PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
TANGLEWOOD ASSOCIATES
AS SELLER
AND
GROVE CORPORATION
AS PURCHASER
TANGLEWOOD APARTMENTS
WEST WARWICK, RHODE ISLAND
TABLE OF CONTENTS
1. Agreement to Purchase and Sell..................................... 1
2. Purchase Price; Deposits........................................... 2
3. Closing Date....................................................... 3
4. Property Inspection Contingency.................................... 3
5. Title Commitments and Surveys...................................... 5
6. Condemnation....................................................... 6
7. Casualty............................................................6
8. Seller's Covenants, Representations and Warranties..................7
9. Purchaser's Representations and Warranties....................... 10
10. Brokerage Commissions.............................................10
11. Seller' Closing Deliveries....................................... 10
12. Default............................................................12
13. Pro-rations,Closing Costs and Adjustments......................... 13
14. Notices............................................................14
15. Miscellaneous......................................................15
16. Duties and Responsibilities of Escrow Agent....................... 17
Exhibit A Description of Land
Exhibit B Description of Personal Property
Exhibit C Rent Roll
Exhibit C-1 Approved Rental Rates
Exhibit D Service, Supply and Maintenance Contracts
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as December
10, 1997, by and between TANGLEWOOD ASSOCIATES, a Rhode Island limited
partnership, with a mailing address c/o Marshall Properties, Inc., 000
Xxxxxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxx 00000 ("Seller") and GROVE
CORPORATION, a Delaware corporation, with a mailing address at 000 Xxxxxx
Xxxxxx, Xxxxxxxx, XX 00000 ("Purchaser").
R E C I T A L S:
A. Seller is the fee simple owner of that certain real and personal
property located at 00 Xxxxxxxxxx Xxxxx, in the Town of West Warwick, Rhode
Island.
B 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. 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 land more particularly
described on Exhibit A attached hereto, together with (i) all buildings and
other improvements situated thereon and commonly known as the Tanglewood
apartment complex containing 176 residential units, (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 with the ownership, operation,
management or maintenance of such land or buildings, 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 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 (the "Leases"), (vii) all right, title and interest of Seller in
and to all security deposits and other monies deposited by tenants or other
occupants under the Leases, with interest thereon to the extent required to be
paid thereon by applicable law (the "Security Deposits") and (viii) all right,
title and interest of Seller in and to the records, files, plans, warranties and
guaranties affecting the buildings and the Personal Property and other data
relating to the ownership, management, maintenance and operation of such land
and buildings (the "General Intangibles"), including, without limitation, all
as-built plans and specifications, drawings, renderings, site plans and studies
in respect of the Property, to the extent in Seller's possession or under
Seller's control, and all financial information with respect to the management,
maintenance and operation of the Property (the land, together with all of the
foregoing items listed in clauses (i)-(vii) above being hereinafter collectively
referred to as the "Property" or the "Tanglewood Property").
2. Purchase Price; Deposits.
(a) Purchaser agrees to pay a purchase price of Six Million
Seven Hundred Fifty and 00/100 ($6,750,000.00) (the "Purchase Price") for the
Property. The Purchase Price, plus or minus pro-rations, credits and
adjustments, if any, as hereinafter provided, shall be payable as follows:
(i) Sixty Five Thousand and 00/100 Dollars ($65,000.00) (the
"Initial Deposit") shall be deposited by Purchaser in escrow with
Xxxxx, XxXxxxxx & Xxxxx (the "Escrow Agent") upon the full execution
and delivery of this Agreement (Five Thousand and 00/100 Dollars
($5,000.00) of which has been previously delivered to Escrow Agent in
connection with the initial offer to purchase).
(ii) Within five (5) business days after the Inspection Period
Expiration Date (defined below), and provided that Purchaser has not
exercised its right to terminate this Agreement on or before such date
as provided herein, Purchaser shall deliver in escrow with Escrow Agent
the sum of Sixty Five Thousand and 00/100 Dollars ($65,000.00) (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, provided, however, that Xxxxx, XxXxxxxx & Xxxxx shall be
permitted to hold such Deposit in its non-interest bearing Client's Trust Fund
Account. Interest earned on the Deposit 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, Six Million Six Hundred
Twenty Thousand and 00/100 Dollars ($6,620,000.00), 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) below, the transaction
contemplated by this Agreement shall be closed (the "Closing") at a location in
the State of Rhode Island (as designated by Purchaser's mortgagee, if any, or,
in the event that Purchaser's mortgagee does not designate a required location,
then, in such case, at the offices of Xxxxxxx & Xxxxxx, 2700 Hospital Trust
Tower, Providence, Rhode Island) on January 12, 1998 (such date, the "Closing
Date"). Subject to subsection (b) below, time is of the essence as to such
Closing Date. 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.
