PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made
as of the 26th day of March, 1998 by and between VILLAGE PARK
HOLDING COMPANY, LLC., a Rhode Island limited liability company,
and VILLAGE PARK HOLDING COMPANY II, LLC, a Rhode Island limited
liability company (collectively the "Seller") having a mailing
address of c/o The Koffler Group, One Providence Xxxxxxxxxx
Xxxxx, 0xx xxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000 and GROVE
CORPORATION, a Delaware corporation, with a mailing address of
000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Xx.
Xxxxx Xxxxxxx ("Purchaser").
RECITALS
1.Seller is the fee simple owner of certain real and
personal property currently utilized as residential
apartment complexes and located as follows:
X.Xxxxxxx Xxxx Xxxxxxxxxx, 00 Xxxxxxx Xxxxx Xxxxx, Xxxx
Providence, Rhode Island -- 416 units; and
X.Xxxxxxxxxx Xxxxx Apartments, 80 Village Drive, East
Providence, Rhode Island -- 62 units.
1.Subject to the terms, provisions, and conditions of this
Agreement, Purchaser is willing to purchase and Seller is
willing to sell the Property (as hereinafter defined).
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Seller
and Purchaser hereby agree as follows:
-1-
1.Agreement to Purchase and Sell
1.Seller hereby agrees to sell to Purchaser, and
Purchaser hereby agrees to purchase from Seller,
subject to the terms, provisions, and conditions of
this Agreement, the land more particularly described on
Exhibit A attached hereto, together with (i) all
buildings and other improvements situated thereon;
(ii) all easements, rights of way, reservations,
privileges, appurtenances, and other estates and rights
of Seller pertaining to such land and buildings;
(iii) all right, title, and interest of Seller in and
to the appliances, fixtures, machinery, equipment,
materials, supplies, and other articles of personal
property attached or appurtenant to such land or
buildings or used in connection therewith and owned by
Seller, including, without limitation, the property
listed on Exhibit B attached hereto (collectively the
"Personal Property"); (iv) all right, title, and
interest of Seller, if any, in and to the trade name of
the buildings; (v) all right, title, and interest of
Seller, if any, in and to all alleys adjoining the
land, and the land lying in the bed of any street,
road, or avenue, opened or proposed, in front of or
adjoining the land to the center line thereof, and all
right, title, and interest of Seller, if any, in and to
any award made or to be made in lieu thereof and in and
to any unpaid award for any taking by condemnation or
any damages to the land or the buildings by reason of a
change of grade of any street, road, or avenue;
(vi) all right, title, and interest of Seller under
licenses, permits, leases, or other occupancy
agreements and tenancies affecting said land and
buildings; and (vii) all right, title, and interest of
Seller in and to all warranties and guaranties
affecting the buildings and the Personal Property (the
land, together with all of the foregoing items listed
in clauses (i) to (vii) above being hereinafter
collectively referred to as the "Property").
-2-
1.Purchase Price; Deposits
1.Purchaser agrees to pay a purchase price of Nineteen
Million Dollars ($19,000,000) (the "Purchase Price")
for the Property. The Purchase Price, plus or minus
prorations, credits, and adjustments, if any, as
hereinafter provided, shall be payable as follows:
1.Ten Thousand Dollars ($10,000) shall
have been deposited by Purchaser in escrow
with Xxxxx Xxxxxxx & Xxxxxxx P.C. (the
"Escrow Agent") with the execution of the
Offer to Purchase accepted by Seller on
March 19, 1998.
2.An additional One Hundred Forty
Thousand Dollars ($140,000) will be deposited
by Purchaser in escrow with said Escrow Agent
upon the full execution and delivery of this
Agreement.
3.An additional One Hundred Fifty
Thousand Dollars ($150,000) will be deposited
by Purchaser in escrow with said Escrow Agent
within five (5) business days after the
Inspection Period Expiration Date (defined
below), provided that Purchaser has not
exercised its right to terminate this
Agreement on or before such date as provided
in Section 4 below. All deposits made under
said Offer to Purchase or under this
Agreement shall collectively be referred to
as the "Deposit".
The Deposit shall be held by the Escrow Agent in an
interest-bearing escrow account. Interest earned on the
Deposit shall be deemed part of the Deposit; provided,however,
-3-
that Purchaser shall not be entitled to a credit at
the Closing for such interest earned and paid to Seller.
All references to the Deposit contained in this Agreement
shall mean and refer to the Deposit, together with any
interest accrued thereon. Except as otherwise provided
herein, the Deposit shall be credited to Seller at the
Closing.
1.The balance of the Purchase Price, Eighteen Million
Seven Hundred Thousand Dollars ($18,700,000), plus or
minus prorations, credits, and adjustments as
aforesaid, shall be payable at the Closing (as
hereinafter defined) to a bank account designated by
Seller through a wire transfer of immediately available
funds.
2.Seller and Purchaser agree that the allocation of the
Purchase Price shall be $15,250,000 to Village Park
Apartments and $3,750,000 to Winchester Xxxxx
Apartments.
3.The Purchase Price shall be adjusted further pursuant
to the provisions of Section 17 below.
1.Closing Date
(a) The transaction contemplated by this Agreement shall be
closed (the "Closing") at the offices of Xxxxx Xxxxxxx &
Xxxxxxx, 2300 Hospital Trust Tower, Providence, Rhode Island
at 10:00 a.m. on May 28, 1998. Subject to subsection (b)
below, time is of the essence as to such Closing Date.
