PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made as of the 7th
day of August, 1998, by and among Xxxxxxxx X. XxXxxxx and Xxxxx X. XxXxxxx, as
Trustees of Xxxxxx Realty Trust under declaration of trust dated August 3, 1979,
recorded with the Bristol (Fall River) Registry of Deeds in Book 1286, Page 84
("Seller"), Quaker Fabric Corporation of Fall River ("Buyer"), and joined in for
the limited purposes set forth herein by Chicago Title Insurance Company, as
escrow agent ("Escrow Agent").
BACKGROUND
A. Seller is the owner of all that certain real property consisting of
approximately 25 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 Fifty Thousand Dollars ($50,000) per acre of land included in
the Property, as determined by the survey performed by Buyer in accordance with
Section 4.6 below, which, subject to the terms and conditions hereinafter set
forth, shall be paid to Seller by Buyer as follows:
2.1. Deposit. Upon the execution of this Agreement by Seller and
Buyer, Buyer shall deliver to Escrow Agent, in immediately available funds, to
be held in escrow and delivered in accordance with this Agreement, an initial
cash deposit in the amount of Fifty Thousand Dollars ($50,000). 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 Fifty Thousand Dollars ($50,000). Such amounts, with
all interest earned thereon, shall hereinafter be referred to as the "Deposit".
In the event that Buyer has not designated a date for Closing under
this Agreement by October 31, 1998, and thereafter Buyer terminates this
Agreement in accordance with the provisions of Section 4.4 below, Seller shall
be entitled to receive from the Deposit at the time of termination a sum equal
to Ten Thousand Dollars ($10,000.00) per month (or pro rata) portion thereof)
from November 1, 1998 through the date of termination of this Agreement. In the
event that the Closing occurs (a) prior to October 31, 1998, the entire Deposit
shall be applied to the Purchase Price at the Closing, (b) between November 1,
1998 and February 28, 1999, the amount of the Deposit applied to the Purchase
Price at the Closing shall be reduced by Two Thousand Five Hundred Dollars
($2,500.00) per month (or pro rata portion thereof), and (c) between March 1,
1999 and June 30, 1999, the amount of the Deposit applied to the Purchase Price
at the Closing shall be reduced by the sum of (i) Ten Thousand Dollars
($10,000.00) in respect of the period from November, 1998 through February,
1999, plus (ii) Five Thousand ($5,000.00) per month (or pro rata portion
thereof) for the period from March 1, 1999 through June 30, 1999.
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 trust, 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. The execution and delivery of this Agreement have been
duly authorized by the beneficiary of Seller.
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. Seller has not received written notice of and to
the best of Seller's knowledge there is no 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. Environmental Matters. Except as set forth in EXHIBIT B and any
environmental assessment or report listed therein (copies of which shall be
delivered to Buyer within two (2) business days after the full execution and
delivery of this Agreement), to the best of Seller's knowledge, no hazardous
substances or wastes have been generated, stored, released, discharged or
disposed of from or on the Property in violation of law. As used in this
Agreement, the terms "Hazardous Substances" and "Hazardous Wastes" shall have
the meanings set forth in the Comprehensive Environmental Response, Compensation
and Liability Act, as amended, and the regulations thereunder, the Resource
Conservation and Recovery Act, as amended, and the regulations thereunder, and
the Federal Clean Water Act, as amended, and the regulations thereunder, and
such terms shall also include asbestos, petroleum products, radioactive
materials and any regulated substances under any Federal, State or local
environmental law, regulation or ordinance.
3.10. FIRPTA. Seller is not a "foreign person" as defined in Section
1445(f)(3) of the Internal Revenue Code.
3.11 Continuing Obligations. There are no obligations in connection
with the Property which will be binding upon Buyer after Closing, except title
exceptions disclosed to Buyer pursuant to Section 4.7 hereof.
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.
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 Off-Site and Permitting Conditions. Buyer shall have acquired
adjacent parcels of land owned by Montaup Electric Company, 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 (less any amounts to be paid to Seller in
accordance with Section 2.1 above, which shall be disbursed by Escrow Agent to
Seller simultaneous with the delivery of the balance of the Deposit 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.
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.
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 at least five (5) days prior to Closing
(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 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 ten (10) 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 outstanding against
the Property, such matter shall automatically be deemed a
disapproved Exception; Seller hereby covenants to remove any
mortgage, tax lien, or other voluntary monetary encumbrance on or
before the Closing, provided that Seller's obligation as to any
involuntary monetary encumbrance shall be limited to the sum of
$25,000. Seller shall not be obligated to make such expenditure
unless the Inspection Period has expired and Buyer has waived the
Section 4.4 Conditions.
(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. In any event, Seller shall not be obligated to
expend more than the said sum of $25,000 in the aggregate under this
Agreement to undertake any cure of such later exceptions, other than
any mortgage, tax lien, or other voluntary monetary encumbrance.
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.
Attached hereto as Exhibit C is a correct and complete copy of Seller's
asphalt, brick and concrete disposal permit for the Property ("ABC Permit").
Buyer hereby agrees that Seller may continue to operate on the Property under
the terms of the ABC Permit during the term of this
Agreement, provided that Seller shall conduct such operations in accordance with
the requirements of the ABC Permit and only in the location shown on Exhibit C
identified as "Area Where Solid Fill Can Be Placed."
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 10:00 a.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.
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 satisfactory to
Buyer's title insurance company, subject only to such title matters as are
approved by Buyer pursuant to Sections 4.6 and 4.7.
6.2.2. All architectural and engineering drawings and
specifications, utilities layout plans, topographical plans and the like used in
the construction, improvement, alteration or repair of the Property in the
possession of Seller.
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 Evidence of the authority of the signatories on behalf of
Seller satisfactory to Buyer's title insurance company 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.
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"), all charges for water,
electricity, sewer rental, gas, telephone and all other utilities ("Utility
Expenses") 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, (2) Buyer's title and survey costs, and (3) all of the fees, costs and
expenses of Escrow Agent and the costs of any taxes assessed thereon. Seller, in
addition to its other expenses, shall pay at Closing (1) 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.
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 recover from Seller all out-of-pocket expenditures reasonably
incurred by Buyer in connection with this Agreement, and, in the case of any
breach of a representation, warranty or covenant of Seller, Buyer shall also be
entitled to recover its actual damages therefor.
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: Xxxxxxxx X. XxXxxxx and
Xxxxx X. XxXxxxx, Trustees of
Xxxxxx Realty Trust
000 Xxx Xxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: Same as Xxxxxx X. Xxxxxxxxxx
With a copy to: Xxxxxx X. Xxxxxxxxxx, Esq.
00 Xxxx Xxxxxx
Xxxx Xxxxx, XX 00000-0000
Fax: (000) 000-0000
11.2. If to Buyer:
Quaker Fabric Corporation of Fall River
000 Xxxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Fax No: 000-000-0000
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.
11.3 If to the Escrow Agent:
Chicago Title Insurance Company
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Fax No.: 000-000-0000
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; by
fax with evidence of transmission; 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. 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.
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 heirs,
executors, administrators, successors, assigns and personal representatives.
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.
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 Purchaser and Seller. 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:
--------------------------------
Xxxxxxxx X. XxXxxxx, as Trustee
aforesaid
--------------------------------
Xxxxx X. XxXxxxx, as Trustee
BUYER: QUAKER FABRIC CORPORATION
OF FALL RIVER
By:
-----------------------------
Xxxxx X. Xxxxxxxx
President and Chief
Executive Officer
ESCROW AGENT:
CHICAGO TITLE INSURANCE COMPANY
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
List of Exhibits
Exhibit A -- Description of Land
Exhibit B -- List of Environmental Reports
Exhibit C -- ABC Permit and Guidelines
Exhibit D -- Non-Foreign Affidavit
EXHIBIT A
DESCRIPTION OF THE LAND
(Follows this Page)
Approximately 25 acres of land in Fall River, Massachusetts, shown on
Assessors Map D-3 as Lots 4 and 22.
EXHIBIT B
List of Environmental Reports
and Qualifications to
Environmental Representations
None
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:
-----------------------------
Name:
Title:
