EXHIBIT 10.47
5.16.07
PURCHASE AND SALE AGREEMENT
This 16th day of May, 2007 (the "Effective Date")
1. PARTIES
Quaker Fabric Corporation of Fall River, a Massachusetts corporation,
hereinafter called "SELLER," agrees to SELL
and
M/K Brayton LLC, a Massachusetts limited liability company, 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 1450 Brayton
Avenue, Fall River, Bristol County, Massachusetts, as more particularly
described on that certain Quitclaim Deed from Charles McAnsin Associates,
as grantor, to SELLER, as grantee, dated October 11, 2001, and recorded
with the Bristol County Fall River District Registry of Deeds in Book 4150,
Page 159, containing approximately nine (9) acres of land.
TOGETHER ALSO with all right, title and interest of SELLER, if any, in and
to (i) the land in the bed of any public street, road or avenue, open or
proposed, in front of or adjoining the Land, to the center line thereof,
(ii) all rights, privileges and easements appurtenant to the Land and owned
by SELLER, including without limitation any and all rights of way,
easements, appurtenances, alleys, gores and strips of Land adjoining or
appurtenant to the land and used in conjunction therewith, (iii) any water
rights, riparian rights and powers, hereditaments and appurtenances with
respect thereto, and (iv) any award made or to be made in lieu of any of
the foregoing and any award made or to be made for damage to the Land by
reason of change of grade of any street, road or avenue.
All of the above enumerated property, rights and interests to be sold
pursuant to this Agreement are hereinafter sometimes collectively referred
to as 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 A, 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 for:
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(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.
The foregoing exceptions shall be subject to the provisions of Sections 7,
8 and 22 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.
4. PURCHASE PRICE
The agreed purchase price for the Premises (the "Purchase Price") is Four
Million Three Hundred Thousand and 00/100 Dollars ($4,300,000.00), of which
$ 50,000.00 was paid to Stewart Title Guaranty Company ("Escrow
----------- Agent") as a deposit on April 30, 2007 (via Marshall
Properties, Inc. check no. 110249) (the "Initial
Deposit");
$150,000.00 has been paid to Escrow Agent this day (subject to
----------- collection) (the "Final Deposit" and together with the
Initial Deposit, the "Deposit"): and
$ 4,100,000.00 is 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 Agreement.
=======================
$ 4,300,000.00 TOTAL
--------------
5. TIME FOR PERFORMANCE; DELIVERY OF DEED
The sale (payment of Purchase Price and delivery of the deed) may, at
BUYER's option, either (i) be closed through escrow with the Escrow Agent
in accordance with the general provisions of the usual form of escrow
agreement used in similar transactions by such holder with special
provisions inserted as may be required to conform with this Agreement, or
(ii) take place in Fall River, Massachusetts, at a specific location in
that city designated by BUYER and reasonably acceptable to SELLER, in
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either instance at 10 a.m. on a date designated by no less than three (3)
business days prior written notice from BUYER to SELLER but no later than
September 5th, 2007 (the "Closing Date"). In the absence of designation by
the BUYER, the sale shall take place at the offices of Wilmer Cutler
Pickering Hale and Dorr LLP, 60 State Street, Boston, Massachusetts. It is
agreed that time is of the essence in this Agreement.
6. POSSESSION AND CONDITION OF PREMISES
Full and exclusive possession of the Premises is to be delivered at the
time of the delivery of the deed, the Premises to be then broom-clean and
free of all personal property, machinery and equipment (including any of
the foregoing owned by persons or entities other than SELLER), and
otherwise 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.
7. TITLE MATTERS; EXTENSION TO PERFECT TITLE OR MAKE PREMISES
CONFORM
(a) BUYER shall advise SELLER of any objections BUYER may have to title
to the Premises at least seven (7) days prior to the end of the Inspection
Period ("BUYER's Title Notice"). SELLER shall notify BUYER as to whether
SELLER elects to cure such title objections within five (5) days of BUYER's
Title Notice, provided, however, that SELLER shall have no obligation to
cure title objections except (a) voluntary monetary encumbrances (including
any blanket mortgages, blanket liens, or similar monetary encumbrances),
which SELLER shall cause to be removed, discharged and released at or
before the Closing, and (b) SELLER shall use good faith commercially
reasonable efforts, up to a maximum expenditure of Fifty Thousand Dollars
($50,000.00), to cure any other title objections set forth in BUYER's Title
Notice.
(b) 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 does not conform with the provisions hereof, then BUYER may, in
BUYER's sole discretion, terminate this Agreement, in which event all
payments made under this Agreement shall be promptly refunded to BUYER, and
all other obligations of the parties hereto shall cease and this Agreement
shall be void and without recourse to the parties hereto, or, if the same
constitutes a default of SELLER hereunder, BUYER shall have the remedies
set forth in Section 17.
8. FAILURE TO PERFECT TITLE OR MAKE PREMISES CONFORM
If at Closing, SELLER shall have failed so to remove any defects in title
to the extent that SELLER is obligated to do so in accordance with Section
7 above, or make the Premises conform, as the case may be, all as herein
agreed, then BUYER may terminate this Agreement, in which event all
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payments made under this Agreement shall be promptly refunded to BUYER and
all other obligations of the parties hereto shall cease and this Agreement
shall be void and without recourse to the parties hereto, or, if the same
constitutes a default of SELLER hereunder, BUYER shall have the remedies
set forth in Section 17.
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 its then existing condition and to pay therefore the
Purchase Price without deduction, in which case SELLER shall convey such
title. If any exception to title is recorded after the date of BUYER's
Title Notice, and BUYER does not elect to waive such exception and to
proceed with the consummation of the Closing upon the first to occur of (a)
the Closing or (b) seven (7) days after being notified in writing of such
exception, SELLER will have fifteen (15) days after the expiration of said
seven (7) day period (and Closing will be delayed if necessary, so that it
occurs not earlier than twenty-two (22) days after BUYER is notified of
such exception) after notifying BUYER of such discovery in which to
eliminate or to induce the title company to insure over (subject to BUYER's
approval, not to be unreasonably withheld) such exception, and if such
exception is not eliminated or insured over as aforesaid within said 15-day
period, then BUYER may terminate this Agreement, in which event all
payments made under this Agreement shall be promptly refunded to BUYER and
all other obligations of the parties hereto shall cease and this Agreement
shall be void and without recourse to the parties hereto, or if the same
constitutes a default of SELLER hereunder, BUYER shall have the remedies
set forth in Section 17. SELLER shall use good faith commercially
reasonable efforts to cure any involuntary monetary encumbrance which may
arise after the date of BUYER's Title Notice (a "Post Title Notice
Involuntary Monetary Encumbrance"), provided, however, SELLER shall not be
required to expend more than Two Hundred Thousand Dollars ($200,000.00) to
cure any such Post Title Notice Involuntary Monetary Encumbrance (the "Post
Title Notice Involuntary Monetary Cap"). In the event that SELLER, despite
its good faith commercially reasonable efforts, is unable to cure any Post
Title Notice Involuntary Monetary Encumbrance within the Post Title Notice
Involuntary Monetary Encumbrance Cap, BUYER may elect, at BUYER's sole
discretion, to either: (i) terminate this Agreement, in which event all
payments made under this Agreement shall be promptly refunded to BUYER,
SELLER shall reimburse BUYER for all third-party costs and expenses
incurred in connection with the transaction contemplated hereby (up to, but
not to exceed, $100,000.00), and, following such reimbursement, all other
obligations of the parties hereto shall cease and this Agreement shall be
void and without recourse to the parties hereto, or (ii) proceed to
Closing, whereupon SELLER shall pay the Post Title Notice Involuntary
Monetary Cap towards release of the subject Post Title Notice Involuntary
Monetary Encumbrance, and BUYER shall take tile to the Premises subject to
all remaining amounts under said Post Title Notice Involuntary Monetary
Encumbrance (or make arrangements to satisfy/remove the same). In all other
events, SELLER shall be obligated to deliver good and clear record and
marketable title to the Premises, as set forth in Section 3 above.
10. ACCEPTANCE OF DEED
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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 the following
insurance coverages in effect for the Premises: (i) Comprehensive General
Liability insurance against any loss, liability or damage on, about or
relating to the Premises, or any portion thereof, with limits of not less
than $2,000,000.00 single limit coverage on a per occurrence basis; and
(ii) all risk property insurance on the Premises for the full insurable
value thereof.
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 Closing Date. 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 &
Company Real Estate (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.
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16. DEPOSIT
Escrow Agent shall hold the Deposit in 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.
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.
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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. DEFAULT; DAMAGES
If BUYER breaches or fails, without legal excuse, to complete the purchase
of the Premises or to perform its obligations under this Agreement as of
the Closing Date, 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 Date. 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 sixty (60) days following the termination of this
Agreement. If BUYER elects option "(b)" then it may nonetheless at any time
thereafter elect option "(a)" instead (after BUYER has caused the specific
performance proceedings to be dismissed with prejudice). If BUYER brings an
action for specific performance but is not awarded specific performance,
then BUYER shall nonetheless be entitled to receive a return of the Deposit
hereunder, promptly following the final disposition of such action,
provided that BUYER has not been found to be in default hereunder.
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. WARRANTIES AND REPRESENTATIONS
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19.1 In order to induce BUYER to enter into this Agreement and to
purchase the Premises, SELLER hereby makes the following
representations, warranties and covenants, each of which is material
and is relied upon by BUYER, and each of which shall be true and
correct as of the date of this Agreement and the Closing Date:
(a) To the best of SELLER's actual knowledge, there are
no outstanding notices of any uncorrected violations
of any laws, statutes, ordinances, rules or
regulations with regard to the Premises, its
condition, or use;
(b) SELLER has the right, power and authority to enter
into this Agreement and to sell the Premises in
accordance with the terms and conditions hereof. This
Agreement, when executed and delivered by SELLER,
will be a valid and binding obligation of SELLER in
accordance with its terms;
(c) No options, rights of first refusal, rights of first
offer or other contracts have been granted or entered
into which give any other party a right to purchase
or acquire any interest in the Premises or any part
thereof;
(d) There are no leases, licenses, or other occupancy
agreements in effect with respect to all or any part
of the Premises and there are no other parties in
possession of any portion of the Premises except
SELLER;
(e) No payments for work, materials or improvements
furnished to the Premises will be due or owing at
Closing and no mechanic's lien, materialman's lien,
or similar lien shall exist against the Premises at
the time of Closing;
(f) Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby
will:
(i) Conflict with, or result in a breach of,
the terms, conditions, or provisions of, or
constitute a default under, any agreement or
instrument to which SELLER or any predecessor
of SELLER is a party, or (ii) Violate any
restriction to which SELLER is subject, or
(iii) To the best of SELLER's actual
knowledge, constitute a violation of any
applicable code, resolution, law, statute,
regulation, ordinance, rule, judgment, decree
or order, or (iv) Result in the cancellation
of any contract or lease pertaining to the
Premises; or (v) Result in the creation of
any lien, charge or encumbrance upon any of
the properties or assets to be sold or
assigned to BUYER pursuant to the provisions
of this Agreement;
(g) SELLER has no actual knowledge as to the compliance
of the Premises with any federal, state, or local law
or regulation relating to hazardous substances,
except as set forth in the reports listed on Exhibit
C attached hereto;
(h) To the best of SELLER's actual knowledge, SELLER has
not derived its interest in the Premises or any
portion thereof by adverse possession and there has
not been and is not now any claim or threat of
adverse possession;
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(i) SELLER has received no written notice of the desire
of any public authority or other entity to take,
condemn, or use the Premises or any part thereof and,
to the best of SELLER's actual knowledge, there are
no condemnation or eminent domain proceedings
pending, planned, or threatened against the Premises
or any part thereof;
(j) SELLER has as of the date hereof delivered to BUYER
correct and complete copies of the documents listed
on Exhibit C. To the best of SELLER's actual
knowledge, the documents listed on Exhibit C
constitute all material documents in SELLER's
possession which relate to ownership or condition
(physical or otherwise) of the Premises;
(k) On the Closing Date, there will be no service
contracts in effect affecting the Premises.
19.2 As used throughout this Article 19, the phrase "to the best of
SELLER's actual knowledge," or phrases of similar import, shall mean
the actual, not constructive or imputed, knowledge of Cynthia L.
Gordan, General Counsel of SELLER, without any obligation on the part
of such individual to make any independent investigation of the
matters being represented and warranted. SELLER hereby represents and
warrants that Cynthia L. Gordon is the primary person responsible for
managing information pertaining to the Premises and the matters
referred to in the representations and warranties set forth in this
Article 19. Cynthia L. Gordan shall not be personally liable for any
of the obligations of SELLER under this Agreement. Further, to the
extent BUYER discovers prior to the Closing any inaccuracy in a
representation and warranty of SELLER in this Agreement and the
Closing occurs, such representation and warranty shall be deemed
modified to reflect the inaccuracy discovered by BUYER. SELLER's
representations and warranties set forth in this Section 19 are made
as of the date of this Agreement and shall survive the Closing for a
period of one (1) year, provided that SELLER's liability hereunder
shall not exceed the sum of Two Hundred and Fifty Thousand
($250,000.00) Dollars, unless SELLER's breach of representations
and/or warranties under this Article 19 is willful or intentional, or
is a result of the gross negligence or willful misconduct of SELLER,
in which case SELLER's liability hereunder shall not exceed the sum
of Five Hundred Thousand ($500,000.00) Dollars, and in either case
SELLER's liability under this Article 19 shall be for the actual (and
not consequential or punitive) damages of BUYER
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. 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 records or
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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. In the event any one or more
of the provisions contained in this Agreement shall be for any reason held
invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein or
therein. To facilitate execution, this Purchase and Sale Agreement may be
executed by facsimile and in as many counterparts as may be deemed
appropriate by the parties, all of which when taken together shall be
deemed an original and shall comprise one (1) agreement.
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:
(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:
M/K Brayton LLC
c/o J. Karam Management
10 North Main Street
Fall River, Massachusetts 02722
Attn: James J. Karam
and:
M/K Brayton LLC
c/o Marshall Development, LLC700 Narragansett Park Drive
Pawtucket, Rhode Island 02861
Attn: Lianne Marshall
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with a copy to:
DarrowEverett LLP
One Turks Head Place, Suite 500
Providence, Rhode Island 02903
Attn: Zachary G. Darrow, Esq.
Fax Number: (401) 453-1201
(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; AS-IS CONVEYANCE
(a) BUYER shall have the period from the date of this Agreement through
5:00 p.m. on August 16, 2007 ("Inspection Period"), to inspect the Premises
and 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 with respect to any physical
damage to the Premises or bodily injury to any person caused by BUYER, its
agents, employees or contractors in connection with its investigation of
the Premises. BUYER shall provide SELLER with forty-eight (48) hours
advance written notice before performing any intrusive testing of the
Premises. SELLER reserves the right to have a representative present during
any such testing. 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), 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 Deposit to BUYER 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 or receive a refund of the Deposit under the
provisions of this Section 22.
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(b) Except as set forth in Section 3, 6 and 19 above, BUYER, on behalf
of itself and its successors and assigns, hereby acknowledges and agrees
that BUYER shall acquire the Premises in its "as is, with all faults"
condition.
23. SELLER'S CLOSING DOCUMENTS.
On the Closing Date, SELLER shall deliver to BUYER:
(a) the Quitclaim Deed (If the title to the Premises is registered, said
Quitclaim Deed shall be in form sufficient to entitle the BUYER to a
Certificate of Title of said Premises, and the SELLER shall deliver
with said Quitclaim Deed all instruments, if any, necessary to
enable the BUYER to obtain such Certificate of Title);
(b) full and exclusive possession of the Premises, in `broom-clean'
condition;
(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) a signed closing statement;
(e) a FIRPTA Affidavit executed by SELLER in the form of Exhibit B;
(f) such documentary and other evidence as the title company may
reasonably require evidencing the authority of the person or persons
who are executing the various documents on behalf of SELLER in
connection with this Agreement;
(g) an updated certification of the warranties and representations
contained herein;
(h) releases of any real estate liens or other instruments or agreements
to be cancelled pursuant to the terms hereof, in form appropriate
for recording; and
(i) such other documents required under the terms of this Agreement or
as reasonably necessary or appropriate (in accordance with customary
conveyancing practice) to consummate the transaction contemplated
hereunder (provided that the same are consistent with the terms of
this Agreement).
24. BUYER'S CLOSING DOCUMENTS.
On the Closing Date, BUYER shall deliver to SELLER:
(a) a signed closing statement;
(b) the balance of the Purchase Price and other sums to be paid by BUYER
hereunder; and
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(c) such other documents required under the terms of this Agreement or
as reasonably necessary or appropriate (in accordance with customary
conveyancing practice) to consummate the transaction contemplated
hereunder (provided that the same are consistent with the terms of
this Agreement).
25. CONDEMNATION OR CASUALTY LOSS
(a) Condemnation. If, prior to Closing, all or any part of the Premises
or access thereto shall become subject to condemnation through eminent
domain by governmental or other lawful authority, BUYER shall have the
option of either (a) completing the purchase, in which event all
condemnation proceeds or claims thereof shall be assigned to BUYER, or (b)
terminating this Agreement, in which event, notwithstanding any provision
herein to the contrary, the Deposit paid by BUYER, including any portions
thereof previously released or paid to SELLER, shall be returned to the
BUYER, this Agreement shall be terminated and have no further force or
effect, and neither party shall have any rights or obligations thereunder.
(b) Casualty. SELLER assumes all risks and liability for damage to or
injury occurring to the Premises by fire, storm, accident, or any other
casualty or cause until the Closing has been consummated. If the Premises,
or any portion thereof, suffers any Material Damage (as hereinafter
defined) prior to Closing from fire or other casualty, then BUYER may
either (i) terminate this Agreement by delivering written notice to SELLER
of such termination within ten (10) business days after SELLER notifies
BUYER of the casualty, in which event, notwithstanding any provision herein
to the contrary, the Deposit paid by BUYER, including any portions thereof
previously released or paid to SELLER, shall be returned to the BUYER, this
Agreement shall be terminated and have no further force or effect, or (ii)
consummate the Closing, in which latter event SELLER shall deliver or
assign to BUYER, at Closing, any and all insurance proceeds recovered or
recoverable on account of such damage plus the amount of any deductible
(including proceeds allocated on account of any Material Damage), net of
any costs incurred by SELLER in restoring the Premises, or assign to BUYER,
at Closing, all of SELLER's right, title and interest in any claim to
proceeds of any insurance covering such damage. If BUYER fails to timely
deliver to SELLER written notice of termination of this Agreement as
described in (i) above, or if the casualty has not resulted in Material
Damage, then BUYER shall be deemed to have elected to proceed in accordance
with (ii) above (whereupon SELLER shall deliver or assign to BUYER any and
all insurance proceeds recovered or recoverable on account of such damage
plus the amount of any deductible). For the purposes of this Section 25(b),
the term "Material Damage" shall mean damage for which the restoration cost
is $100,000 or more.
26. SUBMISSION NOT AN OPTION.
The submission of this Agreement or a summary of some or all of its
provisions for examination or negotiation does not constitute an offer by
either SELLER or BUYER to enter into an agreement to sell or purchase the
Premises, and neither SELLER nor BUYER shall be bound with respect to any
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such purchase and sale unless and until this Agreement has been mutually
executed and delivered by the parties.
[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: M/K BRAYTON LLC, a Massachusetts limited
liability company
By: _____/s/__________________
Name: _______________________
Title: _______________________
ESCROW AGENT: STEWART TITLE GUARANTY COMPANY
By: _______/s/________________
Name: _______________________
Title: _______________________
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EXHIBIT A
QUITCLAIM DEED
Quaker Fabric Corporation of Fall River, a Massachusetts corporation
("Grantor"), for consideration of Four Million Three Hundred Thousand and 00/100
Dollars ($4,300,000.00), grants to M/K Brayton LLC, a Massachusetts limited
liability company, the address of which is ______________________, 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 1450 Brayton Avenue, Fall River, in Bristol County,
Massachusetts, and being bounded and more particularly described in that certain
Quitclaim Deed from Charles McAnsin Associates, as grantor, to Quaker Fabric
Corporation of Fall River, as grantee, dated October 11, 2001, and recorded with
the Bristol County Fall River District Registry of Deeds in Book 4150, Page 159,
subject to all easements, agreements and restrictions of record insofar as in
force and applicable.
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 B
FIRPTA CERTIFICATE
To inform M/K Brayton LLC, a Massachusetts limited liability company
("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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EXHIBIT C
1450 Brayton Avenue, Fall River, MA
Due Diligence Materials Provided by Seller to Buyer
Environmental Site Assessment Report prepared for Raymond Construction Co.,
Inc., Bristol, Rhode Island/Ramco Fabrics ("Ramco") by Goldberg-Zoino &
Associates, Inc., Providence, Rhode Island of property located at 1450 Brayton
Avenue, Fall River, Massachusetts (the "Subject Property") dated April 1987
Environmental Site Assessment Report prepared for Massachusetts Industrial
Finance Agency, Boston ("MIFA")/Ramco by GZA GeoEnvironmental, Inc., Providence,
Rhode Island ("GZA") of the Subject Property dated September 1991
Environmental Site Assessment Report prepared for Joan Fabrics Corporation,
Tyngsboro, Massachusetts ("Joan") by GZA of the Subject Property dated September
1992
Letter dated September 23, 1993 from Environmental Science Services, Providence
Rhode Island to Joan Fabrics Corporation, Lowell, Massachusetts reporting on the
results of certain soil sample testing completed at the Subject Property in
September 1993
Immediate Response Action ("IRA") Plan prepared for Massachusetts Department of
Environmental Protection, Southeast Regional Office, Lakeville, MA (DEP RTN #
4-14544) by Atlantic Environmental Technologies, Inc., North Dartmouth, MA of
the Subject Property dated April 29, 1999
Immediate Response Action ("IRA") Completion Report and Response Action Outcome
Statement (DEP RTN # 4-14544) prepared for Massachusetts Department of
Environmental Protection, Southeast Regional Office, Lakeville, MA by Atlantic
Environmental Technologies, Inc., North Dartmouth, MA of the Subject Property
dated August 30, 1999
Phase I Environmental Site Assessment Report prepared for Quaker Fabric
Corporation of Fall River ("Quaker") by Prime Engineering, Inc., 350 Bedford
Street, Lakeville, Massachusetts ("Prime") of the Subject Property dated
December 3, 2001 - Volume 1
Phase I Environmental Site Assessment Report prepared for Quaker by Prime of the
Subject Property dated December 3, 2001 - Volume 2
Phase I Environmental Site Assessment Report prepared for Quaker by GZA of the
Subject Property dated May 2005
Various documents and correspondence dated April 1993 through May 1994 relating
to title matters at the Subject Property
ALTA/ACSM Land Title Survey of the Subject Property dated October 29, 2001
prepared for Quaker by Prime
Owner's Title Insurance Policy with respect to the Subject Property issued
October 15, 2001 to Quaker by Stewart Title Guaranty
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