(b) Purchaser and Seller shall each have the right to
adjourn the closing for a period or periods not to exceed,
in the aggregate, fifteen (15) days.
-4-
0.Xxxxxxxx Inspection Contingency. For a period of forty
(40) days after the execution and delivery of the Offer to
Purchase (March 19, 1998) (hereinafter called the
"Inspection Period", and the last day thereof which is April
28, 1998, the "Inspection Period Expiration Date"),
Purchaser and its employees, consultants, agents, and
independent contractors shall have the right and permission:
0.Xx review originals or photocopies of the following
documents which Seller shall furnish or cause to be
furnished to Purchaser for review not later than five
(5) days after the full execution and delivery of this
Agreement, unless provided otherwise below:
1.All existing leases and all new leases and tenancies
permitted pursuant this Agreement, copies of which new
leases and tenancies shall be delivered to Purchaser
within five (5) days after Purchaser's request therefor.
0.Xxxxxxxxx Information:
1.Federal and state tax
returns of Seller for the last three (3)
full calendar or fiscal years, including
all schedules and appendages thereto.
2.Operating statements of the
operation of the Property for the last
three (3) full calendar or fiscal years,
showing in reasonable detail all income
and expenses of the Property for each
such period, such statements to be fully
consistent in all material respects with
any such statements as may have been
appended to the tax returns of Seller.
-5-
3.Copies of the 1996 and 1997
real estate and personal property tax
bills; bills for water and sewer
usage and other utilities consumption
for the preceding 12-month period and
such other relevant information relating
to the operation of the Property which
Purchaser deems reasonably necessary to
its review of income and expenses of the
Property.
Seller shall furnish or cause to be furnished to Purchaser
for review not later than ten (10) business days after the full
execution and delivery of this Agreement copies of the documents
and materials listed in clauses (i) and (ii) above or, in the
alternative, Seller shall make such documents available to
Purchaser for inspection during the aforesaid ten day period at
the offices of Seller. In the event that Seller fails to furnish
or make available as aforesaid the documents and materials listed
in clauses (i) and (ii) above prior to the expiration of such ten
day period, Purchaser shall furnish a notice to Seller itemizing
those documents and materials not so furnished or made available
within five (5) business days after the expiration of such ten
day period. The failure of Purchaser to deliver such notice
prior to the expiration of such five day period shall be deemed
an acknowledgment by Purchaser that Seller has satisfied its
obligation to furnish the aforesaid documents and materials as
required by this subsection (a).
Notwithstanding anything in this Agreement to the contrary,
the Inspection Period Expiration Date and closing Date shall be
extended for a period of one (1) day for each day of delay by
Seller in furnishing the foregoing documents to Purchaser,
provided, however, that if Seller shall fail to deliver all of
the foregoing documents to Purchaser within thirty (30) days
after the full execution and delivery of this Agreement, then
Purchaser shall have the right to terminate this Agreement and
Escrow Agent shall thereupon promptly return the Deposit to
Purchaser.
-6-
0.Xx enter upon the Property at reasonable times for
the purpose of conducting studies, inspections and
tests, including, without limitation, physical,
geotechnical and environmental tests and inspections
and such other tests and inspections as Purchaser deems
appropriate. The foregoing studies, inspections and
tests shall be conducted at the sole cost and expense
of Purchaser. In conducting the studies, inspections
and tests contemplated hereby, Purchaser (i) will not
unreasonably interfere with the existing uses of the
Property by persons in possession thereof, (ii) shall
afford reasonable prior notice, but in no event less
than 48 hours, to Seller with respect to the timing and
scope of any tests or inspections, and (iii) will
restore promptly any physical damage caused by such
studies, inspections or tests. Purchaser hereby agrees
to indemnify, defend, and hold Seller free and harmless
from any loss, injury, damage, claim, lien, cost or
expense, including reasonable attorneys' fees and
costs, resulting from or arising out of any such study,
inspection or test; provided, however, that such
indemnity shall not extend to claims arising with
respect to any conditions existing on the Property not
caused by Purchaser or its employees, agents,
consultants or independent contractors, or arising from
the actions thereof hereunder. During all of such
studies, inspections and tests, Purchaser and its
agents and employees shall observe strict
confidentiality as to the nature of the transaction for
which such tests, studies and inspections are being
conducted.
-7-
2.If, as a result of its various investigations,
Purchaser determines in its sole and absolute
discretion that the Property is not a suitable
investment for its purposes, Purchaser shall have the
right to terminate this Agreement by giving written
notice of its election to terminate (the "Termination
Notice") at any time prior to the Inspection Period
Expiration Date. If Purchaser fails to deliver a
Termination Notice on or before the expiration of such
period, Purchaser shall conclusively be deemed to have
waived its right to terminate this Agreement based on
this Section 4 and the Deposit shall thereafter be
non-refundable to Purchaser except in the event of
default by Seller. If Purchaser delivers the
Termination Notice to Seller prior to the Inspection
Period Expiration Date, Escrow Agent shall thereupon
promptly return the Deposit to Purchaser.
3.Purchaser acknowledges that upon the expiration of
the Inspection Period and provided Purchaser has not
delivered a Termination Notice, Purchaser will have
been granted access to and will have inspected the
Property and, in such case, Purchaser agrees and
represents that Purchaser is purchasing and will accept
the Property "as-is" as existed at the time of
expiration of the Inspection Period, subject to
reasonable wear and tear, without any covenants,
representations or warranties, express or implied,
including without limitation, those of merchantability,
habitability or fitness for any particular purpose
(other than those representations and warranties
contained in Section 8 hereof).
1.Title Commitments and Surveys
1.Purchaser shall, at Purchaser's expense, obtain (i) a
title commitment (the "Commitment") for an Owner's
Title Insurance Policy issued by a title insurance
company reasonably satisfactory to Purchaser in the
amount of the Purchase Price, covering title to the
-8-
Property and (ii) a survey of the Property (the
"Survey"). Purchaser shall have until the expiration
of the Inspection Period to provide written notice to
Seller of any matters shown by the Commitment and
Survey affecting the Property which are not
satisfactory to Purchaser, which notice (a "Title and
Survey Notice") must specify the reason such matter(s)
are not satisfactory and the curative steps necessary
to remove the basis for Purchaser's disapproval. The
parties shall then have thirty (30) days after the date
of such Title and Survey Notice to make such
arrangements or take such steps as they shall mutually
agree to satisfy Purchaser's objection(s). The Closing
hereunder shall be extended by the period of time (not
to exceed 30 days) that Seller and Purchaser cooperate
for purposes of agreeing to such arrangement or steps
to satisfy Purchaser's objectives. If the parties fail
to agree on the necessary steps, Purchaser shall have a
right to terminate this Agreement during the ten (10)
day period following the expiration of the aforesaid
thirty (30) day period. If Purchaser exercises such
right, Escrow Agent shall thereupon promptly return the
Deposit to Purchaser. Thereafter, neither party shall
have any further liability to the other under this
Agreement. Seller, however, shall be required, either
at or prior to the Closing, to discharge mortgages or
other liens upon the Property as hereinafter provided
or to use the Purchase Price to so discharge such
mortgages unless otherwise assigned to or assumed by
Purchaser pursuant to the terms hereof. Purchaser
agrees to accept title subject to residential tenant
leases and all matters of record (other than liens)
which do not materially interfere with the current use
of the Property and uses permitted under applicable
zoning laws.
2.Except as otherwise provided herein, Seller shall
have no obligation whatsoever to expend any funds or
cure any title or survey objections, and Seller shall
not be deemed to have any obligation to cure unless
Seller expressly undertakes such an obligation by a
written notice to or written agreement with Purchaser.
-9-
Notwithstanding anything to the contrary herein, if the
Commitment shall disclose mortgages or other liens of
definite or ascertainable amounts which may be removed
by the payment of money, Seller shall clear such
item(s) (i) prior to the Closing Date, by using its own
funds, or (ii) on the Closing Date, by using the
Purchase Price payable to Seller by Purchaser.
3.From and after the execution of this Agreement until
the Closing Date or termination of this Agreement,
Seller covenants and agrees that no encumbrance, lien
or other interest shall be created with respect to the
Property, nor shall any lease previously presented to
Purchaser for inspection be materially amended, without
first obtaining the prior written consent of Purchaser
thereto, such consent to be granted or denied by
Purchaser in its sole and absolute discretion,
provided, however, that no such consent shall be
required in respect of new leases at the Property
entered into by or on behalf of Seller in accordance
with the terms, provisions and conditions set forth in
Section 8(g) below or other financing of the Property
to be assumed by Purchaser and as set forth herein.
On the Closing Date, Purchaser shall conduct a search
of title for the Property from the date of the
Commitment through the Closing Date. Any new matters
appearing of record during such rundown period not
previously approved by Purchaser in writing, or not
otherwise permitted hereunder, shall constitute title
defects hereunder. If any such title defects exist on
the Closing Date, and is not cured by Seller within a
reasonable time thereafter, Purchaser may exercise its
remedies for breach by Seller as provided in Section 12
below.
4.If the Seller has received, or shall receive
hereafter, notices of violations of law or municipal
ordinances, orders or requirements noted in or issued
by any health or other federal, state or municipal
departments having jurisdiction against or
-10-
affecting the Property (collectively, the "Violations"), Seller
shall immediately notify Purchaser in writing of such
Violations. Purchaser shall have a period of fifteen
(15) days within which it may elect to terminate this
Agreement, and upon such termination, the Escrow Agent
shall refund the Deposit to Purchaser. Thereafter,
neither party shall have any further liability to the
other under this Agreement. If Purchaser does not
elect to terminate within said fifteen (15) day period,
then Purchaser shall be deemed to have agreed to accept
the conveyance of the Property subject to such
Violations. Notwithstanding the foregoing, in the
event such Violation shall be able to be remediated by
Seller for an amount less than $50,000, Seller shall
cause such remediation prior to the Closing.
1.Condemnation. If prior to the Closing Date, all or any
portion of the Property is taken by eminent domain,
Purchaser shall have the option to terminate this Agreement,
in which event the Deposit shall be promptly returned to
Purchaser. In the event that Purchaser has not elected to
terminate this Agreement within thirty (30) days after
receiving notice from the taking authority of such taking,
then Purchaser shall be deemed to have elected to proceed
with the Closing without any reduction or adjustment to the
Purchase Price. In such case, Seller shall assign to
Purchaser, at the Closing, all rights that Seller has to
portions of the proceeds which do not exceed the Purchase
Price from such eminent domain proceedings. Seller and
Purchaser agree to deliver any notice of condemnation
proceedings or any actual knowledge thereof to the other
promptly upon receipt thereof.
0.Xxxx or Other Casualty. If, prior to the Closing Date, all or any portion
of the Property shall be destroyed or damaged by fire or other
casualty, Seller shall give to Purchaser written notice thereof. If
the loss does not exceed One Hundred Fifty Thousand Dollars
($150,000), Purchaser shall not have the option to terminate this
Agreement; provided
-11-
that Seller shall be required to assign to Purchaser at the Closing the
proceeds of any insurance policy(ies) payable to Seller by reason of
such fire or other casualty.
Provided, however, if such loss shall exceed One Hundred Fifty
Thousand Dollars ($150,000), Purchaser shall have the option
to (i) terminate this Agreement within thirty (30) days
after receiving notice from Seller of such fire or other
casualty, in which event, the Escrow Agent shall promptly
return the Deposit to Purchaser; (ii) proceed with the
Closing without any reduction or adjustment to the Purchase
Price, and in such case, Seller shall assign to Purchaser at
the Closing the proceeds of any insurance policy(ies)
payable to Seller by reason of such fire or other casualty;
(iii) elect to have Seller repair and replace the Property
to its condition as of the date hereof; provided, however,
that Seller shall not be obligated to proceed with such
repair in the event it shall take Seller longer than 6
months to cause such repair, or in the event the cost of
such repair shall exceed insurance proceeds actually
received by Seller plus any applicable deductible. Seller
shall maintain throughout the term of this Agreement
casualty insurance with respect to the buildings and the
contents thereof in an amount not less than one hundred
percent (100%) of the full replacement cost of such
buildings and contents, excluding foundations.
3.Seller's Covenants and Representations. Seller covenants
and represents to Purchaser as follows:
1.Seller (i) is comprised of limited liability
companies, duly organized, validly existing and in good
standing under the laws of the State of Rhode Island;
(ii) has the authority and power to enter this
Agreement and to consummate the transactions
contemplated hereby; and (iii) has duly authorized the
-12-
execution and delivery of this Agreement and is duly
bound to consummate the transactions contemplated
hereby.
2.Neither this Agreement, nor the consummation of the
transaction contemplated hereby, will constitute or
result in a violation or breach by Seller of any
agreement or contact to which Seller is bound or the
Property is subject, or any judgment, order, writ,
injunction, or decree issued against or imposed upon
it, or will result in a violation of any applicable
law, order, rule, or regulation of any government
authority.
3.Seller has not received any notification of any
pending or threatened condemnation, requisition, or
similar proceeding affecting the Property or any
portion thereof.
4.Except as otherwise disclosed in writing to
Purchaser, Seller has not received and, to the best of
Seller's knowledge, there are no notices, orders,
decrees, or judgments issued, pending issuance, or
threatened relating to any alleged or actual violation
of fire, health, safety, traffic, sanitation, water
pollution, environmental or other laws affecting,
against or with respect to the Property. Seller has
not received any written notification of any action,
suit, proceeding, or investigation pending or
threatened which might become a cloud on the title to
the Property or any portion thereof. From and after
the date hereof, Seller shall send to Purchaser (within
three (3) days of delivery to or receipt by Seller)
copies of all correspondence, notices, or other
communications delivered to or received by Seller from
federal, state, or local governmental authorities or
agencies in connection with the Property.
-13-
0.Xx the best of Seller's knowledge, there are no
defaults or breaches by Seller or the Property of any
of the covenants, conditions, restrictions,
rights-of-way, or easements or other instruments
encumbering the Property or any portion thereof.
0.Xx special taxes or assessments have been levied,
assessed or imposed on or against the Property or any
part thereof that have not been fully and finally paid,
and neither Seller, nor any of its agents or employees
have received any notice, or have any knowledge, of
contemplated, threatened, or pending special taxes or
assessments affecting the Property or any part
thereof. Without limiting the generality of the
preceding sentence, and to the best of Seller's
knowledge, there is no pending assessment made by
municipalities wherein the Property is located or any
other authority with respect to the repair, maintenance
or expansion of any water or sewage systems that may be
located in any public right of way adjacent to the
Property, or for any other public improvements or
betterments of any type which would or could give rise
to an assessment against the Property.
7.Attached hereto as Exhibit C is a true, correct and
complete rent roll for the Property including each and
every lease, license or other occupancy agreement
affecting any portion of the Property as of the date
hereof. Prior to Closing, Seller will not, without
Purchaser's prior written consent (i) collect any rent
for more than the then current month; (ii) give any
rent concessions or agree to do any work for, or give
any consideration other than possession to, any tenant
except in the ordinary course of business; (iii) lease
any units at the Property for a term in excess of
twelve (12) months; or (iv) lease any units to any
person(s) other than at market rates.
-14-
8.There is no union contract affecting the Property or
the employees thereat and Seller will not enter into
any such contract prior to Closing.
0.Xx the best of Seller's knowledge, there are no
permits, licenses, other than ordinary business
licenses, or consents required by any governmental
authority in connection with the use and occupancy of
the Property that have not already been obtained.
10.From the date of this Agreement until Closing,
Seller (i) shall maintain and repair the Property in
its normal course of operations; (ii) shall operate the
Property in its normal course of operations, including
continuing to make units ready and continuing leasing;
(iii) will pay all obligations arising from the
Property, as payment becomes due; (iv) shall make no
material alterations to the Property; and (v) shall
maintain each of the apartment units at the Property in
its current conditions, reasonable wear and tear
excepted.
