EXHIBIT 10.31
3.13.06
PURCHASE AND SALE AGREEMENT
This ___ day of ____________, 2006:
1. PARTIES AND MAILING ADDRESSES
Quaker Fabric Corporation of Fall River, a Massachusetts corporation,
hereinafter called SELLER, agrees to SELL
and
Fred Smith of 8 Anvil Drive, Cumberland, RI 02864, hereinafter called
BUYER, agrees to BUY, upon the terms hereinafter set forth, the following
described premises:
2. DESCRIPTION
The land with the building thereon, known as and numbered 3129 County
Street, Somerset, Massachusetts, as more particularly described in Exhibit
A attached hereto and incorporated herein.
3. BUILDINGS, STRUCTURES IMPROVEMENTS, FIXTURES
Included in the sale as a part of said premises are the buildings,
structures, and improvements now thereon, and all easements and
appurtenants thereto, and the fixtures and equipment used in connection
with the operation of the building and belonging to SELLER including,
furnaces, heaters, heating equipment, oil and gas burners and fixtures
appurtenant hereto, hot water heaters, plumbing and bathroom fixtures, and
electric and other lighting fixtures, but excluding therefrom all fixtures
and equipment (including looms) used by SELLER in its manufacturing
operations ("Seller's Equipment").
4. TITLE DEED
Said premises are to be conveyed by a good and sufficient Quitclaim Deed
running to BUYER, or to the nominee designated by BUYER by written notice
to SELLER at least three (3) business days before the deed is to be
delivered as herein provided, and said deed shall convey a good and clear
record and marketable title thereto, free from encumbrances, except
(a) Provisions of existing building and zoning laws;
(b) Such taxes for the then current year as are not due and payable on the
date of the delivery of such deed;
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(c) The matters referenced in Exhibit A;
(d) Any liens for municipal betterments assessed after the date of this
Agreement.
Any matter relating to the performance of this Agreement that is the
subject of a title, practice or ethical standard of the Massachusetts
Conveyancers Association shall be governed by the provision of said
standard to the extent applicable.
5. PURCHASE PRICE
The agreed purchase price for said premises is One Million Seven Hundred
Fifty Thousand and 00/100 Dollars ($1,750,000.00), of which
$ 1,000.00 have been paid to Giroux Realty ("Escrow Agent") as the
Deposit this day ("Initial Deposit"); and,
$ 24,000.00 shall be paid to Giroux Realty("Escrow Agent") as the
Additional Deposit ("Additional Deposit") upon execution of this
Purchase & Sales Agreement; and,
$1,725,000.00 are to be paid by wire transfer of immediately
available federal funds at the time of delivery of the deed in
accordance with the terms of this Purchase and Sale Agreement [it
being expressly agreed that any extension payment under Paragraph
23 below shall not be applied to the purchase price].
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$1,750,000.00 TOTAL
6. TIME FOR PERFORMANCE; DELIVERY OF DEED
The delivery of the deed will take place at the offices of Wilmer Cutler
Pickering Hale and Dorr LLP, 60 State Street, Boston, Massachusetts at 10
a.m. on July 14, 2006, provided that SELLER has removed all Furniture,
Fixtures and Equipment (FF&E) from the premises by July 1, 2006, and left
the premises in broom clean condition and notified the BUYER in writing of
the removal of the FF&E [Equipment Removal Notification] . If SELLER has
not removed FF&E by July 1, 2006, the Agreement shall be extended
automatically for sixty (60) days and the closing shall take place not
later than thirty (30) days following receipt of the Equipment Removal
Notification from the SELLER. It is agreed that time is of the essence of
this Agreement.
7. POSSESSION AND CONDITION OF PREMISES
Full possession of said premises is to be delivered at the time of the
delivery of the deed, said premises to be then in the same condition as
they are now, reasonable use and wear thereof excepted. BUYER shall be
entitled to inspect said premises prior to the delivery of the deed in
order to determine whether the condition thereof complies with the terms of
this clause.
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8. EXTENSION TO PERFECT TITLE OR MAKE PREMISES CONFORM
If SELLER shall be unable to give title or to make conveyance, as herein
stipulated, or if at the time of the delivery of the deed the premises do
not conform with the provisions hereof, then, all payments made under this
agreement shall be refunded and all other obligations of the parties hereto
shall cease and this agreement shall be void and without recourse to the
parties hereto, unless SELLER shall elect, in its sole discretion, to use
reasonable efforts to remove any defects in title, or to make the said
premises conform to the provisions hereof, as the case may be, in which
event SELLER shall give written notice thereof to BUYER at or before the
time for performance hereunder, and thereupon the time for performance
hereof shall be extended for a period of thirty days. Notwithstanding the
foregoing, SELLER shall cause any mortgages and other voluntary monetary
encumbrances encumbering the premises to be discharged at the Closing.
9. FAILURE TO PERFECT TITLE OR MAKE PREMISES CONFORM
If at the expiration of the extended time SELLER shall have failed so to
remove any defects in title, or make the premises conform, as the case may
be, all as herein agreed, or if at any time during the period of this
Agreement or any extension thereof, the holder of a mortgage on said
premises shall refuse to permit the insurance proceeds, if any, to be used
for such purposes, then any payments made under this Agreement shall be
forthwith refunded to BUYER and all other obligations of the parties hereto
shall cease and this Agreement shall be void without recourse to the
parties hereto.
10. BUYER'S ELECTION TO ACCEPT TITLE
In addition to BUYER's rights under the provisions of Sections 8 and 9
above, BUYER shall have the election, at either the original or any
extended time for performance, to accept such title as SELLER can deliver
to the said premises in their then condition and to pay therefore the
purchase price without deduction, in which case SELLER shall convey such
title, except that in the event of such conveyance in accord with the
provisions of this clause, if the said premises shall have been damaged by
fire or casualty insured against, then SELLER shall, unless SELLER has
previously restored the premises to their former condition, either:
(a) pay over or assign to BUYER, or delivery of the deed, all
amounts recovered or recoverable on account of such insurance, less
any amounts reasonably expended by SELLER for any partial restoration,
or
(b) if a holder of a mortgage on said premises shall not permit
the insurance proceeds or a part thereof to be used to restore the
said premises to their former condition or to be so paid over or
assigned, give to BUYER a credit against the purchase price, on
delivery of the deed, equal to said amounts so recovered or
recoverable and retained by the holder of the said mortgage less any
amounts reasonably expended by SELLER for any partial restoration.
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11. ACCEPTANCE OF DEED
The acceptance of a deed by BUYER or its nominee as the case may be, shall
be deemed to be a full performance and discharge of every agreement and
obligation herein contained or expressed, except such as are, by the terms
hereof, to be performed after the delivery of said deed.
12. USE OF MONEY TO CLEAR TITLE
To enable SELLER to make conveyance as herein provided, SELLER may, at the
time of delivery of the deed, use the purchase money or any portion thereof
to clear the title of any or all encumbrances or interests, provided that
all instruments so procured are either recorded simultaneously with the
delivery of said deed or thereafter consistent with customary Massachusetts
conveyancing practice.
13. INSURANCE
Until the delivery of the deed, the SELLER shall maintain insurance on said
premises as follows:
Type of Insurance Amount of Coverage
Fire and Extended Coverage as presently insured.
14. ADJUSTMENTS
Water and sewer use charges and taxes for the then current fiscal year
shall be apportioned, as of the day of performance of this Agreement and
the net amount thereof shall be added to or deducted from, as the case may
be, the purchase price payable by BUYER at the time of delivery of the
deed. Interest on the Deposit shall be credited to BUYER, unless the
Deposit is retained by SELLER under the provisions of Section 18 below, in
which event the Deposit with interest thereon shall be paid to SELLER.
SELLER shall be responsible for the payment of Massachusetts deed excise
stamps. The parties shall share equally the expense of the Escrow Agent.
15. ADJUSTMENT OF UNASSESSED AND ABATED TAXES
If the amount of said taxes is not known at the time of the delivery of the
deed, they shall be apportioned on the basis of the taxes assessed for the
preceding fiscal year, with a reapportionment as soon as the new tax rate
and valuation can be ascertained; and, if the taxes which are to be
apportioned shall thereafter be reduced by abatement, the amount of such
abatement, less the reasonable cost of obtaining the same, shall be
apportioned between the parties, provided that neither party shall be
obligated to institute or prosecute proceedings for an abatement unless
herein otherwise agreed.
16. BROKER
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SELLER and BUYER each represents to the other that it has not dealt with
any broker or agent in connection with this transaction, except for Bernard
Giroux of Giroux & Company ("Broker") and David Megna, dba/Megna Realty,
both of Fall River, MA. Each party hereby indemnifies and holds harmless
the other party from all loss, cost and expense (including reasonable
attorneys' fees) arising out of a breach of its representation or
undertaking set forth in this paragraph. SELLER shall be responsible for
any commission payable to the Broker. The provisions of this paragraph
shall survive the delivery of the deed or the termination of this
agreement.
17. DEPOSIT
Escrow Agent shall hold the Deposit accordance with the terms and
provisions of this Agreement, subject to the following:
17.1. 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.
17.2. 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.
17.3. Indemnification. Unless Escrow Agent discharges any of its
duties under this Agreement in a negligent manner or is guilty of
willful misconduct with regard to its duties under this Agreement,
Seller and Buyer shall indemnify Escrow Agent and hold it harmless
from any and all claims, liabilities, losses, actions, suits or
proceedings at law or in equity, or other expenses, fees, or charges
of any character or nature, which it may incur or with which it may be
threatened by reason of its acting as Escrow Agent under this
Agreement; and in such connection Seller and Buyer shall indemnify
Escrow Agent against any and all expenses including reasonable
attorneys' fees and the cost of defending any action, suit or
proceeding or resisting any claim in such capacity.
17.4. Disputes. If the parties (including Escrow Agent) shall be in
disagreement about the interpretation of this Agreement, or about
their respective rights and obligations, or the propriety of any
action contemplated by Escrow Agent, or the application of the
Deposit, Escrow Agent shall hold the Deposit until the receipt of
written instructions from both Buyer and Seller, 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.
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17.5. 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.
18. BUYER'S DEFAULT; DAMAGES
If BUYER shall fail to fulfill BUYER'S agreements herein prior to or as of
the closing, the Deposit made hereunder by BUYER shall be retained by
SELLER as liquidated damages and forfeiture of the Deposit shall be
SELLER'S exclusive remedy at law and in equity for any default by BUYER
prior to or as of the closing. The provisions of this clause shall survive
the delivery of the deed and shall supersede any agreement, obligation or
legal rights of the parties that are contrary to the liquidation of damages
provisions hereof. In the event SELLER breaches or fails, without legal
excuse, to complete the sale of said premises or to perform its obligations
under this agreement, BUYER may, as its sole remedies therefor, either (a)
terminate this agreement, and receive a return of the Deposit hereunder, or
(b) bring an action for specific performance filed within thirty days
following such breach.
19. LIABILITY OF TRUSTEE, SHAREHOLDER, BENEFICIARY
If SELLER or BUYER executes this Agreement in a representative or fiduciary
capacity, only the principal or the estate represented shall be bound, and
neither SELLER or BUYER so executing, nor any shareholder or beneficiary of any
trust, shall be personally liable for any obligation, express or implied,
hereunder.
20. NO WARRANTIES OR REPRESENTATIONS
BUYER acknowledges that BUYER has not been influenced to enter into this
transaction nor has BUYER relied upon any warranties or representations
made by SELLER. The provisions of this clause shall survive the delivery of
the deed.
