Exhibit 99.2
7.02.04
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of July 2,
2004 (the "Effective Date"), by and between Charles McAnsin Associates, A
Limited Partnership, a Massachusetts limited partnership ("Seller"), Joan
Fabrics Corporation, a Delaware corporation ("JF"), Main Street Textiles, L.P.,
a Delaware limited partnership ("MS"), each having an address of 100 Vesper
Executive Park, Tyngsboro, Massachusetts 01879-2710, Quaker Fabric Corporation
of Fall River, a Massachusetts company having an address of 941 Grinnell Street,
Fall River, Massachusetts 02721 ("Purchaser"), and Stewart Title Guaranty
Company, having an address of 99 Summer Street, Boston, MA 02110 ("Escrow
Agent").
W I T N E S S E T H:
ARTICLE 1
PURCHASE AND SALE
Section 1.1 Agreement of Purchase and Sale. Subject to the terms and
conditions hereinafter set forth, Seller agrees to sell and convey to Purchaser,
and Purchaser agrees to purchase from Seller the following:
(a) a leasehold estate in the land ("Land") located at 81 Commerce Drive,
Fall River, Massachusetts more particularly described in a Ground Lease between
the Fall River Redevelopment Authority ("FRRA"), as landlord, and Seller, as
tenant, attached hereto as Exhibit A ("Ground Lease"), together with all rights
and appurtenances pertaining thereto, including any right, title and interest of
Seller in and to adjacent streets and or rights-of-way (the property described
in clause (a) of this Section 1.1 being herein referred to collectively as the
"Land");
(b) a fee interest in the building, structure, fixtures and other
improvements affixed to or located on the Land (other than textile equipment or
equipment used in the processing of textile products affixed to or located at
the building), subject to the terms of the Ground Lease (the property described
in clause (b) of this Section 1.1 being herein referred to collectively as the
"Improvements");
(c) any and all of Seller's right, title and interest in and to the
tangible personal property located upon the Land or within the Improvements
located on and used exclusively in connection with the operation of the Land and
the Improvements, as listed on Exhibit B, but excluding therefrom textile
equipment or equipment used in the processing of textile products affixed to or
located at the building (the property described in clause (c) of this Section
1.1 being herein referred to collectively as the "Personal Property"); and
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(d) any and all of Seller's right, title and interest (subject to any
conditions on assignability by governmental authorities or issuers of warranties
or guaranties, provided that Seller shall cooperate with Buyer (at no
out-of-pocket expense to Seller) in the satisfaction of any such conditions) in
and to (i) all existing warranties and guaranties (express or implied) issued to
Seller with respect to the Improvements and the Personal Property (including
without limitation, any guarantees or warranties, if any, with respect to the
roof, heating, air conditioning, and other building systems), (ii) all existing
permits, licenses, approvals and authorizations issued by any governmental
authority in connection with the Property (including, so long as there is no
cost to Seller, the Tax Increment Financing Agreement among Seller, MS, and the
City of Fall River ["JF TIF Agreement"], subject to the approval of such
assignment by the City of Fall River) (excepting from the foregoing any
non-assignable permits specifically related to Seller's textile operations), and
(iii) all plans, specifications, drawings, surveys, engineering and other design
products, soils (including borings) tests and reports, and other technical
descriptions relating to the Land and Improvements (the property described in
clause (d) of this Section 1.1 being sometimes herein referred to collectively
as the "Intangibles").
The Seller's leasehold estate in the Land, and the Seller's fee interest in
the Improvements, the Personal Property, and the Intangibles are hereinafter
sometimes referred to collectively as the "Property."
Section 1.2 Purchase Price; Deposit. Seller is to sell and Purchaser is to
purchase the Property for the amount of Twenty-One Million and 00/100 Dollars
($21,000,000.00) (the "Purchase Price").
Simultaneously with the execution and delivery of this Agreement by Seller
and Purchaser (the "Effective Date"), Purchaser shall deliver to Escrow Agent,
in immediately available funds, to be held in escrow and delivered in accordance
with this Agreement, a cash deposit in the amount of One Hundred Thousand and
00/100 Dollars ($100,000.00) (such amount shall hereinafter be referred to as
the "Deposit"). The Deposit shall be held in an insured, interest bearing
clients fund trust account by Escrow Agent, and the Deposit with all interest
accrued thereon shall be applied to the Purchase Price hereunder if the Closing
occurs, and shall otherwise be paid to the party entitled to receive the same if
the Closing does not occur, in accordance with the terms of this Agreement.
Section 1.3 Payment of Purchase Price. At the consummation of the
transaction contemplated hereby (the "Closing"), Purchaser shall deliver to
Seller cash in an amount equal to the Purchase Price less the Deposit, and
Escrow Agent shall deliver the Deposit to Seller. 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 to
arrive on the Closing Date.
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ARTICLE 2
TITLE AND SURVEY
Section 2.1 Title Inspection Period. During the period beginning upon the
Effective Date and ending at 5:00 p.m. (local time at the Property) on ________
___, 2004 [90 days from the date of execution of this Agreement] (hereinafter
referred to as the "Title Inspection Period"), Purchaser shall have the right to
review (a) a current preliminary title report on the Real Property, accompanied
by copies of all documents referred to in the report, which shall be obtained by
Purchaser promptly after the Effective Date (the "Title Report"); and (b) a
current survey of the Real Property, which may be obtained by Purchaser at its
election and expense (the "Survey").
Section 2.2 Title Examination. Purchaser shall notify Seller in writing
(the "Title Notice") prior to the expiration of the Title Inspection Period
which exceptions to title (including survey matters), if any, will not be
accepted by Purchaser. If Purchaser fails to notify Seller in writing of its
disapproval of any exceptions to title by the expiration of the Title Inspection
Period, Purchaser shall be deemed to have approved the condition of title to the
Real Property as set forth in the Title Report. If Purchaser notifies Seller in
writing that Purchaser objects to any exceptions to title, Seller shall use
reasonable efforts to remove any exceptions, provided that Seller may extend the
Closing for such period as shall be required to effect such cure, but not beyond
thirty (30) days. If despite said reasonable efforts Seller is unable to so cure
or remove said exceptions, Seller shall notify Purchaser, and Purchaser shall
have five (5) business days in which to notify Seller that Purchaser will
nevertheless proceed with the purchase and take title to the Property subject to
such exceptions, or that Purchaser will terminate this Agreement. If this
Agreement is terminated pursuant to the foregoing provisions of this paragraph,
then neither party shall have any further rights or obligations hereunder
(except for any indemnity obligations pursuant to the other provisions of this
Agreement), except that, if the exceptions to title relate to matters which
would interfere with Purchaser's intended use of the Property in a material way
or are referenced on Exhibit A-1, Seller shall reimburse Purchaser for
Purchaser's third party expenses incurred in connection with this Agreement, up
to a maximum of $150,000. If Purchaser shall fail to notify Seller of its
election within said five-day period, Purchaser shall be deemed to have elected
to proceed with the purchase and take title to the Property subject to such
exceptions. Notwithstanding the foregoing, (a) all mortgages and other voluntary
monetary encumbrances are hereby deemed to be disapproved by Purchaser and shall
be removed by Seller by or at the Closing, (b) any and all leases and other
occupancy agreements between Seller and MS (collectively, the "MS Lease") are
hereby deemed to be disapproved by Purchaser and shall be terminated by Seller
and MS by the Closing, and (c) Purchaser agrees that Purchaser shall not raise a
title objection hereunder as to the October 15, 2001 letter from Seller to Mr.
Paul R. Viveiros, a copy of which is attached hereto as Exhibit A-2.
Section 2.3 Pre-Closing "Gap" Title Defects. Purchaser may, at or prior to
Closing, notify Seller in writing (the "Gap Notice") of any objections to title
raised by the Title Company between the expiration of the Title Inspection
Period and the Closing. If Purchaser sends a Gap
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Notice to Seller, Purchaser and Seller shall have the same rights and
obligations with respect to such notice as apply to a Title Notice under Section
2.2 hereof.
Section 2.4 Permitted Exceptions. The Property shall be conveyed subject to
the following matters, which are hereinafter referred to as the "Permitted
Exceptions":
(a) those matters referenced in Exhibit A-1 and other matters that, in
either case, are not objected to in writing within the time periods provided in
Sections 2.2 or 2.3 hereof, or if objected to in writing by Purchaser, are those
which Seller despite having used reasonable efforts in accordance with the terms
of Section 2.2 has been unable to remove or cure, and subject to which Purchaser
has elected or is deemed to have elected to accept the conveyance of the
Property;
(b) the lien of all ad valorem real estate taxes and assessments not yet
due and payable as of the date of Closing, subject to adjustment as herein
provided;
(c) local, state and federal laws, ordinances or governmental regulations,
including but not limited to, building and zoning laws, ordinances and
regulations, now or hereafter in effect relating to the Property;
(d) items shown on the Survey and not objected to by Purchaser or waived or
deemed waived by Purchaser in accordance with Section 2.2 hereof; and
(e) the Ground Lease, as amended by any Amendment to Lease (as defined in
Section 4.6(e) below).
Section 2.5 Conveyance of Title. At Closing, Seller shall convey and
transfer to Purchaser good, clear, record and marketable leasehold title to the
Land, and fee simple title to the Improvements, the Personal Property, and the
Intangibles, subject only to the Permitted Exceptions, by execution and delivery
of the Assignment and Assumption of Ground Lease, the Deed of Improvements, and
the Bill of Sale and Assignment (as defined in Section 4.2 hereof).
ARTICLE 3
REVIEW OF PROPERTY
Section 3.1 Right of Inspection. During the period beginning upon the
Effective Date and ending at 5:00 p.m. (local time at the Property) on _________
___, 2004 [90 days from the date of execution of this Agreement] ( (hereinafter
referred to as the "Initial Inspection Period"), as extended as set forth
herein, Purchaser shall have the right to make a physical inspection and other
inspections and reviews of the Property, including without limitation, a
complete physical and structural inspection of the Property, a Phase I and Phase
II (if recommended in the Phase I report) environmental investigation of the
Property, pursuant to the terms and conditions of this Agreement ("Environmental
Investigation"). The Environmental Inspection shall be conducted by GZA
Geoenvironmental, Inc. or Haley and Aldrich, or by another environmental
assessment
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firm chosen by Purchaser and approved by Seller, which approval shall not be
unreasonably withheld or delayed.
Purchaser agrees to protect, indemnify, defend and hold Seller harmless
from and against any claim for liabilities, losses, costs, damages, and expenses
(including reasonable attorneys' fees) (collectively, "Claims"), with respect to
personal injury or property damage resulting from the inspection of the Property
to the extent caused by Purchaser or its agents or consultants, and
notwithstanding anything to the contrary in this Agreement, such obligation to
indemnify and hold harmless Seller shall survive Closing or any termination of
this Agreement. Consistent with the foregoing, such indemnification shall not be
deemed to apply to Claims arising out of the mere existence of hazardous
materials discovered by Purchaser to the extent that the actions or omissions of
the Purchaser or its agents or consultants do not otherwise create or increase
such Claims or do not exacerbate any existing environmental conditions.
Purchaser shall have the right in its sole and absolute discretion to
extend the Initial Inspection Period for a additional thirty (30) days upon
written notice to Seller delivered prior to the expiration of the Initial
Inspection Period for the purpose of completion of its Environmental
Investigation. In such event, the term "Inspection Period" shall refer to the
Initial Inspection Period, as so extended.
Section 3.2 Right of Termination. Purchaser shall have the right to
terminate this Agreement in its sole and absolute discretion by giving written
notice thereof to Seller prior to the expiration of the Inspection Period
(provided that any termination during the aforesaid thirty-day extension of the
Initial Inspection Period shall be on the basis of environmental matters only),
and if Purchaser gives such notice of termination within the Inspection Period,
this Agreement shall terminate. If this Agreement is terminated pursuant to the
foregoing provisions of this paragraph, then neither party shall have any
further rights or obligations hereunder (except for any indemnity obligations
pursuant to the other provisions of this Agreement), and each party shall bear
its own costs incurred hereunder and the Deposit shall be forthwith returned to
Purchaser. If Purchaser fails to give Seller a notice of termination prior to
the expiration of the Inspection Period, Purchaser shall be deemed to have
elected to proceed with the purchase of the Property pursuant to the terms
hereof.
ARTICLE 4
CLOSING
Section 4.1 Time and Place; Possession. The consummation of the transaction
contemplated hereby (the "Closing") shall be held at the offices of Wilmer
Cutler Pickering Hale and Dorr LLP, 60 State Street, Boston, Massachusetts 02109
thirty (30) days (or the next business day thereafter) following the expiration
of the Inspection Period, on a date specified by five (5) days prior written
notice from Purchaser to Seller. At the Closing, Seller and Purchaser shall
perform the obligations set forth in, respectively, Section 4.2 and Section 4.3
hereof, the performance of which obligations shall be concurrent conditions.
Full possession of the Premises, free of all tenants and occupants, except for
Purchaser under the terms of the QF Occupancy Agreement and Seller under the
terms of the JF Occupancy Agreement (as defined in
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Section 9.13 below), is to be delivered at Closing, the Premises to be then in
the same condition as they now are, reasonable use and wear thereof excepted,
and otherwise in compliance with the terms of this Agreement.
Section 4.2 Seller's Obligations at Closing. At Closing, Seller shall:
(a) deliver to Purchaser an Assignment and Assumption of Ground Lease with
respect to the Ground Lease fully executed by Seller in the form attached hereto
as Exhibit C, subject only to the Permitted Exceptions and the consent of the
City of Fall River and the FRRA;
(b) deliver to Purchaser a duly executed Massachusetts quitclaim deed (the
"Deed"), conveying the Improvements in the form attached hereto as Exhibit D,
subject only to the Permitted Exceptions;
(c) deliver to Purchaser a Bill of Sale and Assignment ("Bill of Sale")
conveying the Personal Property and Intangibles in the form attached hereto as
Exhibit E;
(d) deliver to Purchaser the fully executed original Ground Lease and any
Amendment of Ground Lease;
(e) deliver to Purchaser the original JF TIF Agreement if the proviso in
Section 1.1 (d)(ii) is met;
(f) deliver a confirmation of Seller's representations and warranties
hereunder in the form attached hereto as Exhibit F;
(g) deliver to Purchaser such evidence as the Title Company may reasonably
require as to the authority of the person or persons executing documents on
behalf of Seller;
(h) deliver to Purchaser a certificate in the form attached hereto as
Exhibit G duly executed by Seller stating that Seller is not a "foreign person"
as defined in the Federal Foreign Investment in Real Property Tax Act of 1980;
(i) deliver such affidavits as may be customarily and reasonably required
by the Title Company, in a form reasonably acceptable to Seller;
(j) execute a closing statement acceptable to Seller;
(k) deliver to Purchaser all permits, approvals, plans, specifications,
guaranties, warranties, keys, security system access cards, and other
documentation in Seller's possession or control related to the ownership and
operation of the Property;
(l) deliver to Purchaser the JF Occupancy Agreement; and
(m) deliver such additional documents as shall be reasonably required to
consummate the transaction contemplated by this Agreement.
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Section 4.3 Purchaser's Obligations at Closing. At Closing, Purchaser
shall:
(a) pay to Seller the Purchase Price, as increased or decreased by
prorations and adjustments as herein provided, by immediately available wire
transferred funds pursuant to Section 1.3 hereof;
(b) deliver to Seller the Assignment and Assumption of Ground Lease fully
executed by Purchaser;
(c) deliver to Seller such evidence as the Title Company may reasonably
require as to the authority of the person or persons executing documents on
behalf of Purchaser;
(d) execute a closing statement acceptable to Purchaser;
(e) deliver to Seller the JF Occupancy Agreement; and
(f) deliver such additional documents as shall be reasonably required to
consummate the transaction contemplated by this Agreement.
Section 4.4 Credits, Prorations, and Holdback.
(a) All rent under the Ground Lease, real estate taxes and water and sewer
charges for the Property shall be apportioned as of the Closing, as if Purchaser
were vested with title to the Property during the entire day upon which Closing
occurs.
