivery to or receipt by Seller) copies of all
correspondence, notices or other communications delivered to or received by
Seller from federal, state or local governmental authorities or agencies in
connection with the Property.
(f) Except for the Foreclosure, there are no defaults or breaches by
Seller or the Property of any of the covenants, conditions, restrictions,
rights-of-way, or easements or other instruments encumbering the Property or any
portion thereof.
(g) No special taxes or assessments have been levied, assessed or
imposed on or against the Property or any part thereof that have not been fully
and finally paid, and neither Seller, nor any of its agents or employees have
received any notice, or have any knowledge, of contemplated, threatened or
pending special taxes or assessments affecting the Property or any part thereof.
Without limiting the generality of the preceding sentence, there is no pending
assessment made by the Town of Xxxxxx or Town of Norwich or any other authority
with respect to the repair, maintenance or expansion of any water or sewage
systems that may be located in any public right of way adjacent to the Property,
or for any other public improvements or betterments of any type which would or
could give rise to an assessment against the Property.
(h) Attached hereto as Exhibits B-1 and Exhibit B-2 are true, correct
and complete rent rolls for the Property including each and every lease, license
or other occupancy agreement affecting any portion of the Property as of the
date hereof. Prior to Closing, Seller will not, without Purchaser's prior
written consent (i) collect any rent for more than the then current month; (ii)
give any rent concessions or agree to do any work for, or give any consideration
other than possession to, any tenant except in the ordinary course of business;
or (iii) lease any units at the Property for a term in excess of twelve (12)
months or at less than fair market rental rates.
(i) There is no union contract affecting the Property or the employees
thereat and Seller will not enter into any such contract prior to Closing.
(j) Seller has received no notice that there are permits, licenses,
other than ordinary business licenses, or consents required by any governmental
authority in connection with the use and occupancy of the Property that have not
already been obtained.
(k) Seller has good and indefeasible title to the Property in fee
simple, and the Personal Property, and has the right to convey and transfer
same, subject to the existing tenant leases and encumbrances of record.
(l) From the date of this Agreement until Closing, Seller (i) shall
maintain and repair the Property in its normal course of operations; (ii) shall
operate the Property in its normal course of operations, including continuing to
make units ready and continuing leasing; (iii) shall pay all obligations arising
from the Property, as payment becomes due; (iv) shall make no material
alterations to the Property; and (v) shall maintain each of the apartment units
at the Property in its current conditions, reasonable wear and tear excepted.
(m) All of Seller's employees at the Property will be paid by Seller
prior to Closing to the end of their last pay period. Benefits or compensation
accrued prior to Closing due or claimed to be due either before or after Closing
to employees or former employees of Seller shall not constitute obligations of
Purchaser. All persons who are currently employed by Seller in connection with
the management, operation or maintenance of the Property shall be terminated by
Seller at or prior to Closing insofar as their employment relates to the
Property.
(n) No portion of the Property (including, without limitation, rental,
security, or damage deposits to be conveyed to the Purchaser hereunder) shall be
subject at the Closing to the burdens or obligations of any management agreement
respecting the Property, so that Purchaser shall receive the Property free and
clear of any such burdens or obligations and shall be free to enter into a
management agreement or arrangement with a manager of its own choice. Unless
approved by Purchaser in writing prior to Closing, as of the Closing, there will
not be any service, supply or maintenance agreements with respect to the
Property or any portion thereof, other than as listed on Exhibit E attached
hereto, unless the same can be canceled upon thirty (30) days notice without the
necessity of payment of any termination penalty or premium.
(o) Except as disclosed by Seller and except for the possible presence
of lead paint on the Property, Seller, to its knowledge, has not at any time,
and no other party has at any time, handled, buried, stored, retained, refined,
transported, processed, manufactured, generated, produced, spilled, allowed to
seep, leak, escape or leech, or pumped, poured, emitted, emptied, discharged,
injected, dumped, transferred or otherwise disposed of or dealt with Hazardous
Substances (as hereinafter defined) on, to or from the Property. Seller knows of
no seepage, leak, escape, leech, discharge, injection, release, emission,
pumping, pouring, emptying or dumping of Hazardous Substances into waters on or
adjacent to the Property, or onto lands from which such hazardous or toxic waste
or substances might seep, flow or drain into such waters. The term "Hazardous
Substances" shall mean and refer to any and all pollutants, contaminants, toxic
or hazardous wastes or any other substances that might pose a hazard to health
or safety, the removal of which may be required or the manufacture, use,
maintenance or handling of which is restricted, prohibited or penalized by any
Environmental Law (including, without limitation, asbestos, urea formaldehyde
foam insulation and polychlorinated biphenyls). The term "Environmental Law"
shall mean and refer to any law, ordinance, rule, regulation, order, judgment,
injunction or decree relating to pollution, Hazardous Substances or
environmental protection (including, without limitation, the Resource
Conservation and Recovery Act, the Comprehensive Environmental Response,
Compensation and Liability Act, Chapters 445 and 446k of the Connecticut General
Statutes, all amendments and supplements to any of the foregoing and all
regulations issued pursuant thereto).
The representations and warranties of Seller set forth above shall be
true, accurate and correct in all material respects upon the date of execution
of this Agreement and shall be deemed remade by Seller as of the Closing Date
with the same force and effect as if first made as of and on such date. Seller's
covenants, representations and warranties contained in this Section shall
survive the Closing for a period of one year. Purchaser agrees to provide prompt
written notification to Seller upon Purchaser's discovery of a default or breach
of such covenants, representations and warranties. Any action brought by
Purchaser to enforce Purchaser's rights with respect to such covenants,
representations and warranties must by commenced promptly after discovery
thereof by Purchaser and in any event no such action shall be commenced after
the expiration of the aforesaid one year period.
9. Purchaser's Representations and Warranties. Purchaser represents and
warrants to Seller that Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Connecticut, has
duly authorized the execution and performance of this Agreement, and such
execution and performance will not violate any terms of its organizational
documents.
10. Brokerage Commissions. Each party represents and warrants to the
other that it has not dealt with any entity or person who would be entitled to a
brokerage commission, finder's fee or other similar compensation in connection
with the transactions described herein payable from or in respect of the
Purchase Price. Each party agrees to indemnify, defend, protect and hold forever
harmless the other from and against any and all loss, liability, cost, damage
and reasonable expense, including, without limitation, reasonable attorney's
fees, which the other may incur, suffer or sustain by reason of any other right,
claim, demand or damage made or asserted by any person or persons for the
payment of a brokerage commission, finder's fee or similar compensation on
account of a breach of this representation and warranty. The terms of this
section shall survive Closing .
11. Seller's Closing Deliveries. On the Closing Date, each Seller
shall deliver to Purchaser the following documents and instruments with respect
to its Property (collectively, "Seller's Closing Deliveries"), duly executed by
the applicable Seller, acknowledged where appropriate and otherwise in form and
content reasonably satisfactory to Purchaser's counsel. Seller, not later than
fifteen (15) days prior to the Closing Date, shall deliver to Purchaser's
counsel, for approval thereby, draft photocopies of Seller's Closing Deliveries
(with the exception of items (a), (b), and (c) below, which shall be prepared by
Purchaser):
(a) a general warranty deed for each Property (the "Deed"),
which shall be in proper statutory form for recording, subject only to the
matters permitted hereby, so as to convey to Purchaser fee simple title to the
Property as provided herein;
(b) a xxxx of sale for each Property conveying the
Personal Property.
(c) an Assignment and Assumption of Leases for each Property,
assigning the Leases in effect as of Closing and any new leases entered into in
accordance with the terms of this Agreement, together with (i) copies of such
Leases, and (ii) a Notice to Tenants in form and substance approved by
Purchaser.
(d) a listing of the security deposit obligations (including a
breakdown of statutory interest accrued thereon) of Landlord pursuant to the
Leases, certified as true, correct and complete by Seller.
(e) a Certificate of Seller with respect to (i) prepaid rents
held by Seller with respect to the Property, and (ii) those tenants in arrears
with respect to the payment of rent and other amounts payable under the Leases,
certified as true, correct and complete by Seller.
(f) copies of all contracts relating to the Property, if any,
which Purchaser has agreed to assume, together with an assignment of such
contracts to Purchaser.
(g) an assignment of all transferable warranties and
guarantees then in effect, if any, with respect to the improvements located on
the Property or any repairs or renovations to such improvements and Personal
Property being conveyed hereunder.
(h) All books and records at the Property held by or for the
account of Seller, including without limitation, plans and specifications and
lease applications, as available.
(i) an affidavit of title, certified by Seller, and such documents and
instruments in respect of Seller's authority to sell the Property (including,
without limitation, resolutions, incumbency certificate(s) and a certificate of
good standing from each state of Seller's incorporation for any entity signing
any of Seller's Closing Deliveries), in the form customarily required by title
insurance companies in the State of Connecticut.
