10.94 Whaling
Final
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made as of the 29th day
of June, 2001, by and among Whaling Mfg. Co., Inc., a Massachusetts corporation
("Seller"), Quaker Fabric Corporation of Fall River, a Massachusetts corporation
("Buyer"), and joined in for the limited purposes set forth herein by Xxxxxxx
Title Guaranty Corporation, as escrow agent ("Escrow Agent").
BACKGROUND
A. Seller is the owner of the approximately 3.64 acre parcel of land with
the 76,000 square foot building thereon ("Improvements") at 000 Xxxxxx Xxxxxx,
Xxxx Xxxxx, Xxxxxxxxxxxxx, more particularly described in Exhibit A hereto,
together with all easements, rights and privileges appurtenant thereto, but
excluding therefrom the property identified as "Excluded Property to be Removed
by Seller" in Exhibit C hereto (the "Property").
B. Seller is prepared to sell, transfer and convey the Property to Buyer,
and Buyer is prepared to purchase and accept the same from Seller, all for the
purchase price and on the other terms and conditions hereinafter set forth.
TERMS AND CONDITIONS
In consideration of the mutual covenants and agreements herein contained,
and intending to be legally bound hereby, the parties hereto agree:
1. Sale and Purchase. Seller hereby agrees to sell, transfer and convey
the Property to Buyer, and Buyer hereby agrees to purchase and accept the
Property from Seller, in each case for the purchase price and on and subject to
the other terms and conditions set forth in this Agreement.
2. Purchase Price. The purchase price for the Property (the "Purchase
Price") shall be Two Million and 00/100 ($2,000,000.00) Dollars, which, subject
to the terms and conditions hereinafter set forth, shall be paid to Seller by
Buyer as follows:
2.1. Deposit. Upon the execution of this Agreement by Seller and
Buyer, Buyer shall deliver to Escrow Agent, in immediately available funds, to
be held in escrow and delivered in accordance with this Agreement, an initial
cash deposit in the amount of Fifty Thousand Dollars ($50,000). Such amount,
with all interest earned thereon, shall hereinafter be referred to as the
"Deposit".
2.2. Payment at Closing; Funding Agreement. At the consummation of
the transaction contemplated hereby (the "Closing"), Buyer shall deliver to
Escrow Agent cash in an amount equal to the Purchase Price less the Deposit. The
Purchase Price, subject to adjustments and apportionments as set forth herein,
shall be paid by Escrow Agent to Seller at Closing by certified check or by wire
transfer of immediately available federal funds, transferred to the order
or account of Seller or such other person as Seller may designate in writing,
provided that Buyer shall be responsible for the timely performance of Escrow
Agent hereunder.
3. Representations and Warranties of Seller. Seller represents and
warrants to Buyer as follows:
3.1. Authority. Seller is a corporation, duly organized and validly
existing under the laws of the Commonwealth of Massachusetts, and has all
requisite power and authority to enter into this Agreement and perform its
obligations hereunder.
3.2. No Conflict. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereunder on the part of
Seller do not and will not conflict with or result in the breach of any material
terms or provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge, or encumbrance upon any of the Property or
assets of the Seller by reason of the terms of any contract, mortgage, lien,
lease, agreement, indenture, instrument or judgment to which Seller is a party
or which is or purports to be binding upon Seller or which otherwise affects
Seller, which will not be discharged, assumed or released at Closing. No action
by any federal, state or municipal or other governmental department, commission,
board, bureau or instrumentality is necessary to make this Agreement a valid
instrument binding upon Seller in accordance with its terms.
3.3. No Leases. There are no leases or occupancy agreements
currently in effect which affect the Property.
3.4. No Condemnation. Seller has not received any written notice of
and to the best of Seller's knowledge there is no pending or contemplated
condemnation, eminent domain or similar proceeding with respect to all or any
portion of the Property.
3.5. No Rights in Others. No person or other entity has any right or
option to acquire, lease or occupy all or any portion of the Property, except as
disclosed in this Agreement.
3.6. Contracts. There are no construction, management, leasing,
service, equipment, supply, maintenance, concession or other agreements in
effect with respect to the Property which will not be terminated by Seller prior
to the Closing.
3.7. Compliance. Seller has not received written notice of any
existing violation of any federal, state, county or municipal laws, ordinances,
orders, codes, regulations or requirements affecting the Property.
3.8. Litigation. There is no action, suit or proceeding pending or,
to the best of Seller's knowledge, threatened against or affecting the Property,
or arising out of the ownership, management or operation of the Property, this
Agreement or the transactions contemplated hereby.
3.9. FIRPTA. Seller is not a "foreign person" as defined in Section
1445(f)(3) of the Internal Revenue Code.
3.10. Bankruptcy. Seller, as debtor, has not filed or been the
subject of any
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filing of a petition under the Federal Bankruptcy Law or any insolvency laws, or
any laws for composition of indebtedness or for the reorganization of debtors.
4. Conditions Precedent to Buyer's Obligations. All of Buyer's obligations
hereunder are expressly conditioned on the satisfaction at or before the time of
Closing hereunder, or at or before such earlier time as may be expressly stated
below, of each of the following conditions (any one or more of which may be
waived in writing in whole or in part by Buyer, at Buyer's option):
4.1. Accuracy of Representations. All of the representations and
warranties of Seller contained in this Agreement shall have been true and
correct in all material respects when made, and shall be true and correct in all
material respects on the date of Closing with the same effect as if made on and
as of such date.
4.2. Performance. Seller shall have performed, observed and complied
with all material covenants, agreements and conditions required by this
Agreement to be performed, observed and complied with on its part prior to or as
of Closing hereunder.
4.3. Documents and Deliveries. All instruments and documents
required on Seller's part to effectuate this Agreement and the transactions
contemplated hereby shall be delivered to Buyer and shall be in form and
substance consistent with the requirements herein.
4.4. Inspection Period; Access; Purchase "As Is".
4.4.1. During the term of this Agreement, Buyer, its agents
and representatives, shall be entitled to enter upon the Property, upon
reasonable prior notice to Seller, to perform inspections and tests of the
Property, including surveys, environmental studies, examinations and tests, all
at Buyer's expense. Buyer shall repair any damage to the Property caused by any
tests or investigations conducted by Buyer (including the proper disposal of any
soil removed by Buyer from the Property for testing), and indemnify Seller from
any and all liabilities, claims, costs and expenses resulting therefrom,
provided that Buyer shall not hereby indemnify Seller from any liability arising
from the mere discovery of contamination. The foregoing indemnification shall
survive Closing or the termination of this Agreement.
4.4.2. The term "Inspection Period," as used herein, shall
mean the period ending on the date which is thirty (30) days after the date of
execution of this Agreement by Buyer and Seller. Buyer may terminate this
Agreement, after inspection and testing of the Property, in Buyer's sole
discretion by giving written notice of such election to Seller on any day prior
to and including the final day of the Inspection Period, in which event the
Deposit shall be returned forthwith to Buyer and, except as expressly set forth
herein, neither party shall have any further liability or obligation to the
other hereunder. In the absence of such written notice, the contingency provided
for in this Section 4.4.2 no longer shall be applicable, and this Agreement
shall continue in full force and effect, and Buyer shall be deemed to acquire
the Property at the Closing in its as-is condition, subject to the requirements
of Section 4.8 and Section 10 hereof.
4.5. Survey. Buyer shall approve or disapprove the Survey, as
hereinafter defined, in the following manner:
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(a) Notice. Within thirty (30) days after the date hereof,
Buyer shall obtain, at Buyer's expense, a survey of the
Property by a licensed surveyor or civil engineer, in
sufficient detail to provide the basis for an ALTA owner's
title insurance policy, showing the location of all easements,
improvements and boundary encroachments (the "Survey"). On or
before the expiration of the Inspection Period, Buyer shall
give notice to Seller of Buyer's approval of the Survey or
disapproval of any matters thereon ("Survey Exceptions").
Buyer's failure to give any notice within the time limit shall
be deemed approval of the Survey, and this contingency shall
be deemed satisfied.
(b) Survey Cure Period. Seller shall have the right, but not
the obligation, to remove any Survey Exceptions within seven
(7) days after Buyer's notice of disapproval ("Survey Cure
Period"), either by obtaining the surveyor's written agreement
to make appropriate changes to the Survey or by taking other
steps reasonably satisfactory to Buyer to permit such changes
to the Survey.
(c) Waiver of Uncured Matters. If Seller does not cure any
Survey Exceptions within the Survey Cure Period, Buyer shall
have seven (7) days to give Seller written notice that Buyer
waives its objections to the Survey Exceptions. If Buyer does
not give such notice, this Agreement shall terminate whereupon
the Deposit shall be returned forthwith to Buyer and, except
as expressly set forth herein, neither party shall have any
further liability or obligation to the other hereunder.
(d) Approved Survey. The Survey as approved by Buyer is
referred to herein as the "Approved Survey".
4.6. Title. Buyer shall review and approve or disapprove the
condition of title to the Property in the following manner:
(a) Report and Notice. Within thirty (30) days after the date
hereof, Buyer shall obtain, at Buyer's expense, a title report
("Title Report") on the Property, together with copies of all
documents underlying any encumbrances to title ("Exceptions")
shown on the Title Report. On or before the expiration of the
Inspection Period, Buyer shall give notice to Seller of
Buyer's approval of the Title Report or disapproval of any of
the Exceptions. Buyer's failure to give any notice within the
time limit shall be deemed approval of the Title Report, and
this contingency shall be deemed satisfied.
(b) Title Cure Period. Seller shall use reasonable efforts,
within seven (7) days after notice of Buyer's disapproval of
any Exceptions (the "Title Cure Period"), to (i) remove any
disapproved Exceptions or (ii) agree to remove any disapproved
Exceptions on or before the Closing. If Seller gives notice,
within the Title Cure Period, that Seller will remove any such
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disapproved Exception on or before the Closing, such Exception
shall be deemed removed for purposes hereof, Seller shall be
obligated to remove such Exception on or before the Closing,
and Seller's failure to remove such exception on or before the
Closing shall be a default by Seller hereunder. With respect
to any Exception consisting of a financial encumbrance such as
a mortgage, deed of trust, or other debt security, or any
delinquent real estate taxes or mechanic's liens outstanding
against the Property, such matter shall automatically be
deemed a disapproved Exception; Seller hereby covenants to
remove any such Exception on or before the Closing.
(c) Waiver of Uncured Exceptions. If Seller does not remove or
agree to remove any disapproved Exception within the Title
Cure Period, Buyer shall have seven (7) days to give Seller
notice that Buyer waives its objections to such Exception. If
Buyer does not give such notice, this Agreement shall
terminate whereupon the Deposit shall be returned forthwith to
Buyer and, except as expressly set forth herein, neither party
shall have any further liability or obligation to the other
hereunder..
(d) Approved Title. The condition of title as approved by
Buyer is referred to herein as the "Approved Title".
(e) Later Changes to Condition of Title. Buyer shall have the
right to approve or disapprove any exceptions to title that
are revealed by the Survey or become of record after there is
an Approved Title.
4.7. Material Adverse Change. Between the expiration of the
Inspection Period and the date of Closing, there shall have been no material
adverse change in the condition of the Property, and no adverse change to title
or survey matters from the Approved Title and the Approved Survey shall have
arisen.
4.8 Removal of Tunnel. Seller, at Seller's sole cost and expense
prior to the Closing, shall remove the tunnel between the building on the
Property and the building on the adjacent property owned by Seller ("Tunnel"),
dispose of all demolition material in accordance with the requirements of
applicable law, separate all utility connections between the buildings in a safe
and secure manner, and seal the openings for the Tunnel connections at the
buildings in a good and workmanlike manner, in accordance with the requirements
of applicable law, with materials which are consistent with balance of the
affected facades.
4.9 Municipal Lien Certificate. It is an express condition of the
Closing that Seller shall obtain from the City of Fall River and deliver to
Buyer a municipal lien certificate which identifies the Property as a separate
parcel for real estate tax purposes, and which discloses the status of all real
estate tax and water and sewer liabilities with respect to the Property.
