NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS-Registered Trademark-
COMMERCIAL CONTRACT OF SALE
IN CONSIDERATION of the mutual terms, provisions, covenants and agreements
contained in this Contract (the "Contract"), the parties hereto agree as
follows. [CHECK ALL BOXES APPLICABLE TO THIS CONTRACT. BOXES NOT CHECKED DO NOT
APPLY TO THIS CONTRACT.]
1. PARTIES. Waxahachie Garment Company - Nevada (the "Seller") shall sell and
convey to National Fibernet, Inc. (the "Purchaser") and Purchaser shall buy and
pay for the Property (defined below).
2. PROPERTY. Being a manufacturing facility situated on certain real property
at I-35 and Five Points Road in the City of Waxahachie, Xxxxx County, Texas,
further described as:________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
or as described in Exhibit A, SURVEY/LEGAL DESCRIPTION, together with, all and
singular, all improvements thereon and all rights and appurtenances pertaining
thereto, including any right, title and interest of Seller in and to adjacent
streets, alleys and rights-of-way. Such real estate, improvements, rights and
appurtenances are collectively referred to herein as the "Property."
/ / The Property also includes fixtures and articles of personal property
listed and described in ADDENDUM A, PERSONAL PROPERTY.
3. PURCHASE PRICE. The purchase price for the Property is $90,000 (the
"Purchase Price"), payable as follows:
/ / A. The Purchase Price shall be adjusted up or down based upon the [STRIKE
ONE] Net/gross land area of the Property determined by the Survey. The
applicable land area shall be multiplied by $ _______________ per square foot
and the product thereof shall become the Purchase Price at Closing.
/X/ B. Cash payable at Closing: $90,000.
/ / C. The balance of the Purchase Price shall be payable according to the
provisions in ADDENDUM B, FINANCING.
4. XXXXXXX MONEY. ATTN: Xxxx Xxxxxxx
X. XXXXXXX MONEY DEPOSIT. Within two business days after the Effective
Date of this Contract, Purchaser shall deposit xxxxxxx money in the form of a
certified or cashier's check in the amount of $5,000 (the "Xxxxxxx Money")
payable to Trinity Abstract and Title Company, 000 Xxxxxx Xxx, Xxxxxxxxxx, XX
00000 the ("Title Company"), in its capacity as escrow agent, to be held in
escrow pursuant to the terms of this Contract. Seller's acceptance of this
Contract is expressly conditioned upon Purchaser's timely deposit of the
Xxxxxxx Money with the Title Company. If Purchaser fails to timely deposit
the Xxxxxxx Money, Seller may, at Seller's option, terminate this Contract by
delivering a written termination notice to Purchaser. Notwithstanding
anything herein to the contrary, a portion of the Xxxxxxx Money in the amount
of $100.00 shall be non-refundable and shall be distributed to Seller at
Closing or other termination of this Contract as full payment and independent
consideration for Seller's performance under this Contract. If this Contract
is properly terminated by Purchaser pursuant to a right of termination
granted to Purchaser by any provision of this Contract, or any attached
Addenda, the Xxxxxxx Money, less the non-refundable portion, shall be
promptly refunded to Purchaser, and the parties shall have no further rights
or obligations under this Contract (except for those which may expressly
survive the termination). The Xxxxxxx Money [ X ] SHALL [ ] SHALL NOT be
placed in an interest-bearing account by the Title Company, and any interest
earned thereon shall become a part of the Xxxxxxx Money. At Closing the
Xxxxxxx Money shall be applied to the Purchase Price.
B. ESCROW. The Xxxxxxx Money is deposited with the Title Company with the
understanding that the Title Company (1) is not responsible for the performance
or non-performance of any party to this Contract, and (2) is not liable for
interest on the funds held unless required in Paragraph 4.A. The Title Company
shall deposit the Xxxxxxx Money in one or more fully insured accounts in one or
more Federally insured banking or savings institutions. If both parties make
demand for the payment of the Xxxxxxx Money, the Title Company has the right to
require from all parties and Broker(s) a written release of liability of the
Title Company which authorizes the disbursement of the Xxxxxxx Money. If only
one party makes demand for payment of the refundable portion of the Xxxxxxx
Money, the Title Company shall give notice to the other party of the demand. The
Title Company is authorized and directed to honor the demand unless the other
party delivers a written objection to the Title Company within ten (10) days
after the Title Company's notice to that party.
5. SURVEY AND TITLE DOCUMENTS.
A. SURVEY. As soon as reasonably possible. and in any event within twenty
(20) days after the Effective Date, Seller shall, at Seller's expense, deliver
or cause to be delivered to Purchaser a copy of a current or updated
on-the-ground perimeter survey (the "Survey") of the Property prepared by a
Registered Professional Land Surveyor reasonably acceptable to the Purchaser.
The Survey shall show the location and size of all of the following on or
adjacent to the Property, if any:
buildings, building lines, improvements, streets, pavements. easements,
rights-of-way, protrusions, encroachments, fences, 100-year flood plain,
apparent public utilities, and recording information of easements.
