10.96
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made as of the 4th day
of September, 2001, by and among Xxxxxxx McAnsin Associates, A Limited
Partnership, a Massachusetts limited partnership ("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 parcel of land with the approximately
164,000 square foot building thereon ("Improvements") at 0000 Xxxxxxx Xxxxxx,
Xxxx Xxxxx, Xxxxxxxxxxxxx, more particularly described in Exhibit A hereto,
together with all easements, rights and privileges appurtenant thereto, (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
all of Seller's right, title and interest in 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 Five Million and 00/100 ($5,000,000.00) Dollars, which, subject
to the terms and conditions hereinafter set forth, shall be paid to Seller by
Buyer as follows:
2.1. Deposit. Seller and Buyer acknowledge that Buyer has delivered
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 Two Hundred Thousand Dollars ($200,000.00). 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 limited partnership, 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 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.
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3.11. Premises Condition. Seller has not received any written notice
that (i) the Property is in violation of any governmental order or any law or
regulation or (ii) the physical or environmental condition of the Property
requires remediation or poses a material risk to human health or the
environment. This representation shall survive the closing for one year.
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 and subject to
Section 4.4.2, 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 at 5:00 p.m. on October 4, 2001. Within two business days
after the date hereof, Seller shall deliver to Buyer copies of all title
policies, surveys, physical conditions and environmental reports in Seller's
possession relating to the Property. Buyer may perform a Phase 1 environmental
site assessment and, with Seller's permission if recommended by the Licensed
Site Professional in the Phase 1 report, a Phase 2 assessment including soil and
groundwater sampling. Buyer may terminate this Agreement, after inspection,
surveying and testing of the Property, or should Seller refuse permission for a
Phase 2 assessment, such termination to be in Buyer's sole discretion and given
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
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forthwith to Buyer and, except as expressly set forth herein, neither party
shall have any further liability or obligation to the other hereunder. However,
should such termination be caused by Seller's refusal to permit a Phase 2
environmental assessment, Seller shall reimburse Buyer promptly for all its out
of pocket costs incurred in connection with its due diligence investigations up
to an amount not to exceed Fifty Thousand Dollars ($50,000.00). 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:
(a) Notice. On or before October 4, 2001, 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. On or before October 4, 2001, Buyer
shall obtain, at Buyer's expense, a title report ("Title
Report") on the Property,
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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
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 financial 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 material adverse change
to title or survey matters from the Approved Title and the Approved Survey shall
have arisen.
4.8 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
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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 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 October 15, 2001 unless terminated by Buyer
pursuant to Section 4.4.
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, if necessary, 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 copy of Seller's Limited Partnership Agreement and
the Operating Agreement of Seller's general partner together with such evidence
as may be appropriate 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.
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6.2.7. An Assignment of Warranties, Permits, Approvals and
Other Intangibles in the form attached hereto as Exhibit D.
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 (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 Fifty Thousand Dollars
($50,000.00), 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
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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 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 (other than as set forth on the Xxxx of Sale) removed 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: Xxxxxxx McAnsin Associates,
A Limited Partnership
c/o Xxxx Fabrics Corporation
100 Vesper Executive Park
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx, Esq.
Fax No.: (000) 000-0000
with a copy to: Goulston & Storrs, PC
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax No.: (000) 000-0000
If to Buyer: Quaker Fabric Corporation of Fall River
000 Xxxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Fax No: 000-000-0000
Attn: Xxxxxxx X. Xxxxxx, Esq.
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: Xxxxx Xxxxxx, Esq.
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
Xxxxxxx & Xxxxxxxxx of Massachusetts, Inc. ("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
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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 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 and 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.
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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.
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. Buyer acknowledges, however, that
the Broker's "For Sale" sign currently located at the Property may remain at the
Property through the date of Closing.
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
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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.
14.14. Subject to Approval. Notwithstanding any other provision of
this Agreement, the obligation of Buyer to consummate the transaction
contemplated herein shall be subject to the conditions that its Board of
Directors and the Board of Directors of Quaker Fabric Corporation, the sole
stockholder of Buyer, shall have approved the purchase of the Property by Buyer,
pursuant to the terms and conditions of this Agreement, on or prior to the date
that is three business days after the expiration of the Inspection Period (the
"Board Approval Date"). If Buyer fails to give Seller notice on or before the
Board Approval Date that either or both of such boards have disapproved the
purchase of the Property by Buyer pursuant to the terms hereof, then this
condition shall be deemed waived and this Agreement shall continue in full force
and effect. If, however, Buyer gives notice to Seller of such disapproval as
required above, then this Agreement shall terminate and neither party shall have
any further rights or obligations hereunder (except for any indemnity
obligations of either party pursuant to the other provisions of this Agreement),
the Deposit shall be returned to Buyer and each party shall bear its own costs
hereunder.
[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:
XXXXXXX McANSIN ASSOCIATES,
A LIMITED PARTNERSHIP
By: McDonna, LLC, general partner
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:
XXXXXXX & XXXXXXXXX OF
MASSACHUSETTS, INC.
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 parcel of land with the approximately 164,000 square foot building
thereon located at 0000 Xxxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxxxxxxxx, more fully
described on the plan attached hereto.
The Property does not include any of the following personal property or
equipment which might be considered a fixture: any textile manufacturing
equipment and/or equipment owned or used by Main Street Textiles, L.P. in the
manufacturing or finishing of fabric including, but not limited to the finishing
line, bulk storage system and compressors located at 0000 Xxxxxxx Xxxxxx, Xxxx
Xxxxx, Xxxxxxxxxxxxx.
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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 XXXXXXX McANSIN ASSOCIATES,
A LIMITED PARTNERSHIP ("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 _____________, ____ XXXXXXX McANSIN ASSOCIATES,
A LIMITED PARTNERSHIP
By: McDonna, LLC, general partner
By: ____________________________
Name:
Title:
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EXHIBIT C
XXXX OF SALE
Xxxxxxx McAnsin, A Limited Partnership ("Seller"), for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby grants, bargains, sells, transfers and delivers to Quaker Fabric
Corporation of Fall River a Massachusetts corporation ("Buyer"), all of Seller's
fixtures, equipment and personal property (other than textile manufacturing
equipment) located on or used in connection with the real property described on
Schedule 1 (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. This Xxxx of Sale does not include any equipment owned or
used by Main Street Textiles, L.P. in the manufacturing or finishing of fabric
including but not limited to the finishing line, bulk storage system and
compressors located on the Real Property on August 29, 2001.
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.
Buyer accepts the Personal Property in its "as is" condition, without
representation or warranty of any kind by Seller.
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.
XXXXXXX McANSIN ASSOCIATES,
A LIMITED PARTNERSHIP
By: McDonna, LLC, general partner
By: ____________________________
Name:
Title:
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SCHEDULE 1
REAL PROPERTY DESCRIPTION
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EXHIBIT D
ASSIGNMENT OF PERMITS, ETC.
See attached
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ASSIGNMENT OF PERMITS, APPROVALS AND OTHER INTANGIBLES
DATE: October ____, 2001
ASSIGNOR: Xxxxxxx McAnsin Associates, A Limited Partnership, a
Massachusetts limited partnership
ASSIGNEE: Quaker Fabric Corporation of Fall River, a Massachusetts
corporation
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 August ___, 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 and to
the extent they are assignable (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 (but not the manufacturing operations of Main
Street Textiles, L.P.), 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.
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DATED as of the day and year first above written.
XXXXXXX McANSIN ASSOCIATES,
A LIMITED PARTNERSHIP
By: McDonna, LLC, general partner
By: _____________________________
Name:
Title:
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