5. Failure of Conditions. Except as otherwise provided in Section 9.2
hereof, in the event Seller shall not be able to convey title to the Property on
the date of Closing in accordance
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with the provisions of this Agreement, then Buyer shall have the option,
exercisable by written notice to Seller at or prior to Closing, of (i) accepting
at Closing such title as Seller is able to convey and/or waiving any unsatisfied
condition precedent, with no deduction from or adjustment of the Purchase Price,
or (ii) declining to proceed to Closing. In the latter event, except as
expressly set forth herein, all obligations, liabilities and rights of the
parties under this Agreement shall terminate, and the Deposit shall be returned
to Buyer.
6. Closing; Deliveries.
6.1. Time of Closing. The Closing shall take place at the Fall River
Registry of Deeds at 10:00 a.m. on a date which is fifteen (15) days after the
earlier to occur of (a) the expiration of the Inspection Period without Buyer
having exercised its right to terminate under Section 4.4.2 and the satisfaction
or waiver of the conditions set forth in Sections 4.5 and 4.6, or (b) the date
upon which Buyer notifies Seller that Buyer waives the right to terminate this
Agreement under Section 4.4.2 and that Buyer has satisfied or waived the
conditions set forth in Sections 4.5 and 4.6, but in any event no earlier than
July 31, 2001.
6.2. Seller Deliveries. At Closing, Seller shall deliver to Buyer
the following, and it shall be a condition to Buyer's obligation to close that
Seller shall have delivered the same to Buyer:
6.2.1. A Massachusetts Quitclaim Deed to the Property from
Seller, duly executed and acknowledged by Seller and in form reasonably
satisfactory to Buyer, including the representation of Seller that the sale of
the Property is not a sale of all or substantially all of the assets of the
Seller in the Commonwealth of Massachusetts, subject only to such title matters
as are approved by Buyer pursuant to Sections 4.5 and 4.6.
6.2.2. A customary letter of indemnity in favor of the title
insurer so that the title insurer may issue, without extra charge, an owner's
policy of title insurance free of any exceptions for unfiled mechanics' or
materialmen's liens for work performed by Seller prior to Closing, or for rights
of parties in possession.
6.2.3. A Non-Foreign Affidavit as required by the Foreign
Investors in Real Property Tax Act ("FIRPTA"), as amended, in the form of
Exhibit B, duly executed by Seller.
6.2.4. A Clerk's Certificate of Vote from Seller in form
satisfactory to the title insurer to confirm the authority of Seller to perform
its obligations under this Agreement.
6.2.5. All architectural and engineering drawings and
specifications, utilities layout plans, topographical plans and the like in the
possession of Seller used in the construction, improvement, alteration or repair
of the Property.
6.2.6. A Xxxx of Sale in the form of Exhibit C.
6.2.7. An Assignment of Warranties, Permits, Approvals and
Other Intangibles in the form attached hereto as Exhibit D.
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6.2.8. All other instruments and documents reasonably required
to effectuate this Agreement and the transactions contemplated hereby.
6.3. Buyer Deliveries. At Closing, Buyer shall deliver to Seller the
following, and it shall be a condition to Seller's obligation to close that
Buyer shall have delivered the same to Seller:
6.3.1. In accordance with Seller's instructions, a wire
transfer or certified check in the amount required under Section 2.2 hereof
(subject to the adjustments provided for in this Agreement), transferred to the
order or account of Seller or to such other person or persons as Seller shall
designate in writing.
6.3.2. All other instruments and documents reasonably required
to effectuate this Agreement and the transactions contemplated hereby.
7. Apportionments; Taxes; Expenses.
7.1. Apportionments.
7.2. Taxes and Utility Expenses. All real estate taxes, charges and
assessments affecting the Property ("Taxes"), and any water and sewer charges,
shall be prorated on a per diem basis as of the date of Closing. If any Taxes
have not been finally assessed as of the date of Closing for the current fiscal
year of the taxing authority, then the same shall be adjusted at Closing based
upon the most recently issued bills therefor, and shall be re-adjusted when and
if final bills are issued.