(b) Purchaser and Seller shall each have the right to adjourn
the Closing for a period or periods not to exceed, in the aggregate, thirty (30)
days.
4. Property Inspection Contingency.
From and after the full execution and delivery of this
Agreement through and including January 10, 1998 (such period, the "Inspection
Period"; the last day of such period, the "Inspection Period Expiration Date"),
Purchaser and its employees, consultants, agents and independent contractors
shall have the right and permission:
(a) To review originals or photocopies of the following:
(i) The existing leases and all new leases and tenancies permitted pursuant
this Agreement .
(ii) All leasing brochures, market studies, tenant data sheets and other
material used by Seller in connection with Seller's operation of the Property.
(iii) Financial statements of the operation of the Property for the
calendar years 1993 through 1996, showing in reasonable detail all income and
expenses of the
Property for each such year, prepared by an independent public accountant,
together with copies of the 1996 and 1997 real estate tax bills, the most
current statements for water and sewer and all other information Purchaser deems
reasonably necessary.
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)
through (iii) 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) through (iii)
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.
(b) 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, provided, however, that Purchaser
shall furnish not less than two (2) days advance notice to Seller with respect
to the timing and scope of any physically intrusive tests or inspections or
entry into any apartment units or facilities and Seller and/or its
representatives shall have the right to accompany Purchaser and its consultants
in connection with any such inspections or entries. 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, and (ii) 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 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.
(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 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) a title commitment
(the
"Commitment") for an Owner's Title Insurance Policy issued by a title insurance
company satisfactory to Purchaser in the amount of the Purchase Price, covering
title to the 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). 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
the Commitment shall disclose interests, encumbrances or 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.
(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 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. 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 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 (collectively, the "Violations"), shall be complied with by Seller
prior to the Closing Date and the Property shall be conveyed free thereof.
6. Condemnation.
(a) If, prior to the Closing Date, all 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.
If prior to the Closing Date, a portion of the Property is taken by eminent
domain, and such partial taking either (i) is made of any part of the
improvements situated on the Property; or (ii) reduces the size of the parking
area on the Property by three percent (3%) or more; or (iii) materially impairs
any use to which the Property is then being put; or (iv) results in any change
of or in any street or highway, or the grade(s) thereof, so as to prevent or
materially affect or interfere with free access to and from the Property or (v)
gives rise to any right(s) of termination by any tenant under its respective
Lease, Purchaser shall have the option to terminate this Agreement, in which
event the Deposit shall be promptly returned to Purchaser. If, prior to the
Closing Date, a portion of the Property is taken by eminent domain which does
not give rise to a right of termination in Purchaser pursuant to the preceding
sentence, the Closing shall occur in accordance with the terms of this Agreement
and, in such case, Seller shall assign to Purchaser, at the Closing, all right,
title and interest of Seller in respect of any proceeds, awards, damages or
other compensation arising by reason of such eminent domain proceedings.
(b) In the event that Purchaser has the right to terminate
hereunder, but 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 right, title and interest of Seller in
respect of any proceeds, awards, damages or other compensation arising by reason
of 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. So long as this Agreement is in full force and
effect, Seller covenants and agrees that Seller shall not enter into any
settlement or make any transfer or agreement to transfer any portion of the
Property in connection with any pending or threatened eminent domain proceeding
without the prior written consent of Seller.
7. Fire or Other Casualty.
(a) If prior to the Closing a "material portion of the Improvements"
(as such phrase is hereinafter defined) shall be damaged or destroyed by fire or
other casualty, Purchaser shall have the right to terminate this Agreement by
notice to Seller furnished within fifteen (15) days following notice to
Purchaser of such fire or other casualty, provided, however, that Seller may
nullify the effect of any such termination notice by Purchaser by furnishing
notice to Purchaser within five (5) business days after Seller's receipt of
Purchaser's termination notice of Seller's intention to restore the Property to
the condition thereof prior to such fire or other casualty and promptly
commencing and diligently pursuing the restoration of such improvements on or
before the date which is one hundred eighty (180) days after the date of the
applicable fire or other casualty. In the event that Seller elects to restore as
aforesaid, the Closing Date shall be extended to accommodate such restoration
right of Seller. If Purchaser shall furnish such notice, and either Seller fails
to furnish notice of intention to restore, or, having furnished notice of
intention to restore, Seller fails to restore on or before the expiration of the
aforesaid 180 days period, the Deposit, together with interest accrued therein,
if any, shall be immediately returned to Purchaser, whereupon this Agreement
shall become null and void and of no further force or effect.