11.Seller and Purchaser shall cooperate in good faith
to determine whether any employees of Seller are
appropriate to be employed by Purchaser after the
Closing with respect to the Property. Purchaser agrees
not to solicit any such employees without the
permission of Seller. Notwithstanding any provisions
of this Agreement to the contrary, if any, Seller shall
not be obligated to cause the termination of any
employees employed by Pillar Property Management, LLC,
an affiliate of Seller
00.Xx 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
-15-
any such burdens or obligations and shall be free to
enter into a management agreement or arrangement with a
manager of its own choice. As of the Closing, and
except as set forth on Exhibit D, there will not be any
service, supply or maintenance agreements with respect
to the Property or any portion thereof unless the same
can be canceled upon thirty (30) days notice without
the necessity of payment of any termination penalty or
premium. Purchaser agrees to accept and assume the
contracts set forth on Exhibit D.
13.Seller has the right to convey and transfer the
Property.
00.Xx the best of Seller's knowledge, there are no
causes of action or claims of any kind or character
either pending or threatened against the Property or
against the Seller relating to the Property.
00.Xx of the Closing Date, no work will have been
performed on or at the Property which might result in
the imposition of a mechanic's or materialmen's lien
against the Property.
The representations and covenants of Seller set forth above
shall be true, accurate, and correct on all material
respects upon the date of execution of this Agreement and
shall be deemed remade by Seller as of the Closing Date with
the same force and effect as if first made as of and on such
date.
1.Purchaser's Representations and Warranties. Purchaser
represents and warrants to Seller that Purchaser is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, has duly
authorized the execution and performance of this Agreement,
and such execution and performance will not violate any
terms of its organizational documents.
-16-
2.Brokerage Commissions. Each party represents and warrants
to the other that it has not dealt with any entity or person
who would be entitled to a brokerage commission, finder's
fee, or other similar compensation in connection with the
transactions described herein payable from or in respect of
the Purchase Price. Each party agrees to indemnify, defend,
protect and hold forever harmless the other from and against
any and all loss, liability, cost, damage and reasonable
expense, including, without limitation, reasonable
attorneys' fees, which the other may incur, suffer or
sustain by reason of any other right, claim, demand or
damage made or asserted by any person or persons for the
payment of a brokerage commission, finder's fee or similar
compensation on account of a breach of this representation
and warranty. The terms of this Section shall survive
Closing.
3.Seller's Closing Deliveries. On the Closing Date, Seller
shall deliver to Purchaser the following documents and
instruments with respect to the Property (collectively
"Seller's Closing Deliveries"), duly executed by Seller,
acknowledged where appropriate and otherwise in form and
content reasonably satisfactory to Purchaser's and Seller's
counsel. Seller, not later than fifteen (15) days prior to
the Closing Date, shall deliver to Purchaser's counsel, for
approval thereby, draft photocopies of Seller's Closing
Deliveries:
1.A general quitclaim deed for the Property (the
"Deed"), which shall be in proper statutory form for
recording, subject only to the matters permitted herein
so as to convey to Purchaser fee simple title to the
Property. If Purchaser has caused property-line
surveys of the Property to be prepared by a Rhode
Island registered land surveyor or engineer, Seller
will convey by use of a metes and bounds description
prepared by said surveyor or engineer.
2.A xxxx of sale conveying the Personal Property.
-17-
3.An Assignment and Assumption of Leases, assigning the
leases in effect as of Closing and any new leases
entered into in accordance with the terms of this
Agreement, together with (i) copies of such Leases, and
(ii) a Notice to Tenants in form and substance approved
by Purchaser and in accordance with Rhode Island law.
4.Original counterparts of all the Leases (including a
memorandum, certified to Purchaser, setting forth the
terms of oral tenancies and oral rights for use or
occupancy of the Property or any portion thereof).
5.All keys in the possession of Seller to all locks of
the Property.
6.An Assignment of Security Deposits, assigning to
Purchaser all of Seller's right, title and interest in
and to the tenant security deposits, together with a
listing of the security deposit obligations of Seller
pursuant to the Leases, certified as true, correct and
complete by an officer of Seller.
7.A Certificate of Seller with respect to (i) prepaid
rents held by Seller with respect to the Property, and
(ii) those tenants in arrears with respect to the
payment of rent and other amounts payable under the
Leases, certified as true, correct, and complete by an
officer of Seller.
8.Copies of all contracts relating to the Property, if
any, which Purchaser has agreed to assume, together
with an assignment of such contracts to Purchaser.
9.Such documents and instruments in respect of Seller's
authority to sell the Property (including, without
limitation, resolutions, incumbency certificate(s), and
-18-
a certificate of good standing from the state of
Seller's incorporation (including the taxing
authorities of such state), and any entity signing any
of Seller's Closing Deliveries), in the form
customarily required by title insurance companies in
the State of Rhode Island.
10.An assignment of all transferable warranties and
guarantees then in effect, if any, with respect to the
improvements located on the Property or any repairs or
renovations to such improvements and Personal Property
being conveyed hereunder.
11.All books and records at the Property held by or for
the account of Seller, including in respect of
Seller's, including, without limitation, plans and
specifications and lease applications, if available.
However, if Seller shall, after the Closing, require
copies of any documents or records turned over to
Purchaser, for Seller's legitimate business purposes,
then Purchaser shall provide such copies to Seller at
Seller's expense.
12.Proof of residency for purposes of R.I.G.L. Section
44-30-71.3.