(b) Notwithstanding anything contained in Section 4.4(a) hereof any taxes
paid at or prior to Closing shall be prorated based upon the amounts actually
paid. If taxes and assessments due and payable during the year of Closing have
not been paid before Closing, Seller shall be charged at Closing an amount equal
to that portion of such taxes and assessments which relates to the period before
Closing and Purchaser shall pay the taxes and assessments prior to their
becoming delinquent. Any such apportionment made with respect to a tax year for
which the tax rate or assessed valuation, or both, have not yet been fixed shall
be based upon the tax rate and/or assessed valuation last fixed. To the extent
that the actual taxes and assessments for the current year differ from the
amount apportioned at Closing, the parties shall make all necessary adjustments
by appropriate payments between themselves within thirty (30) days after such
amounts are determined following Closing. The provisions of this Section 4.4
shall survive Closing.
(c) In order to secure the obligation of JF to vacate the Property in
accordance with the terms of the JF Occupancy Agreement, Five Hundred Thousand
($500,000) Dollars shall be withheld from the Purchase Price and deposited in
escrow with Escrow Agent at Closing ("JF Escrow"). Prior to JF so vacating the
Property, Seller and Purchaser shall inspect the same to confirm that JF has
performed its obligation to deliver vacant possession of the Property in the
condition required under the JF Occupancy Agreement. The parties shall then
authorize Escrow Agent to disburse to Purchaser from the JF Escrow any amounts
necessary to cause the Property to conform to the condition required under the
JF Occupancy Agreement, and to pay to
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Purchaser any amounts then due and unpaid under the JF Occupancy Agreement, and
to disburse to Seller the balance of the JF Escrow. If JF does not deliver
vacant possession of the Property in the condition required under the JF
Occupancy Agreement by December 31, 2004, Purchaser shall also be paid from the
JF Escrow any costs incurred by Purchaser in any legal proceedings to secure
such possession and to enforce its rights hereunder, as well as any other direct
or indirect loss, cost or damage suffered by Purchaser as a result of JF's
failure to so vacate the Property (other than consequential damages).
Section 4.5 Transaction Taxes and Closing Costs.
(a) Seller shall pay the fees of any counsel representing Seller in
connection with this transaction. Seller shall also pay the following costs and
expenses:
* any transfer tax, sales tax, documentary stamp tax or similar tax which
becomes payable by reason of the transfer of the Property;
(b) Purchaser shall pay the fees of any counsel representing Purchaser in
connection with this transaction. Purchaser shall also pay the following costs
and expenses:
* the cost of the Survey
* the fee for the premium for the Owner's Policy of Title Insurance to be
issued to Purchaser by the Title Company at Closing, and all endorsements
thereto; and
* the fees for recording the Assignment of Ground Lease and the Deed.
(c) All costs and expenses incident to this transaction and the Closing
thereof, and not specifically described above, shall be paid by the party who
contracted to pay such costs and expenses.
The provisions of this Section 4.5 shall survive the Closing.
Section 4.6 Conditions Precedent to Obligation of Purchaser. The obligation
of Purchaser to consummate the transaction hereunder shall be subject to the
fulfillment on or before the date of Closing of all of the following conditions,
any or all of which may be waived by Purchaser in its sole discretion:
(a) Seller shall have delivered to Purchaser all of the items required to
be delivered to Purchaser pursuant to the terms of this Agreement, including but
not limited to, those provided for in Section 4.2 hereof;
(b) All of the representations and warranties of Seller contained in this
Agreement shall be true and correct in all material respects as of the date of
Closing (with appropriate modifications permitted under this Agreement); and
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(c) Seller shall have performed and observed, in all material respects, all
covenants and agreements of this Agreement to be performed and observed by
Seller as of the date of Closing.
(d) Purchaser shall have obtained (with Seller's cooperation), at
Purchaser's sole cost and expense within the Initial Inspection Period, the
consent of FRRA and the City of Fall River to the assignment of the Ground Lease
to Purchaser in accordance with the terms of this Agreement and any consent of
any mortgagee of FRRA which may be required in connection with such assignment.
(e) Purchaser shall have obtained, at Purchaser's sole cost and expense,
within the Initial Inspection Period, the execution by the FRRA of an amendment
to the Ground Lease between Purchaser and FRRA to allow the subleasing of office
space to an unrelated third party, to be effective as of the Closing ("Amendment
to Ground Lease"). Purchaser shall also obtain any consent of any mortgagee of
FRRA required to allow for said Amendment to Ground Lease.
(f) Purchaser shall have obtained financing for the transaction
contemplated by this Agreement (which may include the designation of a party to
take title to the Property, which party will then lease the Improvements and
sublease the Land to Purchaser ["Sale Leaseback Transaction"]) with such terms
and conditions as may be approved by Purchaser in its sole and absolute
discretion within the Initial Inspection Period.
(g) The Board of Directors of Purchaser and the Board of Directors of
Quaker Fabric Corporation, the sole stockholder of Purchaser, shall have
approved the transactions contemplated by this Agreement within the Initial
Inspection Period.
If any of Conditions 4.6(d), (e), (f) and (g) are not met within the
Initial Inspection Period and Purchaser elects not to terminate this Agreement
within the Initial Inspection Period, such conditions shall be deemed waived by
Purchaser.
Section 4.7 Conditions Precedent to Obligation of Seller. The obligation of
Seller to consummate the transaction hereunder shall be subject to the
fulfillment on or before the date of Closing of all of the following conditions,
any or all of which may be waived by Seller in its sole discretion:
(a) Escrow Agent shall have received that portion of the Purchase Price to
be paid at Closing, as adjusted as provided herein, pursuant to and payable in
the manner provided for in this Agreement;
(b) Purchaser shall have delivered to Seller all of the items required to
be delivered to Seller pursuant to the terms of this Agreement, including but
not limited to, those provided for in Section 4.3 hereof;
(c) All of the representations and warranties of Purchaser contained in
this Agreement shall be true and correct in all material respects as of the date
of Closing (with appropriate modifications permitted under this Agreement); and
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(d) Purchaser shall have performed and observed, in all material respects,
all covenants and agreements of this Agreement to be performed and observed by
Purchaser as of the date of Closing.
ARTICLE 5
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 5.1 Representations and Warranties of Seller. Seller hereby makes
the following representations and warranties to Purchaser as of the Effective
Date, which representations and warranties shall be deemed to have been made
again as of the Closing:
(a) Organization and Authority. Seller has been duly organized and is
validly existing under the laws of the Commonwealth of Massachusetts. Seller has
the full right and authority to enter into this Agreement and to transfer all of
the Property and to consummate or cause to be consummated the transaction
contemplated by this Agreement. The person signing this Agreement on behalf of
Seller is authorized to do so. The execution, delivery, and performance of this
Agreement, and Seller's compliance with the terms hereof will not conflict with
or constitute a default under the organizational documents of Seller, or under
any law, order, or decree of any court or agency applicable to Seller or the
Property, nor will the same result in the creation or imposition of any lien,
charge or encumbrance upon the Property. No consent or approval is required with
respect to the performance of Seller hereunder, except the approval of the
assignment of the Ground Lease, any Amendment to the Ground Lease, any
assignment of the JF TIF Agreement and any Amendment to the JF TIF Agreement by
FRRA and the City of Fall River, and any consent of any mortgagee of FRRA to the
assignment of the Ground Lease and any Amendment of Ground Lease.
(b) Lease Matters. No leases or occupancy agreements are currently in
effect with respect to Property, except for (i) the Ground Lease, (ii) the QF
Occupancy Agreement, and (iii) the MS Lease, which shall be terminated by the
Closing. The Ground Lease is full force and effect, and Seller has fully
performed its obligations thereunder. No rent has been prepaid under the Ground
Lease. Seller has received no written notice of any default from the landlord
under the Ground Lease and Seller has no knowledge of any fact or facts which
would now or with the giving of notice or the passage of time or both be a
default under the terms thereof. There are no brokerage or other leasing
commissions due or payable on an absolute or contingent basis to any person in
connection with the Ground Lease.
(c) Contracts. There are no contracts with respect to the Property which
will be binding on Purchaser on or after Closing, except for service contracts
related to building or site maintenance activities which are disclosed by Seller
to Purchaser within ten (10) days after the execution of this Agreement and
which are terminable upon thirty (30) days notice.
(d) Tax Parcel. The Property is a separate tax parcel.
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(e) Litigation. No actions, suits, claims or proceedings are pending, nor
to Seller's knowledge have been threatened, which could affect the Property or
Seller's ability to perform its obligations hereunder.
(f) Violations. Seller has not received written notice of any violation of
any federal, state or local law relating to the use or operation of the
Property.
(g) Environmental Matters. Seller represents and warrants that, to Seller's
Knowledge (as hereinafter defined), there has been no generation, storage,
disposal, existence or release of any material from or on the Property regulated
under any federal, state or local environmental laws, ordinances or regulations,
except for regulated materials used, stored, transported, and disposed of by
Seller in the conduct of its business activities at the Property in accordance
with all applicable laws, as disclosed in the environmental reports listed in
Exhibit H hereto, or as disclosed in the report(s) delivered to Purchaser in
connection with its Environmental Investigation. "Seller's Knowledge" means the
actual knowledge (and not imputed or constructive knowledge) of Elkin McCallum,
Jay Stewart and Don Davidson.
(h) Preferential Rights. Seller has not granted any options or rights of
first refusal or rights of first offer to third parties to purchase or otherwise
acquire an interest in the Property.
(i) Special Assessments or Condemnation. There are no existing, proposed or
contemplated (i) special assessments, or (ii) condemnation actions pending
against the Property or any part thereof, and Seller has not received written
notice of any contemplated special assessments or eminent domain proceedings
that would affect the Property.
(j) Bankruptcy. Neither Seller nor JF nor MS have filed any petition in
bankruptcy or other insolvency proceedings or proceedings for reorganization or
for the appointment of a receiver or trustee for all or any part of their
respective properties, nor have Seller, JF or MS made any assignment for the
benefit of their respective creditors or filed a petition for an arrangement, or
otherwise admitted in writing an inability to pay debts as they become due.
(k) Employees. There are no employees who are employed by Seller in the
operation, management or maintenance of the Property and whose employment will
continue after the Closing (except for employees of Joan Fabrics Corporation and
affiliates under the terms of the JF Occupancy Agreement). On and after the
Closing, there will be no obligations concerning any pre-Closing employees of
Seller which will be binding upon Purchaser or the Property.
The representations and warranties of Seller set forth herein shall survive
until the second anniversary of the Closing.
Section 5.2 Covenants of Seller. Seller hereby covenants with Purchaser
that, from the Effective Date hereof until the Closing or earlier termination of
this Agreement, (a) Seller shall operate and maintain the Property in a manner
consistent with the manner in which Seller has operated and maintained the
Property immediately prior to the date hereof (except for MS vacating part or
all of the Property), subject to the performance by Purchaser of its obligations
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under the QF Occupancy Agreement (as defined in Section 9.13 below); (b) Seller
shall cooperate with Buyer in Buyer's efforts to obtain the required actions of
the FRRA and the City of Fall River, (c) Seller shall not cause any voluntary
encumbrance to title to be created or filed with respect to the Property, (d)
Seller shall maintain in full force and effect all risk property insurance for
replacement cost up to a maximum of $21,000,000 with respect to the Improvements
and the Personal Property, with a deductible not to exceed $50,000, and (e)
Seller shall cooperate with Purchaser in Purchaser's obtaining the consent of
the City of Fall River to any assignment of the JF TIF Agreement to Purchaser in
accordance with the terms of this Agreement.
Section 5.3 Representations and Warranties of Purchaser. Purchaser hereby
makes the following representations and warranties to Seller as of the Effective
Date, which representations and warranties shall be deemed to have been made
again as of the Closing:
(a) Organization and Authority. Purchaser has been duly organized and is
validly existing under the laws of the Commonwealth of Massachusetts. Purchaser
has the full right and authority to enter into this Agreement and to consummate
or cause to be consummated the transaction contemplated by this Agreement,
subject to the approval of this transaction by Purchaser's Board of Directors
and the Board of Directors of Quaker Fabric Corporation. The person signing this
Agreement on behalf of Purchaser is authorized to do so; and
(b) Pending Actions. To Purchaser's knowledge, there is no action, suit,
arbitration, unsatisfied order or judgment, government investigation or
proceeding pending against Purchaser which, if adversely determined, could
individually or in the aggregate interfere with the consummation of the
transaction contemplated by this Agreement.
The representations and warranties of Purchaser set forth herein shall
survive Closing.
ARTICLE 6
DEFAULT
Section 6.1 Default by Purchaser. In the event the sale of the Property as
contemplated hereunder is not consummated due to Purchaser's default hereunder,
Seller shall be entitled, as its sole remedy, to terminate this Agreement and
retain the Deposit.
Section 6.2 Default by Seller. In the event the sale of the Property as
contemplated hereunder is not consummated due to Seller's default hereunder,
Purchaser shall be entitled, (a) to terminate this Agreement with the return of
the Deposit; or (b) bring an action for the specific performance of this
Agreement, and, in either case, to recover from Seller its third party expenses
incurred in connection with this Agreement, up to a maximum of $150,000. The
parties acknowledge that any failure of the City of Fall River to approve any
assignment of the JF TIF Agreement or to approve any Amendment to JF TIF
Agreement shall not constitute a condition to Closing hereunder, nor shall the
same constitute a default of Seller hereunder. The parties further acknowledge
that any failure of the City of Fall River and FRRA to approve the
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assignment of the Ground Lease to Purchaser and to execute the Amendment to
Ground Lease shall not constitute a default of Seller hereunder.
Section 6.3 Recoverable Damages. Notwithstanding Sections 6.1 and 6.2
hereof, in no event shall the provisions of Sections 6.1 and 6.2 limit the
damages recoverable by either party against the other party due to the other
party's obligation to indemnify such party in accordance with this Agreement.
ARTICLE 7
RISK OF LOSS
Section 7.1 Casualty. Prior to the Closing and notwithstanding the pendency
of this Agreement, the entire risk of loss or damage or destruction of the
Property shall be borne and assumed by Seller. If, prior to Closing any part of
the Property is damaged or destroyed, Seller shall, within five (5) days
thereafter, notify Purchaser of such fact. In the event of a Major Casualty (as
hereinafter defined), Purchaser shall have the option to terminate this
Agreement by delivering written notice to Seller not later than 15 days after
delivery of any such notice from Seller. Upon such termination, Escrow Agent
shall immediately return the Deposit to Purchaser, Seller shall pay for the
costs of Escrow Agent (up to $1,000, with Purchaser paying any balance in excess
thereof), and neither party shall have any further rights or obligations
hereunder, other than pursuant to any provision hereof which expressly survives
the termination of this Agreement. If Purchaser does not elect to terminate this
Agreement, Seller shall assign and turn over, and Purchaser shall be entitled to
receive and keep, all insurance proceeds payable with respect to such damage or
destruction (which shall then be repaired or not at Purchaser's sole option and
cost), less any amounts reasonably expended by Seller in collection thereof,
plus Seller shall pay over to Purchaser an amount equal to the deductible amount
with respect to the insurance or uninsured amount and the parties shall proceed
to Closing pursuant to the terms hereof without modification of the terms of
this Agreement and without any reduction in the Purchase Price. If Purchaser
does not elect to terminate this Agreement by reason of any casualty, Purchaser
shall have the right to participate in any adjustment of the insurance claim and
Seller shall not compromise, settle or adjust any such claim without Purchaser's
prior written consent (which consent shall not be unreasonably withheld). As
used herein, a "Major Casualty" shall occur if the Property is damaged by fire
or any other casualty and the cost for repair thereof is reasonably estimated to
exceed $250,000.
Section 7.2 Condemnation. In the event that prior to the Closing, a
governmental entity shall commence any eminent domain proceeding to take any
portion of the Property, then Purchaser shall have the option to terminate this
Agreement by written notice to Seller within ten (10) days after its receiving
notice of such action of condemnation, in which event, the Deposit shall be
returned to Purchaser and neither Purchaser nor Seller shall thereafter have any
obligations or liabilities hereunder. In the event that Purchaser does not elect
to terminate this Agreement as provided in this Section, this Agreement shall
remain in full force and effect, in which case the Purchase Price shall not be
reduced and Purchaser shall be entitled to the net
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award paid to Seller for such taking, if any, and Seller shall assign and
transfer to Purchaser all right, title and interest in and to any awards.
