Exhibit 10.5
PURCHASE AND SALE AGREEMENT (4-4-03)
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THIS PURCHASE AND SALE AGREEMENT ("Agreement"), effective as of the
Effective Date (hereinafter defined), is made by and between TRINITY INDUSTRIES,
INC. a Delaware corporation ("Seller"), and NORTH AMERICAN TECHNOLOGIES GROUP,
INC., a Delaware corporation ("Purchaser").
RECITAL:
Seller is the owner of the hereinafter described real property and
improvements, and Seller desires to sell all of its right, title and interest in
and to such real property and improvements, and Purchaser desires to purchase
such real property and improvements, upon the terms and conditions set forth
herein.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing, of the covenants,
promises and undertakings set forth herein, and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Purchaser covenant and agree as follows:
1. The Property.
1.1 Description. Subject to the terms and conditions of this
Agreement, and for the consideration herein set forth, Seller agrees to
sell, transfer and convey, and Purchaser agrees to purchase and acquire,
all of Seller's right, title and interest in and to the following
(collectively, the "Property"):
1.1.1 Certain land containing approximately 39.993 acres,
located in Xxxxxxxx County, Texas, being described in EXHIBIT A
attached hereto and by this reference made a part hereof, together
with the industrial manufacturing/warehouse/office buildings,
structures and other improvements (including cranes) situated thereon,
located at X.X. Xxxxxxx 00, Xxxxxxxx, Xxxxx 00000 (such land, together
with such buildings, structures and improvements being sometimes
hereinafter referred to as the "Plant");
1.1.2 All owned rail spurs, easements, rights-of-way, tenements
and appurtenances pertaining to the Plant; and
1.1.3 All water xxxxx and associated pumps, plumbing, and
storage facilities and the like, pertaining to the Plant.
1.2 Mineral Reservation. Notwithstanding the description of the
Property in Section 1.1 above, Seller shall reserve all subsurface oil,
minerals, natural gas, all surface-mined materials such as sand, gravel and
aggregate, coal, and the like, or other similar materials of any nature
(the "Mineral Reservation").
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1.3 "As-is" Purchase.
1.3.1 The parties agree that all understandings and agreements
heretofore made between them or their respective agents or
representatives are merged in this Agreement and the Exhibits annexed
hereto, which alone fully and completely express their agreement.
1.3.2 Except as expressly stated herein, Seller makes no
representation or warranty as to the truth, accuracy or completeness
of the Materials (hereinafter described) delivered by Seller to
Purchaser in connection with the transaction contemplated hereby, and
the Materials are provided to Purchaser, and any reliance thereon by
Purchaser shall be, at the sole risk of Purchaser.
1.3.3 As Purchaser is being provided rights to conduct its own
inspections of the Property as set forth in Section 3 hereof and to
review the Materials, Purchaser acknowledges that it is relying on the
results of its inspections and review of the Materials as to the
suitability and condition of the Property for its purposes.
Accordingly, SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY
WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR
IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO,
ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, ZONING, TAX CONSEQUENCES, PHYSICAL
OR ENVIRONMENTAL CONDITION, UTILITIES, OPERATING HISTORY OR
PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, COMPLIANCE OF THE
PROPERTY WITH GOVERNMENTAL LAWS, INCLUDING ENVIRONMENTAL LAWS, THE
TRUTH, ACCURACY OR COMPLETENESS OF DOCUMENTS OR OTHER INFORMATION
PROVIDED BY OR ON BEHALF OF SELLER TO PURCHASER OR ANY OTHER MATTER OR
THING REGARDING THE PROPERTY, EXCEPT FOR THE REPRESENTATIONS OR
WARRANTIES EXPRESSLY SET FORTH HEREIN. EXCEPT FOR THE REPRESENTATIONS
AND WARRANTIES SET FORTH HEREIN, PURCHASER ACKNOWLEDGES AND AGREES
THAT, UPON CLOSING, SELLER SHALL SELL AND CONVEY TO PURCHASER, AND
PURCHASER SHALL ACCEPT, THE PROPERTY "AS IS, WHERE IS, WITH ALL
FAULTS." SELLER AND PURCHASER AGREE THAT THE PROVISIONS OF THIS
SECTION SHALL SURVIVE THE TERMINATION OF THE AGREEMENT OR, IF THE
TRANSACTION CLOSES, SHALL SURVIVE THE CLOSING OF THIS AGREEMENT.
1.4 Agreement to Convey. Seller agrees to convey, and Purchaser
agrees to accept, on the Date of Closing title to the Property by special
warranty deed (the "Deed"),
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subject to the Permitted Exceptions, the Mineral Reservation and the
Restricted Use, as hereinafter described.
2. Price and Payment.
2.1 Purchase Price. The purchase price for the Property ("Purchase
Price") shall be One Million Five Hundred Thousand Dollars ($1,500,000.00).
2.2 Deposit. A deposit of One Hundred Fifty Thousand Dollars ($
150,000.00) ("Initial Deposit") shall be paid by Purchaser to American
Title Company (Xxxxxxx Xxxxxxx), 0000 Xxxxxxxx Xxxx xx Xxxxxxx, Xxxxx 000,
Xxxxxx, Xxxxx 00000 ("Title Company"), on or before the third (3/rd/)
business day following the full execution of this Agreement by the parties.