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21. CONSTRUCTION OF AGREEMENT; MISCELLANEOUS
This instrument, executed in multiple counterparts, is to be construed as a
Massachusetts contract, is to take effect as a sealed instrument, sets
forth the entire contract between the parties, supersedes all prior
agreements between SELLER and BUYER, is binding upon and inures to the
benefit of the parties hereto and their respective heirs, devisees,
executors, administrators, permitted successors and assigns, and may be
canceled, modified or amended only by a written instrument executed by both
SELLER and BUYER. This agreement shall not be assignable by BUYER. BUYER
shall not record or file this agreement, or a copy thereof, in or with the
public records in which deeds are recorded or filed. If BUYER record or
file this Agreement, it shall constitute a default of BUYER hereunder. The
captions and marginal notes are used only as a matter of convenience and
are not to be considered a part of this Agreement or to be used in
determining the intent of the parties to it.
22. NOTICES
Any notice required or desired hereunder shall be given in writing and
shall be deemed duly delivered when deposited with a recognized overnight
courier service, addressed as follows:
(a) In the case of notice to SELLER:
Quaker Fabric Corporation of Fall River
941 Grinnell Street
Fall River, MA 02721-5215
Attention: Cynthia L. Gordan, Esq., General Counsel
Fax Number: (508) 678-2656
with a copy to:
Katharine E. Bachman, Esq.
Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street
Boston, MA 02109
Fax Number: (617) 526-5000
(b) In the case of notice to BUYER:
Fred Smith
8 Anvil Drive
Cumberland, RI 02864
Fax Number: (508) 677-6992
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(c) In case of notice to ESCROW AGENT:
Giroux Realty
150 Purchase Street
Fall River, MA 02720
Fax Number: (508) 677-4291
23. INSPECTION PERIOD
BUYER shall have the period from the date of this agreement through 5:00 pm
on May 1, 2006 ("Inspection Period") to review title, permitting,
environmental, and other due diligence matters related to the Premises. All
costs and expenses of this review shall be at the sole expense of the
BUYER. Any damage done by BUYER or BUYER's consultants shall be repaired by
BUYER at BUYER's expense. BUYER hereby agrees to defend, indemnify, and
hold SELLER harmless from and against any liability, loss, cost, or expense
arising from such investigations. In no event shall BUYER have the right to
perform any intrusive testing of the Premises without the consent of
SELLER, which consent may be withheld by SELLER in its sole discretion.
BUYER shall have the right to terminate this agreement by written notice to
SELLER prior to the expiration of the Inspection Period due to BUYER's
dissatisfaction with such matters, in BUYER's sole discretion, and upon
such notice timely given, this agreement shall be null and void and of no
legal effect except for the immediate return of the Deposit hereunder, and
for the indemnification obligation of BUYER hereunder. If BUYER does not so
terminate this agreement prior to expiration of the Inspection Period, this
agreement shall remain in full force and effect, and BUYER shall have no
further right to terminate this agreement under the provisions of this
Section 23.
24. SELLER'S CLOSING DOCUMENTS. At the Closing, SELLER shall deliver to BUYER:
(a) the Quitclaim Deed as provided in Section 4 herein;
(b) a parties in possession and mechanics' and materialmen's lien
affidavit in form and substance sufficient to remove the parties in
possession and mechanics lien exceptions from the standard ALTA title
insurance policy;
(c) signed closing statement; and
(d) FIRPTA Affidavit executed by SELLER.
26. BUYER'S CLOSING DOCUMENTS. At the Closing, BUYER shall deliver to SELLER:
(a) Signed closing statement.
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EXECUTED as a sealed instrument as of the day and year first above written.
SELLER: QUAKER FABRIC CORPORATION OF FALL RIVER
By:_______________________
Name:_____________________
Title:____________________
BUYER: FRED SMITH
Name:_____________________
ESCROW AGENT: GIROUX REALTY
By:_______________________
Name:_____________________
Title:____________________
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EXHIBIT A
LEGAL DESCRIPTION
3129 County Street
Somerset, Massachusetts
A certain parcel of land together with all buildings, structures, and
improvements located thereon, at 3129 County Street in the Town of Somerset,
County of Bristol, Commonwealth of Massachusetts, bounded and described as
follows:
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