ARTICLE 8
NO BROKERAGE
Seller and Purchaser each represents that such party has not engaged a
broker in connection with this transaction. Each party hereto agrees that if any
person or entity makes a claim for brokerage commissions or finder's fees
related to the sale of the Property by Seller to Purchaser, and such claim is
made by, through or on account of any acts or alleged acts of said party or its
representatives, said party will protect, indemnify, defend and hold the other
party free and harmless from and against any and all loss, liability, cost,
damage and expense (including reasonable attorneys' fees) in connection
therewith. The provisions of this paragraph shall survive Closing or any
termination of this Agreement.
ARTICLE 9
MISCELLANEOUS
Section 9.1 Confidentiality. Neither Seller nor any of its representatives
shall issue a press release or other public statement with respect to this
Agreement or the transactions contemplated hereby without the prior written
consent of Purchaser, which consent may be withheld in Purchaser's sole and
absolute discretion. Purchaser shall have the sole right to issue any such press
release, or to elect not to issue the same, in Purchaser's sole and absolute
discretion. The provisions of this Section 9.1 shall survive Closing or any
termination of this Agreement.
Section 9.2 No Assignment. This Agreement shall not be assignable by either
party, except that Purchaser shall have the right without the consent of Seller
to assign this Agreement to any entity controlling, controlled by, or under
common control with Purchaser which the Purchaser designates for the purpose of
taking title to the Property, or to an unrelated entity in connection with a
Sale Leaseback Transaction. Upon such assignment, the obligations of Purchaser
shall be borne by such assignee, and the assignor shall have no further
liability hereunder, provided Purchaser remains bound by Purchaser's indemnities
in this Agreement and Assignee's indemnities in the Assignment and Assumption of
Ground Lease.
Section 9.3 Notices. Any notice pursuant to this Agreement shall be given
in writing by (a) personal delivery, (b) reputable overnight delivery service
with proof of delivery, (c) United States Mail, postage prepaid, registered or
certified mail, return receipt requested, or (d) legible facsimile transmission,
sent to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designated by written notice sent in accordance herewith, and shall be deemed to
have been given upon receipt or refusal to accept delivery, or, in the case of
facsimile transmission, as of the date of the facsimile transmission provided
that an original of such facsimile is also sent to the intended addressee by
means described in clauses (a), (b) or (c) above. Unless changed in accordance
with
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the preceding sentence, the addresses for notices given pursuant to this
Agreement shall be as follows:
If to Purchaser:
Quaker Fabric Corporation of Fall River
941 Grinnell Street
Fall River, MA 02721
Attention: Cynthia L. Gordan, Esq., General Counsel
Telephone No. 508-646-2261
Telecopy No. 508-678-2656
with a copy to: Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
Attention: Katharine E. Bachman, Esq.
Telephone No. 617-526-6216
Telecopy No. 617-526-5000
If to Seller, MS or JF: Charles McAnsin Associates, A Limited Partnership
c/o Joan Fabric Corporation
100 Vesper Executive Park
Tyngsboro, MA 01879-2710
Attention: Mr. Elkin McCallum
Telephone No. 978-649-5626
Telecopy No. 978-649-5424
with a copy to: Joan Fabrics Corporation
100 Vesper Executive Park
Tyngsboro, MA 01879-2710
Attention: Paul Buffum, General Counsel
Telephone No. 978-649-5626
Telecopy No. 978-649-5424
If to Escrow
Agent: Stewart Title Guaranty Company
99 Summer Street
Boston, MA 02110
Attention: Ms. Marie Franco
Telephone No. 617-737-8339
Telecopy No. 617-737-8370
Section 9.4 Modifications. This Agreement cannot be changed orally, and no
executory agreement shall be effective to waive, change, modify or discharge it
in whole or in part unless such executory agreement is in writing and is signed
by the parties against whom enforcement of any waiver, change, modification or
discharge is sought.
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Section 9.5 Entire Agreement. This Agreement, including the exhibits and
schedules hereto, contains the entire agreement between the parties hereto
pertaining to the subject matter hereof and fully supersedes all prior written
or oral agreements and understandings between the parties pertaining to such
subject matter.
Section 9.6 Further Assurances. Each party agrees that it will execute and
deliver such other documents and take such other action, whether prior or
subsequent to Closing, as may be reasonably requested by the other party to
consummate the transaction contemplated by this Agreement. The provisions of
this Section 9.6 shall survive Closing.
Section 9.7 Counterparts. This Agreement may be executed in counterparts,
all such executed counterparts shall constitute the same agreement, and the
signature of any party to any counterpart shall be deemed a signature to, and
may be appended to, any other counterpart.
Section 9.8 Severability. If any provision of this Agreement is determined
by a court of competent jurisdiction to be invalid or unenforceable, the
remainder of this Agreement shall nonetheless remain in full force and effect;
provided that the invalidity or unenforceability of such provision does not
materially adversely affect the benefits accruing to any party hereunder.
Section 9.9 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts.
Purchaser and Seller agree that the provisions of this Section 9.9 shall survive
the Closing or any termination of this Agreement.
Section 9.10 No Third-Party Beneficiary. The provisions of this Agreement
and of the documents to be executed and delivered at Closing are and will be for
the benefit of Seller and Purchaser only and are not for the benefit of any
third party, and accordingly, no third party shall have the right to enforce the
provisions of this Agreement or of the documents to be executed and delivered at
Closing.
Section 9.11 Captions. The section headings appearing in this Agreement are
for convenience of reference only and are not intended, to any extent and for
any purpose, to limit or define the text of any section or any subsection
hereof.
Section 9.12 Escrow Agent. Escrow Agent shall hold the Deposit in
accordance with the terms and provisions of this Agreement, subject to the
following:
9.12.1 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.
9.12.2 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
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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.
9.12.3 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 Purchaser
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 Purchaser 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.
9.12.4 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 Purchaser and
Seller, or receipt of 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.
9.12.5 Counsel. Escrow Agent may consult with counsel of its own
choice and have full and complete authorization and protection 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.
Section 9.13 Occupancy Agreements.
9.13.1 QF Occupancy Agreement. Simultaneously with the execution of
this Agreement, Seller and Purchaser have entered into an occupancy agreement
("QF Occupancy Agreement") under which Purchaser shall lease a portion of the
Property prior to the Closing.
9.13.2 JF Occupancy Agreement. On the Closing Date, Seller and
Purchaser shall enter into an occupancy agreement ("JF Occupancy Agreement") in
the form of Exhibit I under which JF shall lease a portion of the Property until
the earlier to occur of (a) removal from the Property of the Excluded Personal
Property, or (b) December 31, 2004.
[End of text on page]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the Effective Date.
SELLER:
CHARLES MCANSIN ASSOCIATES, A LIMITED
PARTNERSHIP
BY: MCDONNA LLC, General Partner
By:
--------------------------------
Elkin McCallum, Member
PURCHASER:
QUAKER FABRIC CORPORATION OF FALL RIVER
By:
------------------------------------
Larry A. Liebenow, President
ESCROW AGENT:
STEWART TITLE GUARANTY COMPANY
By:
------------------------------------
Name:
Title:
The undersigned hereby joins in this Agreement for the limited purpose of
agreeing to transfer any items of Property owned by it.
MAIN STREET TEXTILES CORPORATION
By:
------------------------------------
Elkin McCallum, President
The undersigned hereby joins in this Agreement for the limited purpose to
confirm its agreement to enter into the JF Occupancy Agreement at the Closing.
JOAN FABRICS CORPORATION
By:
------------------------------------
Elkin McCallum, President
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EXHIBIT A
GROUND LEASE
See attached
- 19 -
Exhibit A
AMENDMENT ONE TO LEASE
Dated as of September 19, 2001
WHEREAS, a lease was executed September 27, 1999 between the Fall River
Redevelopment Authority as Lessor and Charles McAnsin Associates, A Limited
Partnership as Lessee for property located in Fall River, Massachusetts;
WHEREAS, the legal description of the property was described within said Lease
as on a sheet entitled "Exhibit A Legal Description";
WHEREAS, said legal description referred to a plan which is not the plan
recorded in the Bristol County Fall River District Registry of Deeds;
WHEREAS, the parties wish to correct the legal description of the property;
THEREFORE, the undersigned Lessor and Lessee agree that the page of the Lease
entitled "Exhibit A Legal Description" is deleted and a new page attached hereto
is inserted in its place:
Executed with the effect of a sealed instrument this 19th day of September,
2001.
Approved as to form: Lessor:
Fall River Redevelopment Authority
/s/ Peter C. Bogle By: /s/ Edgar J. St. Pierre
- ------------------------------------- ------------------------------------
Peter C. Bogle, Esq. Edgar J. St. Pierre, Chairman
Counsel to the Fall River
Redevelopment Authority
Lessee:
Charles McAnsin Associates,
A Limited Partnership
by: McDonna LLC, general partner
By: /s/ Elkin McCallum
------------------------------------
Elkin McCallum, Member
EXHIBIT A
Legal Description
A certain parcel of land with all improvements thereon situated in Fall River,
Massachusetts, being shown as Lot 1 on a plan of land entitled, "Definitive
Subdivision Plan of Land, Fall River Industrial Park, City of Fall River, in
Fall River, Massachusetts, Assessor's Plat Z-3, Lot 30," prepared for Fall River
Office of Economic Development, prepared by Vanasse Hangen Brustlin, Inc., dated
September 16, 1999, Sheets 1 through 5, recorded at the Bristol County Fall
River District Registry of Deeds Plan Book 117, Pages 81-85, containing 33.59756
acres more or less.
This Lease ("Lease") is entered into this 27th day of September, 1999, by and
between the Fall River Redevelopment Authority ("Lessor") and Charles McAnsin
Associates, a Limited Partnership, ("Lessee"), with reference to the following
facts and circumstances:
A. Lessor owns fee simple title to all of the Property (as hereinafter
defined).
B. Lessee intends to construct a (+/-) 565,000 s/f manufacturing and
distribution facility on the Property and over a nine (9) year period,
provide best faith efforts to create a minimum of five hundred thirty-seven
(537) permanent full time jobs and retain six hundred thirteen (613) for
residents of the Fall River Economic Target Area.
C. The City of Fall River and the Commonwealth of Massachusetts has approved a
Tax Increment Financing Agreement for Charles McAnsin LP and Main Street
Textiles.
D. The parties hereto wish to provide for the use of the Property and the
financing of the manufacturing and distribution facility as part of the
leasehold estate of the Lessee.
NOW, THEREFORE, in consideration of the covenants herein contained, Lessor and
Lessee hereby agree as follows;
1. PROPERTY
Lessor hereby leases to Lessee that certain land and all improvements
located thereon, located in the City of Fall River, County of Bristol,
State of Massachusetts, as more particularly described in Exhibit A
attached hereto, together with all rights, privileges, easements and
appurtenances thereto and improvements located thereon the "Property."
2. TERMS
(a) Term
The term shall consist of a period of twenty (20) years, commencing on
October 1, 1999 and expiring on October 1, 2019.
(b) Possession
Possession of the Property shall be delivered to Lessee on the
commencement of the term, free of all tenancies.
1
(c) Extension
Lessee shall have the right and option (the "Option") to extend the
term of this Lease on mutually agreeable terms and conditions. If,
subsequent to the exercise of such option the parties fail to reach
agreement, after good faith efforts by both parties, the provision of
Section 3(b) below plus an annual Consumer Price Index adjustment, as
identified for the Boston Region in February of each year, will
prevail for one (1), additional period of twenty (20) years commencing
on October 2, 2019. Lessee shall not automatically be deemed to have
exercised such option unless at least six (6) months prior to the
commencement of the Extension to which the option relates, Lessee
shall have notified Lessor in writing of its decision to exercise such
option.
3. RENT
(a) Minimum Monthly Rental
Starting on October 1, 1999 and continuing through September 1, 2006,
Lessee shall pay to Lessor, in lawful money of the United States of
America, free from all claims, demands, and setoffs against Lessor, at
such place or places as may be designated from time to time from
Lessor, the sum of Fifteen Thousand Nine Hundred Sixteen Dollars and
Sixty-six cents ($15,916.66) per month, payable on the first day of
each month.
(b) Starting on October 1, 2006 and continuing through October 1, 2019,
Lessee shall pay to Lessor, in lawful money of the United States of
America, free from all claims, demands, and setoffs against Lessor, at
such place or places as may be designated from time to time from
Lessor, the sum of Seven Thousand Seven Hundred and Fifty Dollars
($7,750.00) per month, payable on the first day of each month
thereafter.
4. PURCHASE
Lessee hereby agrees to purchase said Property in October 2019 for
$344,000 if the parties do not enter into another twenty-year Lease at
mutually agreeable terms and conditions as described in Section 2(c)
above. Lessor agrees to convey said Property on payment by Lessee of
the purchase price, by deed that conveys good record and marketable
fee simple free from all encumbrances, easements, liens, restrictions
or the like.
If the Lease is extended for another twenty year term under Section
2(c), Lessee shall have an option to purchase the Property in October
2039 for the price of fair market value of unimproved land at the
Property as determined by an independent appraiser selected by the
Lessor. If Lessee does not agree with the price as determined by such
appraiser, the price of fair market value of unimproved land at the
property shall be determined by expedited arbitration in Boston
Massachusetts under the rules of the
2
American Arbitration Association. The deed will convey title as above.
At any time during the Lease, as the same may be extended, the Lessee
shall have an option to purchase the Property at the fair market value
of the unimproved land at the Property on the day Lessee sends Lessor
notice as below. This option may be exercised by Lessee giving Lessor
written notice. If the parties are unable to agree on the fair market
value of said Property, the fair market value shall be determined by
expedited arbitration in Boston, Massachusetts under the rules of the
American Arbitration Association. The deed will convey title as
provided above and the closing will take place promptly upon
determination of the price.
5. TAXES
In accordance with a previously approved July 20, 1999 Tax Increment
Finance Agreement described in Exhibit B attached hereto, Lessee shall pay
any and all taxes, assessments, and other charges of any description levied
or assessed by any governmental agency or entity on or against the Property
and any improvements located thereon. Any and all taxes and assessments and
installments of taxes and assessments required to be paid by Lessee under
this Lease shall be paid by Lessee at least ten (10) days before each such
tax, assessment or installment of tax or assessment becomes delinquent or
10 days after receipt of the bill, if later and a receipt for the payment
of such tax, assessment, or installment shall be promptly given to Lessor.
If any tax or assessment is levied or assessed against the Property and
such tax or assessment may be paid in full or in installments over a period
either within or extending beyond this Lease, Lessee shall have the option
of paying such tax or assessment in installments, Lessee shall have the
right to contest the amount or validity of any tax, assessment, or other
charge levied on or assessed against the Property or any part of such
Property, provided, however, that such contest must be filed before the
tax, assessment or other charge to which such contest is directed becomes
delinquent and written notice of such contest must be given to Lessor at
least ten (10) days before the date the tax, assessment or other charge
becomes delinquent. No such contest shall be continued or maintained after
the date the tax, assessment, or other charge to which the contest is
directed becomes delinquent unless Lessee has either: (i) paid such tax,
assessment, or other charge under protest prior to its becoming delinquent;
or (ii) delivered to Lessor a good and sufficient undertaking in the amount
of the contested tax, assessment, or other charge, and issued by a bonding
corporation authorized to issue undertakings in Massachusetts conditioned
on the payment by Lessee of the tax, assessment, or charge together with
any fines, interest, penalties, costs, and expenses that may have accrued
or became imposed thereon within thirty (30) days after final determination
of Lessee's contest to such tax, assessment or other charge. Except as
hereinafter provided, if Lessee shall fail to pay within the time specified
in this Paragraph any taxes, assessments, or other charges required to be
paid by Lessee, Lessor may pay, discharge, or adjust such tax, assessment,
or other charge for the benefit of Lessee. In such event, Lessee shall
promptly on written demand of Lessor reimburse Lessor for the full amount
paid by Lessor in paying, discharging, or adjusting such tax, assessment or
other charge together with interest thereon from the date of
3
payment by Lessor until the date of the payment by Lessee. If no time
within which any charge required by this Paragraph to be paid by Lessee is
specified, such charge must be paid by Lessee before it becomes
delinquent.
6. USE OF PROPERTY
The Property may be used by Lessee for manufacturing, warehouse and
distribution purposes. Lessee shall not use or permit the Property or any
portion thereof to be improved, developed, used or occupied in any manner
or for any purpose that violates any applicable valid law, ordinance or
regulation of any federal, state, county or local governmental agency, body
or entity. Lessee shall not permit on the Property any nuisance as now or
hereinafter defined by any applicable statutory or decisional law.
7. UTILITIES
Lessee sha11 pay or cause to be paid all charges for the furnishing of all
utilities on the Property, and for the removal of garbage and rubbish from
the Property.
8. ENCUMBRANCE OF LEASEHOLD ESTATE
(a) Leasehold Mortgages
At any time and from time to time during the term of this Lease, and
any extension thereof, Lessee may encumber to any person, firm or
entity ("Lender") by deed of trust or mortgage or other security
instrument ("Leasehold Mortgage") all or any portion of Lessee's
interest under this Lease and the leasehold estate hereby created, and
to assign its interest in this Lease and in any sublease as collateral
security for such mortgage, deed of trust or security instrument, for
any purpose or purposes without the consent of Lessor; provided,
however, that no Leasehold Mortgage incurred by Lessee pursuant to
this Paragraph shall, and Lessee shall not have power to incur any
encumbrance, except for this Lease, that will constitute a lien or
encumbrance on the fee at the Property. Lessor and Lessee shall amend
this Lease to include any provision that a proposed Lender may
reasonably request; provided, however, that such provision implements
Lender protection provisions in this Lease or preserves the lien of
the Leasehold Mortgage on the occurrence of any event of default under
this Lease. Such amendment shall neither affect the rent or term
provided for in this Lease nor materially adversely affect any other
rights of Lessor under this Lease. Any improvements constructed on the
Property during the term of this Lease, and any extensions thereof,
shall be and remain the property of Lessee until the expiration or
sooner termination of this Lease, at which time they shall become the
property of Lesser.
4
(b) Written Request for Copy of Notice
Immediately after the recording of any deed of trust or mortgage
executed by Lessee pursuant to Paragraph 8(a) of this Lease. Lessee
shall deliver to Lender a written request for a copy of any notice of
default under the leasehold mortgage and a copy of any notice of sale
under such deed of trust or mortgage to be mailed to Lessor at the
address specified in the request for Lessor.
(c) Duplicate Notices to Lender
Lessor shall mail to such Lender, at such address as shall be
furnished to Lessor by such Lender, a duplicate copy of any and all
notices Lessor may from time to time give or serve on Lessee pursuant
to or relating to this Lease.
(d) Amendments
Lessee and Lessor hereby agree that they will not modify or cancel
this Lease/Purchase Agreement by mutual agreement without the written
consent of such Lender.
(e) Prerequisites for Lessor's Exercise of Remedies
Although Lessee is in default under any provision of this Lease,
Lessor shall not terminate this Lease, re-enter without termination,
or exercise any other remedy to which it is entitled at law or in
equity unless (1) an event of default shall have occurred and be
continuing, (2) Lessor shall have given Lender written notice of such
event of default as required under the provisions of this Lease, and
(3) Lender shall have failed to remedy such default to the extent
required by the provisions of this Lease or shall have failed to
acquire Lessee's leasehold estate as permitted, and within the time
specified by subsection 8(g), of this Lease.
(f) Lender's Right To Act On Behalf Of Lessee
Lender shall have the right at any time prior to termination of this
Lease/Purchase Agreement to pay any rent due hereunder and to do any
other act or thing required of Lessee hereunder in order to prevent
termination of this Lease/Purchase Agreement, re-entry without
termination, or the exercise of any other remedy to which Lessor is
entitled in law or equity. All payments so made and all things done by
Lender shall be as effective as payments made and things done by
Lessee.
(g) Time to Cure Default
If any event of default under this Lease occurs, Lender shall have
forty-five (45) days after receipt of notice from Lessor, setting
forth the nature of such default, within
5
which to remedy such default. If possession of the Property and the
improvements thereon would be reasonably necessary to remedy the
default, Lender shall have a reasonable amount of time after the
expiration of such forty-five (45) day period within which to remedy
such default, provided that (1) Lender has cured any default and the
payment of any monetary obligations of Lessee which is susceptible of
cure by Lender under this Lease within such forty-five (45) day period
and continues to pay currently such monetary obligations as they
become due and (2) Lender has acquired Lessee's leasehold estate
created hereby or has commenced foreclosure proceedings within or
prior to such period and is diligently prosecuting any such
proceedings. All rights of Lessor to terminate this Lease, or to
reenter the Premises without termination of this Lease, as a result of
the occurrence of any event of default, shall be subject to the rights
of Lender set forth in this Paragraph 8(g).
(h) Default Not Curable By Lender
Any event of default under this Lease which, by its nature cannot be
remedied by Lender, shall be deemed to be remedied if (1) within
forty-five (45) days after receiving written notice from Lessor
setting forth the nature of such event of default, or prior thereto.
Lender has acquired Lessee's leasehold estate created by this Lease or
shall have commenced foreclosure proceedings, (2) Lender has cured any
default in the payment of any monetary obligations of Lessee hereunder
which are susceptible of cure by Lender within such forty-five (45)
day period and thereafter continues to faithfully perform all monetary
obligations of Lessee hereunder which are susceptible of cure by
Lender and (3) after gaining possession of the Property, Lender
performs all obligations of Lessee hereunder which can be performed by
Lender as they become due.
(i) Judicial Prohibition Against Foreclosure
If Lender is prohibited by any process, action or injunction issued by
any court from commencing or prosecuting foreclosure proceedings,
including without limitation, a court having jurisdiction over Lessee,
the time specified in paragraphs 8(g) and 8(h) for commencing or
prosecuting such foreclosure shall be extended for the period of such
prohibition; provided that Lender shall have fully cured any defaults
in the payment of any monetary obligations of Lessee under this Lease
which are susceptible of cure by Lender and shall continue to pay
currently such monetary obligations as they become due.
(j) Recognition of Lender as Lessee Upon Foreclosure
Foreclosure of a Lender's mortgage, deed of trust, or other security
instrument or any sale thereunder, whether by judicial proceedings or
by virtue of any power contained in such security instrument, or any
conveyance of the leasehold estate created hereby from Lessee to
Lender through, or in lieu of foreclosure shall not require the
consent
6
of Lessor or constitute a breach of any provision of this Lease, and,
upon such foreclosure, sale or conveyance, Lessor shall recognize
Lender, or any other foreclosure sale purchaser, as Lessee hereunder.
(k) Personal Liability of Lender
If Lender becomes Lessee under this Lease, Lender shall be personally
liable for the obligations of Lessee under this Lease only for the
period of time that Lender remains Lessee thereunder. Lender shall
have the right thereafter to assign or sublease this Lease or a new
lease as provided in Section 8(m) or to sublease the leasehold estate
and the improvements thereon under this Lease with the prior written
consent of Lessor, which consent shall not be unreasonably withheld;
provided that any assignee (1) shall take the leasehold estate subject
to all provisions of this Lease, and (2) shall assume and agree to
perform all obligations of Lessee under this Lease or the new Lease.
(l) Purchase Money Mortgage as Leasehold Mortgage
If Lender subsequently transfers its Interest under this Lease after
acquiring the interest by foreclosure or deed in lieu of foreclosure
or subsequently transfers its interest under any new lease obtained
pursuant to Paragraph 8(m) and, in connection with any such transfer,
Lender takes back a mortgage or deed of trust encumbering such
leasehold interest to secure all or a portion of the purchase price
given to Lender for such transfer, then such mortgage or deed of trust
shall be considered a Leasehold Mortgage and Lender shall be entitled
to receive the benefit of and to enforce the provisions of this Lease
or the new lease which are intended to benefit a Lender or holder of a
Leasehold Mortgage.
(m) New Lease
If Lessor terminates this Lease by reason of any default of Lessee
hereunder, Lessor shall execute and deliver, upon written request of
Lender given within sixty (60) days after such termination, a new
lease of the Premises to Lender (or its nominee, subject to prior
written consent of Lessor of such nominee, which consent shall not be
unreasonably withheld) for the remainder of the term of this Lease.
The new lease shall contain the same provisions as this Lease except
for those obligations which have been fulfilled by Lessee prior to
termination and shall have the same priority as this Lease.
Notwithstanding the foregoing, Lessor shall not be obligated to
execute or deliver a new lease unless Lender shall promptly cure all
defaults of Lessee which are susceptible of cure by Lender. If more
than one Lender requests such a new lease, the Lessor shall execute
and deliver the new lease to the Lender holding the most senior
encumbrance. If there is dispute as to which Lender holds the most
senior encumbrance, then such dispute shall be determined by such
Lenders, and if they are unable to do so, then such dispute shall be
submitted to arbitration.
7
Upon execution and delivery of such new lease, title to the
improvements on the Property shall vest in the new Lessee, subject to
the provisions of this Lease, and the rights and interests conveyed to
tenants of the improvements prior to the date of such new lease.
Lessor, at the expense of the new Lessee, shall take such action as
shall be necessary to cancel and discharge this Lease and to remove
Lessee from the Premises.
9. CONSTRUCTION OF IMPROVEMENTS
(a) Approval of Lessor
No structure of any kind shall be created on the Property unless and
until preliminary plans limited to site plans and elevations and
proposed location of such structure or improvement have been approved
in writing by Lessor within three (3) business days after having been
received. Lessor's approval shall not be unreasonably withheld. If not
expressly disapproved within such time, such plans will be deemed
approved. Any such structure shall be built wholly within the
boundaries of the Property and in accordance with the plans approved
by Lessor pursuant to this Paragraph, Lessor shall cooperate with
Lessee and shall execute all applications and documents reasonably
requested by Lessee which relate to construction of the improvements
on the Property, all at Lessee's sole cost and expense.
(b) Diligence
Once any work of construction on the Property has begun. Lessee shall
prosecute the same to conclusion with all reasonable diligence or, if
it elects not to proceed further, Lessee shall take all steps
necessary (including demolition of structures if necessary), to put
the Property in a safe condition.
(c) Construction Standards
Any such structure or improvement shall be constructed and all work
performed on the Property shall be in accordance with, all valid laws,
ordinances, regulations and orders of all applicable governmental
agencies or entities having jurisdiction over the Property. All work
performed on the Property pursuant to this Lease, or authorized by
this Lease, shall be done in good workmanlike manner and only with
materials of good quality.
(d) Notice of Non-Responsibility
No work of construction shall be commenced on the Property nor shall
any building materials to be used in connection therewith be delivered
to the Property until at least ten (10) days after written notice has
been given by Lessee to Lessor of the commencement of such work. At
any time during any such construction (but not
8
beyond), Lessor shall have the right to post arid maintain on the
Property and to record any notice or notices of non responsibility
provided for by the mechanics lien laws of the State of Massachusetts.
The work prohibited by this paragraph pending written notice to
Lessor, includes, as well as actual construction work, any site
preparation work, installation of utilities, street construction or
improvement work, or any grading or filling of the Property.
(e) Ownership of Improvements
Except as provided in this Paragraph 9(e), Lessor shall have no
ownership Interest in any improvements constructed on the Property by
Lessee, To the extent that Lessee fails to execute its option to
purchase the Property or fails to enter into a mutually acceptable new
lease agreement, this Lease shall be terminated and the Lessee shall
surrender to Lessor possession of the Property, together with all
improvements constructed thereon. Upon any such termination, the
leasehold estate created hereby, and all of Lessee's right, title and
interest in and to the Property, all improvements thereon, and in and
to all sublease hold estates and interests created pursuant to this
Lease, shall automatically revert to and become the sole property of
Lessor. In the event of a termination of this Lease other than by
reason of the expiration of the lease term, Lessor shall take
possession from the Lessee subject to the rights and obligations of
sublessees under subleases executed in accordance with this Lease and
subject to the rights of and Lenders secured by Leasehold Mortgages
which are set forth in this Lease. In the event of a termination of
this Lease by reason of the expiration of the lease term, Lessor shall
take possession from Lessee free and clear of any rights and
obligations of Lessee's sublessees and Lenders secured by Leasehold
Mortgages.
(f) Mechanics Liens
Lessee shall pay and discharge all expenses incurred by Lessee for the
services of mechanics or for the cost of goods and materials delivered
by materialmen, and save and hold Lessor harmless from any and all
claims by such mechanics or materialmen for labor or services
performed or goods delivered at the request of the Lessee. Lessee
shall have the right to contest the validity or amount of any asserted
lien, claim, or demand, and in such case Lessee shall defend, at its
own expense, any such suits, and shall discharge and satisfy any
judgments taken on account of claims or liens filed by mechanics or
materialmen for work ordered by Lessee.
10. REPAIRS AND MAINTENANCE
(a) Lessee's Obligation
At all times during the term of this Lease, Lessee shall keep and
maintain at Lessee's own cost and expense, the Property and all
improvements now or hereafter erected thereon and all facilities
appurtenant to the Property in good order and repair and in a
9
safe and clean condition. Notwithstanding anything contained in the
foregoing to the contrary. Lessee may demolish all or a portion of
those improvements presently located on the Property on the conditions
that Lessee shall hold Lessor harmless therefore and pay all costs of
demolition and removal of debris.
(b) Compliance with Laws
At all times during the term of this Lease, Lessee, at Lessee's own
cost and expense, shall:
(i) Make all alterations, additions, or repairs to the Property or
the improvements or facilities erected on the Property required
by any valid law, ordinance, statute, order, or regulation now or
hereafter made or issued by any federal, state, country, local,
or other governmental agency or entity;
(ii) Observe and comply with all valid laws, ordinances, statutes,
orders, and regulations now or hereafter made or issued
respecting the property or the improvements or facilities erected
on the Property by any federal, state, county, local, or other
governmental agency or entity;
(iii) Indemnify and hold Lessor and the Property free and harmless
from any and all liability, loss, damages, fines, penalties,
claims, and actions resulting from Lessee's failure to comply
with and perform the requirements of this Paragraph.
(c) Destruction
Except as provided in Paragraph 10(d), if, at any time during the term
of this Lease, any buildings or improvements now or hereafter erected
on the Property shall be destroyed in whole or in part by any
casualty, whether insured or not, this Lease shall continue in full
force and effect without any rent abatement and Lessee, at Lessee's
own cost and expense shall, within 360 days of receipt of insurance
proceeds, repair and restore the damaged or destroyed building, and
improvement to as good or better condition than at the time of such
casualty or demolish the same or parts thereof and take whatever steps
are necessary to make the Property safe.
(d) Termination Right
Lessee shall have the option to cancel and terminate this Lease in
lieu of restoration under any of the following circumstances:
(i) If such destruction or damage occurs during the last three (3)
years of the Lease term and if the cost of building repair or
replacement would exceed $5,000.000.
10
(ii) If such destruction or damage is the result of a casualty not
normally insured by Lessee.
If Lessee shall exercise his option to cancel this Lease, then (i)
Lessee shall pay for the cost of clearing the Property of all debris
resulting from the destruction of improvements and hold Lessor
harmless therefrom; and (ii) insurance proceeds shall be distributed
as follows: first to each Lender to the extent of the unsatisfied
obligation represented by such Lender's encumbrance: second to Lessee
to the extent of the reasonable cost of clean up of the Premises; and
finally, the balance to Lessee.
11. INDEMNITY
(a) Lessee Indemnity
Lessee shall indemnify, hold harmless and defend Lessor, its
successors and assigns from and against any and all liabilities,
claims, loss, damages, suits, causes of action, cost and fees,
including attorney fees arising from or connected with Lessee's
occupation and use of the Property, specifically including, without
limitation, any liability, claim, loss, damage, or expense arising by
reason of:
(i) The death or injury of any person, including Lessee or any person
who is an employee, agent or invitee of Lessee, or by reason of
the damage to or destruction of any property, including property
owned by Lessee or by any person who is an employee, agent or
invitee of Lessee, from any cause whatsoever while such person or
property is in or on the Property or in any way connected with
the Property or with any of the improvements or personal property
on the Property;
(ii) Any work performed on the Property or materials furnished to the
Property at the request of Lessee or any person or entity acting
for or on behalf of Lessee.
(iii) Any liability in connection with contamination for which the
Lessee is responsible or that results from the failure of the
Lessee to carry out its obligations under this lease.
(b) Lessor Indemnity
For the purposes hereof, oil, hazardous or toxic materials or
hazardous or toxic wastes are referred to as "hazardous materials".
Lessor shall indemnify, defend and hold Lessee harmless from and
against any claims, suits, causes of action, costs and fees, including
attorney's fees, arising from or connected with any contamination,
claim of contamination, loss or damage arising out of, from or in
connection with any hazardous materials on the Property on the date
hereof or out of, from or in connection with the migration of the same
into or onto the Property from any property
11
of the Lessor.
Further, Lessor shall indemnify and hold harmless the Lessee from and
against any loss, damage, claim or liability arising from, or in
connection to, the mitigation of any hazardous materials into or onto
the Property from the abutting landfill unless such environmental
hazard is caused by the acts or negligence of the Lessee's employees,
agents or invitees.
(i) In the event of environmental contamination caused by the
abutting landfill, Lessor retains the right to gain access to the
common areas and parking lots of the leased Property and
temporarily curtail the rights of the Lessee to use these areas
during remediation. To the extent that a significant portion of
the leased property is denied to the Lessee, the Lessor will
provide alternative parking areas for Lessee's employees and
compensate Lessee with a proportionate temporary reduction in
rent.
(ii) Lessor shall agree to abide by all applicable statutes and
regulations with respect to environmental remediation caused by
the abutting landfill.
The provisions of this Section 11 shall survive this lease if the
Lessee purchases the Property under the terms and conditions set out
in Section 4 and any deed to Lessee shall so provide.
12. INSURANCE
(a) Public Liability Insurance
Lessee shall, at Lessee's own cost and expense, secure and maintain
during the entire term of this Lease a broad form comprehensive
coverage policy of public liability insurance issued by an insurance
company authorized to issue liability insurance in the state of
Massachusetts, insuring Lessee and Lessor against loss or liability
caused by or connected with Lessee's occupation and use of the
Premises under this Lease in amounts not less than:
(i) $1,000,000.00 for injury to or death of one or more persons as a
result of any one accident; and
(ii) $250,000.00 for damage to or destruction of any property of
others.
(b) Casualty Insurance
Lessee shall carry at his own expense fire and extended coverage
insurance with a so-called "all risk" rider and shall exercise good
faith to review annually such coverage so as to cause said insurance
to be maintained at a rate of one hundred percent (100%) of the full
replacement cost of any structure or improvement erected on the
Property
12
(exclusive of the cost of excavation, foundations and footings).
Lessor and any beneficiary under any trust deed or mortgage
encumbering Lessee's leasehold estate shall be named additional
insured as their interests may appear.
(c) Course of Construction Insurance
Lessee, at its sole cost and expense and for the mutual benefit of
Lessee and Lessor, shall maintain Builder's Completed Value Risk
Insurance against all risks of physical loss during construction of
any improvements on the Property, with deductibles not to exceed Fifty
Thousand Dollars ($50,000), covering the total costs of work performed
and equipment, supplies and materials furnished.
(d) Payment of Premiums and Delivery of Certificate
Lessee shall pay all premiums and charges on all of the insurance
required to be carried by it under this Lease promptly when such
premiums become due and furnish Lessor with satisfactory evidence of
the payment of the premiums as they become due and payable. All
policies of insurance herein provided to be carried by Lessee, or
certificates thereof, shall be delivered to Lessor. Lessee shall, at
its sole cost and expense, comply with any and all requirements
pertaining to the Property of any insurance company necessary for the
maintenance of insurance required to be provided hereunder.
(e) Cancellation Notice
Each insurance policy which Lessee is required to obtain pursuant to
this Lease shall contain a provision that it may not be canceled or
subject to reduction of coverage, modification or non renewal for any
reason unless fifteen (15) day's prior written notice thereof has been
delivered to Lessor and to the holders of any mortgage or deed of
trust to whom loss thereunder may be payable.
(f) Quality of Insurance
All policies of insurance carried pursuant to this Paragraph 10 hereof
shall be carried with financially responsible insurance companies
rated A (or higher) in Best's Rating Guide. All policies of insurance
shall be effected under valid and enforceable policies issued by
Insurers which are authorized to transact fire, casualty and/or
liability insurance, as applicable, in the State of Massachusetts.
13. ASSIGNMENT AND SUBLEASING
(a) Assignment
If the Lessee decides to sell the manufacturing and distribution
facility or the business
13
or to otherwise transfer control of the facility or business and/or
the operations therein, the Lessee shall make good faith efforts to
give the City at least six (6) months notice of said sale or transfer
but no less than sixty (60) days shall be required. This agreement is
transferable to an affiliated party without the consent of the City,
and/or to an unaffiliated party with the consent of the city which
shall not be unreasonably withheld. Said notice shall be given by
certified mail, return receipt requested, to the Fall River
Redevelopment Authority, One Government Center, Fall River,
Massachusetts, 02722. In the event of such sale or transfer, the new
party shall make good faith efforts to adhere to the terms and
conditions of the Agreement.
(b) Leasehold Mortgages
Notwithstanding anything contained herein to the contrary, the consent
of Lessor shall not be required for any transfer, conveyance or
assignment resulting from a foreclosure or acceptance of a deed in
lieu of foreclosure of any Leasehold Mortgage, or for any transfer,
conveyance or assignment by any Leasehold Mortgagee following its
acquisition of this Lease and the leasehold estate of Lessee created
hereby as a result of foreclosure or acceptance of a deed in lieu of
foreclosure.
14. DEFAULT AND REMEDIES
(a) Events of Default
The occurrence of any of the following shall constitute a default by
Lessee:
(i) Failure to pay any rent or any other charge or sum payable by
Lessee to Lessor hereunder within thirty (30) days after receipt
of notice thereof from Lessor:
(ii) Failure to perform any other provision of this Lease if the
failure to perform is not cured within thirty (30) days after
written notice has been given to Lessee; provided, that if such
default cannot reasonably be cured within thirty (30) days,
Lessee shall not be in default of this Lease if Lessee commences
to cure the default within the thirty (30) day period and
diligently and in good faith thereafter prosecutes the cure of
such default.
(b) Remedies
In the event of a default by Lessee under this Lease unless the
default is cured, Lessor shall have the following remedies:
14
(i) Re-Entry
(A) Right of Re-Entry
Lessor shall have the immediate right of re-entry and may
remove all persons and property from the Property. Such
property may be removed and stored in a public warehouse or
elsewhere at the cost of, and for the account of Lessee, and
without any liability on the part of Lessor.
(B) Right to Re-Let
If Lessor elects to re-enter as herein provided, or if
Lessor takes possession pursuant to legal proceedings or
pursuant to any notice provided for by law, Lessor may
either terminate this Lease or Lessor may from time to time,
without terminating this Lease, re-let the Premises, or any
part thereof, for such term or terms (which may be for a
term extending beyond the term of this Lease) and at such
rental or rentals and upon such other terms and conditions
as Lessor in its sole and reasonable discretion may deem
advisable with the right to make repairs and alternations to
the Property upon each such re-letting. Lessor shall use its
best efforts to re-let the Property.
(C) Damages
Lessee shall be liable immediately to Lessor for (i) all
cost's Lessor incurs in re-letting the Property, including,
without limitation, broker's commissions, expenses of
repairing, altering and remodeling the Property for any new
lessee thereof; and (ii) the amount, if any, by which the
rent and all other sums reserved in this Lease from the
period of such re-letting (up to but not beyond the term of
this Lease) exceeds the amount agreed to be paid as rent for
the Property for such re-letting, payable monthly.
(D) Application of Rents
At the option of Lessor, rents received by Lessor from such
re-letting shall be applied: first, to the payment of any
indebtedness of Lessee to Lessor, other than rent due
hereunder; second, to the payment of any costs, expenses and
commissions of such re-letting and of such repairs,
alterations and remodeling; and third, to the payment of
rent due and unpaid hereunder and the residue, if any, shall
be held by Lessor and applied in payment of future rent as
the same may become due and payable hereunder with the
remainder, if any, to be paid to Lessee.
(E) Deficiency
15
If such rentals received from such re-letting during any
month are less than that to be paid during that month by
Lessee hereunder, Lessee shall pay any such deficiency to
Lessor. Such deficiency shall be calculated and paid
monthly.
(F) No Termination
No such re-entry or taking possession of the Property by
Lessor shall be construed as an election on Lessor's part to
terminate this Lease unless a written notice of such
intention is given to Lessee by Lessor or unless the
termination thereof is decreed by a court of competent
jurisdiction. Notwithstanding any such re-letting without
termination, Lessor may at any time thereafter elect to
terminate this Lease for such previous breach.
(ii) Right of Termination
Lessor may terminate this Lease and Lessee's right to possession
of the Property, or any part thereof only as provided herein. No
act by Lessor other than giving written notice to Lessee shall
terminate this Lease. Acts of maintenance, efforts to re-let the
Property, or the appointment of a receiver to protect Lessor's
interest under this Lease shall not constitute a termination of
Lessee's right to possession. On termination, Lessor has the
right to recover from Lessee:
(A) The worth, at the time of the award, of unpaid rent and
other charges that had been earned at the time of
termination of this Lease;
(B) The worth, at the time of the award, of the amount by which
the unpaid rent and other charges that would have been
earned after the date of termination of this Lease until the
time of award exceeds the amount of the loss of rent or
other charges that Lessee proves could have been reasonably
avoided;
(C) The worth, at the time of the award of the amount by which
the unpaid rent and other charges for the balance of the
term after the time of the award exceeds the amount of the
loss of rent and other charges that Lessee proves could have
been reasonably avoided;
(D) Any other amount, and court costs, necessary to compensate
Lessor for any costs or expenses incurred by Lessor in
maintaining or preserving the Property after such default,
preparing said Property for re-letting to a new Tenant,
accomplishing any repairs or alterations to the Property for
the purpose of such re-letting or any other costs necessary
or appropriate to re-let the Property as awarded by the
court;
(E) "The worth at the time of the award," as used in Paragraphs
l4(b)(ii)(A) and
16
(B) above is to be computed by allowing interest at the rate
of 10% per annum. "The worth at the time of the award," as
referred to in Paragraph l4(b)(ii)(C) above is to be
computed by discounting such amount at the discount rate of
the Federal Reserve Bank of Boston at the time of the award,
plus 3%.
(c) Lessor's Right to Cure
Lessor can cure any default at Lessee's cost. If Lessor at any time,
by reason of Lessee's default, pays any sum or does any act that
requires the payment of any sum, the sum paid by Lessor shall be due
immediately from Lessee to Lessor at the time that the sum is paid,
and if paid at a later date shall bear interest from the date the sum
is paid by Lessor until Lessor is reimbursed by Lessee.
(d) Remedies Not Cumulative
The remedies given to Lessor in this Lease are not exclusive but shall
be cumulative with and in addition to all remedies now or hereafter
allowed by law or equity.
15. INTEREST OF LESSEE'S OBLIGATIONS
Rent or other sums due hereunder from Lessee to Lessor, not paid when due,
shall bear interest at the prime rate of interest as published daily in the
Eastern Edition of the New York Wall Street Journal from the date due until
paid.
16. ATTORNEY'S FEES
If litigation is commenced concerning the Premises, this Lease, or the
rights and duties of Lessor or Lessee in relation thereto, the party
prevailing in such litigation shall be entitled to a reasonable sum for
their attorney's fees in such litigation which shall be determined by the
court in such litigation.
17. NOTICES
Except as otherwise expressly provided by law, any and all notices or other
communications required or permitted by this Lease is to be served on or
given by either party to the other shall be in writing and shall be deemed
duly served and given when delivered in person, or, if mailed, 48 hours
after being deposited in the United States mail, certified or registered
mail, postage prepaid, addressed to such party as follows:
If to Lessor, Fall River Redevelopment Authority, Law Office, One
Government Center, Fall River, MA 02722, Attention: Edgar St.
Pierre, Chairman
17
If to Lessee: 100 Vesper Executive Park, Tyngsboro, MA
01879-2710, Attention: Elkin McCallum; Goulston and Storrs, P.C.,
400 Atlantic Avenue Boston, MA 02110-3333, Attention: Donald L.
Shulman
18. GOVERNING LAW
This Lease shall be construed and interpreted in accordance with the laws
of the State of Massachusetts, from time to time existing.
19. WAIVER OF BREACH
The waiver by Lessor of a breach by Lessee of any provision of this Lease
shall not constitute a continuing waiver of a waiver of any subsequent
breach by Lessee either of the same or a different provision of this Lease.
20. QUIET POSSESSION
Subject to the terms of this Lease, and subject to the rights of the Lessee
herein, Lessee, upon full performance of each and every provision herein,
shall peaceably and quietly have, hold and enjoy the Premises throughout
the term hereof without any disturbance from Lessor or any person claiming
through Lessor.
21. MEMORANDUM OF LEASE
A notice of this Lease which may contain a reference to Lessee's option to
purchase the Property but not the price payable therefor shall be executed
and acknowledged in recordable form by Lessor and Lessee and may be
recorded by either party.
22. ENTIRE AGREEMENT
This Lease constitutes the entire agreement of the parties with respect to
the subject matter hereof and the same may not be amended or modified
orally. All understandings and agreements heretofore had between the
parties are merged into this Lease, which alone fully and completely
expresses their understanding.
23. SEVERABLE PROVISIONS
The provisions of this Lease are severable, and if one or more provisions
are determined to be unenforceable, in full or part, by a court of
competent jurisdiction, the validity of the remaining provisions,
including any partially unenforceable provisions, to the extent
enforceable, shall not be affected in any respect whatsoever.
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24. CAPTIONS
The captions appearing on the various paragraphs of this Lease are for
convenience only, and do not in any way limit or amplify the terms and
provisions of this Lease.
25. BINDING ON SUCCESSORS
The terms of this Lease shall be binding on and shall inure to the benefit
of the heirs, executors, administrators, successors and assigns of the
parties hereto.
26. SINGULAR, PLURAL AND GENDER
The singular and plural number and the masculine, feminine and neuter
gender shall each include the other.
27. ENCUMBRANCES BY LESSOR
Lessor shall have the right to mortgage or otherwise encumber Lessor's
interest in the Property after the commencement of this Lease, and renew,
modify, replace, extend or refinance such mortgage or encumbrance ("Ground
Mortgage"), subject to the following:
(a) All rights acquired under any Ground Mortgage shall be subject and
subordinate to (i) the rights and interests of Lessee under this Lease
and the provisions contained herein; (ii) the rights and interests of
any subleases or assignee permitted hereunder; and (iii) the rights
of any holder of any leasehold or sublease hold mortgage permitted
hereby.
(b) The holder of a Ground Mortgage shall not be deemed a "Lender," the
Ground Mortgage shall not be deemed a "Leasehold Mortgage," and the
holder of the Ground Mortgage shall not be entitled to exercise the
rights set forth in Paragraphs 8(a) through (m) hereof. The holder
of a Ground Mortgage shall not disturb Lessee or any sublessee or
assignee permitted hereunder in the quiet and peaceful possession and
enjoyment of their interests, in connection with holder's exercise of
its rights under a Ground Mortgage or any instrument modifying,
amending, or replacing such Mortgage, so long as this Lease is in
full force and effect.
(c) If there is a default under a Ground Mortgage and this Lease is in
full force and effect immediately prior to such default, then, Lessee
shall not be made a party in any proceeding to foreclose the Ground
Mortgage, nor shall Lessee or any sublessee or assignee permitted
hereunder be evicted or otherwise disturbed in their peaceful
possession and enjoyment of their respective interests in the
Property. In the event of a foreclosure of a Ground Mortgage or the
conveyance of Lessor's interest in the Property as a result of a
default under a Ground Mortgage, this Lease shall continue in full
force and effect as a direct lease between the party succeeding to the
Lessor's
19
interest in the Property and Lessee.
(d) Any Ground Mortgage shall provide that a Ground Mortgage holder shall
simultaneously serve upon Lessee a copy of any notice which the holder
serves upon Lessor and shall accept as a cure by Lessor any cure of a
default under the applicable ground mortgage by Lessee.
28. NON MERGER OF ESTATES
If Lessor shall become the holder of any mortgage or deed of trust on the
leasehold estate or any part thereof conveyed by this Lease, or if Lessor
shall acquire the leasehold estate or any part thereof, or if Lessee shall
acquire the fee simple title or any other estate in the Premises, or if the
holder of any mortgage or deed of trust on the leasehold estate acquires
the fee title to any portion of the Premises (while such mortgage or deed
of trust encumbers the leasehold estate), no merger of any estates in the
Premises shall occur and all estates shall always be kept separate and
distinct.
29. ESTOPPEL CERTIFICATE
Lessee and Lessor shall, at any time and from time to time during the term
of this Lease, and any extensions thereof, upon not more than thirty (30)
day's prior written request by the other party, execute, acknowledge and
deliver to the other party, a statement in writing certifying that this
Lease in unmodified and in full force and effect (or if there have been
any modifications, that the same is in full force and effect as modified
and stating the modifications) and, if so, the dates to which the rent and
other charges have been paid in advance, and that there have been no
defaults of any kind under the Lease (or if there have, the nature and
extent of such default). It is intended that any such statement delivered
pursuant to this paragraph may be relied upon by any prospective purchaser,
encumbrancer, or assignee of Lessor or Lessee, respectively.
In witness whereof, the parties hereto have executed this Lease as of the
date first written above.
WITNESS: /s/ Illegible LESSOR: Fall River Redevelopment
----------------------------- Authority
BY: /s/ Edgar St. Pierre
------------------------------------
Edgar St. Pierre, Chairman
Corporation Counsel
Fall River Redevelopment Authority
BY: /s/ John Francoeur
---------------------------------
Attorney John Francoeur
LESSEE:
Charles McAnsin Associates.
A Limited Partnership
By: McDonna LLC
WITNESS: /s/ Jacqueline R. McLeod By: /s/ Elkin McCallum
---------------------------- ------------------------------------
Elkin McCallum, Member
21
EXHIBIT A
EXHIBIT A
Legal Description
A certain parcel of land with all improvements thereon situated in Fall River,
Bristol County, Massachusetts, being shown as Site 5 on a plan entitled "Fall
River Municipal Airport Urban Renewal Plan in Fall River, MA, Bristol County for
Fall River Redevelopment Authority", dated September 16, 1999, scale 1" = 40',
prepared by Vanasse Hangen Brustlin, Inc., and recorded with the Bristol Fall
River Registry of Deeds as Plan No. 117, Page 81.
Being a portion of the premises described in a deed dated September 23, 1999,
recorded with the Bristol Registry of Deeds in Book 3705, Page 272.
The Lot of Land
The lot land of is located cast of the Oliver Restaurant property on
Airport Road. It is partly fenced with metal wire fencing along part of the
westerly bound. There is a four to five acre blacktopped area to the front, and
a series of dilapidated former airport service buildings along the west line.
There are blacktopped runways running north and south just west of the north
south center line of the parcel. The land is flat and level. There is some tree
growth along the south and east sides.
Frontage: Access Road, SE side 792 79 Ft
Southerly Terminus of Way 80. Ft
Elevations: 193 ft
Grade: Assume lot to be at street grade
Access: To be over an 80 ft paved city layout
Utilities: All utilities, underground.
Shape: Irregular
Area: 1,467,101 SF 33,588 A
Wetlands: (3.9 acres estimated)
Upland: 29,688 acres
Building Envelope Max.
531,400 SF
Surficial characteristics
Reference is made to a memo dated 11 March 1999, prepared by Hadley &
Aldrich characterizing the site as "sloping gently downward toward the south,
with a heavily wooded area along the East Side."
The memo refers to the existence of bedrock, which may impact foundation
costs.
The memo also refers to an area west of the existing runway, which may
require over excavation and replacement with structural fill in order to
construct a proposed building.
A sketch provided by the client indicates that at the extreme south end of
the site, in the area of the former avigation casement, or transition zone there
are approximately 3.39 acres of wetland. Other wetlands in the park area do not
involve the subject site.
Adaptability
A conclusion by Haley & Aldrich, in their memorandum states that
"Subsurface conditions at the site are generally favorable for building
foundation construction" However, and with reference to the particular project
envisioned by the proposed developer, the engineer cites some shallow bedrock at
the eastern corner of the site. Loose fill at the western third of the site,
relatively shallow water table, and typically low permeability of the soils.
Practical solutions to these negatives, advanced by H & A, are The building
column and wall loads may be supported on conventional concrete spread footing
and foundation bearing at normal depth on the natural inorganic soils, bedrock
or on compacted structural fill placed following excavation of unsuitable soils.
Infiltration of significant storm water into the ground could be difficult due
to the shallow depth to water and silty nature of site soils.
01:37P Danson Survaying & Eng.
[GRAPHIC]
APP. 3.9 Acres Wetlands
[GRAPHIC]
Potential Building Envelope:
The lot of land is located roughly opposite the axis of Airport Road as it
approaches the former Fall River Airport. The lot is part of the former airport
site. As part of the former airport, the site was graded nearly flat and
improved in part with aircraft parking aprons and runway.
The lot is irregular in shape. Its shape would appear to accommodate a
rectangle of about 1000' x 880' containing about 20.2 acres, leaving about 13 +
acres to a front apron (about 2.5 acres) and two areas one to the north (about
4 + acres) and one to the south (about 7 + acres)
A plan prepared by Vanasse, Hangen, Brustlin, Inc., dated Feb 27, 1999 Plan
No C-1 Entitled Fall River Industrial Park Subdivision Master Plan, Fall River
MA, suggests A building envelope on the subject lot of 531,400 SF.
Existing Blacktop, all above and underground structures.
It is a condition of this appraisal that all structures and on-site
improvements such as existing blacktop or building, in whatever condition, are
to be removed at buyer's expense.
[GRAPHIC]
EXHIBIT B
TAX INCREMENT FINANCING AGREEMENT
CITY OF FALL RIVER, MASSACHUSETTS
and
MAIN STREET TEXTILES, L.P.
This agreement is made this 20th day of July 1999, by and between: City of Fall
River, a municipal corporation duly organized under the laws of the Commonwealth
of Massachusetts, having a principal place of business at One Government Center,
Fall River, Massachusetts, 02722, acting through its Tax Increment Financing
(TIF) Board (hereinafter called "the CITY"); Main Street Textiles, L.P., a
limited partnership with a principal place of business at 1822 North Main
Street, Fall River, Massachusetts acting through Ms. Penny Richards, President
(hereinafter called "the COMPANY"); and Charles McAnsin Associates, L.P., the
lessor of property located at the Fall River Commerce Park (street address to be
determined), Fall River, Massachusetts, acting through Mr. Elkin McCallum,
President of McDonna LLC, General Partner (hereinafter called "the LANDLORD").
This agreement will take effect immediately upon final approval by the
Massachusetts Economic Assistance Coordinating Council.
WHEREAS, the COMPANY is a leading manufacturer of upholstery fabrics used in the
furniture, recreational vehicle, contract and automotive industries; and
WHEREAS, the COMPANY wishes to build (+/-) 565,000 square feet of manufacturing,
warehousing and office space in Fall River at a site to be purchased by the
LANDLORD at the Fall River Commerce Park (street address to be determined)
located within Fall River's Industrial Park Economic Opportunity Area
(hereinafter referred to as the "FACILITY") and obtain certain tax exemptions
from the CITY for said FACILITY; and
WHEREAS, the COMPANY will be the sole lessee concerning a lease agreement
entered into with the LANDLORD; and
WHEREAS, the CITY is willing to grant said tax exemptions in return for a
guarantee of capital investment at the FACILITY and employment opportunities for
local workers; and
WHEREAS, the COMPANY has embarked upon a strategy of significant capital
investment in plant and equipment, job creation and job retention at its
FACILITY in Fall River;
NOW, THEREFORE, in consideration of the mutual promises contained herein, the
parties do mutually agree as follows:
TIF Agreement - Main Street Textiles, L.P.....Page 2
A. THE COMPANY'S OBLIGATIONS
1. The COMPANY and/or LANDLORD shall build a (+/-) 565,000 square foot
manufacturing, warehousing and office facility at the Fall River Commerce
Park (street address to be determined) to expand the COMPANY'S
manufacturing and distribution operations.
2. The COMPANY and/or LANDLORD shall invest approximately $46.5 million in the
FACILITY, employ a minimum of five hundred thirty-seven (537) new permanent
full-time workers during the next one hundred eight (108) months - two
hundred sixty-three (263) positions within sixty (60) months, and one
hundred thirty-seven (137) of the remaining two hundred seventy-four (274)
positions by year seven (7) - and retain the current six hundred thirteen
(613) employee level. The C0MPANY shall agree to operate a business and
provide best faith efforts to maintain the level of jobs described as long
as the TIF Agreement is in place.
3. The COMPANY shall cooperate with Job Training Partnership Act programs and
the Division of Employment and Training of the Commonwealth of
Massachusetts, the Bristol County Training Consortium and other agencies,
as appropriate, in seeking to fill vacancies at the COMPANY from the local
community. The COMPANY shall commit to a policy of hiring qualified Fall
River residents for any employment opportunities that become available at
the FACILITY.
4. The COMPANY and/or LANDLORD shall make good faith efforts to use and
request that its prime contractor use qualified local contractors for the
construction of the new FACILITY. It is understood, however, that the
COMPANY's prime contractor has discretion over subcontracts. The COMPANY
shall also make good faith efforts to use qualified local contractors for
any future repairs or renovations to the FACILITY. Further, the CITY
expresses its preference that the COMPANY use local contractors who have
registered apprenticeship programs with the Commonwealth of Massachusetts
to encourage the training of a skilled workforce.
5. If the COMPANY and/or LANDLORD decides to sell the FACILITY or the business
or to otherwise transfer control of the FACILITY or business and/or the
operations therein, the COMPANY shall make good faith efforts to give the
CITY at least six (6) months notice of said sale or transfer but no less
than sixty (60) days shall be required. This agreement is transferable to
an affiliated party without the consent of the CITY, and/or to an
unaffiliated party with the consent of the CITY, which shall not be
unreasonably withheld. Said notice shall be given by certified mai1, return
receipt requested, to the Mayor of the City of Fall River, One Government
Center, Fall River, Massachusetts, 02722.
Further, in the event that the LANDLORD discontinues or otherwise alters
its relationship with the COMPANY, it is agreed that the LANDLORD and the
COMPANY shall be jointly and severally liable for any obligations or
liabilities incurred by, or due from, the LANDLORD and/or the COMPANY under
the terms and conditions set forth in this agreement.
TIF Agreement - Main Street Textiles, L.P.....Page 3
6. The COMPANY shall provide the CITY with a quarterly report beginning at the
end of the quarter immediately following Project Certification and for each
subsequent quarter thereafter. Said report shall contain the following
information: (1) employment levels at the COMPANY at the beginning and end
of the reporting period; (2) number of Fall River residents employed at the
COMPANY at the beginning and end of the reporting period; (3) utilization
of local contractors for manufacturing during the reporting period; (4)
supplies/materials purchased locally for manufacturing during the reporting
period; (5) the COMPANY's financial contribution to the city (i.e.,
property taxes, motor vehicle excise taxes, water and sewer fees) for the
reporting period. Said quarterly report shall be given to the Mayor of the
City of Fall River, President of the Fall River City Council, Fall River
City Clerk, Fall River Assessor, and Jobs for Fall River, Inc., One
Government Center, Fall River, MA, 02722. Jobs for Fall River, Inc. shall
be responsible for monitoring job creation activities and compliance with
the terms and conditions set forth in this agreement.
B. THE CITY'S OBLIGATIONS
1. The CITY shall grant a Tax Increment Financing exemption to the COMPANY and
LANDLORD in accordance with Massachusetts General Laws, Chapter 23A,
Section 3E, Chapter 40, Section 59, and Chapter 59, Section 5. Said
property tax exemption shall be granted on the building to be constructed,
as described in FACILITY above. Said exemption shall be valid for a period
of twenty (20) years, beginning with fiscal year 2001 (July 1, 2000) and
ending with fiscal year 2020 (June 30, 2020). Said exemption schedule is as
follows:
Term Exemption Taxes Due
- ----------- --------- ---------
Years 1-3 100% 0%
Years 4-7 70% 30%
Years 8-15 50% 50%
Years 16-18 4% 96%
Years 19-20 3% 97%
Year 21 0% 100%
C. OTHER CONSIDERATIONS
1. If the COMPANY fails to meet or maintain employment goals or comply with
the other terms of this Agreement in any material way, the CITY as its sole
remedy may request prospective revocation of the TIF Agreement by the
Economic Assistance Coordinating Council, in accordance with Commonwealth
of Massachusetts Regulations 402 CMR, sections 2.01 - 2.18, as amended.
TIF Agreement - Main Street Textiles, L.P....Page 4
Executed as a sealed instrument on the day and year first above written.
Tax Increment Financing Board, Main Street Textiles, L.P.
City of Fall River
/s/ Edward M. Lambert /s/ Penny Richards
- -------------------------------------- ---------------------------------------
Mayor Edward M. Lambert, Jr. Chairman Ms. Penny Richards, President
Charles McAnsin Associates, L.P.
by McDonna LLC, General Partner
/s/ Elkin McCallum
---------------------------------------
Mr. Elkin McCallum, President
EXHIBIT A-1
Disclosed Title Matters
See attached
- 20 -
EXHIBIT A-l
Rights or claims of Paul R. Viveiros regarding access to and from Oliver's
Billiards Club.
Easements or claims of easements not shown by the public records, boundary-line
disputes, overlaps, encroachments, title to filled lands (if any) and any
matters not of record which would be disclosed by an accurate survey and
inspection of the premises.
Taxes assessed as of January 1, 2004 for the fiscal period beginning July 1,
2004, which are not yet due or payable, and for subsequent years.
Title to and rights of the public and others entitled thereto in and to those
portions of the insured premises lying within the bounds of Airport Road and
Proposed Commerce Drive as shown on the plan referred to in Item 9 below and any
adjacent streets and ways.
Restrictions set forth to deed by City of Fall River to the Fall River
Redevelopment Authority dated September 23, 1999 and recorded with Bristol
County Fall River District Registry of Deeds in Book 3705, Page 272; as affected
by Release and Grant of Easement by and between Fall River Redevelopment
Authority and Charles McAnsin Associates, a Limited Partnership dated May 11,
2001 and recorded with said Deeds in Book 4013, Page 187.
Terms and provisions of a Covenant by the Fall River Redevelopment Authority
with the Fall River Planning Board dated September 20, 1999 and recorded with
said Deeds in Book 3705, Page 274.
Such state of facts, including clear zone, clear zone approach easement,
transition zone easements, drainage easements, and unrecorded twenty foot wide
sanitary sewer easement, as shown on plan entitled "Definitive Subdivision Plan
of Land, Fall River Industrial Park, City of Fall River, in Fall River,
Massachusetts, Assessor's Plat Z-3, Lot 30', Prepared for Fall River Office of
Economic Development by Vanasse Hangen Brustlin Inc. dated September 16, 1999
and recorded with said Deeds in Plan Book 117, Pages 81-85.
Terms and provisions of a Lease dated September 27, 1999 by and between Fall
River Redevelopment Authority, as Landlord, and Charles McAnsin Associates, a
Limited Partnership, as Tenant, for which a Notice of Lease and Option to
Purchase is dated as of September 27, 1999 and recorded with said Deeds in Book
3748, Page 9; as affected by a Notice of Sublease by and between Charles McAnsin
Associates, A Limited Partnership, as Landlord and Main Street Textiles, L.P.,
as Tenant dated as of September 11, 2001 and recorded with said Deeds in Book
4122, Page 99; as subordinated to the lien of the insured mortgage by
Subordination, Non-Disturbance and Attornment Agreement dated as of August 18,
2003 and recorded with said Deeds in Book 5059, Page 61.