(j) a nonforeign affidavit from each Seller sufficient for the purposes of
establishing and documenting the nonforeign affidavit exemption described in
Section 1445 of the Internal Revenue Code (the "FIRPTA Affidavit").
(k) completed conveyance tax returns for each Property in the form required
by the applicable governmental authority.
(l) an indemnification agreement pursuant to which Seller shall represent
and warrant to Purchaser that (i) all costs and expenses relating to the
ownership and operation of its Property arising prior to the Closing Date have
been paid in full, and (ii) that all service contracts for the applicable
Property have been terminated on or before the Closing Date, and by which such
Seller shall indemnify and hold Purchaser harmless from and against all loss,
cost and expenses arising by reason of a breach of such representations and
warranties.
(m) a rent roll for each Property, in the form of the rent roll attached
hereto, dated as of the first day of the calendar month in which the Closing
occurs, together with a certification of Seller with respect to any changes to
such rent roll from the date thereof.
(n) if requested by Purchaser, a general release for the benefit of the
Existing Holder releasing Existing Holder from any and all claims that Seller
may have against Existing Holder with respect to the Existing Mortgages.
(o) a permanent, unconditional Certificate of Occupancy for the Property
issued by the appropriate local authority.
(p) such additional instruments, agreements and other documents as may be
necessary or convenient in order to effectuate the provisions of this Agreement.
12. Default.
(a) Purchaser acknowledges that any failure of Purchaser to close hereunder
will be highly injurious to Seller and therefore if Purchaser shall fail to
close for any reason other than the default of Seller hereunder or as otherwise
permitted in accordance with the terms of this Agreement, then, in such case,
Seller may, at Seller's election and in lieu of all other remedies, (i) enforce
specific performance by Purchaser of the terms of this Agreement , or,
alternatively, (ii) terminate this Agreement, retain the Deposit and, to the
extent that Purchaser shall incur actual damages in an amount greater than the
Deposit retained by Seller as aforesaid, Seller shall be entitled to recover
such excess amount from Purchaser, provided, however, that the maximum
obligation of Purchaser in respect of any damages of Seller hereunder, including
the Deposit, shall be $1,305,150.00.
(b) Each Seller acknowledges that the Property is of a
special, unique and extraordinary character, and that any violation of this
Agreement by such Seller would be highly injurious to Purchaser, and therefore,
if any such Seller shall default in the performance or observance of any of its
covenants, agreements, or obligations for any reason other than a default by
Purchaser, or if any such Seller shall violate any of its representations,
warranties or covenants contained in this Agreement, Purchaser shall, in
addition to the rights hereinafter provided, be entitled to the immediate return
of the Deposit. Upon any such Seller default, Purchaser, at Purchaser's election
made in its sole and absolute discretion may exercise any and all rights and
remedies available to Purchaser at law or in equity, including, without
limitation, the right to enforce specific performance by Seller of the terms of
this Agreement. The liability of Sellers with respect to the any liability
hereunder shall be joint and several. If this Agreement is terminated by
Purchaser following Seller's default, Escrow Agent shall promptly return the
Deposit to Purchaser. Purchaser hereby acknowledges that the failure of Seller
to obtain the Settlement Agreement or a release of the PBGC Lien does not
constitute a default by Seller under this Agreement.
(c) For purposes hereof, a breach by either party hereunder
shall constitute a "default" only after written notice by the non-defaulting
party to the other specifically stating the alleged breach and the failure of
the defaulting party to thereafter cure such breach within five (5) days after
the receipt of such written notice.
13. Prorations, Closing Costs and Adjustments.
(a) The following items shall be apportioned between Seller and Purchaser
as of midnight of the day preceding the Closing Date:
(i) Real estate taxes, assessments and sewer use charges.
(ii)rent, parking charges, laundry machine and vending machine
revenues and other amounts paid by tenants if, as and when
received.
(iii)fuel and other utilities (including, without limitation,
electricity, water and gas).
(iv)personal property taxes, if any.
(v) such other items as are customarily adjusted in connection
with commercial real estate transactions of this type.
(b) Purchaser shall receive a credit at Closing against the Purchase
Price for the aggregate security deposit liability under the Leases, including,
without limitation, any and all interest accrued thereon through the Closing
Date.
(c) If on the Closing Date any tenant is in arrears in the payment of
rent or has not paid the rent payable by it for the month in which the Closing
occurs (whether or not it is in arrears for such month on the Closing Date), any
rents received by Purchaser or Seller from such tenant after the Closing Date
shall be paid to Purchaser. Purchaser shall use commercially reasonable efforts
(not including eviction) to collect any rents which relate solely to a rental
period prior to the Closing Date. If such amounts are recovered by Purchaser,
Seller shall be paid the amount in respect of past due amounts recovered net of
reasonable attorney's fees and costs of collection incurred by Purchaser. With
respect to any rents recovered by Purchaser from any tenant after the Closing
Date, Purchaser may apply such rents first to any rents owed for the period
after the Closing Date and any amount received in excess of such rentals shall
be payable to Seller for application to any arrearage arising prior to the
Closing Date as hereinafter defined. Notwithstanding the foregoing, if as of the
expiration of the sixth full calendar month following the Closing Date, any
tenant that was, as of the Closing Date, in arrears less than 3 months in the
payment of rent under its lease has, from and after the Closing Date, made
monthly payments of rent in accordance with the lease for such 6 month period
and, in addition, has not been served with a notice to quit by Purchaser, then,
with respect to such tenants only, Purchaser shall, within ten days after the
expiration of such six month period, remit to Seller an amount equal to the
aggregate arrearages of such tenant (less any amounts previously received by
Seller in respect of such arrearages) Seller shall not pursue collection of any
rentals owed by tenants as of the Closing Date. The provisions of this Paragraph
shall survive the Closing.
(d) Purchaser shall pay the conveyance taxes applicable to the transfer
of each Property. Purchaser shall pay all recording fees. The fees and expenses
of the Escrow Agent in connection with the administration of this Agreement, if
any, shall be borne equally by Seller and Purchaser.
(e) All prorations, adjustments and credits made and
determined as provided herein shall be final as of the Closing Date; provided,
however, that if subsequent to the Closing Date an error or omission in the
determination or computation of any of such prorations, adjustments or credits
shall be discovered, immediately upon discovery thereof the appropriate
adjustments required to correct such error or omission shall be made. Except as
expressly provided herein, the purpose and intent as to the provisions of
prorations and apportionments set forth herein is that Seller shall bear all
expenses of ownership and operation of the Property accruing through midnight at
the end of the day preceding the Closing Date and Purchaser shall bear all such
expenses accruing thereafter. Any items not specifically listed herein but shall
be adjusted as aforesaid at Closing. This provision shall survive the Closing.
14. Notices. Any notice regarding this Agreement or any transaction or
other matter arising in connection herewith shall be in writing and be served
upon the party to which it is directed at the following addresses:
If to Seller: Sovereign Group 1984-II
000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
with a copy to: Xxxxxxx Xxxxxxx,
Esq. Richmond Realty
000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
If to Purchaser: Grove Corporation
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxxx
with a copy to Xxxxx, XxXxxxxx & Xxxxx
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxxxxxx, XX 00000
Attention: Xxxxxx X. XxXxxxxx, Esq.
Escrow Agent: Commonwealth Land Title Insurance Company
000 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxx Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx, Esq.
Any notice may be served personally or be sent by certified mail,
return receipt requested or by Airborne, UPS, Federal Express or similar
overnight express service. If sent by certified mail, a notice shall be deemed
to have been given the next day following the date deposited with the United
States Postal Service, postage prepaid. If sent by overnight express service, a
notice shall be deemed to have been given one (1) business day after pickup by
such overnight service. The address at which notice is to be given to either
party may be changed by giving notice to the other party as provided above.
15. Miscellaneous.
(a)Entire Agreement. The Recitals set forth at the beginning of this
Agreement and the Exhibits attached hereto are incorporated in and made a part
of this Agreement by this reference. This Agreement is the entire agreement
between the parties with respect to the subject matter hereof, and no
alteration, modification or interpretation hereof shall be binding unless in
writing and signed by Seller and Purchaser.
(b)Severability. If any provision of this Agreement or application to any
party or circumstances shall be determined by any court of competent
jurisdiction to be invalid and unenforceable to any extent, the remainder of
this Agreement or the application of such provision to such person or
circumstances, other than those as to which it is so determined invalid or
unenforceable, shall not be affected thereby, and each provision hereof shall be
valid and shall be enforced to the fullest extent permitted by law.
(c) Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Connecticut.
(d) Assignability. Purchaser shall have the right, on or before the Closing
Date, to transfer or assign its rights and obligations under this Agreement to
an affiliated entity without the consent of Seller. Purchaser shall provide to
Seller a copy of the executed instrument of assignment effectuating any such
assignment, together with the name and address of the assignee. Any permitted
assignee shall be deemed to have assumed, agreed to and be bound by all of
Purchaser's obligations and liabilities under this Agreement. Upon any such
assignment, the Purchaser named in and which signed this Agreement shall
thereafter be released and relieved from any obligation or liability under this
Agreement.
(e) Successors Bound. This Agreement shall be binding upon and inure to the
benefit of Purchaser and Seller and their respective heirs, executors,
administrators, personal representatives, successors and assigns.
(f) Captions. The captions in this Agreement are
inserted only as a matter of convenience and for reference and in no way define,
limit or describe the scope of this Agreement or the scope or content of any of
its provisions.
(g) Attorneys' Fees. In the event of any litigation arising out of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees
and costs.
(h) No Partnership or Joint Venture. Nothing contained in this Agreement
shall be construed to create a partnership or joint venture relationship between
Seller and Purchaser.
(i)Time of Essence. Time is of the essence for all purposes of this
Agreement.
(j) Recordation. Purchaser and Seller agree not to record this Agreement or
any memorandum hereof. So long as no default by Purchaser exists hereunder, upon
expiration of the Inspection Period Seller and Purchaser shall execute a
memorandum with respect to this Agreement for recordation in the land records of
the Town of Xxxxxx and the City of Norwich.
(k) Tax Protest. If, as of the Closing Date, there shall be any tax
certiorari proceedings or tax protest proceedings pending with respect to any
portion or all of the Property, all benefits obtained thereby including, without
limitation, any tax refunds, after deducting the cost of such proceedings,
including attorneys fees, shall: (i) if attributable to any tax year ended prior
to the Closing Date, be paid to Seller; (ii) if attributable to any tax year
commencing after the Closing Date, be retained by Purchaser; and (iii) if
attributable to the tax year in which the Closing Date occurs, be apportioned
between Seller and Purchaser as of the Closing Date. This provision shall
survive the Closing.
(l)Survival. The provisions of this Agreement expressly stating that they
survive the Closing shall survive the Closing and shall not merge with the deed
to be delivered at the Closing.
(m)Knowledge of Seller. Except as otherwise provided, whenever a
representation or warranty is made in this Agreement on the basis of the
knowledge of Seller, such representation and warranty is made to the actual
knowledge of Seller after inquiry and investigation by Seller of its officers
and representative having responsibility for the operation and management of the
Property.
(n) Indemnification.
(i) Seller shall indemnify and hold harmless Purchaser from and against any
and all liability, loss or damage, and any actions, suits, proceedings, demands,
assessments, judgments, costs and expenses (including reasonable attorneys' fees
and expenses) incident thereto, resulting from (i) causes of action filed within
two (2) years of the Closing for actions, omissions or obligations of Seller
relating to the Property prior to the Closing Date, including, without
limitation, off-site disposal of Hazardous Materials, or (ii) the failure by
Seller to pay, perform or discharge when due any liabilities, agreements,
commitments or obligations not specifically assumed by Purchaser pursuant to
this Agreement. The provisions of this subsection shall survive the Closing. The
liability of Sellers with respect to the foregoing indemnity shall be joint and
several.
(ii) Purchaser shall indemnify and hold harmless Seller from and against
any and all liability, loss or damage, and any actions, suits, proceedings,
demands, assessments, judgments, costs and expenses (including reasonable
attorneys' fees and expenses) incident thereto, resulting from: (i) causes of
action or claims of any kind or character for actions, omissions or obligations
assumed by Purchaser hereunder relating to Property on or after the Closing
Date; or (ii) Purchaser's use and operation of the Property after the Closing
Date. The provisions of this subsection shall survive the Closing.
(o) Construction. This Agreement shall be construed without
regard to any presumption or other rule requiring construction against the party
causing this Agreement or any part hereof to be drafted.
(p) Confidentiality. Seller and Purchaser agree that no party
shall disclose or publicize the terms of this Agreement to any third party
without the prior written consent of the other parties; provided, however, that
the terms hereof may be disclosed without the requirement of any such consent to
those persons assisting Purchaser in connection with this transaction, provided,
further, that nothing herein shall prevent the disclosure, publication or use of
this Agreement or any terms hereof that is required to be disclosed in
connection with any administrative, legislative or judicial proceeding or
pursuant to the order of any administrative agency or tribunal or any court of
competent jurisdiction.
