PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made as of the 6th
day of January, 1999 by and among Montaup Electric Company, 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 Xxxxx X. Xxxxxxxx, Esq., as escrow agent ("Escrow Agent").
BACKGROUND
A. Seller is the owner of all that certain real property consisting of
approximately 8.82 acres of land, more or less, located in Fall River,
Massachusetts, as 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
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 Hundred Five Thousand Dollars ($205,000) 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 Twenty-Five Thousand Dollars ($25,000). Prior to
expiration of the Inspection Period (as defined in Section 4.5.2 below), Buyer
shall deliver to Escrow Agent, in immediately available funds, to be held in
escrow and delivered in accordance with this Agreement, an additional cash
deposit in the amount of Twenty-Five Thousand Dollars ($25,000). Such amounts,
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 ollows:
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.
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. To the best of Seller's knowledge, Seller has
not received written notice of any existing violation of any federal, state,
county or municipal laws,
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ordinances, orders, codes, regulations or requirements affecting the Property,
except for the correspondence attached hereto as Schedule 3.7.
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. Omitted.
3.10. FIRPTA. Seller is not a "foreign person" as defined in
Section 1445(f)(3) of the Internal Revenue Code.
3.11 Omitted.
3.12 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.
3.13 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.
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4.4. Off-Site and Permitting Conditions. Prior to the Closing,
Buyer shall have acquired adjacent parcels of land owned by Xxxxxxxx XxXxxxx,
Xxxxxxxxx, 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.
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
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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 $5,000, 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
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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 $5,000 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) Relocation of Electrical Easement. Seller hereby
acknowledges that Buyer's obligations under this Agreement are
expressly conditioned upon the agreement by Seller to permit the
relocation of the electrical easement and all equipment and facilities
associated therewith which encumbers the Premises, as well as the
relocation of the electrical easement and all equipment and facilities
associated therewith which encumbers land owned by XxXxxxx and
Xxxxxxxxx (collectively, the "Relocation"), in such a manner as to
enable Buyer to undertake the development of its proposed facilities on
such properties in a manner acceptable to Buyer and Seller,
substantially as shown on Exhibit B1.
To accomplish the foregoing, Seller and Buyer hereby agree as follows:
(i) Seller hereby agrees to hire by January 31, 1999 an
outside consultant to assist in the preparation of a
design and cost analysis of the Relocation (the
"Relocation Study"). During the month of January,
Buyer shall seasonably provide such engineering
information regarding its proposed project as Seller
may reasonably require to enable the Relocation Study
to proceed, including soil borings for proposed pole
relocation areas as shown on the attached Exhibit
B-1. Simultaneously with the execution of this
Agreement, Buyer shall pay Seller the non-refundable
sum of $80,000.00, which sum shall be used by Seller
to pay for the outside consultant and all of Seller's
other costs associated with the Relocation Study.
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(ii) After Seller has engaged its outside consultant,
Buyer shall work cooperatively with Seller, and with
the outside consultant as needed, to determine the
design and cost for the Relocation which accommodates
Buyer's proposed project and Seller's easement
transmission line and is as economical as possible,
all in accordance with sound engineering practices.
The period from such engagement through March 31,
1999 is referred to herein as the "Study Period").
During the Study Period, Seller shall commission its
retail business service department to prepare its
proposal for the design and cost of electrical
service to Buyer's proposed project (the "Project
Service"). By no later than March 31, 1999 (provided
that Buyer has provided to Seller the information
required under item (i) above by January 31, 1999),
Seller shall make a final proposal to Buyer for the
design and cost of the Relocation and the Project
Service. By no later than April 30, 1999, Buyer shall
either accept Seller's proposal, in which case this
Agreement shall remain in full force and effect, or
Buyer shall reject Seller's proposal, in which case
this Agreement shall terminate, the Deposit (but not
the $80,000.00 paid under item (i) above) shall be
returned to Buyer, and neither party shall have
further recourse hereunder.
(iii) During the Study Period, Seller and Buyer shall agree
upon the schedule upon which the Relocation and
Project Service work shall be completed. Buyer
acknowledges that the schedule must contemplate a
spring or fall service change over, that Seller must
be given an adequate time period to order the
equipment necessary for the approved plans, and that
appropriate financial arrangements for the cost of
the equipment and the relocation must be made before
the same is ordered and/or undertaken by Seller.