1
Terms and provisions of a Special Permit to allow the use of land and structures
for offices and distribution facilities granted by the Fall River Zoning Board
of Appeals on the petition of Fall River Redevelopment Authority, Case No. 3328,
Decision of which is dated May 18, 1999 and recorded wit said Deeds in Book
3742, Page 13.
Grant of Easement by Fall River Redevelopment Authority to New England Telephone
and Telegraph Company dated May 10, 2000 and recorded with said Deeds in Book
3806, Page 133.
Grant of Easement by Fall River Redevelopment Authority to New England Telephone
and Telegraph Company dated May 10, 2000 and recorded with said Deeds in Book
3806, Page 135.
Easement granted by Fall River Redevelopment Authority to Massachusetts Electric
Company dated May 10, 2000 and recorded with said Deeds in Book 3815, Page 340.
Easement granted by Fall River Redevelopment Authority to Massachusetts Electric
Company and New England Telephone and Telegraph Company dated June 30, 2000 and
recorded with said Deeds in Book 3849, Page 251.
Easement and Right of Way by Fall River Redevelopment Authority to MediaOne of
Southern New England, Inc. recorded with said Deeds in Book 3914, Page 62.
Mortgage from Fall River Redevelopment Authority to Jobs For Fall River, Inc. in
the original principal amount of $1,000,000.00 dated May 18, 2000 and recorded
with said Deeds in Book 3809, Page 336. (Affects real estate/landlord's interest
only).
Conditional Assignment of Lessor's Rights in Leases and Rents by and between
Fall River Redevelopment Authority and Jobs for Fall River, Inc. dated May 18,
2000 and recorded with said Deeds in Book 3809, Page 350. (Affects real
estate/landlord's interest only).
Survey entitled "ALTA/ACSM Land Title Survey Located in Fall River, MA Prepared
For Charles McAnsin Associates. A Limited Partnership", dated October 18, 2001,
prepared by Richard F. Kaminsky and Associates, Inc., discloses the following
items:
a. Existence and location of 20' sanitary sewer easement;
b. Existence and location of rip-rap swale; and
c. Existence of drainage easement along the southeasterly boundary;
Order of Conditions by the Massachusetts Department of Environmental Protection,
recorded with said Deeds, Book 4046, Page 204.
Order of Conditions by the Massachusetts Department of Environmental Protection,
recorded with said Deeds, Book 4046, Page 207.
2
Mortgage from Fall River Redevelopment Authority to Jobs For Fall River, Inc.,
dated February 26, 2001, recorded with Deeds, Book 4094, Page 188.
3
EXHIBIT A-2
Viveiros Letter
See attached
- 21 -
Exhibit A-2
CHARLES MCANSIN ASSOCIATES,
A LIMITED PARTNERSHIP
100 Vesper Executive Park
Tyngsboro, MA 01879
Telephone: 978-649-5626
October 15, 2001
Mr. Paul R. Viveiros
Oliver's Billiards Club
320 Airport Road
Fall River, MA 02720
Dear Mr. Viveiros:
This letter will confirm that you have our permission to continue to go across
our leasehold property to and from your premises until we give you notice to the
contrary. The intent of this letter is to give you a reasonable amount of time
to get a new curb cut and establish other access to your property.
Sincerely yours,
/s/ Paul Buffum
- --------------------------------------
Paul Buffum
General Counsel
EXHIBIT B
PERSONAL PROPERTY AND EQUIPMENT
Lighting
Central Vac System
8000 Amp. Electric System (Hooked Up)
Appliances
Carpeting
Draperies and Curtains
Security System
Chiller
Dunham-Bush 800 Ton Chiller, Model CB3016311933501, National Board Number
30336, Serial Number 990211093, Year 1999, (4) chiller water pumps 40 HP
Generator
Onan Outdoor Emergency Diesel Generator Set, 500 Kw capacity, Cummins
Diesel Engine, Year 8/2000
Plant Air Rotation Systems
Johnson MarCraft Incorporated Air Rotation System, Model
ARP-75.5SD-7.5-LHOG-F3, Year 2000, natural gas, Order Number EJ-20023,
Unit Number ARU-2
Johnson MarCraft Incorporated Air Rotation System, Model
ARP-75-5SB7.5-LHOG-F3, Year 2000, natural gas, Order Number EJ-20023, Unit
ARU-1
Johnson MarCraft Incorporated Air Rotation System, Model
ARP-95DD-30-MG-CW191.5-F3, Year 2000, natural gas, Order Number EJ-20023,
Unit Number ARU-6
Johnson MarCraft Incorporated Air Rotation System, Model
ARP-95D-X20-XX-CW154-F3, Year 2000, natural gas, Order Number EJ-20023,
Unit Number ARU-5
- 22 -
Johnson MarCraft Incorporated Air Rotation Machine, Model
ARP-95DD-30-MG-CW154-F3, Year 2000, natural gas, Order Number EJ-20023,
Unit Number ARU-4
Johnson MarCraft Incorporated Air Rotation Machine, Model
ARP-95DX-20-XX-CW154-F3, Year 2000, natural gas, Order Number EJ-20023,
Unit Number ARU-3
Johnson MarCraft Incorporated Air Rotation Machine, Model
ARP-85DE-10-MG-F3, Year 2000, natural gas, Serial Number EJ-200023, Unit
Tag ARU-9
Johnson MarCraft Incorporated Air Rotation Model ARP-85DE-10-MG-F3, Year
2000, natural gas, Order Number NA, Unit Tag ARU-7
Conveyor
Ermanco Reversible Live Roller Conveyor System, Year 2002, 27" wide,
rollers 2" diameter x 3" spacing, (1) 60" Section with drive, 560' with
(10) 1 HP drives, (1) power curve
Compressed Air Mains (but not the air drops, compressors and support equipment)
Excluding
Textile equipment and equipment used in the processing of textile products
affixed to or located at the building other than as listed above, office
furniture, work stations, dividers.
Seller will leave or remove latex tanks at Seller's election.
- 23 -
EXHIBIT C
ASSIGNMENT AND ASSUMPTION OF GROUND LEASE
THIS ASSIGNMENT AND ASSUMPTION OF GROUND LEASE ("Assignment") is made and
entered into as of ________ ___, 2004, by and between Charles McAnsin
Associates, A Limited Partnership, a Massachusetts limited partnership, having
an address of 100 Vesper Executive Park, Tyngsboro, Massachusetts 01879-2710
("Assignor"), and [Quaker Fabric Corporation of Fall River, a Massachusetts
company having an address of 941 Grinnell Street, Fall River, Massachusetts
02721] ("Assignee").
RECITALS
A. Assignor is the tenant under a ground lease dated September 27, 1999, as
amended by a First Amendment of Ground Lease dated September 19, 2001 with the
Fall River Redevelopment Authority, as landlord, with respect to certain
premises located at 81 Commerce Drive, Fall River, Bristol County,
Massachusetts, a notice of which is recorded with the Bristol Fall River
District Registry of Deeds in Book 3748, Page 9, (as so amended, the "Ground
Lease").
B. Assignor and Assignee have entered into that certain Purchase and Sale
Agreement, dated as of June ___, 2004 ("Purchase Agreement");
C. The Purchase Agreement requires Assignor and Assignee to execute this
Assignment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree
as follows:
1. Definitions. All capitalized terms used but not otherwise defined herein
shall have the respective meanings provided therefor in the Purchase
Agreement.
2. Assignment and Assumption. From and after the date hereof for the remainder
of the term the Ground Lease, Assignor hereby irrevocably assigns, sets
over, transfers, grants, bargains and conveys to Assignee all of Assignor's
right, title and interest in and to the Ground Lease. Subject to the terms
and conditions of the Purchase Agreement, Assignee hereby accepts this
Assignment of the Ground Lease and the rights granted herein. Assignee
hereby expressly assumes, for itself and its successors, assigns and legal
representatives, the Ground Lease and all of the obligations of Assignor
thereunder first accruing and arising from and after the date hereof and
agrees to (a) be fully bound by all of the terms, covenants, agreements,
provisions, conditions, obligations and liability of Assignor thereunder,
which first accrue and arise from and after the date hereof, and (b) keep,
perform and observe all of the covenants and conditions contained therein
on the part of Assignor to be kept, performed and observed, from and after
the date hereof.
3. Indemnifications. Assignor hereby indemnifies and agrees to protect, defend
and hold
- 24 -
Assignee harmless from and against any and all claims, losses, damages,
costs and expenses (including, without limitation, reasonable attorneys'
fees, charges and disbursements) incurred or suffered by Assignee in
connection with the Ground Lease and arising or accruing prior to the date
hereof. Assignee hereby indemnifies and agrees to protect, defend and hold
Assignor harmless from and against any and all actions, suits, proceedings,
claims, losses, damages, costs and expenses (including, without limitation,
reasonable attorneys' fees, charges and disbursements) incurred or suffered
by Assignor in connection with the Ground Lease and first arising and
accruing on or after the date hereof.
4. General Provisions.
a. Successors. This Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns.
b. Counterparts. This Assignment may be executed in as many counterparts
as may be deemed necessary and convenient, and by the different
parties hereto on separate counterparts, each of which, when so
executed, shall be deemed an original, but all such counterparts shall
constitute one and the same instrument.
c. Governing Law. This Assignment and the legal relations of the parties
hereto shall be governed by and construed and enforced in accordance
with the laws of the Commonwealth of Massachusetts, without regard to
its principles of conflicts of law.
d. Construction with Respect to Principal Agreement. This Assignment is
made pursuant to and governed by all of the terms and conditions of
the Purchase Agreement, which are incorporated herein by this
reference.
[ Signatures on next page ]
- 25 -
IN WITNESS WHEREOF, this Assignment was made and executed as of the date
first above written.
ASSIGNOR:
CHARLES MCANSIN ASSOCIATES, A LIMITED
PARTNERSHIP
BY: MCDONNA LLC, General Partner
By:
--------------------------------
Elkin McCallum, Member
ASSIGNEE:
QUAKER FABRIC CORPORATION OF FALL RIVER
By:
------------------------------------
Larry A. Liebenow, President
The undersigned hereby consent to the foregoing assignment.
[SIGNATURES BY FRRA AND CITY OF FALL RIVER]
[ACKNOWLEDGEMENTS FOR ALL PARTIES]
- 26 -
EXHIBIT D
DEED OF IMPROVEMENTS
[To be agreed upon during Initial Inspection Period; to be in the standard
Massachusetts quitclaim deed form as to the improvements located on the premises
demised under the ground lease, with a metes and bounds description consistent
with Title Report]
- 27 -
EXHIBIT E
BILL OF SALE AND ASSIGNMENT
THIS BILL OF SALE AND ASSIGNMENT is made as of ________ ____, 2004, among
Charles McAnsin Associates, A Limited Partnership, a Massachusetts limited
partnership, having an address of 100 Vesper Executive Park, Tyngsboro,
Massachusetts 01879-2710 and Main Street Textile L.P., a Delaware limited
partnership (collectively, "Seller"), to Quaker Fabric Corporation of Fall
River, a Massachusetts company having an address of 941 Grinnell Street, Fall
River, Massachusetts 02721 ("Purchaser").
RECITALS
A. Seller and Purchaser have entered into that certain Purchase and Sale
Agreement dated as of _____ __, 2004 (the "Purchase Agreement"), with respect
to, among other things, the acquisition of the "Personal Property" and the
"Intangible Property" (each as defined below), and certain other property,
located on certain premises ("Premises") at 81 Commerce Drive, Fall River,
Massachusetts.
B. The Purchase Agreement requires Seller to convey all of Seller's right,
title and interest in and to the Personal Property and the Intangible Property
to Purchaser.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller hereby agrees as follows:
Unless the context otherwise requires, all capitalized terms used but not
otherwise defined herein shall have the respective meanings provided therefor in
the Purchase Agreement.
1. Seller does hereby unconditionally, absolutely, and irrevocably grant,
bargain, sell, transfer, assign convey, set over and deliver unto Purchaser all
of Seller's right, title and interest in and to:
(a) any and all of Seller's right, title and interest in and to the
tangible personal property located upon the Land or within the Improvements
located on and used exclusively in connection with the operation of the Land and
the Improvements, as listed on Exhibit A, but excluding therefrom textile
equipment or equipment used in the processing of textile products affixed to or
located at the building (the "Personal Property"); and
(b) any and all of Seller's right, title and interest (subject to any
conditions on assignability by governmental authorities or issuers of warranties
or guaranties, provided that Seller shall cooperate with Buyer (at no
out-of-pocket expense to Seller) in the satisfaction of any such conditions) in
and to (i) all existing warranties and guaranties (express or implied) issued to
Seller with respect to the Improvements and the Personal Property (including
without limitation, any guarantees or warranties, if any, with respect to the
roof, heating, air conditioning, and other building systems), (ii) all existing
permits, licenses, approvals and authorizations issued by any governmental
authority in connection with the Property (including, so long as
- 28 -
there is no cost to Seller, the Tax Increment Financing Agreement among Seller,
MS, and the City of Fall River ["JF TIF Agreement"], subject to the approval of
such assignment by the City of Fall River) (excepting from the foregoing any
non-assignable permits specifically related to Seller's textile operations), and
(iii) all plans, specifications, drawings, surveys, engineering and other design
products, soils (including borings) tests and reports, and other technical
descriptions relating to the Land and Improvements (the "Intangibles").
Seller represents and warrants that its title to the Personal Property
and the Intangible Property are free and clear of all liens, mortgages, pledges,
security interests, prior assignments, encumbrances and claims of any nature.
Seller hereby agrees to indemnify, protect, defend and hold Purchaser harmless
from and against any and all claims, losses, damages, costs and expenses
(including, without limitation, reasonable attorney's fees and disbursements)
incurred or suffered by Purchaser in connection with Seller's title to the
Property and arising prior to the Closing. The obligations of Charles McAnsin
Associates, a Limited Partnership, and Main Street Textiles Corporation relate
to the items of Personal Property and Intangible Property transferred by each
respectively, provided that, as to Purchaser, the obligations of the foregoing
parties hereunder are joint and several.
[End of text on page]
EXECUTED as a sealed instrument as of the day and year first above
written.
SELLER:
CHARLES MCANSIN ASSOCIATES, A LIMITED
PARTNERSHIP
BY: MCDONNA LLC, General Partner
By:
--------------------------------
Elkin McCallum, Member
MAIN STREET TEXTILES CORPORATION
By:
------------------------------------
Elkin McCallum, President
PURCHASER:
QUAKER FABRIC CORPORATION OF FALL RIVER
By:
------------------------------------
Larry A. Liebenow, President
- 29 -
EXHIBIT F
SELLER'S REPRESENTATION CERTIFICATE
The undersigned hereby certifies to [Quaker Fabric Corporation of Fall
River, a Massachusetts corporation] that, as of the date hereof, all of the
representations, covenants and warranties of the undersigned made in or pursuant
to that certain Purchase and Sale Agreement dated as of June ___, 2004 (the
"Agreement"), between the undersigned and Quaker Fabric Corporation of Fall
River are true, accurate, correct and complete.
Executed this ___ day of _________, 2004.
CHARLES MCANSIN ASSOCIATES, A LIMITED
PARTNERSHIP
BY: MCDONNA LLC, General Partner
By:
--------------------------------
Elkin McCallum, Member
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EXHIBIT G
FORM OF FIRPTA CERTIFICATE
CERTIFICATE REGARDING FOREIGN INVESTMENT
IN REAL PROPERTY TAX ACT
(ENTITY TRANSFEROR)
Section 1445 of the Internal Revenue Code provides that a transferee
(purchaser) of a U.S. real property interest must withhold tax if the transferor
(seller) is a foreign person. To inform the transferee (purchaser) that
withholding of tax is not required upon the disposition of a U.S. real property
interest by Charles McAnsin Associates, A Limited Partnership, a Massachusetts
limited partnership ("Transferor") Transferor hereby certifies:
1. Transferor is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate (as those terms are defined in the Internal Revenue
Code and Income Tax Regulations).
