EXHIBIT 10.46
FINAL
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PURCHASE AND SALE AGREEMENT
This 20th day of February, 2007
1. PARTIES
Quaker Fabric Corporation of Fall River, a Massachusetts corporation,
hereinafter called "SELLER," agrees to SELL
and
Rosewood Management Associate, Inc., a Massachusetts corporation, or its
corporate nominee, hereinafter called "BUYER," agrees to BUY, upon the
terms hereinafter set forth, the following described premises:
2. DESCRIPTION
The land with the building and improvements thereon located at 1082 Davol
Street, Fall River, Bristol County, Massachusetts more particularly
described in Exhibit A (hereinafter the "Premises").
3. TITLE DEED
The Premises are to be conveyed by a good and sufficient quitclaim deed,
the form of which is attached hereto as Exhibit B, 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;
(c) Easements, restrictions and agreements of record insofar as in force
and applicable; and
(d) Any liens for municipal betterments assessed after the date of this
Agreement.
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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.
4. PURCHASE PRICE
The agreed purchase price for the Premises is Four Million Seven Hundred
Thousand and 00/100 Dollars ($4,700,000.00), of which
$ 230,000 have been paid to Stewart Title Guaranty Company ("Escrow
----------- Agent") as the deposit this day (subject to collection) ("
Initial Deposit"; prior to the second payment referenced
below, the "Deposit");
$ 100,000 shall be paid within two (2) business days after the
----------- expiration of the Inspection Period (as defined below)
should BUYER proceed with the transaction (together with the
Initial Deposit, the "Deposit"), and
$ 4,370,000 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.
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$ 4,700,000 TOTAL
-----------
5. 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 a date designated by no less than five (5) business days prior
written notice from BUYER to SELLER but no later than March 15, 2007. It is
agreed that time is of the essence of this Agreement.
6. POSSESSION AND CONDITION OF PREMISES
Full possession of the Premises is to be delivered at the time of the
delivery of the deed, the Premises to be then in the same condition as they
are now, reasonable use and wear thereof excepted. BUYER shall be entitled
to inspect the Premises prior to the delivery of the deed in order to
determine whether the condition thereof complies with the terms of this
clause. It shall be a condition to the performance of BUYER hereunder that
there be no change in the corporate status of SELLER that would materially
impair its ability to perform its obligations hereunder.
7. 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 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.
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8. 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, 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.
9. BUYER'S ELECTION TO ACCEPT TITLE
In addition to BUYER's rights under the provisions of Sections 7 and 8
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 Premises in their then condition and to pay therefore the purchase
price without deduction, in which case SELLER shall convey such title.
10. 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.
11. 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.
12. INSURANCE
Until the delivery of the deed, SELLER shall maintain such insurance on the
Premises as is presently in force.
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13. ADJUSTMENTS
Interest on the Deposit shall be credited to BUYER, unless the Deposit is
retained by SELLER under the provisions of Section 17 below, in which event
the Deposit with interest thereon shall be paid to SELLER. Water, sewer and
other utility services shall be adjusted as of the date of closing. SELLER
shall receive a credit for any deposits held by utility providers with
respect to the Premises. SELLER shall be responsible for the payment of
Massachusetts deed excise stamps. The parties shall share equally the
expense of the Escrow Agent.
14. 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.
15. BROKER
SELLER and BUYER each represents to the other that it has not dealt with
any broker or agent in connection with this transaction other than Giroux
and Company (the "Broker"). SELLER shall be solely responsible for the
payment of any brokerage fee to the Broker if, as and when title passes and
consideration is paid. 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. The provisions of this paragraph
shall survive the delivery of the deed or the termination of this
agreement.
16. DEPOSIT
Escrow Agent shall hold the Deposit accordance with the terms and
provisions of this Agreement, subject to the following:
16.1. 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.
16.2. 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. Without
limitation of the foregoing, Escrow Agent shall be entitled to rely
upon written notice from Buyer to Seller and Escrow Agent as to the
exercise by Buyer of its right to terminate this Agreement in
accordance with the provisions hereof, and shall release the Deposit
to Buyer upon receipt of such notice without the written approval or
consent of Seller.
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16.3. 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.
16.4. 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 SELLER and BUYER, 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.
16.5. 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.
17. BUYER'S DEFAULT; DAMAGES
If BUYER shall fail to fulfill BUYER's agreements herein prior to or as of
the closing, one-half of the Deposit made hereunder by BUYER shall be
retained by SELLER as liquidated damages and forfeiture of one-half 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, and the remaining one-half
of the Desposit shall be returned to BUYER simultaneously with delivery of
one-half of the Deposit to SELLER. 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 the 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.
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18. 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.
19. 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.
20. 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. 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 records or files this Agreement, the same 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.
21. 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:
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(a) In the case of notice to SELLER:
Quaker Fabric Corporation of Fall River
941 Grinnell Street
Fall River, MA 02721-5215
Attn: Cynthia L. Gordan, Esq., General Counsel
Fax Number: (508) 678-2656
with a copy to:
Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street
Boston, MA 02109
Attn: Katharine E. Bachman, Esq.
Fax Number: (617) 526-5000
(b) In the case of notice to BUYER:
Rosewood Management Company
40 Mechanic Street, Suite 300
Marlborough, MA 01752
Attn: Robert J. Depietri, Jr.
With a copy to:
Barry D. Greene, Esq.
Portnoy and Greene, P.C.
687 Highland Avenue
Needham, MA 02494
(c) In case of notice to ESCROW AGENT:
Stewart Title Guaranty Company
99 Summer Street, 12th Floor
Boston, MA 02110
Attn: Marie L. Franco, Esq.
Fax Number: (617) 737-8370
22. INSPECTION PERIOD; AGREEMENT UPON LEASE AND LETTER OF CREDIT; AS-IS
CONVEYANCE
(a) BUYER shall have the period from the date of this agreement through
5:00 pm on February 22, 2007 ("Inspection Period") to review title, survey,
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, including costs of title insurance, surveys, and
environmental inspections. 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. Prior to such entry, BUYER shall provide SELLER with a
certificate of BUYER's or BUYER's consultants' commercial general liability
insurance in the amount of One Million Dollars ($1,000,000) in a form
reasonably satisfactory to SELLER, which certificate shall name SELLER as
an additional insured. 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. In the event of BUYER's election to terminate this
Agreement prior to the expiration of the Inspection Period, and upon notice
of such election timely given, this agreement shall be null and void and of
no legal effect except for the immediate return of the Initial 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 as aforesaid, 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 22.
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(b) BUYER and SELLER shall have the period from the date of this agreement
through the expiration of the Inspection Period to agree upon a form of
lease ("Lease") to be entered in to by BUYER, as landlord, and SELLER, as
tenant, with respect to the 4th and 5th floors and basement of the building
and the shed on the premises, as well as the form of a letter of credit to
be delivered by SELLER to BUYER as security for the Lease (the Lease and
letter of credit are hereafter referenced as the "Lease Documents"). Each
party shall have the right to terminate this agreement by written notice to
the other party prior to the expiration of the Inspection Period due to an
inability to agree upon the Lease Documents, such right to be exercised in
the sole discretion of the terminating party. In the event of a party's
election to terminate this Agreement hereunder prior to the expiration of
the Inspection Period, and upon notice of such election timely given, this
agreement shall be null and void and of no legal effect except for the
immediate return of the Initial Deposit hereunder, and for the
indemnification obligation of BUYER hereunder. In addition, if SELLER and
BUYER do not agree in writing upon the Lease Documents prior to the
expiration of the Inspection Period, then this Agreement shall
automatically terminate without further action of the parties, and this
agreement shall be null and void and of no legal effect, except for the
immediate return of the Initial Deposit hereunder, and for the
indemnification obligation of BUYER hereunder.
(c) BUYER, on behalf of itself and its successors and assigns, hereby
acknowledges and agrees that BUYER shall acquire the Premises in their "as
is, with all faults" condition, and waives its right to recover from, and
forever releases and discharges, SELLER, its shareholders, directors,
officers, employees, attorneys and agents of each of them, and their
respective heirs, successors, personal representatives and assigns from any
and all demands, claims, legal or administrative proceedings, losses,
liabilities, damages, penalties, fines, liens, judgments, costs or expenses
known or unknown, foreseen or unforeseen, that may arise on account of or
in any way be connected with (i) the physical condition of the Premises,
(ii) except with respect to SELLER's warranty of title set forth in the
Deed, the condition of title to the Premises, (iii) the presence on, under
or about the Premises of any hazardous or regulated substance, or (iv) the
compliance of the Premises with any applicable federal, state or local law,
rule or regulation. The terms and provisions of this Section 22 shall
survive Closing and/or termination of this Agreement.
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23. SELLER'S CLOSING DOCUMENTS.
At the Closing, SELLER shall deliver to BUYER:
(a) the Quitclaim Deed;
(b) the Lease Documents;
(c) 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;
(d) signed closing statement; and
(e) a FIRPTA Affidavit executed by SELLER in the form of Exhibit C.
24. BUYER'S CLOSING DOCUMENTS. At the Closing, BUYER shall deliver to SELLER:
(a) the Lease;
(b) a signed closing statement; and
(c) The balance of the Purchase Price and other sums to be paid by BUYER
hereunder.
[End of text on page]
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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,
a Massachusetts corporation
By: ______/s/_________________
Name: _______________________
Title: _______________________
BUYER: ROSEWOOD MANAGEMENT ASSOCIATES, INC.,
a Massachusetts corporation
By: ______/s/_________________
Name: _______________________
Title: _______________________
ESCROW AGENT: STEWART TITLE GUARANTY COMPANY
By: ______/s/_________________
Name: _______________________
Title: _______________________
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EXHIBIT A
LEGAL DESCRIPTION
See attached
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EXHIBIT B
QUITCLAIM DEED
Quaker Fabric Corporation of Fall River, a Massachusetts corporation
("Grantor"), for consideration of Four Million Seven Hundred Thousand Dollars
($4,700,000.00), grants to Rosewood Management Associates, Inc., a Massachusetts
corporation, the address of which is 40 Mechanic Street, Suite 300, Marlborough,
MA 01752, with quitclaim covenants, that certain parcel of land, together with
all buildings and other improvements thereon and all appurtenances thereto, such
real property being known as 1082 Davol Street, Fall River, Massachusetts, in
Bristol County, Massachusetts, and being bounded and more particularly as
described in Exhibit A attached hereto and made a part hereof, subject all
easements, agreements and restrictions of record insofar as in force and
applicable.
The real property conveyed hereby is the same as that acquired by grantor
by a Quitclaim Deed dated ____, recorded with the Bristol County Fall River
District Registry of Deeds in Book ____, Page ____.
The within conveyance does not constitute a sale of all or substantially
all of the real property owned by Grantor in the Commonwealth of Massachusetts,
IN WITNESS WHEREOF, this Quitclaim Deed has been executed as a sealed
instrument to be effective as of the ____ day of ____________, 2007.
QUAKER FABRIC CORPORATION OF FALL RIVER,
a Massachusetts corporation
By:________________________
Name:______________________
Title:_____________________
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EXHIBIT A TO DEED
LEGAL DESCRIPTION
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EXHIBIT C
FIRPTA CERTIFICATE
To inform Rosewood Management Associates, Inc., a Massachusetts corporation
("Transferee"), that withholding of tax under Section 1445 of the Internal
Revenue Code of 1986, as amended (the "Code"), will not be required upon the
transfer of certain real property to Transferee by Quaker Fabric Corporation of
Fall River ("Transferor"), Transferor hereby certifies the following:
1. Transferor is not a foreign corporation, foreign partnership, foreign
trust or foreign estate (as those terms are defined in the Code and the
regulations promulgated thereunder);
2. Transferor's U.S. employer identification number is: [__________]; and
3. Transferor's office address is 941 Grinnell Street, Fall River, MA
02721-5215.
Transferor understands that this Certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement contained
herein could be punishable by fine, imprisonment, or both.
Under penalty of perjury, Transferor declares that it has examined this
Certification and that to the best of its knowledge and belief it is true,
correct and complete.
Dated as of the ____ day of ___________, 2007.
QUAKER FABRIC CORPORATION OF FALL RIVER,
a Massachusetts corporation
By:_______________________
Name:_____________________
Title:____________________
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