The restoration right of Seller granted hereby shall not be construed
as limiting, altering or varying in any respect any other rights or obligations
of Seller or Purchase hereunder, including, without limitation, any terms hereof
affording Purchaser a right of termination and/or providing for an adjustment to
the Purchase Price based on a reduction in gross income or the tenants in
occupancy as of the Closing Date resulting from any such fire or other casualty.
If Purchaser shall furnish such notice, the Deposit, together with interest
accrued therein, if any, shall be immediately returned to Purchaser, whereupon
this Agreement shall become null and void and of no further force or effect.
(b) If any portion of the improvements situated on the Property, other
than a "material portion of the Improvements," shall be damaged or destroyed by
fire or other casualty, or if there shall be fire or other casualty to a
"material portion of the Improvements" and Purchaser shall not terminate this
Agreement as permitted hereby, Purchaser shall purchase the Property in
accordance with the terms of this Agreement and the Purchase Price shall be
reduced by the amount equal to the reduction in value to the Property as a
result of such fire or other casualty as estimated by, and set forth in a
binding written estimate of, a contractor selected by Purchaser and reasonably
acceptable to Seller, unless, the insurance proceeds for such fire or other
casualty shall be sufficient to restore the Property and all right, title and
interest of Seller in and to such insurance proceeds shall be assigned by Seller
to Purchaser at the Closing.
(c) A "material portion of the Improvements" shall be deemed to have
been damaged or destroyed by fire or other casualty, if the cost of repair and
restoration of the damage or destruction shall be in excess of $100,000 as
estimated by, and set forth in a binding written estimate of, a contractor
selected by Purchaser and reasonably acceptable to Seller.
(d) 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 and business interruption insurance in an amount
sufficient to provide full coverage for loss of rents by reason of casualty.
8. Seller's Covenants, Representations and Warranties.
Seller covenants, represents and warrants to Purchaser as follows:
(a) Seller (i) is a limited partnership, 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 execution
and delivery of this Agreement and is duly bound to consummate the transactions
contemplated hereby.
(b) 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, to the best of Seller's knowledge, will result in a
violation of any applicable law, order, rule or regulation of any government
authority.
(c) Seller has not received any notification of any pending or
threatened condemnation, requisition or similar proceeding affecting the
Property or any portion thereof.
(d) 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.
(e) To the best of Seller's knowledge, there are no defaults or
breaches by Seller or the Property of any of the covenants, conditions,
restrictions, rights-of-way, or easements or other instruments encumbering the
Property or any portion thereof.
(f) 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, to the best of Seller's knowledge,
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, to the best of Seller's knowledge, there is no pending
assessment made by the Town of West Warwick, Rhode Island 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.
(g) 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 (together with any applicable
security deposit); (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; (iv) or lease any units to any person(s) other
than at the rental rates set forth on Exhibit C-1 attached hereto.
(h) There is no union contract affecting the Property or the employees
thereat and Seller will not enter into any such contract prior to Closing.
(i) 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.
(j) 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.
(k) 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.
(l) 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. Except as otherwise expressly agreed by 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, provided, however, that
Purchaser shall interview the janitor, property manager and maintenance person
currently employed by Seller at the Property during the two (2) day period
following the Inspection Period Expiration Date for purposes of determining
Purchaser's willingness to continue to employ such personnel after the Closing,
such determination to be made by Purchaser on or before the expiration of such
three day period in its sole and absolute discretion.
(m) 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. Except as
disclosed on Exhibit D attached hereto, and unless otherwise 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 unless the same can be canceled upon thirty (30) days notice
without the necessity of payment of any termination penalty or premium. Seller
shall furnish copies of the contracts and agreements described on Exhibit D
within five (5) business days after the execution and delivery hereof.
(n) Except as disclosed by Seller, 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 federal, state or local 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, and 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 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' 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 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:
(a) A quitclaim deed with covenants against grantor's acts for
the 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 conveying the Personal Property.
(c) 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.
(d) 0riginal 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).
(e) All keys in the possession of Seller to all locks of the Property.
(f) 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
Landlord pursuant to the Leases, certified as true, correct and complete by an
officer of Seller.
