EXHIBIT 10.48
6.1.07
PURCHASE AND SALE AGREEMENT
This 4th day of June, 2007
1. PARTIES
Quaker Fabric Corporation of Fall River, a Massachusetts corporation,
hereinafter called "SELLER," agrees to SELL
and
Nordic Properties, Inc., a Massachusetts corporation, and Whelan
Associates, LLC, a Massachusetts limited liability company, jointly and
severally, 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 81 Ferry
Street, Fall River, Bristol County, Massachusetts, as more particularly
described on Exhibit A attached hereto (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 for:
(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;
(d) The occupancy of SELLER under a Use and Occupancy
Agreement in the form of Exhibit C to be entered into by
SELLER and BUYER at closing ("Occupancy Agreement"); and
(e) 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 (the "Purchase Price") is
Three Million Three Hundred Thousand and 00/100 Dollars
($3,300,000.00), of which
$ 150,000.00 shall be paid to Fidelity National Title Insurance
----------- Company ("Escrow Agent") as a deposit within one (1)
business day after the date of this Agreement (the
"Initial Deposit");
$ 150,000.00 shall be paid within one (1) business day after the
----------- expiration of the Inspection Period (as defined
below) should BUYER proceed with the transaction (the
"Final Deposit" and together with the Initial
Deposit, the "Deposit"), and
$ 3,000,000.00 is to be paid by wire transfer of immediately
------------- available federal funds at the time of delivery and
recording of the deed in accordance with the terms of
this Agreement.
======================
$ 3,300,000.00 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 or pursuant to customary escrow closing arrangements
reasonably approved by SELLER and BUYER, at 10 a.m. on September 5,
2007 (the "Closing Date"). It is agreed that time is of the essence in
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, subject to the occupancy of SELLER as licensee
under the Occupancy Agreement, 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.
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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) business 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 of an ascertainable amount, which SELLER shall
cause to be removed, discharged and released at or before the Closing,
and (b) SELLER shall use reasonable efforts, up to a maximum
expenditure of Thirty Thousand ($30,000.00) to cure any other title
objections set forth in BUYER's Title Notice. Any title matter arising
of record after the date for delivery of BUYER's Title Notice shall be
subject to the same process as matters raised 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 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 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 its then existing condition and to pay
therefore the Purchase Price without deduction, in which case SELLER
shall convey such title, except as otherwise provided in Section 12
below.
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
by the express terms hereof survive the Closing Date, or are to be
performed after the Closing Date, and except for the performance of the
parties under the Occupancy Agreement.
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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 AND RISK OF LOSS
Until the delivery of the deed, SELLER shall maintain such insurance on
the Premises as is presently in force. Notwithstanding anything to the
contrary in this Agreement, risk of loss shall remain with SELLER
through and including the Closing Date. SELLER shall promptly give
notice to BUYER of any damage to the Premises by fire or other
casualty. 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 terminate this Agreement by delivering written
notice to SELLER and Escrow Agent of such termination within ten (10)
business days after SELLER notifies BUYER of the casualty, in which
event, Escrow Agent shall refund the Deposit and all interest earned
thereon whereupon this Agreement shall terminate and be of no further
force and effect. If BUYER does not so terminate this Agreement, then
BUYER shall pay the entire Purchase Price to SELLER on the Closing Date
and SELLER shall deliver to BUYER, at Closing, any insurance proceeds
actually received by SELLER in respect of such casualty, together with
the amount of the deductible under SELLER's insurance policy, 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, and SELLER
shall have no obligation to restore the Premises. In the event that
BUYER does not terminate the Agreement hereunder on account of any
casualty, then SELLER shall have no right to occupy the Premises on or
after the Closing Date and BUYER shall have no obligation to execute
and deliver the Occupancy Agreement on the Closing Date. If BUYER fails
to timely deliver to SELLER written notice of termination of this
Agreement as described above, or if the casualty has not resulted in
Material Damage, then BUYER shall be deemed to have elected not to
terminate this Agreement pursuant to the terms of this Section 12. For
the purposes of this Section 12, the term "Material Damage" shall mean
damage for which the restoration cost is $100,000 or more.
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.
Taxes shall be prorated at Closing as of the date that is ninety (90)
days after the Closing, in recognition of SELLER's post-closing
occupancy of the Premises under the Occupancy Agreement. Water, sewer
and other utility services shall be adjusted as of the date that SELLER
vacates the Premises pursuant to the terms of the Occupancy Agreement.
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.
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14. ADJUSTMENT OF UNASSESSED AND ABATED TAXES
If the amount of said taxes is not known at the time SELLER vacates the
Premises pursuant to the Occupancy Agreement, 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
Richards Barry Joyce & Partners, LLC and Giroux & Company (the
"Brokers"). SELLER shall be solely responsible for payment of a 5%
brokerage fee to Giroux & Company if, as and when title passes and
consideration is paid (the "Commission Fee"), pursuant to a separate
agreement with Giroux & Company. The Commission Fee shall be shared by
the Brokers pursuant to the terms of a separate agreement between
Richards Barry Joyce & Partners, LLC and Giroux & Company. 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.
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
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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. DEFAULT; DAMAGES
If BUYER shall fail to fulfill BUYER's agreements herein prior to or 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 thirty days following such breach.
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18. LIMITATION OF LIABILITY; JOINT AND SEVERAL LIABILITY
No present or future officer, director, member, manager, shareholder,
employee, trustee, beneficiary or representative of SELLER or BUYER shall be
personally liable for any obligations of SELLER or BUYER under this Agreement.
Nordic Properties, Inc. and Whelan Associates, Inc. are jointly and severally
liable for the obligations of BUYER hereunder.
19. WARRANTIES OR REPRESENTATIONS
SELLER represents and warrants to BUYER that:
(a) SELLER has received no written notice or citation from any
federal, state, county or municipal authority alleging any
violation of any law, regulation, ordinance, permit or order
relating to the Premises which has not been entirely
corrected;
(b) SELLER has received no written notice from any insurance
or bonding company of any defects or inadequacies in the
Premises which would affect the insurability of the Premises
or of any pending or threatened termination of any such
insurance or bond;
(c) There is no outstanding, or, to SELLER's actual knowledge,
threatened litigation, claims or proceedings before any court,
commission, agency or other administrative authority which
could affect the Premises or SELLER's ability to consummate
the transaction contemplated in this Agreement;
(d) SELLER has not received any written notice of any
threatened or pending condemnation proceedings affecting the
Premises;
(e) SELLER has all requisite power and authority to enter into
and perform this Agreement and to carry out the transactions
contemplated hereby;
(f) No bankruptcy or insolvency proceeding under the
Bankruptcy Code or any state bankruptcy or insolvency law
filed by or against SELLER is pending; and
(g) To Seller's actual knowledge, other than the Occupancy
Agreement, there are no outstanding contracts or agreements
relating to the operation, maintenance or management of the
Premises which will be binding on BUYER after the Closing
Date.
19.2 As used throughout this Article 19, the phrase "to SELLER's actual
knowledge," or phrases of similar import, shall mean the actual, not
constructive or imputed, knowledge of Cynthia L. Gordan, without any
obligation on the part of such individual to make any independent
investigation of the matters being represented and warranted. 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
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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 nine (9) months, provided that
SELLER's liability hereunder shall not exceed the sum of One Hundred
Thousand ($100,000.00).
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, except to an entity which is a parent, subsidiary
or affiliate of BUYER, or a single purpose entity formed by BUYER and
one or more investors for the purpose of acquiring the Premises. 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:
(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:
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Nordic Properties, Inc.
15 Third Avenue
Burlington, MA 01803
Attn: Ogden Hunnewell, President
Fax Number: (781) 270-0359
and
Whelan Associates, LLC
174 Union Street
New Bedford, MA 02740
Attn: William Whelan, Jr.
Fax Number: (508) 984-4101
with a copy to:
Rubin and Rudman LLP
50 Rowes Wharf
Boston, MA 02110
Attn: Paula M. Devereaux, Esq.
Fax Number: (617) 330-7055
(c) In case of notice to ESCROW AGENT:
Fidelity National Title Insurance Company
133 Federal Street
Boston, MA 02110
Attn: Charles Dattola
Fax Number: (617) 350-8826
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 3, 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
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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 or receive a refund of the Deposit under
the provisions of this Section 22.
(b) Except as otherwise provided in this Agreement 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, 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. Without in
any way limiting the provisions of Section 19 of this Agreement, the
terms and provisions of this Section 22 shall survive delivery of the
deed and/or termination of this Agreement.
23. SELLER'S CLOSING DOCUMENTS.
On the Closing Date, SELLER shall deliver to BUYER:
(a) the Quitclaim Deed;
(b) the Occupancy Agreement;
(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) evidence of existence, organization and authority of SELLER
and the authority of persons executing documents on behalf of
SELLER satisfactory to the Escrow Agent;
(e) a signed closing statement;
(f) a FIRPTA Affidavit executed by SELLER in the form of Exhibit
D; and
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(g) any additional documents BUYER or Escrow Agent may reasonably
require for the proper consummation of the transactions
contemplated by this Agreement, 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) the Occupancy Agreement;
(b) a signed closing statement;
(c) The balance of the Purchase Price and other sums to be paid by
BUYER hereunder; and
(d) any additional documents SELLER or Escrow Agent may reasonably
require for the proper consummation of the transactions
contemplated by this Agreement, provided that the same are
consistent with the terms of this Agreement.
[Remainder of page left intentionally blank.]
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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: Larry A. Liebenow
Title: President and CEO
BUYER: NORDIC PROPERTIES, INC.,
a Massachusetts corporation
By:_______/s/_______________
Name: Ogden Hunnewell
Title: President
WHELAN ASSOCIATES, LLC,
a Massachusetts limited liability company
By:______/s/________________
Name: William N. Whelan
Title: Manager
ESCROW AGENT: FIDELITY NATIONAL TITLE INSURANCE COMPANY
By: __________________________
Name: __________________________
Title: __________________________
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The undersigned Brokers join in this Agreement for the purpose of being bound to
the provisions of Section 15 thereof.
RICHARDS BARRY JOYCE & PARTNERS, LLC
By:___________/s/_________________
Name:_________________________
Hereunto duly authorized
GIROUX & COMPANY
By:__________/s/__________________
Name:_________________________
Hereunto duly authorized
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EXHIBIT A
LEGAL DESCRIPTION
Parcel I:
That certain parcel of land situated in Fall River, in the County of Bristol and
Commonwealth of Massachusetts, bounded and described as follows:
WESTERLY by Almond Street six hundred twenty-nine and 64/100 (629.64)
feet;
NORTHERLY by Ferry Street five hundred forty-two and 84/100 (542.84)
feet;
EASTERLY by lands now or formerly of John C. Travis and Ken-Lac
Chemical Co., Inc. two hundred eighty-seven and 03/100
(287.03) feet;
NORTHERLY by said Ken-Lac Chemical Co., Inc. land one hundred
forty-six and 39/100 (146.39) feet;
NORTHWESTERLY by said Ken-Lac Chemical Co., Inc. land and said Travis land
one hundred fifty-eight (158) feet;
WESTERLY by said Travis land one hundred fifty-one and 19/100
(151.19) feet;
NORTHERLY by Ferry Street Ramp forty-seven and 10/100 (47.10) feet;
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EASTERLY one hundred sixty-five and 37/100 (165.37) feet;
SOUTHEASTERLY fifty-four and 76/100 (54.76) feet;
EASTERLY twelve and 76/100 (12.76) feet;
SOUTHEASTERLY six hundred sixty-seven and 23/100 (667.23) feet, and
SOUTHERLY two hundred forty-nine and 62/100 (249.62) feet by land now
or formerly of the Old Colony Railroad Company.
All of said boundaries are determined by the Court to be located as shown upon
plan numbered 19349-A which is filed with Original Certificate of Title #798,
Book 4, Page 317, Fall River District of the Land Court, the same being compiled
from a plan drawn by Francis S. Borden, Civil Engineer, dated January 12, 1945,
and additional data on file in the Land Registration Office, all as modified and
approved by the court.
Parcel II:
A certain parcel of land with all the buildings and improvements thereon in Fall
River, being Plat 2, Lot 6 according to plans on file in the Assessor's Office.
Said parcel of land is bounded and described as follows:
A certain parcel of land delineated and shown on a plan recorded in the Bristol
County Fall River District Registry of Deeds in Book 484, Page 93 entitled "New
York, New Haven and Hartford Railroad, Real Estate and Right of Way Department,
Land in Fall River, Mass. to be conveyed to J. & J. Corrugated Box Corp., Scale:
1" = 100', Jan. 1947, bounded and described as follows:
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Southerly by remaining railroad land in a line which begins at a point distant
26 feet northerly from the monumented base line of said railroad from Fall River
to Newport, measured radially thereto, and thence runs westerly 50.99 feet, in a
curve to the right of 1884.08 feet radius; concentric with said monumented base
line, to a point distant 26 feet northerly from said monumented base line,
measured at right angles thereto at station 32+ 45.31, and thence continues
westerly 220.69 feet, parallel to said monumented base line, to a point in the
southeasterly line of Almond Street, as laid out and established distant, 26
feet northerly from said monumented base line, measured at right of Almond
Street; thence northwesterly by Almond Street 107.21 feet and northeasterly
249.62 feet by land registered in Case #19349 in the Massachusetts Court of Land
Registration, containing 13,464 square feet, more or less.
Parcel III:
The land in Fall River, Bristol County, Massachusetts off of Ferry Street, shown
as Parcel 2 on a plan entitled "Plan of Land in Fall River, Massachusetts
(Bristol County) Prepared for Quaker Fabric" prepared by Schofield Brothers of
New England, Inc., dated June 19, 2001 and recorded with said Deeds in Plan Book
122, Page 11, containing 1500 square feet, more or less.
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EXHIBIT B
QUITCLAIM DEED
Quaker Fabric Corporation of Fall River, a Massachusetts corporation
("Grantor"), for consideration of Three Million Three Hundred Thousand and
00/100 Dollars ($3,300,000.00), grants to [Nordic Properties/Whelan Associates],
a _______________, 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 81 Ferry Street, Fall River, 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 December 14, 1989 recorded with the Bristol
County Fall River District Registry of Deeds in Book 2232, Page 205, and filed
with the Bristol County Fall River District of the Land Court as Document No.
19885 (Transfer Certificate of Title No. 4825), and a Quitclaim Deed, dated July
2, 2001 recorded with the Bristol County Fall River District Registry of Deeds
in Book 4058, Page 39.
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
Parcel I:
That certain parcel of land situated in Fall River, in the County of Bristol and
Commonwealth of Massachusetts, bounded and described as follows:
WESTERLY by Almond Street six hundred twenty-nine and 64/100 (629.64)
feet;
NORTHERLY by Ferry Street five hundred forty-two and 84/100 (542.84)
feet;
EASTERLY by lands now or formerly of John C. Travis and Ken-Lac
Chemical Co., Inc. two hundred eighty-seven and 03/100
(287.03) feet;
NORTHERLY by said Ken-Lac Chemical Co., Inc. land one hundred
forty-six and 39/100 (146.39) feet;
NORTHWESTERLY by said Ken-Lac Chemical Co., Inc. land and said Travis land
one hundred fifty-eight (158) feet;
WESTERLY by said Travis land one hundred fifty-one and 19/100
(151.19) feet;
NORTHERLY by Ferry Street Ramp forty-seven and 10/100 (47.10) feet;
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EASTERLY one hundred sixty-five and 37/100 (165.37) feet;
SOUTHEASTERLY fifty-four and 76/100 (54.76) feet;
EASTERLY twelve and 76/100 (12.76) feet;
SOUTHEASTERLY six hundred sixty-seven and 23/100 (667.23) feet, and
SOUTHERLY two hundred forty-nine and 62/100 (249.62) feet by land now
or formerly of the Old Colony Railroad Company.
All of said boundaries are determined by the Court to be located as shown upon
plan numbered 19349-A which is filed with Original Certificate of Title #798,
Book 4, Page 317, Fall River District of the Land Court, the same being compiled
from a plan drawn by Francis S. Borden, Civil Engineer, dated January 12, 1945,
and additional data on file in the Land Registration Office, all as modified and
approved by the court.
Parcel II:
A certain parcel of land with all the buildings and improvements thereon in Fall
River, being Plat 2, Lot 6 according to plans on file in the Assessor's Office.
Said parcel of land is bounded and described as follows:
A certain parcel of land delineated and shown on a plan recorded in the Bristol
County Fall River District Registry of Deeds in Book 484, Page 93 entitled "New
York, New Haven and Hartford Railroad, Real Estate and Right of Way Department,
Land in Fall River, Mass. to be conveyed to J. & J. Corrugated Box Corp., Scale:
1" = 100', Jan. 1947, bounded and described as follows:
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Southerly by remaining railroad land in a line which begins at a point distant
26 feet northerly from the monumented base line of said railroad from Fall River
to Newport, measured radially thereto, and thence runs westerly 50.99 feet, in a
curve to the right of 1884.08 feet radius; concentric with said monumented base
line, to a point distant 26 feet northerly from said monumented base line,
measured at right angles thereto at station 32+ 45.31, and thence continues
westerly 220.69 feet, parallel to said monumented base line, to a point in the
southeasterly line of Almond Street, as laid out and established distant, 26
feet northerly from said monumented base line, measured at right of Almond
Street; thence northwesterly by Almond Street 107.21 feet and northeasterly
249.62 feet by land registered in Case #19349 in the Massachusetts Court of Land
Registration, containing 13,464 square feet, more or less.
Parcel III:
The land in Fall River, Bristol County, Massachusetts off of Ferry Street, shown
as Parcel 2 on a plan entitled "Plan of Land in Fall River, Massachusetts
(Bristol County) Prepared for Quaker Fabric" prepared by Schofield Brothers of
New England, Inc., dated June 19, 2001 and recorded with said Deeds in Plan Book
122, Page 11, containing 1500 square feet, more or less.
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EXHIBIT C
USE AND OCCUPANCY AGREEMENT
This Use and Occupancy Agreement (the "Agreement") is dated as of
___________ ___, 2007 by and between [Nordic Properties/Whelan Associates], a
________________ having an address of ____________________ ("Licensor"), and
Quaker Fabric Corporation of Fall River, a Massachusetts corporation having an
address of 941 Grinnell Street, Fall River, Massachusetts 02721 ("Licensee").
Recitals
--------
WHEREAS, Licensor is the owner of certain premises known as 81 Ferry
Street, Fall River, Bristol County, Massachusetts ("Property"); and
WHEREAS, Licensor acquired the Property from Licensee as of the date
hereof pursuant to a Purchase and Sale Agreement dated as of ___________ ___,
2007 ("P & S"); and
WHEREAS, Licensor and Licensee have agreed that Licensee may occupy the
Property ("Licensed Premises") following the closing of the transaction
contemplated by the P&S on the terms set forth below.
Agreement
---------
NOW, THEREFORE, in consideration of Ten Dollars ($10.00), and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and agreed, Licensor and Licensee hereby agree as follows:
1. Capitalized Terms. Capitalized terms used and not otherwise defined
herein shall have the meanings ascribed to them in the P&S.
2. License. Licensor hereby grants to Licensee the privilege to use the
Licensed Premises.
3. Term. The term of this Agreement shall commence on the date hereof
and shall terminate on the later to occur of (i) the earlier of (a) the date
that is one hundred eighty (180) days after the date hereof, or (b) the date
upon which Licensee has delivered to Licensor written notice that Licensee has
vacated the Licensed Premises and delivered possession thereof to Licensor, or
(ii) the date that is ninety (90) days after the date hereof. At the time of
such termination, Licensee shall remove all its personal property, machinery and
equipment from the Licensed Premises and make all repairs necessitated by such
removal and shall leave the same broom-clean and in the same condition as exists
on the date hereof, reasonable wear and tear and casualty excepted. Any property
not removed by Licensee in accordance with the provisions of this Section 3
shall be deemed abandoned and, if Licensor so elects, deemed to be Licensor's
property and may be retained or removed and disposed of by Licensor in such
manner as Licensor shall determine and Licensee shall pay Licensor the entire
costs and expense incurred by it in effecting such removal and disposition and
26
in making any incidental repairs necessary to repair damage to the Licensed
Premises caused by such removal.
4. Use. Licensee shall use the Licensed Premises for its business
activities, including the relocation of Licensee's personal property and
equipment therefrom. Licensee shall not make or permit or suffer to be made any
use of the Licensed Premises or any part thereof (i) which would violate any of
the covenants, agreements, terms, provisions and conditions of this License; or
(ii) which is in violation of law, ordinance or government regulation. Licensee
shall not make any alterations to the Licensed Premises without the written
consent of Licensor.
5. Payment. Licensee shall pay to Licensor in advance on the first day
of each calendar month within the term of this Agreement a license fee in the
amount of $44,590.33. Amounts payable hereunder shall be pro rated on a per diem
basis for any partial month during the term. In the event of any holdover by
Licensee beyond the term specified in Section 3 above, such holdover shall be
subject to the terms of this Agreement and Licensee shall pay Licensor the
license fee specified above for each month of such holdover, pro rated on a per
diem basis for any partial month of such holdover by the Licensee. Should such
holdover continue ninety days (90) days beyond the specified term, then Licensee
shall pay Licensor charges at a rate equal to one and one-half (1.5) times the
monthly license fee as liquidated damages for each month such holdover continues
beyond such ninety (90) day period, pro rated on a per diem basis for any
partial month of Licensee holdover beyond such ninety (90) day period, without
limiting any other rights of Licensor on account of such holdover by Licensee.
6. Utility Payments and Real Estate Taxes. Licensee shall be
responsible during the term of this Agreement for all utility charges to and for
the Licensed Premises. Licensee shall pay all utility charges directly to the
provider thereof for the period of the term of this Agreement and shall notify
Licensor of such provider upon the termination of this Agreement. Water, sewer
and other utility services shall be adjusted as of the date that Licensee
vacates the Premises pursuant to the terms of this Agreement and Licensee shall
have no obligation to pay utility charges allocable to any period thereafter.
Licensee shall be responsible for real estate taxes prorated on a per diem basis
for any period of Licensee's occupancy of the Licensed Premises following ninety
(90) days after the date of this Agreement. Licensee shall reimburse Licensor
for real estate taxes allocable to any such period within 30 days of Licensor's
request therefor with reasonable supporting documentation.
7. Maintenance and Repair. Licensee shall be responsible for the costs
of operating and maintaining the Licensed Premises during the term of this
Agreement; provided, however, that Licensee shall have no obligation to make any
capital repairs or replacements to any structural element, roof, foundation,
heating, air-conditioning, ventilating, plumbing and/or electrical systems.
Licensor shall have no maintenance, repair or replacement obligation(s) with
respect to the Licensed Premises of during the term of this Agreement, except
that Licensor shall be responsible to ensure that the Licensed Premises complies
with applicable legal and insurance requirements relating to the Licensed
Premises (except to the extent arising from Licensee's particular business
operations in the Licensed Premises).
8. Assignment and Subletting. No assignment of this Agreement or
sublicensing of the Licensed Premises or any part thereof shall be made by
Licensee. Neither all nor any part of Licensee's interest in the Licensed
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Premises granted hereunder may be encumbered, assigned, or transferred, in whole
or in part, either by any act of Licensee or by operation of law. Licensee shall
not permit or suffer the Licensed Premises to be used by anyone other than the
employees and agents of Licensee.
9. Licensor not Liable. All property of Licensee in the Licensed
Premises shall be at the sole risk and hazard of Licensee and if the whole or
any part thereof shall be lost, destroyed or damaged by fire, theft or
otherwise, no part of said loss or damage is to be charged to or borne by
Licensor, and Licensee agrees to defend and hold Licensor harmless from and
against any and all liabilities, obligations, penalties, claims, costs, charges
and expenses, including, but not limited to, reasonable attorneys' fees, based
upon or arising out of the foregoing. In no event shall any stockholder,
officer, director, partner, member, employee or agent of Licensor have any
liability hereunder, and Licensee shall not seek personal recourse against any
such parties or their personal assets.
10. Indemnification. Licensee shall defend, indemnify and save harmless
Licensor and Licensor's partners, agents and employees from and against any and
all liabilities, obligations, damages, penalties, claims, costs, charges and
expenses, including, but not limited to, reasonable attorneys' fees, which may
be incurred by Licensor by reason of, or arising directly or indirectly from,
out of, or in connection with, any negligent or wrongful act or wrongful
omission of Licensee, its agents, employees, contractors or invitees in or about
the Licensed Premises, or any failure on the part of Licensee to perform or
comply with any of the terms, conditions or provisions of this License,
including, without limitation, the disposal or release of any oil or hazardous
materials during the term of this Agreement, and Licensee's failure to yield up
and surrender the Licensed Premises in accordance with the provisions of Section
3 of this Agreement within ten (10) days after the expiration of the term of
this Agreement. Licensor expressly acknowledges that the provisions of this
Section 10 shall not impose upon Licensee any liability for matters existing or
arising prior to the date of this Agreement, the same being governed by the
terms of the P&S.
11. Insurance. Each of Licensor and Licensee shall maintain commercial
general liability insurance in commercially reasonable amounts with reputable
insurers licensed to do business in the Commonwealth of Massachusetts with
respect to the Licensed Premises. Licensor shall maintain casualty insurance
with respect to the Property, and Licensee shall maintain property insurance
with respect Seller's equipment in the Licensed Premises, each of which policies
shall be for full replacement value or fair market value of such Property or
personal property with reputable insurers licensed to do business in the
Commonwealth of Massachusetts. Any insurance carried by either party with
respect to the Property or property therein or occurrences thereon shall include
a clause or endorsement denying to the insurer rights of subrogation against the
other party. Each party, notwithstanding any provisions of this Agreement to the
contrary, hereby waives any rights of recovery against the other for injury or
loss due to hazards covered by such insurance to the extent of the
indemnification received thereunder.
12. Licensor Mortgage Provisions. This Agreement is subject and
subordinate to all mortgages (collectively, "Mortgages") which may now or
hereafter affect the Licensed Premises and to all renewals, modifications,
consolidations, replacements and extensions of any such Mortgages. Licensee
covenants and agrees to attorn to any holder of such Mortgage and to execute and
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deliver such commercially reasonable instruments with respect to this Agreement
as the holder of any such Mortgage may request in writing, within ten (10)
business days of the date of such request.
13. Notices. Any notice under this License must be in writing and shall
be delivered in accordance with Section 21 of the P&S.
14. Access. Licensor shall have access to the Licensed Premises upon
reasonable prior written notice to Licensee, provided that any such access shall
not interfere with Licensee's business activities in the Licensed Premises.
15. Miscellaneous. This instrument embodies the entire agreement
between the parties relative to the subject matter hereof, and shall not be
modified, changed, or altered in any respect, except in writing. This Agreement
shall be construed and enforced in all respects in accordance with the laws of
the Commonwealth of Massachusetts. Licensee recognizes that the occupancy hereby
allowed is permissive only and that no tenancy or lease is created hereby.
[Remainder of page left intentionally blank.]
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LICENSOR:
[Nordic Properties/Whelan Associates]
By:______________________________
LICENSEE:
QUAKER FABRIC CORPORATION OF FALL RIVER
By:______________________________
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EXHIBIT D
FIRPTA CERTIFICATE
To inform [Nordic Properties/Whelan Associates], a ___________
("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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