The Initial Deposit shall be placed in an interest bearing account with a
federally insured bank doing business and having an office in the State of
Texas, in the name of the Title Company. On the day after the expiration of
the Due Diligence Period (as hereinafter defined), if Purchaser has not
terminated this Agreement, (a) the Initial Deposit shall be released by the
Title Company to Seller, and (b) an additional deposit of One Hundred Fifty
Thousand Dollars ($150,000.00) ("Additional Deposit") shall be deposited by
Purchaser with the Title Company (the Additional Deposit and the Initial
Deposit are together hereinafter referred to as the "Deposit"), and the
Deposit shall, except as otherwise provided herein, be non-refundable. The
Initial Deposit shall be held by Seller and the Additional Deposit shall be
held by the Title Company in interest bearing accounts as aforesaid, and
shall be credited against the Purchase Price at Closing. The Initial
Deposit shall be retained by, and the Additional Deposit shall be paid to,
Seller if this transaction shall not close, or otherwise paid to Purchaser
as hereinafter provided. All interest earned on the Initial Deposit and the
Additional Deposit shall be considered a part thereof. Included within the
Initial Deposit is the sum of One Hundred Dollars ($100.00) which shall
constitute the Independent Contract Consideration (herein so called) for
Purchaser's rights to inspect the Property as hereinafter provided.
Notwithstanding any provision contained herein to the contrary, in the
event the Initial Deposit or the Deposit is to be returned to Purchaser
under the provisions of this Agreement, the Independent Contract
Consideration shall nevertheless be retained for the benefit of Seller.
In addition to the Deposit, as hereinabove defined, Purchaser shall
have the right to make the Financing Extension Deposit, as hereinafter
provided in Section 2.5, and as provided therein, the Financing Extension
Deposit shall, for purposes of this Agreement, be included within the
definition of the Deposit.
2.3 Payment. The Purchase Price, subject to adjustment for the
prorations as provided in Section 8.5, below, shall be paid by Purchaser to
Seller on or before 10:00 a.m., CST on the Date of Closing (hereinafter
defined) by Purchaser causing the Title Company to wire immediately
available funds to such bank account as Seller may designate. The Deposit,
and all interest earned thereon, shall be credited against the Purchase
Price.
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2.4 Closing. Except as provided in Section 2.5 below, the purchase
and sale contemplated by this Agreement shall be consummated at Closing
("Closing"), which shall take place at the offices of the Title Company or
the Title Company's local title agent in Xxxxxxxx County, Texas on a date
and at a time to be mutually agreed upon by the parties, but in any event,
on or before the thirtieth (30/th/) day after the expiration of the Due
Diligence Period ("Date of Closing").
2.5 Extended Closing Date. In the event Purchaser shall not have
terminated this Agreement as provided in Section 3.3.2 or Section 3.6, but,
as of the end of the Due Diligence Period, Purchaser has not obtained a
financing commitment for a Business and Industry Government Loan (the
"Financing Commitment"), then Purchaser shall have the right to extend
the Date of Closing for an additional sixty (60) days (the "Financing
Extension Period"), only for the purpose of obtaining the Financing
Commitment, by providing written notice to Seller on or before the
expiration of the Due Diligence Period and by depositing $150,000.00 with
the Title Company (the "Financing Extension Deposit"). The Financing
Extension Deposit shall be non-refundable, shall be in addition to the
Initial Deposit and the Additional Deposit, and for purposes of this
Agreement, shall be treated as, and disbursed as a part of, the Deposit. In
the event Purchaser shall not have obtained the Financing Commitment by the
end of the Financing Extension Period, Purchaser shall have the right to
terminate this Agreement and its obligations hereunder by providing written
notice to Seller of such termination on or before the expiration of the
Financing Extension Period, whereupon the Deposit (including the Financing
Extension Deposit), shall be paid to Seller; or, in the event that
Purchaser fails to deliver such written notice to Seller terminating this
Agreement, such failure shall be deemed to be an election of Purchaser to
proceed to Closing and to purchase the Property pursuant to the terms and
conditions herein contained, and, upon Closing, the Financing Extension
Deposit shall be credited against the Purchase Price as a part of the
Deposit.
3. Due Diligence. Purchaser shall have a period ("Due Diligence Period"),
commencing on the Effective Date and expiring at 5:00 p.m. on the day which is
thirty (30) days thereafter, in which to review the Materials and conduct
inspections of the Property, as described in this Section 3.
3.1 Materials. Within ten (10) days from the Effective Date, Seller
shall furnish to Purchaser, or make available for Purchaser to inspect and
copy, any information and materials which Seller has in its possession or
control (including the authorization of third-party releases thereof but at
no expense to Seller), that relate to the Property, such as environmental
reports, soil reports, building plans and service, maintenance and security
contracts ("Materials"); provided, however, if Seller does not have any
such Materials in its possession or control, Seller shall not be obligated
to obtain them for Purchaser; and provided further that the Seller shall
not be obligated to make available any information or materials that Seller
deems proprietary or for internal use only.
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3.2 Physical Inspections and Access.
3.2.1 Seller agrees that, during the Due Diligence Period,
Seller shall permit Purchaser's agents or representatives reasonable
access to the Property for purposes of physical and environmental
inspections of the Property, as permitted by Section 3.2.2, and review
of the Materials to evaluate and analyze the feasibility of acquiring
the Property for Purchaser's intended use thereof.
3.2.2 Purchaser may implement, at its expense, a Phase I
environmental site assessment and core sampling for geotechnical soil
analysis, but no Phase II environmental site assessment, nor any
surface or subsurface invasive or intrusive sampling shall be allowed
during any inspection without the separate, prior and written consent
of Seller, which consent may be withheld by Seller at Seller's sole
and arbitrary discretion, with or without cause. The core sampling for
geotechnical soil analysis shall be limited in scope to determining
if the surface and subsurface condition of the ground is suitable for
structures, foundations, pavements and overall site preparation and
shall not involve any environmental hazard analysis, unless Seller's
prior written consent has been obtained.
In the event Purchaser desires to implement a Phase II
environmental site assessment or other invasive or intrusive sampling,
it shall submit its written request to Seller and shall submit a work
and/or sampling and analysis plan specifically identifying, at a
minimum, the area(s) and depths to be sampled, sample collection and
management protocols, sample analytical methods and a schedule for
work plan or sampling and analysis plan implementation and completion.
Seller shall respond promptly to any such submission or request made
by Purchaser.