13.Such additional instruments, agreements, and other
documents as may be necessary or convenient in order to
effectuate the provisions of this Agreement.
14.An updated rent roll reflecting rents of the
Property as of the Closing. In the event such rent
roll shall reflect rents which deviate from the rents
reflected in the rent roll delivered herewith by more
than10%, Purchaser shall have the right to terminate
this Agreement, in which event the Deposit shall be
returned to Purchaser and the parties shall have no
further obligations hereunder.
-19-
1.Default
1.If Purchaser shall default under this Agreement, the
Deposit shall be retained by Seller as liquidated
damages, and both parties shall be relieved of and
released from any further liability hereunder, except
for the indemnification obligations of Purchaser
pursuant to Section 4(b) above. In such case, Seller
and Purchaser agree that the Deposit is a fair and
reasonable amount to be retained by Seller as agreed
and liquidated damages in light of Sellers removal of
the Property from the market and the costs incurred by
Seller and shall not constitute a penalty or a
forfeiture.
2.Seller acknowledges that the Property is of a
special, unique and extraordinary character, and that
any violation of this Agreement by Seller would be
highly injurious to Purchaser, and therefore, if Seller
shall default in the performance or observance of any
of its covenants, agreements, or obligations for any
reason other than a default by Purchaser, or if Seller
shall violate any of its representations, warranties or
covenants contained in this Agreement, Purchaser shall,
in addition to the rights hereinafter provided, be
entitled to the immediate return of the Deposit. Upon
Seller's default, Purchaser, at Purchaser's election,
may exercise any and all rights and remedies available
to Purchaser at law or in equity, including, without
limitation, the right to enforce specific performance
by Seller. If this Agreement is terminated by
Purchaser following Seller's default, Escrow Agent
shall promptly return the Deposit to Purchaser.
3.For purposes hereof, a breach by either party
hereunder shall constitute a "default" only after
written notice by the non-defaulting party to the other
specifically stating the alleged breach and the failure
of the defaulting party to thereafter cure such breach
within five (5) days after the receipt of such written
notice.
-20-
1.Prorations, Closing Costs, and Adjustments
1.Subject to the terms of Section 17 below, the
following items shall be apportioned between Seller and
Purchaser as of midnight of the day preceding the
Closing Date:
1.Real estate taxes, assessments, and
sewer and water use charges.
0.Xxxx, parking charges, laundry
machine, and vending machine revenues and
other amounts paid by tenants if, as, and
when received.
3.Fuel and other utilities (including,
without limitation, electricity, water, and
gas).
4.Personal property taxes, if any.
5.Such other items as are customarily
adjusted in connection with commercial real
estate transactions of this type.
1.Purchaser shall receive a credit at Closing against
the Purchase Price for the aggregate security deposit
liability under the Leases.
2.Seller shall pay the conveyance taxes applicable to
the transfer of the Property. Purchaser shall pay
recording fees, except such as relate to the discharge
of liens or other encumbrances on the Property. The
fees and expenses of the Escrow Agent in connection
with the administration of this Agreement, if any,
shall be borne equally by Seller and Purchaser.
-21-
3.All prorations, adjustments and credits made and
determined as provided herein shall be final as of the
Closing Date; provided, however, that if subsequent to
the Closing Date, an error or omission in the
determination or computation of any of such prorations,
adjustments or credits shall be discovered, immediately
upon discovery thereof the appropriate adjustments
required to correct such error or omission shall be
made. Except as expressly provided herein, the purpose
and intent as to the provisions of prorations and
apportionments set forth herein is that Seller shall
bear all expenses of ownership and operation of the
Property accruing through midnight at the end of the
day preceding the Closing Date and Purchaser shall bear
all such expenses accruing thereafter. Any items not
specifically listed herein, but requiring adjustment,
shall be adjusted as aforesaid at Closing. This
provision shall survive the Closing.
4.Prior to or on the Closing Date, Seller shall deliver
to Purchaser a certificate, signed by Seller, setting
forth the name of each tenant delinquent in the payment
of any rents and setting forth the amount of such
delinquent rents (the "Delinquent Rents") and, with
regard to such Delinquent Rents:
1.the first rents received by Purchaser
after the Closing Date from any tenant on
such certificate shall be applied first to
then current rents due from such tenant and
any amount remaining after such application
(but in no event in excess of two month's
rents payable by such tenant) shall be paid
by Purchaser to Seller on account of such
Delinquent Rents;
-22-
2.Purchaser shall not be obligated to
incur any expense or institute any action or
proceeding to collect any such Delinquent
Rents, nor shall Purchaser be prohibited from
terminating any Lease as the result of such
delinquencies; and
0.xx the event any tenant shall pay any
rents with an indication that it intends to
contest such rents or the amount thereof,
such rents shall not be apportioned, but
shall be held by Purchaser subject to the
outcome of the tenants contest.
1.Notices. Any notice regarding this Agreement, or any
transaction or other matter arising in connection herewith,
shall be in writing and be served upon the party to which it
is directed at the following addresses:
If to Seller: Village Park Holding Company, LLC and
Village Park Holding Co., II, LLC
c/o The Xxxxxxx Group
Xxx Xxxxxxxxxx Xxxxx, 0xx xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. XxXxxx, COO
-23-
With a copy to: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxx Xxxxxxx & Xxxxxxx, P.C.
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
If to Purchaser: Grove Corporation
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxxx
With a copy to: Xxxxxx X. XxXxxxxx, Esq.
Xxxxx, XxXxxxxx & Xxxxx
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxxxxxx, Xx 00000
Escrow Agent: Xxxxx Xxxxxxx & Xxxxxxx, P.C.
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Any notice may be served personally or be sent by certified
mail, return receipt requested, or by Airborne, UPS, Federal
Express, or similar overnight express service or by
facsimile. If sent by certified mail, a notice shall be
deemed to have been given the next day following the date
deposited with the United States Postal Service, postage
prepaid. If sent by overnight express service, a notice
shall be deemed to have been given one (1) business day
-24-
after pickup by such overnight service. If sent via
facsimile, a notice shall be deemed to have been given on
confirmation of receipt. The address at which notice is to
be given to either party may be changed by giving notice to
the other party as provided above.
1.Miscellaneous
1.Entire Agreement. The Recitals set forth at the
beginning of this Agreement and the Exhibits attached
hereto are incorporated in and made a part of this
Agreement by this reference. This Agreement is the
entire agreement between the parties with respect to
the subject matter hereof, and no alteration,
modification or interpretation hereof shall be binding
unless in writing and signed by Seller and Purchaser.
With respect to all time periods and dates referred to
in this Agreement, time shall be of the essence.
2.Severability. If any provision of this Agreement or
application to any party or circumstances shall be
determined by any court of competent jurisdiction to be
invalid and unenforceable to any extent, the remainder
of this Agreement or the application of such provision
to such person or circumstances, other than those as to
which it is so determined invalid or unenforceable,
shall not be affected thereby, and each provision
hereof shall be valid and shall be enforced to the
fullest extent permitted by law.
3.Applicable Law. This Agreement shall be construed
and enforced in accordance with the laws of the State
of Rhode Island.
4.Assignability. Purchaser shall have the right, on or
before the Closing Date, to transfer or assign its
rights and obligations under this Agreement to its
designee, without the consent of Seller. Purchaser
shall provide to Seller a copy of the executed
-25-
instrument of assignment effectuating any such
assignment, together with the name and address of the
assignee. Any permitted assignee shall be deemed to
have assumed, agreed to, and be bound by all of
Purchaser's obligations and liabilities under this
Agreement. Upon any such assignment, the Purchaser
named in and which signed this Agreement shall continue
to be obligated under this Agreement.
5.Successors Bound. This Agreement shall be binding
upon and inure to the benefit of Purchaser and Seller
and their respective heirs, executors, administrators,
personal representatives, successors, and assigns.
6.Captions. The captions in this Agreement are
inserted only as a matter of convenience and for
reference and in no way define, limit, or describe the
scope of this Agreement or the scope or content of any
of its provisions.
7.Attorneys' Fees. In the event of any litigation
arising out of this Agreement, the prevailing party
shall be entitled to reasonable attorneys' fees and
costs.
0.Xx Partnership or Joint Venture. Nothing contained
in this Agreement shall be construed to create a
partnership or joint venture relationship among Seller
and Purchaser.
9.Recordation. Purchaser and Seller agree not to
record this Agreement or any memorandum hereof.
10.Survival. The provisions of this Agreement
expressly stating that they survive the Closing shall
survive the Closing and shall not merge with the deed
to be delivered at the Closing.
-26-
11.Knowledge of Seller. Except as otherwise provided,
whenever a representation is made in this Agreement on
the basis of the knowledge of Seller, such
representation is made after inquiry and investigation
by Seller of its officers, employees, agents and
representative having responsibility for the Property.
00.Xxxxxxxxxxxx. 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.
00.Xxxx Kind Exchange. At the election of Seller,
Purchase shall cooperate with Seller by amending,
modifying or altering the terms of this Agreement to
allow Seller to effectuate an exchange of like kind
property; provided that such activity shall not
increase the Purchase Price or alter the cost of
acquiring the Property for Purchaser.
1.Duties and Responsibilities of Escrow Account
1.Seller and Purchaser acknowledge and agree that
Escrow Agent (i) shall not be responsible for any of
the agreements referred to herein, but shall be
obligated only for the performance of such duties as
are specifically set forth herein; (ii) shall not be
obligated to take any legal or other action hereunder
which might in its judgment involve any expense or
liability unless it shall have been furnished with
acceptable indemnification; and (iii) may rely on and
shall be protected in acting, or refraining from
acting, upon any written notice, instruction,
instrument, statement, request or document furnished to
it hereunder and believed by it to be genuine and to
have been signed or presented by the proper person, and
shall have no responsibility for determining the
accuracy thereof.
-27-
2.Said Escrow Agent shall not be liable to anyone for
any action taken or omitted to be taken by it except in
the case of gross negligence or willful misconduct.
Seller jointly and severally, covenant and agree to
indemnify Escrow Agent and hold said Agent harmless
without limitation from and against any loss, liability
or expense of any nature incurred by Escrow Agent
arising out of or in connection with the administration
of said Agent's duties hereunder, including but not
limited to legal fees and other costs and expenses of
defending or preparing to defend against any claim or
liability, unless such loss, liability or expense shall
be caused by Escrow Agent's willful misconduct or gross
negligence.
