PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made as of the 22nd
day of January, 1999, by and among Xxxxxxxxxx X. Xxxxxxxxx, as Executrix of the
Estate of Xxxxxx X. Xxxxxxxxx and Xxxxx Xxxxxx, co-partners doing business as
Jefferson Realty Partnership, a Massachusetts general partnership ("Seller"),
Quaker Fabric Corporation of Fall River, a Massachusetts corporation ("Buyer"),
and joined in for the limited purposes set forth herein by Chicago Title
Insurance Corporation, as escrow agent ("Escrow Agent").
BACKGROUND
A. Seller is the owner of those certain parcels of land located in Fall
River, Massachusetts, more particularly described in Exhibits A, B and C 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
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 One Hundred Twenty-Five Thousand Dollars ($125,000) 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 Five Thousand Dollars
($5,000). 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 at Closing 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.
3. Representations and Warranties of Seller. Seller
represents and warrants to Buyer as follows:
3.1. Authority. Seller is a general 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.
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.
3.11 Accuracy of Information. Without limitation, all
information provided, or to be provided, by Seller to Buyer pursuant to this
Agreement is or will be complete and accurate in all material respects to the
best of Seller's knowledge.
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 to the best of Seller's knowledge,
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. Off-Site and Permitting Conditions. Prior to the Closing,
Buyer shall have acquired adjacent parcels of land owned by Xxxxxxxx XxXxxxx,
Montaup Electric Company, and the Xxxx Center, and shall have received from the
City of Fall River commitments satisfactory to Buyer to provide adequate utility
service and road and bridge access to the Property. In addition, Buyer shall
have received such permits and approvals as may be required from federal, state
and local officials having jurisdiction for the development of a facility for
Buyer's corporate activities on the Property. The conditions set forth in this
Section 4.4 shall be acceptable to Buyer in its sole discretion; such conditions
are hereafter referenced as the "Section 4.4 Conditions". At any time during the
term of this Agreement, Buyer may terminate this Agreement by giving written
notice that the Section 4.4 Conditions have not been satisfied, 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.
4.5. Inspection Period; Access; Purchase "As Is".
4.5.1. 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.
Buyer shall repair any damage to the Property caused by any tests or
investigations conducted by Buyer, and indemnify Seller from any and all
liabilities, claims, costs and expenses resulting therefrom. The foregoing
indemnification shall survive Closing or the termination of this Agreement.
During the Inspection Period, Buyer shall also seek the approval of the
transaction contemplated by this Agreement by its Board of Directors. Buyer
shall cause its agents to provide evidence of public liability insurance which
names Seller as an additional insured in the minimum amount of One Million
Dollars ($1,000,000.) as a condition of such entry.
In the event that Buyer's investigations during the
Inspection Period discover environmental matters which require remediation under
applicable law, Buyer agrees to reimburse Seller up to $25,000.000 for the cost
thereof, and Seller shall undertake and complete such remediation with a
licensed site professional approved by Buyer prior to the Closing. The
obligation of Buyer to reimburse Seller for remediation costs of up to
$25,000.000 as aforesaid shall be binding upon Buyer, whether or not Buyer
elects to terminate this Agreement under the provisions of Section 4.5.2 or any
other provision of this Agreement.
4.5.2. The term "Inspection Period," as used herein, shall
mean the period ending on the date which is sixty (60) days after the date of
execution of this Agreement by Buyer and Seller. Buyer may terminate this
Agreement 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 4.5.2 no longer shall be applicable, and this Agreement
shall continue in full force and effect.
4.6. Survey. Buyer shall approve or disapprove the Survey, as
hereinafter defined, in the following manner:
(a) Notice. Within forty-five (45) 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 use reasonable efforts to remove
any Survey Exceptions within sixty (60) days after Buyer's notice of
disapproval ("Survey Cure Period"). In the event that any such Survey
Exceptions are not reasonably capable of cure, or if such cure would
have a cost which exceeds $25,000, either party may terminate this
Agreement, unless the other party agrees to assume the cost of such cure
(or, if the same cannot be cured, Buyer may waive the same).
(c) Waiver of Uncured Matters. If Seller does not cure any Survey
Exceptions within the Survey Cure Period, Buyer shall have five (5) days
to give Seller written notice that Buyer waives its objections to the
Survey Exceptions. If Buyer does not give such notice, this contingency
shall be deemed not satisfied.
(d) Approved Survey. The Survey as approved by Buyer is referred to
herein as the "Approved Survey".
4.7. Title. Buyer shall review and approve or disapprove the
condition of title to the Property in the following manner:
(a) Report and Notice. Within forty-five (45) 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
sixty (60) 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 Exception on or before the Closing. Except as to
voluntary monetary encumbrances as to which there shall be no limit upon
Seller's obligations hereunder, Seller shall not be obligated to expend
more than $25,000 in the cure of any disapproved Exceptions.
(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 five (5) days to give Seller notice that Buyer waives its
objections to such Exception. If Buyer does not give such notice, this
contingency shall be deemed satisfied.
(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.
(f) Title Clearance Matters. Seller hereby agrees to complete the
following title clearance matters prior to or at the time of Closing,
the completion of which shall be a condition to the performance of Buyer
hereunder:
(i) Release of lease to X.X. Xxxxxxx & Sons, Inc., including the
option to purchase thereunder, as to the Property to be conveyed hereunder;
(ii) Release of leasehold mortgage to Fleet Bank, as to the
Property to be conveyed hereunder;
(iii) Release of mortgage held by Xxx Xxxx and the Xxxxxxx X.