In the event Seller shall consent to a Phase II environmental
site assessment or other invasive or intrusive sampling, Seller may,
as a condition to granting its consent, participate in the selection
of the auditor or inspector and the procedure to be followed, observe
any such site assessment or sampling and terminate the same at any
time in its sole discretion.
3.2.3 Costs; Confidentiality. Purchaser shall make such
inspections and tests provided for in this Section 3 in good faith and
with due diligence and in compliance with all applicable laws. Seller
shall cooperate with Purchaser in making such inspections and tests.
Unless required otherwise under applicable laws or any court orders,
Purchaser shall treat all information obtained by Purchaser pursuant
to the terms of this Agreement as strictly confidential through the
date of Closing; provided, however, that Purchaser may share such
information with outside consultants, lenders, agents, and Purchaser's
employees, and may disclose such information as required by law.
Purchaser shall promptly pay for any and all costs associated with the
inspection and tests conducted by Purchaser or its representatives on
the Property or otherwise pursuant to this
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Section and agrees to promptly discharge any liens that arise against
the Property as a result of such inspections and tests.
3.2.4 Purchaser agrees that, prior to undertaking any physical
or environmental inspections of the Property, Purchaser or Purchaser's
agents will obtain not less than One Million Dollars ($1,000,000.00)
comprehensive general liability insurance with a contractual liability
endorsement which insures Purchaser's indemnity obligations with
respect thereto hereunder and which names Seller as an additional
insured thereunder (a copy of which policy shall be provided by
Purchaser to Seller prior to undertaking any inspections under Section
3.2). Such insurance coverage shall be maintained by Purchaser as long
as this Agreement remains in force and effect. Purchaser agrees at its
own expense promptly to restore the Property if any inspection or test
requires or results in any damage to or alteration of its condition.
Purchaser shall indemnify and hold Seller harmless from any claims,
loss, injury, liability, damage or expense, including reasonable
attorneys' fees and costs, arising out of (a) the exercise by
Purchaser or its agents or representatives of the right of access
under Section 3.2; and (b) any claims, suits, actions or liabilities
incurred by Seller arising out of actual damages to the Property
resulting from Purchaser's entry upon the Property (collectively,
"Indemnity Obligations"). All agreements of, and indemnifications by
Purchaser under Section 3.2 shall survive Closing or termination of
this Agreement for any reason.
3.3 Title and Survey.
3.3.1 Within ten (10) days after the Effective Date, Seller
shall cause the Title Company to deliver to Purchaser a commitment
("Title Commitment") to issue an Owner's Policy of Title Insurance
("Title Policy"), at Seller's expense, to Purchaser insuring the
Property, together with copies of all items shown as exceptions to
title therein. Within ten (10) days after the Effective Date, Seller
shall furnish to Purchaser a copy of its existing survey of the
Property (the "Survey"). Purchaser may obtain, at its expense, a
re-certification or update of the Survey if required by the Title
Company in order to modify the standard survey/boundary exception.
3.3.2. Title to the Property shall be good and indefeasible,
free and clear of all liens, encumbrances and other matters
unacceptable to Purchaser, except the Permitted Exceptions. Title
shall be insurable at standard rates with only the Permitted
Exceptions. The Title Commitment includes a written preliminary title
report, and if such title report shall disclose defects in title such
that title does not comply with the provisions of this Section
(hereinafter "Title Objection"), then Purchaser shall so notify Seller
and the Title Company by written notice of its objections to title
within ten (10) days of the date of receipt of the Title Commitment
("Objection Notice"). If the title report or Survey shall reveal a
Title Objection and such Title Objection is one which Seller elects to
remedy,
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then Seller shall take such action as may be necessary, at Seller's
expense, to correct such Title Objection within fifteen (15) days from
Seller's receipt of the Objection Notice. If such Title Objection is
corrected and remedied by Seller, then this Agreement shall continue
in full force and effect in the same manner and for all intents and
purposes as if such Title Objection had never existed. If Seller shall
notify Purchaser in writing that it elects not to remedy a Title
Objection ("Seller's Notice") or if the title report shall reveal a
Title Objection that cannot be remedied within fifteen (15) days from
Seller's receipt of the Objection Notice, then Purchaser, at
Purchaser's election, shall, within ten (10) days of receipt of
Seller's Notice, by written notice to Seller either (i) waive such
uncured Title Objection, in which event the parties shall proceed with
Closing under this Agreement in accordance with and subject to the
terms and provisions hereof; or (ii) terminate this Agreement, in
which event the Initial Deposit shall be promptly refunded to
Purchaser, and thereupon all parties hereto shall be released from all
further liability hereunder, at law and in equity, except for
obligations that expressly survive termination of this Agreement.
Notwithstanding the foregoing, if a Title Objection that Seller is
willing to remedy cannot be remedied within fifteen (15) days of the
Objection Notice, and Purchaser desires that such Title Objection be
remedied, then, if Seller is willing to do so, Seller shall commence
the remedy of such Title Objection and diligently pursue the same to
completion prior to the end of the Due Diligence Period.
3.4 Permitted Exceptions. Purchaser shall be deemed to have approved
and to have agreed to purchase the Property subject to the following
(collectively, "Permitted Exceptions"):
3.4.1 All matters of title and survey not objected to in
accordance with Section 3.3.2 above or objected to but not cured as of
the expiration of the Due Diligence Period; and,
3.4.2 The lien of non-delinquent real property taxes and
assessments, but in all cases, prorated between the parties as of the
date of Closing.
3.5 Restricted Use. The conveyance of the Property shall be subject
to (and the Deed shall so provide) the restriction that no portion of the
Property shall be used by Purchaser, or any parent entity, merged or
consolidated entity, affiliate, agent or assign of Purchaser, as a facility
for (i) railcar repair, railcar re-manufacturing or the manufacture of
railcars or railcar kits, or for the manufacture or repair of any railcar
parts or components, (ii) the production of LPG tanks, storage vessels and
industrial heads, highway guardrail or other highway safety products, (iii)
the manufacture of ocean-going or river barges or the parts, components or
assemblies thereof, (iv) the manufacture of structural towers, (v) the
manufacture of castings and fittings (hot or cold forged), or (vi) the
ready mix concrete and and/or aggregates business ("Restricted Use"). The
Restricted Use shall run with the Property and be binding upon Purchaser
and its successors and assigns.
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3.6 Purchaser's Right to Terminate. In the event Purchaser has not
terminated this Agreement as provided in Section 3.3.2, Purchaser shall
have the right to terminate this Agreement and its obligations hereunder in
the event it shall not be satisfied with the results of its reviews and
inspections described in Section 3.1 and 3.2, or if a Title Objection has
not been remedied as provided in the last sentence of Section 3.3.2, by
providing written notice to Seller of such termination on or before the
expiration of the Due Diligence Period. In the event that, by such date and
time, Purchaser fails to deliver written notice to Seller terminating this
Agreement, such failure shall be deemed to be an election of Purchaser to
proceed to Closing and to purchase the Property pursuant to the terms and
conditions herein contained, and the Deposit shall, except as otherwise
provided herein, become non-refundable in the absence of default by Seller
hereunder. If Purchaser timely terminates this Agreement pursuant to this
Section 3.6, the Initial Deposit shall be returned to Purchaser and neither
party shall have any further obligations or liability hereunder. In the
event Purchaser terminates this Agreement in accordance with the provisions
of this Section 3.6, Purchaser shall deliver to Seller copies of all
inspection and environmental reports produced for Purchaser during the Due
Diligence Period.
3.7 Seller's Right to Terminate. Notwithstanding Purchaser's failure
to terminate this Agreement within the Due Diligence Period as provided in
Section 3.6 above, if Seller has conducted its own Phase I environmental
site assessment during the Due Diligence Period, Seller shall have the
right to terminate this Agreement if Seller is not satisfied with the
results of such assessment, by providing written notice to Purchaser of
such termination on or before the expiration of the Due Diligence Period.
If Seller shall terminate this Agreement pursuant to this Section 3.7, the
Initial Deposit shall be returned to Purchaser and neither party shall have
any further obligations or liability hereunder.
3.8 Post-Closing Covenants.
3.8.1 In the event that, prior to Closing, Seller has
undertaken, but not completed, certain clean-up activities at the
Property, Purchaser shall grant Seller access to the Property for a
reasonable period of time following the Closing for such purpose (the
"Post Closing Period"). During the Post Closing Period, Seller shall
use all reasonable efforts to avoid interference with Purchaser or its
operations and shall provide notification to Purchaser at such time as
Seller has completed such activities.
3.8.2 Following the Closing, Purchaser shall undertake no Phase
II environmental site assessment or other invasive or intrusive
sampling of the Property unless required to do so by law or other
legal mandate.
4. Insurance. Prior to Closing, Seller shall maintain its existing
casualty and liability insurance with respect to the Property.
5. Representations and Warranties.
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5.1 By Seller. Seller represents and warrants to Purchaser as of the
Effective Date:
5.1.1 Seller is a corporation duly organized and validly
existing under the laws of Delaware and duly qualified to conduct
business and in good standing in the State of Texas.
5.1.2 Seller is the fee simple owner of the Property and has
the power to sell the Property and to engage in the transactions
contemplated in this Agreement.
5.1.3 The execution and performance of this Agreement has been
duly authorized by Seller.
5.1.4 Seller has received no notice of any condemnation or
eminent domain proceedings pending or contemplated against the
Property or any part thereof or interest therein.
5.1.5 There are no leases; licenses, tenancies or other
occupancy agreements of any nature or any kind affecting the Property
or any part thereof.
5.2 By Purchaser. Purchaser represents and warrants to Seller as of
the Effective Date that:
5.2.1 Purchaser is a corporation duly organized and validly
existing and in good standing in the State of Delaware and duly
qualified to conduct business and in good standing in the State of
Texas.
5.2.2 Purchaser has the power to acquire and own the Property
and to engage in the transactions contemplated in this Agreement.
5.2.3 The execution and performance of this Agreement has been
duly authorized by Purchaser.
5.3. Commissions. Seller and Purchaser each represents to the other
that, except for a commission payable by Seller to J.R. XxXxxxxxx, LLC
pursuant to separate agreement, it has had no dealings, negotiations, or
consultations with any broker, representative, employee, agent or other
intermediary in connection with the sale of the Property. Seller and
Purchaser agree that each will indemnify, defend and hold the other free
and harmless from the claims of any other broker(s), representatives),
employees), agent(s) or other intermediary(ies) claiming to have
represented Seller or Purchaser, respectively, or otherwise to be entitled
to compensation in connection with this Agreement or in connection with the
sale of the Property. This mutual indemnity shall survive Closing and any
termination of this Agreement for any reason.
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6. Notices. Any notice required or permitted to be given hereunder must
be in writing and shall be deemed to be given when (a) hand delivered, or (b)
one (1) business day after pickup by overnight express service, in either case
addressed to the parties at their respective addresses set forth below:
If to Seller: 0000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxx, Vice President
Phone: (000)000-0000
Facsimile: (000)000-0000
E-Mail: xxxx.xxx@xxxx.xxx
With a copy to: Xxxxx Rice, Vice President-Legal Affairs
0000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Phone: (000)000-0000
Facsimile: (000)000-0000
E-Mail: xxxxx.xxxx@xxxx.xxx
and with a copy to: Law Offices of Xxxxxxx X. Xxxxx, PLLC
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Phone: (000)000-0000
Facsimile: (000)000-0000
E-Mail: xxxxxx@xxxxxxx.xxx
If to Purchaser: 00000 Xxxx Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, President and CEO
Phone: (000)000-0000
Facsimile: (000)000-0000
E-mail: xxxxxxxxx@xxxx.xxx
With a copy to: 00000 Xxxx Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
Phone: (000)000-0000
Facsimile: (000)000-0000
E-mail: xxxxxxx@xx0x.xxx
or in each case to such other address as either party may from time to time
designate by giving notice in writing pursuant to this Section 6 to the other
party. Telephone and facsimile numbers and e-mail addresses are for
informational purposes only. Effective notice will be deemed given only as
provided above, except as otherwise expressly provided in this Agreement.
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7. Conditions to Closing. If Purchaser has not terminated this Agreement
as provided in Section 3.6, then the parties shall proceed to Closing; provided,
however, Purchaser's or Seller's obligation to close this transaction shall be
subject to the condition that, prior to the Date of Closing, (a) Seller shall
not have received notice from a governmental authority that a material portion
of the Property shall be permanently taken under the power of eminent domain
("Condemnation Notice") or (b) a material portion of the Plant shall not have
been damaged by casualty, and in either case, such taking or casualty damage
shall render the Property unusable for Purchaser's intended use. In the event
Seller shall have received a Condemnation Notice or the Plant shall have
suffered a casualty, Seller shall furnish a copy of the Condemnation Notice or
a notice concerning such casualty to Purchaser, and either party may furnish
written notice to the other party of its election to terminate this Agreement,
in which event the Deposit shall be returned to Purchaser and the parties shall
have no further obligations hereunder except for the Surviving Obligations;
otherwise, this transaction shall close on the Date of Closing and Purchaser
shall pay the full Purchase Price provided for in Section and Seller shall
assign to Purchaser its rights to any award in connection with such taking or
any insurance proceeds payable to Seller by reason of such casualty.
Seller's obligation to close this transaction shall be subject to the
condition that, on or prior to the Closing, the lender who issues the Financing
Commitment to Purchaser and ultimately provides funding for this transaction
shall have executed and delivered to Seller the Lender Acknowledgement in the
form attached hereto as EXHIBIT B (the "Lender Acknowledgement"). Purchaser's
failure to have obtained the Lender Acknowledgement and caused the same to be
delivered to Seller as aforesaid, shall be a Purchaser default subject to the
provisions of Section 9.1 hereof.
8. Closing and Escrow.
8.1 Seller's Deliveries. Seller shall deliver at the Closing the
following original documents, each executed and, if required, acknowledged:
8.1.1 The Deed to the Property, subject to the Permitted
Exceptions and the Restricted Use and the Mineral Reservation.
8.1.2 Such documents as are reasonably required of Seller
pursuant to the Title Commitment as a condition precedent to the
issuance of the Title Policy pursuant to the terms thereof.
8.1.3 A settlement statement.
8.2 Purchaser's Deliveries. At the Closing, Purchaser shall (i) pay
Seller the Purchase Price as required by Section 2 hereof, and (ii) execute
and deliver the following documents:
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8.2.1 Such documents as are required of Purchaser pursuant to
the Title Commitment as a condition precedent to the issuance of the
Title Policy pursuant to the terms thereof.
8.2.2 A settlement statement.
8.2.3 The Lender Acknowledgement.
8.3 Possession. Purchaser shall be entitled to possession of the
Property at the conclusion of the Closing.
8.4 Insurance. Seller shall terminate its policies of insurance as
of noon on the Date of Closing, at which point the risk of loss shall pass
to Purchaser and Purchaser shall be responsible for obtaining its own
insurance thereafter.
8.5. Costs and Prorations.
8.5.1 Purchaser's Costs. Purchaser will pay the following costs
of closing this transaction upon the Closing:
(a) The fee due in connection with the recordation of
the Deed;
(b) One-half (1/2) of all Closing fees and other charges
of the Title Company due in connection with the closing of this
transaction;
(c) Any and all costs and expenses in connection with
obtaining financing for the purchase of the Property, including
without limitation any fees required to be paid upon the
recordation of any deed of trust or other security agreement
executed and recorded in connection with such financing;
(d) The portion of the premium for the Title Policy to
modify any survey or boundary exception and to provide title
insurance coverage to Purchaser's mortgagee;
(e) The fees and disbursements of Purchaser's counsel;
and
(f) The cost of any re-certification or update of the
Survey.
8.5.2 Seller's Costs. Seller will pay the following costs of
closing this transaction upon the Closing:
(a) The fees and disbursements of Seller's counsel;
(b) The commission referred to in Section 5.3 above;
Page 12
(c) One-half (1/2) of all Closing fees and other charges
of the Title Company due in connection with the closing of this
transaction;
(d) The base premium for the Title Policy; and
(e) The cost and expense of removing any liens,
encumbrances or other Title Objections which Seller has elected
to cure.
8.5.3 Expense Prorations. All sewer charges, utility charges,
security fees and normally prorated operating expenses billed or paid
as of the Date of Closing shall be prorated as of the Date of Closing
and shall be adjusted against the Purchase Price due at Closing,
provided that within sixty (60) days after Closing, Purchaser and
Seller will make a further adjustment for such expenses or charges
which may have accrued or been incurred prior to the Date of Closing,
but not received or paid at that date.
8.5.4 Tax Prorations. General real estate taxes and special
assessments relating to the Property payable during the year in which
Closing occurs shall be prorated as of the Date of Closing. If
Closing shall occur before the actual taxes and special assessments
payable during such year are known, the apportionment of taxes shall
be upon the basis of taxes for the Property payable during the
immediately preceding year; provided that, if the taxes and special
assessments payable during the preceding year in which Closing occurs
are thereafter determined to be more or less than the taxes payable
during the preceding year (after any appeal of the assessed valuation
thereof is concluded), Seller and Purchaser promptly shall adjust the
proration of such taxes and special assessments, and Seller or
Purchaser, as the case may be, shall pay to the other any amount
required as a result of such adjustment. Notwithstanding the
foregoing, Purchaser shall be responsible for any "rollback" or
similar taxes assessed for periods prior to Closing due to a change in
use or ownership of the Property after Closing.
8.5.5 Utility Deposits. Seller shall be entitled to the return
of any deposit(s) posted by it with any utility company and Seller
shall notify each utility company serving the Property to terminate
Seller's account, effective as of the Closing Date. Seller agrees to
reasonably cooperate with Purchaser in transferring any utility
company accounts with respect to the Property.
9. Default.
9.1 Purchaser Default. If Purchaser shall fail or refuse to purchase
the Property in violation of Purchaser's obligations hereunder for any
reason (other than a default by Seller under this Agreement), or shall
otherwise be in default in its obligations hereunder, and shall not have
cured such default within ten (10) days after receipt of notice thereof
from Seller, Seller shall have as its sole remedy the right to terminate
this
Page 13
Agreement and the Deposit shall be paid to Seller by Purchaser as
liquidated damages. Seller and Purchaser acknowledge and agree that, it
would be extremely difficult to accurately determine the amount of damages
suffered by Seller as a result of Purchaser's default hereunder; the
Deposit and any interest accrued thereon constitutes a fair a reasonable
amount to be received by Seller as agreed and liquidated damages for
Purchaser's default under this Agreement, as well as a fair, reasonable and
customary amount to be paid as liquidated damages to a seller in an arm's
length transaction of the type contemplated by this Agreement upon a
default by the purchaser thereunder; and receipt by Seller of the Deposit
and interest accrued thereon upon Purchaser's default hereunder shall not
constitute a penalty or a forfeiture.
9.2 Seller Default. If Seller shall refuse or fail to convey the
Property to Purchaser in violation of Seller's obligations hereunder for
any reason other than a default by Purchaser under this Agreement, or shall
otherwise be in default in its obligations hereunder, and shall not have
cured such default within ten (10) days after receipt of notice thereof
from Purchaser, Purchaser shall have as its sole and exclusive remedy
hereunder the right to either: (a) terminate this Agreement and have the
Deposit and interest accrued thereon returned; or (b) seek specific
performance of this Agreement. In the event that Purchaser elects to seek
specific performance under Section 9.2(b) above, Purchaser hereby agrees
that: (i) Purchaser shall bring such action within ninety (90) days after
the scheduled Date of Closing, or else such remedy shall be deemed waived;
and (ii) in no event shall Seller be obligated to undertake any of the
following (A) change the condition of the Property or restore the same
after any fire or casualty; (B) expend any money (except as provided in
Section 3.4 above) or post a bond to remove or insure over a title defect
or encumbrance or to correct any matter shown on a survey of the Property
except a title defect created by the act, or omission to act, by Seller
from and after the full execution of this Agreement by the parties; (C)
secure any permit, approval, or consent with respect to the Property or
Seller's conveyance thereof; or (D) expend any money to repair, improve or
alter the Property or any portion thereof. If Purchaser shall not institute
an action for specific performance within ninety (90) days after the Date
of Closing, time being of the essence, and Purchaser has not then elected
to waive such default by Seller, Purchaser shall be deemed to have elected
to exercise the remedy set forth in Section 9.2(a) above.
9.3 Attorneys' Fees. Notwithstanding anything to the contrary in
this Agreement, in the event that either Seller or Purchaser, as the case
may be, shall bring a lawsuit against the other party to enforce their
respective rights under Section 9.1 and 9.2 above, the losing party shall
pay the prevailing party's costs and expenses incurred in connection with
such litigation, including without limitation reasonable attorneys' fees.
The "prevailing party" shall be determined by the court hearing such
matter.
10. Miscellaneous.
-------------
10.1 Entire Agreement. This Agreement, together with the Exhibits
attached hereto, all of which are incorporated by reference, is the entire
agreement between the
Page 14
parties with respect to the subject matter hereof, and no alternation,
modification or interpretation hereof shall be binding unless in writing
and signed by both parties.
10.2 Severability. If any provision of this Agreement or its
application to any party or circumstances shall be determined by any court
of competent jurisdiction to be invalid and unenforceable to any extent,
the remainder of this Agreement or the application of such provision to
such person or circumstances, other than those as to which it is so
determined invalid or unenforceable, shall not be effected thereby, and
each provision hereof shall be valid and shall be enforced to the fullest
extent permitted by law.
10.3 Applicable Law. This Agreement shall be construed and enforced
in accordance with the internal laws of the State of Texas.
10.4 Assignability. Purchaser shall not have the right, except upon
the prior written consent of Seller, to assign or transfer any or all of
Purchaser's rights, obligations and/or interests under this Agreement, nor
shall any of Purchaser's rights, obligations and/or interests hereunder be
assignable by operation of law or otherwise; provided that, as a condition
to granting its consent, Seller may require that Purchaser remain liable
for all of the obligations of Purchaser hereunder.
10.5 Successors Bound. This Agreement shall be binding upon and inure
to the benefit of Purchaser and Seller and their respective successors and
assigns.
10.6 No Public Disclosure. All press releases or other dissemination
of information to the media or responses to requests from the media for
information relating to the transaction contemplated herein shall be
subject to the prior written consent of both parties.
10.7 Captions: Interpretation. The captions in this Agreement are
inserted only as a matter of convenience and for reference and in no way
define, limit or described the scope of this Agreement or the scope or
content of any of its provisions. Whenever the context may require, words
used in this Agreement shall include the corresponding feminine, masculine,
or neuter forms, and the singular shall include the plural and vice versa.
Unless the context expressly indicates otherwise, all references to
"Section" are to sections of this Agreement. The parties acknowledge that
they have had the opportunity to be represented by counsel in the
negotiation and execution of this Agreement, and therefore, it is expressly
agreed that in the case of any vagueness or ambiguity with regard to any
provision of this Agreement, there shall be no presumption of construction
against the drafter of such provision, but instead this Agreement shall be
interpreted in accordance with a fair construction of the law.
10.8 No Partnership. Nothing contained in this Agreement shall be
construed to create a partnership or joint venture between the parties or
their successors in interest.