2. Transferor's Federal Employer Identification Number is ________________.
3. Transferor's office address is: 100 Vesper Executive Park, Tyngsboro, MA
01879.
4. The address or description of the property which is the subject matter
of the disposition is 81 Commerce Drive, Fall River, MA.
5. Transferor is not a disregarded entity as defined in Section
1.1445-2(b)(2)(iii) of the Code.
Transferor understands that this certification may be disclosed to the
Internal Revenue Service by transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Transferor 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 the individual executing this certification on behalf of
Transferor has full authority to do so.
CHARLES MCANSIN ASSOCIATES, A LIMITED
PARTNERSHIP
BY: MCDONNA LLC, General Partner
By:
--------------------------------
Elkin McCallum, Member
- 31 -
EXHIBIT H
SELLER'S ENVIRONMENTAL REPORTS
1. Phase I Environmental Site Assessment Report, Gemini Geotechnical Associates,
Inc., 81 Commerce Drive, Fall River, Massachusetts, Prepared for: Environmental
Program Officer Commercial Appraisal Department, Banknorth Group, Inc., P.O. Box
9540, Portland, ME 04112-9540, dated July 29, 2003.
2. Phase I Site Investigation and Field Sampling at Fall River Airport, Fall
River Massachusetts, prepared by Earthtech, dated April 3, 1997.
3. Report on Geotechnical Design Recommendations, prepared by Haley & Aldrich,
Inc., dated May, 1999.
- 32 -
EXHIBIT I
JF OCCUPANCY AGREEMENT
- 33 -
USE AND OCCUPANCY AGREEMENT
This Use and Occupancy Agreement (the "Agreement") is dated as of
______________, 2004 by and between Quaker Fabric Corporation of Fall River, a
Massachusetts company having an address of 941 Grinnell Street, Fall River,
Massachusetts 02721 ("Licensor"), and Joan Fabrics Corporation, a Delaware
corporation having an address of 100 Vesper Executive Park, Tyngsboro,
Massachusetts 01879-2710 ("Licensee", which term shall include any affiliate of
Licensee, including but not limited to Main Street Textiles, L.P.).
Recitals
WHEREAS, Licensor is the holder of the leasehold estate in the land and
owner of the improvements on certain premises known as 81 Commerce Drive, Fall
River, Massachusetts ("Property"); and
WHEREAS, Licensor has acquired the Property from Charles McAnsin
Associates, A Limited Partnership, a Massachusetts limited partnership, an
affiliate of Licensee, as of the date hereof pursuant to a Purchase and Sale
Agreement dated as of June ____, 2004 ("P&S"); and
WHEREAS, Licensor and Licensee have agreed that Licensee may occupy that
portion of the Property shown as "Area 3" on Exhibit A hereto ("License Area")
following the closing of the transaction contemplated by the P&S on the terms
set forth below.
Agreement
NOW, THEREFORE, in consideration of Ten Dollars ($10.00), and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and agreed, Licensor and Licensee hereby agree as follows:
1. License. Licensor hereby grants to Licensee the privilege to use the License
Area, together with the privilege to have a right of access thereto through the
Property, and the privilege to use the loading docks, common areas and parking
areas of the Property, in common with Licensor in accordance with the terms and
conditions of this Agreement (the License Area, together with such
appurtenances, is hereafter referenced as the "Licensed Premises"). Licensor and
Licensee agree to work cooperatively to coordinate their activities in any areas
of the Property jointly used by them for their respective activities during the
term of this Agreement
2. Term. The term of this Agreement shall commence on the date hereof and shall
terminate on the earlier to occur of (a) December 31, 2004, or (b) [five (5)
days] after the date upon which Licensee has delivered to Licensor written
notice that Licensee has vacated the Licensed Premises and delivered possession
thereof to Licensor in the condition required hereby. At the time of such
termination, Licensee shall remove its possessions from the Licensed Premises
and shall leave the same broom-clean and in the same condition as exists on the
date hereof.
3. Use. Licensee shall use the Licensed Premises for its business activities,
including, but limited to the sale of textile equipment. Licensee shall not make
or permit or suffer to be made any use of the Licensed Premises or any part
thereof (i) which would violate any of the
covenants, agreements, terms, provisions and conditions of this License; (ii)
which is in violation of law, ordinance or government regulation; (iii) which
may invalidate or increase the premium of any policy of insurance carried on the
Premises or covering Licensor's operations; or (iv) which would materially
impair Licensor's use of the remainder of the Property.
4. Payment. Licensee shall pay to Licensor in advance on the first day of each
calendar month within the term of this Agreement a license fee in the amount of
$68,942.50. In addition, Licensee shal1 pay to Licensor within fifteen (15) days
of billing therefor Licensee's pro rata share (on the basis of the pro rata
square footage of the License Area within the Building) for the costs of real
estate taxes, property insurance, utilities (other than utility costs allocable
to Licensor's manufacturing operations, which shall not be borne by Licensee),
and ordinary maintenance and repairs for the Property ("Operating Expenses").
Licensor shall provide reasonable documentation of the costs of the Operating
Expenses with each such billing. Amounts payable hereunder shall be pro rated on
a per diem basis for any partial month during the term.
5. Assignment and Subletting. No assignment of this Agreement or sublicensing of
the Licensed Premises or any part thereof shall be made by Licensee. Neither all
nor any part of Licensee's interest in the Licensed Premises granted hereunder
may be encumbered, assigned, or transferred, in whole or in part, either by any
act of Licensee or by operation of law. Licensee shall not permit or suffer the
Licensed Premises to be used by anyone other than the employees of Licensee or
any purchasers or owners of equipment or other property presently owned or
leased by Licensee.
6. Licensor not Liable. All personal property of Licensee in the Licensed
Premises shall be at the sole risk and hazard of Licensee and if the whole or
any part thereof shall be lost, destroyed or damaged by fire, theft or
otherwise, no part of said loss or damage is to be charged to or borne by
Licensor, and Licensee agrees to defend and hold Licensor harmless from and
against any and all liabilities, obligations, penalties, claims, costs, charges
and expenses, including, but not limited to, reasonable attorneys' fees, based
upon or arising out of the foregoing. In no event shall any stockholder,
officer, director, partner, member, employee or agent of Licensor have any
liability hereunder, and Licensee shall not seek personal recourse against any
such parties or their personal assets.
7. Indemnification. Licensee shall defend, indemnify and save harmless Licensor
and Licensor's partners, agents and employees from and against any and all
liabilities, obligations, damages, penalties, claims, costs, charges and
expenses, including, but not limited to, reasonable attorneys' fees, which may
be incurred by Licensor by reason of, or arising directly or indirectly from,
out of, or in connection with, any negligent or wrongful act or wrongful
omission of Licensee, its agents, employees, contractors or invitees in or about
the Licensed Premises, or any failure on the part of Licensee to perform or
comply with any of the terms, conditions or provisions of this License,
including, without limitation, Licensee's failure to yield up and surrender the
License Area in broom-clean condition and in the same condition as exists on the
date hereof at the end of the term.
8. Insurance. Each of Licensor and Licensee shall maintain commercial general
liability insurance in commercially reasonable amounts with reputable insurers
licensed to do business in
-2-
the Commonwealth of Massachusetts with respect to the Licensed Premises,
Licensor shall maintain casualty insurance with respect to the Property, and
Licensee shall maintain property insurance with respect to its personal
property in the Licensed Premises, each of which policies shall be for full
replacement value or fair market value of such Property or personal property
with reputable insurers licensed to do business in the Commonwealth of
Massachusetts. Any insurance carried by either party with respect to the
Property or property therein or occurrences thereon shall include a clause or
endorsement denying to the insurer rights of subrogation against the other
party. Each party, notwithstanding any provisions of this Agreement to the
contrary, hereby waives any rights of recovery against the other for injury or
loss due to hazards covered by such insurance to the extent of the
indemnification received thereunder.
9. Notices. Any notice under this License must be in writing and shall be
delivered in accordance with Section 9.3 of the P&S.
10. Access. Licensor shall have access to the Licensed Premises upon reasonable
prior notice to Licensee, provided that any such access shall not materially
interfere with Licensee's business activities in the Licensed Premises (except
in the case of emergency).
11. Miscellaneous. This instrument embodies the entire agreement between the
parties relative to the subject matter hereof, and shall not be modified,
changed, or altered in any respect, except in writing. This Agreement shall be
construed and enforced in all respects in accordance with the laws of the
Commonwealth of Massachusetts. Licensee recognizes that the occupancy hereby
allowed is permissive only and that no tenancy or lease is created hereby.
LICENSOR:
QUAKER FABRIC CORPORATION OF FALL RIVER
By:
-----------------------------------
Larry A. Liebenow, President
LICENSEE:
JOAN FABRICS CORPORATION
By:
-----------------------------------
Elkin McCallum, President
-3-
Exhibit A to
JF Occupancy
agreement
EXHIBIT A
[GRAPHIC]
USE AND OCCUPANCY AGREEMENT
This Use and Occupancy Agreement (the "Agreement") is dated as of July,
2004 by and between Charles McAnsin Associates, A Limited Partnership, a
Massachusetts limited partnership ("Licensor"), and Quaker Fabric Corporation of
Fall River, a Massachusetts company having an address of 941 Grinnell Street,
Fall River, Massachusetts 02721 ("Licensee").
Recitals
WHEREAS, Licensor is the holder of the leasehold estate in the land and
owner of the improvements on certain premises known as 81 Commerce Drive, Fall
River, Massachusetts ("Property"); and
WHEREAS, Licensor, as Seller, and Licensee, as Purchaser, have entered into
a Purchase and Sale Agreement for the conveyance of the Property to Licensee as
of the date hereof ("P&S"); and
WHEREAS, Licensor and Licensee have agreed that Licensee may occupy that
portion of the Property shown as "Area 1" on Exhibit A hereto ("License Area")
prior to the closing of the transaction contemplated by the P&S on the terms set
forth below.
Agreement
NOW, THEREFORE, in consideration of Ten Dollars ($10.00), and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and agreed, Licensor and Licensee hereby agree as follows:
1. License. Licensor hereby grants to Licensee the privilege to use the License
Area, together with the privilege to have a right of access thereto through the
Property, and the privilege to use the loading docks, common areas and parking
areas of the Property, in common with Licensor in accordance with the terms and
conditions of this Agreement (the License Area, together with such
appurtenances, is hereafter referenced as the "Licensed Premises"). Licensor and
Licensee agree to work cooperatively to coordinate their activities in any areas
of the Property jointly used by them for their respective activities during the
term of this Agreement.
2. Term. The term of this Agreement shall commence on the date hereof and shall
terminate on the earlier to occur of (a) the closing of the transaction
contemplated by the P&S, or (b) forty-five (45) days after the termination of
the P&S without the transaction contemplated thereby having been consummated.
Promptly upon termination of this Agreement in accordance with the foregoing
clause (b), Licensee shall remove its possessions from the Licensed Premises and
shall leave the same broom-clean and in the same condition as exists on the date
hereof.
3. Use. Licensee shall use the Licensed Premises for its business activities.
Licensee shall not make or permit or suffer to be made any use of the Licensed
Premises or any part thereof (i) which would violate any of the covenants,
agreements, terms, provisions and conditions of this License; (ii) which is in
violation of law, ordinance or government regulation; (iii) which may
invalidate or increase the premium of any policy of insurance carried on the
Premises or covering Licensor's operations; or (iv) which would materially
impair Licensor's use of the remainder of the Property.
4. Payment. Licensee shall pay to Licensor in advance on the first day of each
calendar month within the term of this Agreement a license fee in the amount of
$29,855.85. In addition, Licensee shall pay to Licensor within fifteen (15) days
of billing therefor Licensee's pro rata share (on the basis of the pro rata
square footage of the License Area within the Building, except for utility costs
allocable to Licensee's manufacturing operations, which shall be borne by
Licensee) for the costs of real estate taxes, property insurance, utilities, and
ordinary maintenance and repairs for the Property ("Operating Expenses").
Utility usage shall be calculated on the basis of the increase in such billing
following Licensee's occupancy of the License Area. Licensor shall provide
reasonable documentation of the costs of the Operating Expenses with each such
billing. Amounts payable hereunder shall be pro rated on a per diem basis for
any partial month during the term.
5. Assignment and Subletting. No assignment of this Agreement or sublicensing of
the Licensed Premises or any part thereof shall be made by Licensee. Neither all
nor any part of Licensee's interest in the Licensed Premises granted hereunder
may be encumbered, assigned, or transferred, in whole or in part, either by any
act of Licensee or by operation of law. Licensee shall not permit or suffer the
Licensed Premises to be used by anyone other than the employees of Licensee.
6. Licensor not Liable. All personal property of Licensee in the Licensed
Premises shall be at the sole risk and hazard of Licensee and if the whole or
any part thereof shall be lost, destroyed or damaged by fire, theft or
otherwise, no part of said loss or damage is to be charged to or borne by
Licensor, and Licensee agrees to defend and hold Licensor harmless from and
against any and all liabilities, obligations, penalties, claims, costs, charges
and expenses, including, but not limited to, reasonable attorneys' fees, based
upon or arising out of the foregoing. In no event shall any stockholder,
officer, director, partner, member, employee or agent of Licensor have any
liability hereunder, and Licensee shall not seek personal recourse against any
such parties or their personal assets.
7. Indemnification. Licensee shall defend, indemnify and save harmless Licensor
and Licensor's partners, agents and employees from and against any and all
liabilities, obligations, damages, penalties, claims, costs, charges and
expenses, including, but not limited to, reasonable attorneys' fees, which may
be incurred by Licensor by reason of, or arising directly or indirectly from,
out of, or in connection with, any negligent or wrongful act or wrongful
omission of Licensee, its agents, employees, contractors or invitees in or about
the Licensed Premises, or any failure on the part of Licensee to perform or
comply with any of the terms, conditions or provisions of this License,
including, without limitation, Licensee's failure to yield up and surrender the
License Area in broom-clean condition and in the same condition as exists on the
date hereof at the end of the term.
8. Insurance. Each of Licensor and Licensee shall maintain commercial general
liability insurance in commercially reasonable amounts with reputable insurers
licensed to do business in the Commonwealth of Massachusetts with respect to the
Licensed Premises. Licensor shall
- 2 -
maintain casualty insurance with respect to the Property, and Licensee shall
maintain property insurance with respect to its personal property in the
Licensed Premises, each of which policies shall be for full replacement value or
fair market value of such Property or personal property with reputable insurers
licensed to do business in the Commonwealth of Massachusetts. Any insurance
carried by either party with respect to the Property or property therein or
occurrences thereon shall include a clause or endorsement denying to the insurer
rights of subrogation against the other party. Each party, notwithstanding any
provisions of this Agreement to the contrary, hereby waives any rights of
recovery against the other for injury or loss due to hazards covered by such
insurance to the extent of the indemnification received thereunder.
9. Notices. Any notice under this License must be in writing and shall be
delivered in accordance with Section 9.3 of the P&S.
10. Access. Licensor shall have access to the Licensed Premises upon reasonable
prior notice to Licensee, provided that any such access shall not materially
interfere with Licensee's business activities in the Licensed Premises (except
in the case of emergency).
11. Miscellaneous. This instrument embodies the entire agreement between the
parties relative to the subject matter hereof, and shall not be modified,
changed, or altered in any respect, except in writing. This Agreement shall be
construed and enforced in all respects in accordance with the laws of the
Commonwealth of Massachusetts. Licensee recognizes that the occupancy hereby
allowed is permissive only and that no tenancy or lease is created hereby.
[End of text on page]
- 3 -
LICENSOR:
CHARLES MCANSIN ASSOCIATES, A LIMITED
PARTNERSHIP
BY: MCDONNA LLC, General Partner
By:
--------------------------------
Elkin McCallum, Member
LICENSEE:
QUAKER FABRIC CORPORATION OF FALL RIVER
By: /s/ Larry A. Liebenow
------------------------------------
Larry A. Liebenow, President
- 4 -
EXHIBIT A
[GRAPHIC]