(g) 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.
(h) 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.
(i) An Assignment of General Intangibles, assigning to Purchaser all of
Seller's right,
title and interest in and to the General Intangibles.
(j) 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.
(k) 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 the state of Seller's incorporation 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.
(l) A nonforeign affidavit sufficient for the purposes of establishing and
documenting the nonforeign affidavit exemption described in Section 1445 of the
Internal Revenue Code (the "FIRPTA Affidavit).
(m) a Residency Affidavit in the form required by applicable law with
respect to
Seller and the partners of Seller.
(n) 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, except as disclosed on Exhibit D, 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.
(o) A rent roll for the 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. If such rent roll shows a
reduction of five percent (5%) or greater in income from the rent roll attached
hereto as Exhibit C, Purchaser shall have the option of terminating this
Agreement, in which case the Deposit shall be immediately returned to Purchaser.
(p) A receipt of the Broker, acknowledging its receipt of any
and all sums payable thereto in connection with the transaction contemplated
hereby.
(q) 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) 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
Seller's removal of the Property from the market and the costs incurred by
Seller and shall not constitute a penalty or a forfeiture.
(b) 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.
(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) That portion of the interest on security
deposits under the Leases which shall be permitted to be retained by
the landlord thereunder pursuant to law or the Leases.
(iv) Fuel and other utilities (including, without
limitation, electricity, water and gas).
(v) Personal property taxes, if any.
(vi) 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
through the Closing Date.
(c) Seller shall pay the conveyance taxes applicable to the transfer of the
Property.
Purchaser shall pay recording fees.
(d) 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.
(e) 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:
(i) the 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; provided, however, that Purchaser shall have the right
to deduct therefrom the costs of collection of such Delinquent
Rents;
(ii) 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
(iii) in the event any tenant shall pay any rents
with an indication that it intends to contest such rents or
the amount thereof, such rents shall not be apportioned but
shall be held by Purchaser subject to the outcome of the
tenant's contest.
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: c/o Marshall Properties, Inc.
000 Xxxxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, III
Facsimile: (000)000-0000 with a copy to Xxxxxxx & Xxxxxx
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq. Facsimile:
(000) 000-0000
If to Purchaser: Grove Corporation
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to Xxxxx, XxXxxxxx & Xxxxx
00 XxxxxXxxx Xxxxxx
Xxxx Xxxxxxxx, XX 00000 Attention:
Xxxxxx X. XxXxxxxx, Esq.
Facsimile: (000) 000-0000
Escrow Agent: Xxxxx, XxXxxxxx & Xxxxx
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxxxxxx,XX 00000
Attention: Xxxxxx X. XxXxxxxx, Esq.
Facsimile: (000) 000-0000
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 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.
15. Miscellaneous.
(a) Entire AgreementEntire 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) SeverabilitySeverability. 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 LawApplicable Law. This Agreement shall be construed and
enforced
in accordance with the laws of the State of Rhode island.
(d) AssignabilityAssignability. 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 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 BoundSuccessors 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) CaptionsCaptions. 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' FeesAttorneys' Fees. In the event of any litigation arising
out of
this Agreement, the prevailing party shall be entitled to reasonable attorneys'
fees and costs.
No Partnership. Nothing contained in this Agreement shall be construed to
create a partnership or joint venture
relationship among Seller and Purchaser.
(i) RecordationRecordation. Purchaser and Seller agree not to record this
Agreement or any memorandum hereof.
(j) 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.
(k) SurvivalSurvival. 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.
(l) Knowledge of SellerKnowledge 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 after inquiry
and investigation by Seller of its officers, employees, agents and
representative having responsibility for the Property.
(m) 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 or claims of
any kind or character 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.
(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.
(n) 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.
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) 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
(f) 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.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
SELLER:
TANGLEWOOD ASSOCIATES
By: Xxxxxxxx Properties, Inc., its general partner
By: ________________________
Print Name: Xxxx X. Xxxxxxxx, III
Its: President
PURCHASER:
GROVE CORPORATION
By:_____________________
Print Name: Xxxxx Xxxxxxx
Its: President
ESCROW AGENT:
Xxxxx, XxXxxxxx & Xxxxx
By: _____________________________
Xxxxxx X. XxXxxxxx
EXHIBIT A
DESCRIPTION OF LAND
EXHIBIT B
LIST OF PERSONAL PROPERTY
EXHIBIT C
RENT ROLL
EXHIBIT C-1
APPROVED RENTAL RATES