7.3. Expenses. Each party will pay all its own expenses incurred in
connection with this Agreement and the transactions contemplated hereby,
including, without limitation, (1) all costs and expenses stated herein to be
borne by a party, and (2) all of their respective accounting, legal and
appraisal fees. Buyer, in addition to its other expenses, shall pay at Closing
(1) all recording charges incident to the recording of the deed for the Property
and the easement relocation documents, and (2) Buyer's title and survey costs.
Seller, in addition to its other expenses, shall pay at Closing all documentary
stamps, deed stamps, realty transfer taxes and brokerage commissions.
8. Casualty and Condemnation; Insurance; Award.
If at any time before the date of Closing there is damage or destruction
to the Property the cost for repair of which exceeds $50,000, and the Property
cannot be restored to its original condition before Closing, or if any portion
of the Property is condemned or taken by eminent domain proceedings by any
public authority, then, at Buyer's option, this Agreement shall terminate, and
the Deposit shall be returned to Buyer, and except as expressly set forth
herein, neither party shall have any further liability or obligation to the
other hereunder.
If there is any damage or destruction or condemnation or taking, as above
set forth, and if Buyer elects not to terminate this Agreement as therein
provided, then (1) in the case of a taking, all condemnation proceeds paid or
payable to Seller shall belong to Buyer and shall be paid over and assigned to
Buyer at Closing; and (2) in the case of a casualty, (a) Seller shall assign to
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Buyer all rights to any insurance proceeds paid or payable under the applicable
insurance policies, less any costs of collection and any sums expended in
restoration and (b) the Purchase Price shall be reduced by the amount of any
deductible under such insurance policies.
9. Remedies.
9.1. Buyer Default. In the event Buyer breaches or fails, without
legal excuse, to complete the purchase of the Property or to perform its
obligations under this Agreement, then Seller shall, as its sole remedy
therefor, be entitled to receive the Deposit (and not as a penalty) in lieu of,
and as full compensation for, all other rights or claims of Seller against Buyer
by reason of such default. Thereupon this Agreement shall terminate and the
parties shall be relieved of all further obligations and liabilities hereunder,
except as expressly set forth herein. Buyer and Seller acknowledge that the
damages to Seller resulting from Buyer's breach would be difficult, if not
impossible, to ascertain with any accuracy, and that the liquidated damage
amount set forth in this Section represents both parties' best efforts to
approximate such potential damages.
9.2. Seller Default. In the event Seller breaches or fails, without
legal excuse, to complete the sale of the Property or to perform its obligations
under this Agreement, Buyer may, as its sole remedy therefor, either (i) enforce
specific performance of this Agreement against Seller, or (ii) terminate this
Agreement and receive its Deposit from Escrow Agent.
10. Possession. Possession of the Property shall be surrendered to Buyer
at Closing, free and clear of all occupants, with personal property and
equipment removed (including without limitation the property identified as
"Excluded Property to be Removed by Seller" in Exhibit C hereto) and any damage
occasioned by such removal repaired, and broom clean.
11. Notices. All notices and other communications provided for herein
shall be in writing and shall be sent to the address set forth below (or such
other address as a party may hereafter designate for itself by notice to the
other parties as required hereby) of the party for whom such notice or
communication is intended:
11.1. If to Seller: Whaling Mfg. Co., Inc.
000 Xxxxxx Xxxxxx
Xxxx Xxxxx, XX
Attn:
Fax No.: (508)
with a copy to: Xxxxx X. Xxxx, Esq.
Xxxxxxxxx Xxxx & Xxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax No. (000) 000-0000
11.2. If to Buyer: Quaker Fabric Corporation of Fall River
000 Xxxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Fax No: 000-000-0000
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Attn: Xxxxxxx X. Xxxxxx
Vice President/General Counsel
With a copy to: Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax No.: 000-000-0000
Attention: Xxxxxxxxx X. Xxxxxxx, Esq.
11.3 If to Escrow Agent:
Xxxxxxx Title Guaranty Company
00 Xxxxxx Xxxxxx - 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxx
Any such notice or communication shall be sufficient if sent by registered
or certified mail, return receipt requested, postage prepaid; by hand delivery;
or by overnight courier service. Any such notice or communication shall be
effective when deposited with the mail or overnight courier service, or if by
hand, when delivered or when delivery is refused.
12. Brokers. Buyer and Seller each represents to the other that it has not
dealt with any broker or agent in connection with this transaction, except for
Xxxxxx & Company ("Broker"). Each party hereby indemnifies and holds harmless
the other party from all loss, cost and expense (including reasonable attorneys'
fees) arising out of a breach of its representation set forth in this Section
12. Seller shall be responsible for all brokerage commissions payable to the
Broker. The provisions of this Section 12 shall survive Closing or the
termination of this Agreement.
13. Escrow Agent. Escrow Agent shall hold the Deposit in accordance with
the terms and provisions of this Agreement, subject to the following:
13.1. Obligations. Escrow Agent undertakes to perform only such
duties as are expressly set forth in this Agreement and no implied duties or
obligations shall be read into this Agreement against Escrow Agent.
13.2. Reliance. Escrow Agent may act in reliance upon any writing or
instrument or signature which it, in good faith, believes, and any statement or
assertion contained in such writing or instrument, and may assume that any
person purporting to give any writing, notice, advice or instrument in
connection with the provisions of this Agreement has been duly authorized to do
so. Escrow Agent shall not be liable in any manner for the sufficiency or
correctness as to form, manner and execution, or validity of any instrument
deposited in escrow, nor as to the identity, authority, or right of any person
executing the same, and Escrow Agent's duties under this Agreement shall be
limited to those provided in this Agreement.
13.3. Indemnification. Unless Escrow Agent discharges any of its
duties under this Agreement in a negligent manner or is guilty of willful
misconduct with regard to its duties
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under this Agreement, Seller and Buyer, severally, shall indemnify Escrow Agent
and hold it harmless from any and all claims, liabilities, losses, actions,
suits or proceedings at law or in equity, or other expenses, fees, or charges of
any character or nature, which it may incur or with which it may be threatened
by reason of its acting as Escrow Agent under this Agreement; and in such
connection Seller and Buyer shall indemnify Escrow Agent against any and all
expenses including reasonable attorneys' fees and the cost of defending any
action, suit or proceeding or resisting any claim in such capacity.
13.4. Disputes. If the parties (including Escrow Agent) shall be in
disagreement about the interpretation of this Agreement, or about their
respective rights and obligations, or the propriety of any action contemplated
by Escrow Agent, or the application of the Deposit, Escrow Agent shall hold the
Deposit until the receipt of written instructions from both Buyer or Seller, or
from a final order of a court of competent jurisdiction. In addition, in any
such event, Escrow Agent may, but shall not be required to, file an action in
interpleader to resolve the disagreement. Escrow Agent shall be indemnified for
all costs and reasonable attorneys' fees in its capacity as Escrow Agent in
connection with any such interpleader action and shall be fully protected in
suspending all or part of its activities under this Agreement until a final
judgment in the interpleader action is received.
13.5. Counsel. Escrow Agent may consult with counsel of its own
choice and have full and complete authorization and protection when acting in
accordance with the opinion of such counsel. Escrow Agent shall otherwise not be
liable for any mistakes of fact or errors of judgment, or for any acts or
omissions of any kind, unless caused by its negligence or willful misconduct.
14. Miscellaneous.
14.1. Assignability. Buyer may not assign or transfer all or any
portion of its rights or obligations under this Agreement to any other
individual, entity or other person without the consent thereto by Seller, such
consent not to be unreasonably withheld or delayed. However, Buyer may assign or
transfer such rights and obligations to any entity controlled by, controlling or
under common control with Buyer. In the event of any such permitted assignment,
Buyer shall remain liable hereunder.
14.2. Governing Law; Bind and Inure. This Agreement shall be
governed by the law of the Commonwealth of Massachusetts and shall bind and
inure to the benefit of the parties hereto and their respective successors and
assigns.
14.3. Recording. This Agreement or any notice or memorandum hereof
shall not be recorded in any public record. A violation of this prohibition
shall constitute a material breach of Buyer, entitling Seller to terminate this
Agreement, in which event Seller shall be entitled to the Deposit hereunder.
