EXHIBIT 10.13
QUAKER FABRIC CORPORATION OF FALL RIVER
QUAKER FABRIC CORPORATION
941 Grinnell Street
Fall River, MA 02721
CHARLES MCANSIN ASSOCIATES, A LIMITED PARTNERSHIP
100 Vesper Executive Park
Tyngsboro, MA 01879
December 16, 2004
Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street
Boston, MA 02109
Attn: Katharine E. Bachman, Esq.
Re: 81 Commerce Road, Fall River, Massachusetts
Ladies and Gentlemen:
This letter serves as escrow instructions from the undersigned Quaker
Fabric Corporation of Fall River and Quaker Fabric Corporation (collectively,
"Quaker"), and Charles McAnsin Associates, a Limited Partnership ("McAnsin"),
pursuant to which four (4) originals of each the following documents ("Escrow
Documents") are herewith deposited with you:
1. Lease between McAnsin, as landlord, and Quaker, as tenant;
2. Notice of Lease;
3. Guaranty of Quaker Fabric Corporation;
4. Use and Occupancy Agreement between Quaker and Joan Fabric
Corporation; and
5. Bank North Subordination, Non-Disturbance Agreement ("Bank North
SNDA")(not yet executed by Bank North).
The undersigned hereby direct you to hold the Escrow Documents in
escrow with your firm until the undersigned have each given written notice to
you that the following conditions precedent to the release of the Escrow
Documents ("Release Conditions") have been satisfied or waived:
1. Execution and delivery by the Fall River Redevelopment Authority of a
Recognition and Attornment in the form of Exhibit A;
2. Execution and delivery by the Fall River Redevelopment Authority of
an Estoppel Certificate in the form of Exhibit B;
3. Execution and delivery by Bank North of the Bank North SNDA;
4. Evidence of execution and recording of discharge of prior mortgage
documents from Fleet Bank;
1
5. Termination of Main Street Textiles Lease, with Bank North consent;
6. Quaker Fabric Corporation of Fall River Clerk's Certificate of Vote
re Lease;
7. Quaker Fabric Corporation Clerk's Certificate re Guaranty;
8. Limited Partner Consent of McAnsin;
9. Legal Existence Certificate showing McDonna LLC as General Partner of
McAnsin; and
10. Legal Existence Certificate showing authorized signatory for McDonna
LLC.
In the event that you have not received written notice of satisfaction
or waiver of the Release Conditions from each of the undersigned by January 14,
2005, you are authorized and directed, absent instructions to the contrary from
each of the undersigned, to destroy the Escrow Documents, and the same shall
have no further force or effect. In the event that you have received written
notice of satisfaction or waiver of the Release Conditions from each of the
undersigned by January 14, 2005, you shall release two (2) counterpart originals
of each of the Escrow Documents to Quaker and McAnsin. In such event, the Escrow
Documents shall be deemed effective between the parties from and after January
1, 2005.
We agree that your service as Escrow Agent hereunder shall be governed
by the terms and conditions attached hereto as Schedule A. Kindly confirm your
acceptance of these terms by acknowledging the enclosed copy of this letter.
Executed as of the day and year first above written.
QUAKER FABRIC CORPORATION OF FALL RIVER
By: /s/
----------------------------------
QUAKER FABRIC CORPORATION
By: /s/
----------------------------------
CHARLES MCANSIN ASSOCIATES,
A LIMITED PARTNERSHIP
By: McDonna LLC
By: /s/
----------------------------------
ACCEPTED AND AGREED:
WILMER CUTLER PICKERING HALE AND DORR LLP, ESCROW AGENT
By: /s/
------------------------------------
Katharine E. Bachman, Senior Partner
2
SCHEDULE A
Escrow Agent shall hold the Escrow Documents in accordance with the
terms and provisions of this Agreement, subject to the following:
1.1. 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.
1.2. Reliance. Escrow Agent may act in reliance upon any
writing or instrument or signature which it, in good faith,
believes, and any statement or assertion contained in such
writing or instrument, and may assume that any person
purporting to give any writing, notice, advice or instrument
in connection with the provisions of this Agreement has been
duly authorized to do so. Escrow Agent shall not be liable in
any manner for the sufficiency or correctness as to form,
manner and execution, or validity of any instrument deposited
in escrow, nor as to the identity, authority, or right of any
person executing the same, and Escrow Agent's duties under
this Agreement shall be limited to those provided in this
Agreement.
1.3. 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, the parties to this Agreement, jointly and
severally, shall indemnify Escrow Agent and hold it harmless
from any and all claims, liabilities, losses, actions, suits
or proceedings at law or in equity, or other expenses, fees,
or charges of any character or nature, which it may incur or
with which it may be threatened by reason of its acting as
Escrow Agent under this Agreement; and in such connection The
parties hereto, jointly and severally, 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.
1.4. 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
disposition of the Escrow Documents, Escrow Agent shall hold
the Escrow Documents until the receipt of written instructions
from each party, or, in the absence of such agreement, 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.
1.5. 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
3
negligence or willful misconduct. Escrow Agent shall not be
disqualified from its representation of Quaker by virtue of
its service as escrow agent hereunder.
4