10.9 Time of Essence. Time is of the essence in this Agreement.
Page 15
10.10 Counterparts. This Agreement may be executed and delivered in
any number of counterparts, each of which so executed and delivered shall
be deemed to be an original and all of which shall constitute one and the
same instrument.
10.11 Proper Execution. Purchaser shall have five (5) days from its
receipt of the unsigned form of this Agreement from Seller to execute and
forward this Agreement to Seller for its execution; otherwise, the form
submitted by Seller shall be considered withdrawn and of no effect after
such five (5) day period. The submission by Seller to Purchaser of this
Agreement for execution by Purchaser and the actual execution thereof and
delivery to Seller by Purchaser shall have no binding force and effect on
Seller unless and until Seller shall have executed this Agreement and this
Agreement and the Initial Deposit shall have been received by the Title
Company.
10.12 Limitation of Liability. It is further hereby expressly agreed
that in no event shall any officer, director, employee, agent or
representative of Seller or Purchaser have any personal liability in
connection with this Agreement or the transaction envisioned herein.
10.13 Waiver. No waiver of any breach of any agreement or provision
contained herein shall be deemed a waiver of any preceding or succeeding
breach of any other agreement or provision herein contained. No extension
of time for the performance of any obligation or act shall be deemed an
extension of time for the performance of any other obligation or act.
10.14 Survival. It is agreed that all representations, statements,
agreements, warranties and covenants of each party hereunder shall continue
to bind the parties and survive Closing pursuant to this Agreement;
PROVIDED, HOWEVER, such representations, statements, agreements, warranties
and covenants shall expire automatically without further action of the
parties on the first (1/st/) anniversary of Closing unless a specific claim
in writing with respect to these matters shall have been made, or an action
at law or in equity shall have been commenced or filed before such date.
10.15 Business Days. If any date herein setforth for the performance
of any obligations by Seller or Purchaser or for the delivery of any
instrument or notice as herein provided should fall on a Saturday, Sunday
or Legal Holiday (hereinafter defined), the compliance with such
obligations or delivery shall be deemed acceptable on the next business day
following such Saturday, Sunday or Legal Holiday. As used herein, the term
"Legal Holiday" shall mean any local or federal holiday on which post
offices are closed in Dallas, Texas.
10.16 Surviving Obligations. The term "Surviving Obligations", as used
herein shall mean, collectively, the Indemnity Obligations and any other
obligations of the parties which expressly survive Closing or the
termination of this Agreement for any reason.
Page 16
10.17 Effective Date. The "Effective Date" of this Agreement shall be
the date of acknowledgment by the Title Company of receipt of this fully
executed Agreement and the Initial Deposit
[Signature Page Follows]
Page 17
IN WITNESS WHEREOF, Purchaser and Seller have executed this Agreement on
the dates set forth below, effective as of the Effective Date.
SELLER:
TRINITY INDUSTRIES, INC.
By: Xxxx Xxx
-------------------------------------
Name: Xxxx Xxx
Title: Vice President
Date:
-----------------------------------
PURCHASER:
NORTH AMERICAN TECHNOLOGIES GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President and CEO
Date: 17 APR 03
ACKNOWLEDGMENT
The undersigned hereby acknowledges receipt of the fully executed Purchase
and Sale Agreement and the Initial Deposit and agrees to hold, invest, and
disburse the Initial Deposit, all pursuant to and in accordance with the terms
and provisions of the said Agreement.
AMERICAN TITLE COMPANY
By: Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Date:
-----------------------------------
Page 18
EXHIBIT A
LEGAL DESCRIPTION
[Attached]
Page 19
EXHIBIT A
Trinity Industries, Inc. Property
U.S. Hwy. 59
6 miles north of Marshall, Texas
All that certain lot, tract, or parcel of land situated in Xxxxxxxx
County, Texas, about 7 miles North of the Courthouse in the City of
Xxxxxxxx, being 39.993 acres of land, a part of the XXXXX XXXXXXX
SURVEY, A-750, and being that same land called to contain 40 acres
described in a deed from Marshall Industrial Foundation to Xxxxxx
Industries, Inc., recorded in Volume 1373, Page 783 of the Xxxxxxxx
County Deed Records, said 39.993 acres being more particularly
described as follows:
Beginning at a 1/2" iron rod set for corner for the Northeast corner
of herein described tract, being on the West margin of the T & P
Railroad right-of-way, at its point of intersection with the South
line of the Townsite of Woodlawn, as shown by plat, recorded in Volume
1, page 351 of said Deed Records, said beginning corner being 840.01
feet Southerly from the intersection of U.S. Hwy. 59 with FM 1997, and
being the Northeast corner of that certain called 55 acre tract of
land described in a deed to X.X. Xxxxxxxx, dated April 4, 1898 and
recorded in Volume 40, Page 280 of said Deed Records;
Thence South 11 deg 42'00" West, with the East line of said 55 acre
tract and the West right-of-way line of said railroad, 2577.42 feet to
a 1/2" iron rod set for corner at the Southeast corner of the herein
described tract, same being the Northeast corner of that certain 53.84
acre tract described in a deed to Xx Xxxxxxxx, recorded in Volume
1374, Page 120 of said Deed Records, a fence corner bears North 78 deg
20'41" West - 0.51 feet;
Thence North 78 deg 20'41" West, with the North line of said 53.84
acre tract, at 1240.34 feet pass a 1/2" iron rod set for reference on
the Easterly side of Memory Lane, a county maintained road, and
continuing in all, 1275.20 feet to a railroad spike set for corner in
said road for the Southwest corner of the herein described tract,
being the Northwest corner of said 53.84 acre tract and being on the
Southeast line of that land owned by Taxie X. Xxxxx, called to contain
165 acres and described in several deeds to X.X. Xxxxxxx, recorded in
Volume 25, Page 294, Volume 36, Page 310, Volume 41, Page 31 of said
Deed Records;
Thence in a Northeasterly direction, generally along said Memory Lane,
along the centerline of the "Old Marshall- Woodlawn Road", being the
Northwest line of said called 55 acre tract, (1) North 29 deg 03'00"
East 132.00 feet to a 1/2" iron rod set,
(2) North-40 deg 56'00" East - 400.00 feet to a railroad spike set,
(3) North 35 deg 30'00" East - 400.00 feet to a railroad spike set,
and (4) North 36 deg 18'33" East - 1910.96 feet to a 1/2" iron rod
set for corner for the Northwest corner of the herein described tract,
being on the South line of said Townsite of Woodlawn;
Thence South 78 deg 18'00" East, with the North line of said called
55 acre tract and said South line of said Townsite, 83.30 feet to the
place of beginning and containing 39.993 acres of land, of which
approximately 2.8 acres lies within the Memory Lane right-of-way.
This conveyance is made and accepted subject to the following restrictive
covenants, easemants and reservations of record in the office of the County
Clerk of Xxxxxxxx County, Texas, applicable to and/or affecting the property
conveyed hereby, limited, however to, the following:
A. Estate created by oil, gas and mineral lease granted to G. A. Ritnour
in instrument dated March 15, 1945, recorded in Vol. 273, page 287, of the Deed
Records of Xxxxxxxx County, Texas, and all terms, conditions, and stipulations
contained therein.
B. All oil, gas and other minerals of every character in and under the
herein described property, together with any and all rights of the owners of the
mineral estate to execute leases and grant the lessee the rights of ingress and
egrass for the use of the surface for exploration, capture, and handling of oil,
gas and other minerals, as reserved by Xxxxxxx X. Xxxxx, et ux. and Barney Xxx
Xxxxxxx, in instrument recorded in Vol. 666, pages 405 and 409, as amended in
Vol. 843, page 000, Xxxx Xxxxxxx, Xxxxxxxx Xxxxxx, Xxxxx.
C. Right of way to Marshall Electric Co. from X. X. Xxxxxxxx in instrument
dated June 1, 1915, recorded in Vol. 87, page 340, of the Deed Records of
Xxxxxxxx County, Texas.
D. Right of way to Southwestern Xxxx Telephone Co. from X. X. Xxxxxxxx in
instrument dated Jan. 23, 1934, recorded in Vol. 19B, page 218, of the Deed
Records of Xxxxxxxx County, Texas.
E. Right of way to Southwestern Xxxx Telephone Co. from Xxx. Xxxxx
Xxxxxxxx in instrument dated April 15, 1946, recorded, in Vol. 299, page 128, of
the Deed Records of Xxxxxxxx County, Texas.
EXHIBIT B
LENDER ACKNOWLEDGEMENT
[Attached]
Page 20
LENDER ACKNOWLEDGEMENT
----------------------
The undersigned, as lender to North American Technologies Group, Inc.
("NATK"), hereby acknowledges that it has been advised that Trinity Industries,
Inc. ("Trinity") sold approximately 39.993 acres, together with certain
improvements, located in Xxxxxxxx County, Texas, to NATK for $1.5 million cash
on__________, 2003.
LENDER:
By:_____________________________________
Name:___________________________________
Title:__________________________________
Date:___________________________________
Page 21
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
----------------------------------------------
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "First
Amendment"), dated as of the date of full execution hereof, is made by and
between Trinity Industries, Inc. a Delaware corporation ("Seller"), and North
American Technologies Group, Inc., a Delaware corporation ("Purchaser").
RECITAL:
Seller and Purchaser are parties to that certain Purchase and Sale
Agreement of even date herewith (the "Agreement") and desire to amend the
Agreement as hereinafter provided. The defined terms used in this First
Amendment shall have the meanings ascribed to them in the Agreement unless
otherwise defined herein.
NOW, THEREFORE, in consideration of the terms and conditions set forth in
the Agreement, as amended by this First Amendment, Seller and Purchaser covenant
and agree as follows:
1. The Due Diligence Period shall be sixty (60) days, instead of thirty
(30) days, from the Effective Date. During the first thirty (30) days of the Due
Diligence Period (the "Inspection Phase"), Purchaser shall complete its review
of the Materials, conduct its physical inspections of the Property, and review
the Title Commitment and Survey, all as provided in Sections 3.1, 3.2 and 3.3 of
the Agreement. Purchaser's right to furnish the notice of termination, as
provided in Section 3.6 of the Agreement, shall be applicable only during the
Inspection Phase, and, if such notice of termination is not given by the end of
the Inspection Phase, Purchaser shall be deemed to be satisfied with the results
of such reviews and inspections.
2. During the last thirty (30) days of the Due Diligence Period (the
"Financing Phase"), Purchaser shall, if it has not previously obtained the
Financing Commitment as a result of its application therefor made during the
Inspection Phase, continue to diligently pursue obtaining the Financing
Commitment. If the Financing Commitment has not been obtained by the end of the
Financing Phase, then, subject to Purchaser's right to extend the Date of
Closing as provided in Section 2.5 of the Agreement, Purchaser shall have the
right to furnish the notice of termination, as provided in Section 3.6 of the
Agreement, only on the basis that it has not, despite its diligent efforts,
obtained the Financing Commitment. If such notice of termination is not given by
the end of the Financing Phase, then Purchaser shall either proceed to Closing
or exercise its right to extend the Date of Closing in accordance with the
provisions of Section 2.5.
3. The Financing Extension Period shall be forty-five (45) days instead
of sixty (60) days.
4. Except as amended by this First Amendment, all other terms of the
Agreement shall continue to be applicable and in full force and effect as
originally set forth in the Agreement.
IN WITNESS WHEREOF, Purchaser and Seller have executed this First Amendment
effective as of the date of full execution by the parties.
TRINITY INDUSTRIES, INC.
By: Xxxx X. Xxx
-------------------------------------
Name: Xxxx X. Xxx
Title: Vice President
NORTH AMERICAN TECHNOLOGIES GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: XXXXX X. XXXXXXXX
Title: PRESIDENT