14.4. Time of the Essence. Time is of the essence of this Agreement.
14.5. Headings. The headings preceding the text of the paragraphs
and subparagraphs hereof are inserted solely for convenience of reference and
shall not constitute a part of this Agreement, nor shall they affect its
meaning, construction or effect.
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14.6. Counterparts. This Agreement may be executed simultaneously in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14.7. Exhibits. All Exhibits which are referred to herein and which
are attached hereto or bound separately and initialed by the parties are
expressly made and constitute a part of this Agreement.
14.8. Survival. Unless otherwise expressly stated in this Agreement,
each of the warranties and representations of Seller and Buyer shall be merged
into the Closing and delivery of the deed.
14.9. Use of Proceeds to Clear Title. To enable Seller to make
conveyance as herein provided, Seller may, at the time of Closing, use the
Purchase Price or any portion thereof to clear the title of any or all
encumbrances or interests, provided that provision reasonably satisfactory to
Buyer's attorney is made for prompt recording of all instruments so procured in
accordance with the standards of the Massachusetts Conveyancer's Association.
14.10. Submission not an Offer or Option. The submission of this
Agreement or a summary of some or all of its provisions for examination or
negotiation by Buyer or Seller does not constitute an offer by Seller or Buyer
to enter into an agreement to sell or purchase the Property, and neither party
shall be bound to the other with respect to any such purchase and sale until a
definitive agreement satisfactory to the Buyer and Seller in their sole
discretion is executed and delivered by both Seller and Buyer.
14.11. No Marketing. Seller shall remove the Property from the
market and cease all discussions with other prospective purchasers, and shall
not solicit nor accept any offers, whether or not binding, regarding the
Property during the term of this Agreement.
14.12. Confidentiality. Prior to and after the Closing, any press
release to the public of information with respect to the sale contemplated
herein or any matters set forth in this Agreement will be made only in the form
approved by Buyer and Seller. Seller, Buyer and Broker each agree not to
disclose the terms of this Agreement to any third party, except as may be
necessary for Buyer to secure financing, permits or public support for the
development of the Property. The provisions of this Section 14.12 shall survive
the Closing or any termination of this Agreement.
14.13. Entire Agreement; Amendments. This Agreement and the Exhibits
hereto set forth all of the promises, covenants, agreements, conditions and
undertakings between the parties hereto with respect to the subject matter
hereof, and supersede all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as contained herein. This Agreement may not be changed orally but only by
an agreement in writing, duly executed by or on behalf of the party or parties
against whom enforcement of any waiver, change, modification, consent or
discharge is sought.
[End of text on page]
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
SELLER:
WHALING XXX.XX., INC.
By:____________________________________
Its:___________________________________
BUYER:
QUAKER FABRIC CORPORATION OF FALL RIVER
By:____________________________________
Its:___________________________________
ESCROW AGENT:
XXXXXXX TITLE GUARANTY COMPANY
By:____________________________________
Its:___________________________________
The undersigned hereby executes this Agreement for the purpose of
confirming its agreement to be bound by the provisions of Section 14.12 above.
BROKER:
XXXXXX & COMPANY
By:____________________________________
Its:___________________________________
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List of Exhibits
Exhibit A - Description of Property
Exhibit B - Non-Foreign Affidavit
Exhibit C - Xxxx of Sale
Exhibit D - Assignment of Permits, etc.
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EXHIBIT A
DESCRIPTION OF PROPERTY
The 3.64 acre parcel of land with the approximately 76,000 square foot
building thereon located at 000 Xxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxxxxxxxx, shown
as Xxx 0 xx Xxxx Xxxxx Xxxx Xx. 00000X, dated November 5, 1976, a copy of which
is filed with the Bristol County (Fall River District) Registry District of the
Land Court with Certificate of Title No. 1056.
Together with perpetual rights set forth in a deed from Xxxxxx X. Xxxx, et
als., Trustees, dated March 7, 1977, filed with said Registry District as
Document No. 10989.
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EXHIBIT B
NON-FOREIGN AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a transferee of a
U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform the transferee that withholding of tax is not required upon
the disposition of a U.S. real property interest by Whaling Mfg. Co., Inc.
("Seller"), the undersigned hereby certifies the following:
1. Seller is not a foreign person, foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are
defined in the Internal Revenue Code and Income Tax Regulations);
2. Seller's U.S. taxpayer identification number is [___________]; and
3. Seller's address is ________________________________.
The undersigned understands that this certification may be disclosed to
the Internal Revenue Service by the transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both. Under
penalties of perjury, the undersigned declares that it has examined this
certification and to the best of its knowledge and belief it is true, correct,
and complete, and further declares that it has authority to sign this document.
Date: As of _____________, ____ WHALING MFG. CO., INC.
By: __________________________
Name:
Title:
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EXHIBIT C
XXXX OF SALE
Whaling Mfg. Co., Inc., a _________ corporation ("Seller"), for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby grants, bargains, sells, transfers and delivers to
___________________________ a ___________________________ ("Buyer"), all of the
fixtures, equipment and personal property located on or used in connection with
the real property described on Exhibit A (the "Real Property") attached hereto,
including, if any, all blinds, window shades, screens, screen doors, storm
windows and doors, awnings, shutters, furnaces, heaters, heating equipment,
stoves, ranges, oil and gas burners and fixtures appurtenant thereto, hot water
heaters, plumbing and bathroom fixtures, electric and other lighting fixtures,
trees, shrubs, plants, and air conditioning equipment and ventilators,
(collectively, the "Personal Property"), to have and to hold the Personal
Property unto Buyer, its successors and assigns, forever. There is expressly
excluded from this conveyance the property identified as "Excluded Property to
be Removed by Seller" on Schedule 1, which property shall be removed from the
Property prior to the Closing.
Seller hereby represents and warrants to Buyer that Seller has good title
in and to the Personal Property, free and clear of all liens and encumbrances,
and Seller has the full right, power and authority to sell the Personal Property
and to make and execute this Xxxx of Sale. Seller hereby agrees to warrant and
defend the title to the Personal Property conveyed hereby to Buyer against the
lawful claims and demands of all persons.
Capitalized terms used and not otherwise defined herein shall have the
meanings given to such terms in the Purchase Agreement.
Executed under seal this ____ day of __________ 2001.
WHALING MFG. CO., INC.
By: __________________________
Name:
Title:
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SCHEDULE 1
Excluded Property to be Removed by Seller
See attached list
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EXHIBIT D
ASSIGNMENT OF PERMITS, ETC.
See attached
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ASSIGNMENT OF PERMITS, APPROVALS AND OTHER INTANGIBLES
DATE: __________________________, 2000
ASSIGNOR: ______________________________, a _________
___________________________________________
ASSIGNEE: ______________________________, a _________
___________________________________________
RECITALS:
A. Assignor presently owns the real property described in Exhibit "A" to
this Assignment and the improvements and personal property located thereon (the
"Property").
B. WHEREAS, Assignor and Assignee have entered into that certain Purchase
and Sale Agreement dated as of June ___, 2001 (the "Purchase Agreement"),
wherein Assignor agreed to sell and Assignee agreed to buy the Property;
C. Assignor desires to sell the Property to Assignee, and in connection
therewith, Assignor desires to assign to Assignee and Assignee desires to
acquire Assignor's interest, if any, in and to the following described rights,
interests and property inuring to the benefit of Assignor and relating to the
Property.
FOR VALUABLE CONSIDERATION, the receipt and adequacy of which are hereby
acknowledged, Assignor agrees as follows:
1. Assignment. Assignor assigns, transfers, sets over, and conveys to
Assignee all of Assignor's right, title, and interest, if any, in and to (i) any
warranties and/or guaranties, express or implied, from contractors, builders,
manufacturers, and/or suppliers inuring to the benefit of Assignor and relating
to the Property, (ii) any licenses or permits relating to the Property, provided
that Assignor does not hereby warrant as to the assignability of any of the
same.
2. Binding Effect. This Assignment shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns.
3. Construction; Definitions. This Assignment shall be construed according
to Massachusetts law. Capitalized terms used and not otherwise defined herein
shall have the meanings given to such terms in the Purchase Agreement.
DATED as of the day and year first above written.
ASSIGNOR: WHALING MFG. CO., INC.
By: _____________________________
Name:
Title:
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