Buyer further acknowledges that the schedule for
performance of the work is subject to approval by the
ISO, Buyer's acquisition of the Premises and other
properties on which the Relocation is to be
accomplished and completion of permitting at the time
contemplated in the schedule, and is further subject
to delay occasioned by adverse weather conditions,
labor difficulties, strikes, earthquakes, and other
similar Acts of God. On its part, Seller acknowledges
that the Relocation and Project Service are critical
elements of Buyer's proposed project, and agrees to
work as expeditiously as possible to meet the agreed
upon schedule.
(iv) Buyer shall be responsible for obtaining all
governmental permits and approvals necessary for the
Relocation and the Project Service, provided that (a)
Seller shall cooperate with Buyer in the permitting
process, (b) Buyer shall promptly submit to Seller
for its review and approval upon preparation of the
same all permit applications and studies affecting
the Relocation and Project Service, and (c) Seller
agrees to respond promptly
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to Buyer's submissions so as to enable Buyer's
permitting process to proceed to its targeted
conclusion of June, 1999. As a condition of closing,
Buyer shall certify to Seller that Buyer has obtained
all governmental permits and approvals required for
the Relocation and the Project Service, and shall
provide Seller with copies of the same.
(v) Buyer shall provide to Seller as a condition of
closing an owner's policy of title insurance issued
by a title insurance company acceptable to Seller and
an ALTA survey of the Relocation, which insurance
shall be in the amount of $500,000.00, and shall
insure Seller's easement rights subject only to such
matters of record as may be reasonably approved by
Seller's counsel. Seller and Buyer shall agree upon
the form of the specimen title policy, inclusive of
the ALTA survey, and the easement for the Relocation
prior to Closing, provided that Seller shall have no
less than sixty (60) days to review the same. In
addition, Seller shall have the right to review and
approve the status of record title to the proposed
area for the Relocation, which approval or
disapproval shall be given by Seller by written
notice to Buyer by no later than March 31, 1999.
Buyer shall further provide to Seller whatever title
reports and information it presently has in its
possession. Prior to March 31, 1999, Seller and Buyer
shall agree upon the easement document/language for
the relocated easement, and, should they fail to do
so, either party may elect to terminate this
Agreement, in which case this Agreement shall
terminate, the Deposit (but not the $80,000.00 paid
under item (i) above) shall be returned to Buyer, and
neither party shall have further recourse hereunder.
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.
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.
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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 Xxxxx X. Xxxxxxxx & Associates, P.C. 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxxx,
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. Omitted.
6.2.3. Such reasonable and customary 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 C, 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:
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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. Except as otherwise specifically provided in
this Agreement, 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.
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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. Notwithstanding the foregoing, Buyer shall
be liable to Seller for all amounts owed by Buyer to Seller in accordance with
the terms of Section 4.7(f) in the event of a default or termination of this
Agreement, in addition to the Deposit as aforesaid.
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: Montaup Electric Company
c/o EUA Service Corporation
000 Xxxx Xxxxxx Xxxxxx
Xxxx Xxxxxxxxxxx, XX 00000
Attn: Xx. Xxxxxxx X. Xxxxx,
Xx. Real Estate/
Contract Agent
Fax No.: 000-000-0000
With a copy to: Xxxxx X. Xxxxxxxx, Esq.
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Fax No.: 000-000-0000
11.2. If to Buyer: Quaker Fabric Corporation of
Fall River
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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
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
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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 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.
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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.
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
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.
14.9. 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. 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.
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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.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
SELLER: MONTAUP ELECTRIC COMPANY
By:___________________________
Xxxxx X. Xxxxx
Vice President
BUYER: QUAKER FABRIC CORPORATION
OF FALL RIVER
By:____________________________
Xxxxx X. Xxxxxxxx
President and Chief Executive Officer
ESCROW AGENT:
------------------------------------
Xxxxx X. Xxxxxxxx, Esq.
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List of Exhibits
Exhibit A - Description of Land
Exhibit B - Plan Showing Proposed Relocation of Electrical Easement
Exhibit C - Non-Foreign Affidavit
Schedule 3.7 - Correspondence regarding alleged legal violations
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EXHIBIT A
DESCRIPTION OF THE LAND
The premises described in a deed from Xxxxx Realty Corp. to Seller
dated November 4, 1965, recorded with the Bristol (Fall River) Registry of Deeds
in Book 866, Page 326, a copy of which is attached hereto.
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EXHIBIT B
Relocation of Electrical Easement
Seller and Buyer hereby agree that the electrical easement shall be
relocated substantially as shown on the plan attached hereto as Exhibit B-1.
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EXHIBIT C
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:________________________
Name:
Title:
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