3.Seller and Purchaser, jointly and severally, agree to
assume any and all obligations imposed now or hereafter
by any applicable tax law with respect to the payment
of Deposit under this Agreement, and to indemnify and
hold Escrow Agent harmless from and against any taxes,
interest, penalties and other expenses, that may be
assessed against Escrow Agent on any such payment or
other activities under this Agreement. Seller and
Purchaser, jointly and severally, agree to indemnify
and hold Escrow Agent harmless from any liability on
account of taxes, assessments or other governmental
charges, including without limitation the withholding
or deduction or the failure to withhold or deduct same,
and any liability for failure to obtain proper
certifications or to properly report to governmental
authorities, to which Escrow Agent may be or become
subject in connection with or which arises out of this
Agreement, including costs and expenses (including
reasonable legal fees), interest and penalties.
4.Seller agrees to pay or reimburse Escrow Agent for
any costs incurred in connection with the services
hereunder.
-28-
5.Upon written notice from either Seller or Purchaser
that a dispute has arisen with respect to the delivery,
ownership, right of possession, or disposition of the
Deposit, Escrow Agent shall and is authorized and
directed to retain in its possession without liability
to anyone, all of the Deposit until such dispute shall
have been settled either by the mutual agreement of the
parties involved or by a final order, decree or
judgment of a Court in the United States of America,
the time for perfection of an appeal of such order,
decree or judgment having expired. Escrow Agent may,
but shall be under no duty whatsoever to, institute or
defend any legal proceedings which relate to the
Deposit.
6.Escrow Agent hereby agrees and covenants that
following the Inspection Period Expiration Date, Escrow
Agent shall not without the prior written consent of
both Seller and Purchaser disburse the Deposit to any
person or entity other than at and in conjunction with
the Closing.
7.Nothing herein contained shall prevent Xxxxx Xxxxxxx
& Xxxxxxx, P.C., the Escrow Agent, from continuing to
act as legal counsel to the Seller.
0.Xxxxxxxx Contingency and Additional Purchase Price Adjustment.
1.Not later than 10 days after the Inspection Period
Expiration Date, Seller shall have the right to notify
Purchaser that Seller will assign to Purchaser mortgage
financing rights of Seller with CIGNA upon the
following terms:
(i) with respect to Village Park Apartments,
$10,000,000 at a rate per annum of 6.84% and an
amortization schedule of 25 years with a term of 7
years; and/or
-29-
(ii) with respect to Winchester Xxxxx Apartments,
$2,400,000 at a rate per annum of 7.05% and an
amortization schedule of 25 years with a term of 7
years.
(b) Purchaser shall have until the Inspection Period
Examination Date to satisfy itself to its reasonable
satisfaction with respect to the terms and conditions
of such CIGNA financing to be assigned to and assumed
by Purchaser. Seller represents that such terms and
conditions will be substantially similar to the
existing financing package of Seller with CIGNA secured
by the Winchester Xxxxx portion of the Property.
Seller shall use its reasonable efforts to assist
Purchaser in evaluating such financing terms, and
Purchaser agrees to direct all inquiries and
communications to CIGNA by and through Seller. Seller
represents that at the time of such assignment, such
financing with CIGNA shall be current and in good
standing.
(c) In the event CIGNA charges a fee or other charge for
such assignment of Seller's financing to Purchaser,
each of Seller and Purchaser shall share equally in
paying such fee a charge by making the appropriate
adjustments and credits to the Purchase Price at the
Closing; provided, however, that in no event shall
Purchaser's share of such fees or charges exceed
$35,000. Any assignment and assumption documents
required shall be reasonably satisfactory to Seller and
Purchaser.
(d) Seller and Purchaser acknowledge that Seller has
pending before the City of East Providence a request
for abatement of ad valorem taxes assessed against
the Property. In consideration of Seller's efforts
in this regard, Purchaser agrees to
-30-
pay to Seller, in addition to the Purchase Price, an amount equal
to the product of 9 multiplied by the difference between the amount
of annual tax due based upon the December 31, 1997 assessment
with respect to the Property and the amount of annual tax due
upon notice from the City of East Providence of any reduction of
annual taxes due to a change of the assessment of the Property or
otherwise. Purchaser shall pay such amount to Seller upon the
earlier of the Closing or within 10 days of notice from Seller or
the City of East Providence of such reduction; provided, however,
that this Section 17(d) shall survive the Closing for a period
not to exceed 90 days. By way of illustration and not to limit
the terms hereof, in the event that the City of East Providence
reduced the annual tax obligation with respect to the Property by
an amount equal to $10,000, Purchaser shall pay to Seller an
amount equal to $90,000.
1.All matters relating to this Agreement shall be kept
absolutely confidential prior to the Closing Date.
Purchaser agrees not to contact any tenant, employee, or
other party without the express written authorization of
Seller, which authorization shall not be unreasonably
withheld when necessary for Purchaser to conduct its
studies, inspections, and tests during the Inspection
Period. Seller recognizes that Purchaser shall be required
to employ outside title examiners, surveyors, engineers, and
other professional and technical persons as part of its
Inspection Period studies, and Seller consents that such
persons shall have reasonable access to the Property and to
the records thereof for the purposes of such studies.
-31-
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
SELLER:
VILLAGE PARK HOLDING COMPANY, LLC
By: /s/ Xxxxxxx X. XxXxxx
--------------------------
Name:Xxxxxxx X. XxXxxx
Its: Manager
VILLAGE PARK HOLDING COMPANY II,
LLC
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. XxXxxx
Its: Manager
PURCHASER:
GROVE CORPORATION
By: /s/ Xxxxx Xxxxxxx
-----------------------
Print Name: Xxxxx Xxxxxxx
Its: President
-32-