Xxxxx Revocable Trust, as to the Property to be conveyed hereunder;
(iv) Release of flowage rights over land owned by Xxxxxxxx X.
XxXxxxx and Xxxxx X. XxXxxxx, Trustees of Xxxxxx Realty Trust;
(v) Amendment of Covenant regarding the height of Bleachery Pond
to ensure that adjacent premises cannot be subject to flowage therefrom.
(g) Right of Way Easement to Seller. Buyer hereby agrees to grant to
Seller a right of way easement over an accessway to be constructed by Buyer from
the existing Frontage Road to Succor Brook in the approximate location shown on
the plan attached hereto as Exhibit A (the "Right of Way Easement"), such
easement to be granted to Seller upon completion of such accessway by Buyer.
4.8. 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 change to title or
survey matters from the Approved Title and the Approved Survey shall have
arisen.
4.9 Seller Approvals. Prior to the expiration of the Inspection
Period, Seller shall deliver to Buyer written confirmation that Seller has
received the approval of Seller's Board of Directors and any and all regulatory
approvals required for Seller to enter into this Agreement and perform its
obligations hereunder.
4.10 Xxxxxxxxx Estate. The parties acknowledge that the partnership
interest of Xxxxxx Xxxxxxxxx in Seller is now held in his estate. In the event
of a reorganization of Seller occassioned thereby, Seller confirms that any
successor corporation or other entity shall be bound by this Agreement, and
shall cause such successor entity to become a signatory to this Agreement.
Seller further agrees to deliver such title clearance and probate documents as
may be necessary to enable Seller to deliver clear title hereunder as a result
of the death of Xx. Xxxxxxxxx.
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 2:00 p.m. on a
date specified by written notice from Buyer to Seller at the offices of Xxxx and
Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, no later than June 30,
1999, unless otherwise agreed to in writing by both Seller and Buyer. The
Closing may be extended by Buyer upon written notice to Seller prior to the
originally scheduled date for Closing for up to thirty (30) days, to enable
Buyer to satisfy the Off-site Conditions (as defined in 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, subject only to such title matters as are approved by
Buyer pursuant to Sections 4.6 and 4.7.
6.2.2. The Title Clearance Matters referenced in Section 4.7(f)
above.
6.2.3. Such affidavits or letters of indemnity as the title
insurer shall require in order to 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.
6.2.4. A Non-Foreign Affidavit as required by the Foreign
Investors in Real Property Tax Act ("FIRPTA"), as amended, in the form of
Exhibit D, duly executed by Seller.
6.2.5. A certification by Seller that all representations and
warranties made by Seller in Article 3 of this Agreement are true and correct on
the date of Closing, except as may be set forth in such certificate.
6.2.6 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.
6.2.7. All other instruments and documents reasonably required
to effectuate this Agreement and the transactions contemplated hereby. To the
extent possible, all closing documents shall be submitted to Seller's counsel
for its review and approval at least seven (7) days prior to Closing.
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
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.
7.1 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.
7.2. 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 Real
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 and realty transfer taxes.
8. Condemnation; Award.
If at any time prior to the date of Closing any material 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 condemnation or taking, as above set forth, and if
Buyer elects not to terminate this Agreement as therein provided, then 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, less
any expenses incurred by Seller in obtaining such award.
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.
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: Jefferson Realty Partnership
000 Xxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Attn: Xx. Xxxxxxxx Xxxxxxxxx
Fax No.: 508-
11.2. 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, 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.
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
("Brokers"). 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. 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 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 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. 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.
14.2. 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.
14.3. Time of the Essence. Time is of the essence of this Agreement.
14.4. 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.
14.5. 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.
14.6. 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.
14.7. Survival. Unless otherwise expressly stated in this Agreement,
each of the warranties and representations of Seller and Buyer shall survive the
Closing and delivery of the deed and other closing documents by Seller to Buyer,
and shall not be deemed to have merged therewith; provided, however, that any
suit or action for breach of any of the representations or warranties set forth
herein must be commenced within one (1) year after the Closing or any claim
based thereon shall be deemed irrevocably waived.
14.8. 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.
14.9. 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.
14.10 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.
14.11 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. The parties hereby 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.
14.12. 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.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
SELLER: JEFFERSON REALTY PARTNERSHIP
By: _________________________________
Xxxxxxxxxx X. Xxxxxxxxx, as Executrix
of the Estate of Xxxxxx X. Xxxxxxxxx,
General Partner
By: _________________________________
Xxxxx Xxxxxx, General Partner
BUYER: QUAKER FABRIC CORPORATION
OF FALL RIVER
By: _________________________________
Xxxxx X. Xxxxxxxx
President and Chief Executive Officer
ESCROW AGENT: CHICAGO TITLE INSURANCE COMPANY
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By:
Its:
List of Exhibits
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Exhibit A, B, C and D - Description of Land
Exhibit D - Non-Foreign Affidavit
EXHIBITS A, B AND C
DESCRIPTION OF THE LAND
(Follows this Page)
The premises to be conveyed hereunder are Parcels A and B as shown on
Exhibit A, Parcel G as shown on Exhibit B, and the highlighted parcels shown on
Exhibit C (being Lot 1 on Assessors Plat X-00, Xxx 0 xx Xxxxxxxxx Xxxx X-0 and
Lot 5 on Assessors Plat D-3.
EXHIBIT D
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 ___________________________
("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 _____________, ____
By:
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Name:
Title:
