Exhibit 2.3
RIGHT OF FIRST OFFER AND REFUSAL
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THIS RIGHT OF FIRST OFFER AND REFUSAL (the "Agreement") is made
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this 21st day of March, 2005 by and between Gold Street Realty, LLC, a
Massachusetts limited liability company with a place of business at 000
Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx ("Grantor"), and Xxxxxxxx Textile
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Services, Inc. ("Grantee").
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WITNESSETH, that the Grantor, for and in consideration of the sum
of one dollar ($1.00) and other good and valuable consideration paid by the
Grantee, the receipt whereof is hereby acknowledged, does hereby grant to
the Grantee, its successors and assigns, a right of first offer and refusal
("Right of First Offer and Refusal"), the terms of which are more
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particularly set out below, concerning a tract of land in the City of
Worcester, Worcester County, State of Massachusetts more particularly
described in Exhibit A appended hereto and made a part hereof (the
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"Property").
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1. RIGHT OF FIRST REFUSAL AND FIRST OFFER. If at any time the
Grantor shall receive a bona fide, arm's length, written offer from a third
party to purchase the Property in whole or in part, which offer the Grantor
intends to accept (an "Offer"), the Grantor shall send the Grantee a copy of
the Offer and notify the Grantee of its intention to accept the same. In the
event Grantor has not received an Offer but determines that it desires to
sell the Property then it shall first offer the Property to the Grantee,
stating the offering price and the other details of such sale (a "Notice").
The Grantee shall have the right within ten (10) business days after its
receipt of such Offer or Notice to agree to purchase the Property or
applicable part thereof, in its own name or in the name of a nominee, on the
same terms specified in said Offer or Notice. In the event the Grantee
elects to purchase the Property, the Property shall be conveyed by a
Quitclaim Deed conveying good and clear record and marketable title thereto
except as otherwise stated in the Offer or Notice and such Deed shall be
delivered and the consideration paid at the Worcester District Registry of
Deeds on the day specified in the Offer or Notice. If the Grantee shall not
elect to purchase the Property within said period of ten (10) business days
or in the event the Grantee shall, after giving notice of its intention to
buy the Property, fail to complete such purchase on the precise terms set
forth in the Offer or Notice, then the Grantor shall be free for a period of
one hundred eighty (180) days thereafter to sell the Property or applicable
part thereof, at a price not less than that specified in the Offer or Notice
and on the terms set forth in the Offer or Notice sent to the Grantee.
2. WARRANTY. The Grantor herein hereby warrants that it has good
and marketable title to the Property (subject to the encumbrances set forth
at Exhibit B) and good right, full power, and lawful authority to grant this
Right of First Offer and Refusal.
3. DEFAULT. Should the Grantor enter into an assignment, sale,
transfer, conveyance, lease with a term (including both primary and option
periods) in excess of one (1) year or lease with option to purchase in
conflict with this Right of First Refusal, or fail to provide the Right of
First Offer, then the Grantee may, at its option, seek to have a court of
competent jurisdiction declare this Agreement breached and order that said
assignment, sale transfer, conveyance, lease with a term in excess of one
(1) year or lease with option to purchase is null, void, and of no effect
and/or to enforce the Right of First Offer. Nothing contained herein shall
be construed to prevent specific performance of this Agreement by either
party.
Notwithstanding anything to the contrary contained herein, this
Agreement shall in no way restrict the Grantor's right, power, or authority
to mortgage or encumber or grant easements, or grant a lease or leases,
without option to purchase and for a term (including both primary and option
periods) not
in excess of one (1) year. The provisions of this Agreement shall not be
construed to apply to any proceeding for the foreclosure or sale of the
Property in connection with a mortgage or to the granting of easements to
any municipality or utility company required for the installation and/or
maintenance of drainage, sewerage, electric, gas, water and electric lines
and appurtenances to and from the Property.
4. TERMINATION. This Agreement shall terminate and be null and
void: (i) upon the consummation of a conveyance in fee simple to a third
party of the Property or applicable part thereof after full compliance with
the terms of this Agreement, provided the sale is on the same terms as set
forth in the Offer or Notice sent to the Grantee pursuant to the Right of
First Refusal or the Right of First Offer; or (ii) in the event the Grantee
shall, after giving notice of its intention to buy the Property, fail to
complete such purchase on the precise terms set forth in the Offer or
Notice. This Right of First Offer and Refusal is personal to the Grantee
named herein and may not be assigned. If such sale is not consummated, this
Agreement shall remain in effect; provided, however, that in any event, all
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rights hereunder shall terminate not later than December 31, 2055.
Subsequent to termination as above provided, the Grantee shall upon
the Grantor's request execute and acknowledge a document stating such facts
as are pertinent and fully relinquishing, waiving, and releasing all rights
and obligations hereunder. If Grantee fails to execute and acknowledge a
document terminating this Right of Offer and Refusal in such circumstances,
Grantor may, in order to evidence its compliance with the terms of this
Agreement, if the Property is sold to a party other than the Grantee, make
and record an Affidavit stating that: (i) the conveyance is made pursuant to
a bona fide offer to purchase; (ii) Grantor has given notice to Grantee in
accordance with this Agreement; (iii) Grantor has not received written
notice of Grantee's election to purchase the Property or Grantee has failed
to complete the same in accordance with this Agreement, as the case may be;
and (iv) such conveyance is made on the terms set forth in the Notice at a
price not lower than that stated in the Offer or Notice. The recording of
such Affidavit shall be conclusive evidence of compliance with the terms of
this Right of First Offer and Refusal.
5. NOTICES. All notices or other communications hereunder to either
party will be (i) in writing either by courier, personal delivery, mail,
email or facsimile and (ii) addressed:
To the Grantor:
Gold Street Realty, LLC
Attention:
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With a mandatory copy to:
Seder & Xxxxxxxx
Attention: Xxxx X. X'Xxxxxxx, Esq.
000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
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To the Grantee:
Xxxxxxxx Textile Services, Inc.
Attention: President
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
With a mandatory copy to:
Xxxxxxxx Corporation
Attention: Xxxxxx X. Xxxx, Esq.
Vice President and General Counsel
000 X. Xxxxx Xxxx Xxxx
Xxxxxxxxxxxx, XX 00000
And with a mandatory copy to:
Xxxxxxxx Xxxxxx LLP
Attention: Xxxxxx X. XxXxxx, Esq.
One XX Xxxx Xxxxx
Xx. Xxxxx, XX 00000
If notice is given by mail, it will be deemed to have been given on
the earlier of receipt by the intended recipient or on the second
business day after the date when deposited in the United States
mail by registered or certified mail, postage prepaid, addressed as
hereinabove described. If notice is given by facsimile, it will be
deemed to have been given on the date shown on the facsimile
confirmation. If notice is given by email, it will be deemed to
have been given on the date sent so long as the recipient confirms
its receipt by email or the sender of such notice follows such
email with a copy of the email by mail (registered or certified
mail, postage prepaid, addressed as hereinabove described),
personal delivery or courier. If notice is given by personal
delivery or courier, it will be deemed to have been given on the
date delivered.
The parties mentioned in this subparagraph may, by notice given
hereunder, designate any further or different addresses to which
subsequent notices shall be sent to it.
6. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties and can be modified only by a written
instrument signed by the parties hereto.
7. BINDING EFFECT. It is intended that all the provisions of this
Agreement shall run with the land and inure to the benefit of and shall be
binding on the parties hereto, their heirs, legal representatives,
successors, and assigns.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
GRANTOR: GRANTEE:
Gold Street Realty, LLC Xxxxxxxx Textile Services, Inc.
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxx
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Printed Name: Xxxx X. Xxxxxxx Printed Name: Xxxxxx X. Xxxx
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Title: Member Title: Vice President
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