16. Duties and Responsibilities of Escrow Agent
(a) Seller and Purchaser acknowledge and agree that Escrow
Agent (i) shall not be responsible for any of the agreements referred to herein
but shall be obligated only for the performance of such duties as are
specifically set forth herein; (ii) shall not be obligated to take any legal or
other action hereunder which might in its judgment involve any expense or
liability unless it shall have been furnished with acceptable indemnification;
and (iii) may rely on and shall be protected in acting or refraining from acting
upon any written notice, instruction, instrument, statement, request or document
furnished to it hereunder and believed by it to be genuine and to have been
signed or presented by the proper person, and shall have no responsibility for
determining the accuracy thereof.
(b) Neither Escrow Agent nor any of its directors, officers,
partners or employees shall be liable to anyone for any action taken or omitted
to be taken by it except in the case of gross negligence or willful misconduct.
Seller and Purchaser jointly and severally, covenant and agree to indemnify
Escrow Agent and hold it harmless without limitation from and against any loss,
liability or expense of any nature incurred by Escrow Agent arising out of or in
connection with the administration of its duties hereunder, including but not
limited to legal fees and other costs and expenses of defending or preparing to
defend against any claim or liability, unless such loss, liability or expense
shall be caused by Escrow Agent's willful misconduct or gross negligence.
(c) Seller and Purchaser, jointly and severally, agree to
assume any and all obligations imposed now or hereafter by any applicable tax
law with respect to the payment of Deposit under this Agreement, and to
indemnify and hold Escrow Agent harmless from and against any taxes, interest,
penalties and other expenses, that may be assessed against Escrow Agent on any
such payment or other activities under this Agreement. Seller and Purchaser,
jointly and severally, agree to indemnify and hold Escrow Agent harmless from
any liability on account of taxes, assessments or other governmental charges,
including without limitation the withholding or deduction or the failure to
withhold or deduct same, and any liability for failure to obtain proper
certifications or to properly report to governmental authorities, to which
Escrow Agent may be or become subject in connection with or which arises out of
this Agreement, including costs and expenses (including reasonable legal fees),
interest and penalties.
(d) Seller agrees to pay or reimburse Escrow Agent for any fees and costs
incurred in connection with the services hereunder.
(e) Seller and Purchaser agree that if any dispute arises with
respect to the delivery, ownership, right of possession, or disposition of the
Deposit, Escrow Agent upon receipt of written notice of such dispute or claim,
is authorized and directed to retain in its possession without liability to
anyone, all or any of said Fund until such dispute shall have been settled
either by the mutual agreement of the parties involved or by a final order,
decree or judgment of a Court in the United States of America, the time for
perfection of an appeal of such order, decree or judgment having expired. Escrow
Agent may, but shall be under no duty whatsoever to, institute or defend any
legal proceedings which relate to the Deposit.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK,
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
SELLERS:
BRIAR XXXXX ASSOCIATES
By: Its General Partner Xxxxxx Street Corp
------------------------------------------
By: /s/Xxxx X. Xxxxx
--------------------
Print Name: Xxxx X. Xxxxx
Its: President
HIGH RIDGE ASSOCIATES
By: Its General Partner Xxxxxx Street Corp
------------------------------------------
By: /s/Xxxx X. Xxxxx
--------------------
Print Name: Xxxx X. Xxxxx
Its: President
PURCHASER:
GROVE CORPORATION
By:/s/Xxxxx Xxxxxxx
-------------------
Print Name: Xxxxx Xxxxxxx
Its: President
ESCROW AGENT:
COMMONWEALTH LAND TITLE INSURANCE COMPANY
By:/s/Xxxxxx Xxxxxx
-------------------
Xxxxxx Xxxxxx
Its Vice President
EXHIBITS A-1 and A-2
DESCRIPTIONS OF LAND
EXHIBITS B-1 and B-2
RENT ROLLS
EXHIBIT C
ALLOCATION OF PURCHASE PRICE
Briar Xxxxx Apartments, Xxxxxx, CT - $6,172,500.00
Hilltop Apartments, Norwich, CT - $5,014,500.00
EXHIBIT D
DESCRIPTION OF EXISTING NOTES, MORTGAGES AND FORECLOSURE ACTION
EXHIBIT E
SERVICE, SUPPLY AND MAINTENANCE AGREEMENTS
EXHIBIT F
PBGC LIEN