The Survey shall show the gross land area and the Net Land Area. The Survey
shall be in a form and of a date acceptable to Purchaser and to the Title
Company, and in acceptable form in order to allow the Title Company to delete
the survey exception (except as to "shortages in area") from the Title Policy.
The term "NET LAND AREA" means the gross land area of the Property less the land
area included in utility easements, drainage easements, ingress/egress
easements, rights-of-way, 100-year flood plain and encroachments on or across
the Property. The area within the 100-year flood plain shall be as defined by
the Federal Emergency Management Agency or other applicable governmental
authority. If the transaction described in this Contract does not close through
no fault of Seller or except as provided in Paragraph 16.C, in addition to the
other rights of Seller, Purchaser shall pay for the Survey on demand. At
Closing, the metes and bounds description of the Property reflected in the
Survey shall be used in the warranty deed and any other documents requiring a
legal description of the Property.
B. TITLE COMMITMENT. As soon as reasonably possible, and in any event
within twenty (20) days after the Effective Date, Seller shall, at Seller's
expense, deliver or cause to be delivered to Purchaser (1) a title commitment
(the "Title Commitment") covering the Property binding the Title Company to
issue a Texas Owner Policy of Title Insurance (the "Title Policy") on the
standard form prescribed by the Texas State Board of Insurance at the Closing,
in the full amount the Purchase Price, insuring Purchaser's fee simple title to
the Property to be good and indefeasible, subject only to the Permitted
Exceptions as defined below, and (2) the following documents (collectively, the
"Title Documents") (a) true and legible copies of all recorded instruments
affecting the Property and recited as exceptions in the Title Commitment, (b) a
current tax certificate, and (c) written notices as required in Paragraph 5.C.
C. SPECIAL ASSESSMENT DISTRICTS. If the Property is situated within a
utility district or flood control district subject to the provisions of Section
50.301, Texas Water Code, then Seller shall give to Purchaser as part of the
Title Documents the required written notice and Purchaser agrees to acknowledge
receipt of the notice in writing. The notice must set forth the current tax
rate, the current bonded indebtedness and the authorized indebtedness of the
district, and must comply with all other applicable requirements of the Texas
Water Code. If the Property is subject to mandatory membership in a property
owner's association, Seller shall notify Purchaser of the current annual budget
of the property owners' association, and the current authorized fees, dues
and/or assessments relating to the Property.
D. ABSTRACT. At the time of the execution of this Contract, Purchaser
acknowledges that the Broker(s) (defined below) have advised and hereby advise
Purchaser, by this writing, that Purchaser should have the abstract covering the
Property examined by an attorney of Purchaser's own selection or that Purchaser
should be furnished with or obtain a policy of title insurance.
Page 1
6. REVIEW OF TITLE DOCUMENTS.
A. REVIEW PERIOD. Purchaser shall have five (5) days (the "Review Period")
after Purchaser's receipt of the last of (i) the Survey, (ii) the Title
Commitment, (iii) the Title Documents, and (iv) all other documents required to
be furnished by Seller as identified on ADDENDUM A, PERSONAL PROPERTY, and/or on
ADDENDUM C, INSPECTION, to review them. If Purchaser has any objections to the
Survey, Title Commitment or Title Documents, Purchaser may deliver the
objections to Seller in writing within the Review Period. Any item to which
Purchaser does not object shall be deemed a "Permitted Exception." Items that
the Title Company identifies as to be released at closing will be deemed
objections by Purchaser. Purchaser's failure to object within the time provided
shall be a waiver of the right to object. If there are objections by Purchaser,
or a third party lender, Seller shall make a good faith attempt to satisfy the
objections within ten (10) days after receipt of Purchaser's objections (the
"Cure Period"), but Seller is not required to incur any cost to do so. Zoning
ordinances and the lien for current taxes are deemed to be Permitted Exceptions.
B. CURE PERIOD. If Seller cannot satisfy the objections within the Cure
Period, Seller shall deliver a written notice to Purchaser, prior to expiration
of the Cure Period, stating whether Seller is committed to cure the objections
at or before Closing. If Seller does not timely deliver the written notice, or
does not commit in the written notice to fully cure all of the objections at or
before Closing, then Purchaser may terminate this Contract by delivering a
written notice to Seller on or before the earlier to occur of: (i) the date
which is seven (7) days after the expiration of the Cure Period; or (ii) the
scheduled Closing Date. If Purchaser properly and timely terminates this
Contract, the refundable portion of the Xxxxxxx Money shall be immediately
returned to Purchaser and thereafter neither party shall have any rights or
obligations under this Contract (except for those which may expressly survive
the termination of this Contact). If Purchaser does not properly and timely
terminate this Contract, then Purchaser shall be deemed to have waived any
uncured objections and must accept such title as Seller is able to convey as of
Closing.
7. SELLER'S WARRANTIES AND REPRESENTATIONS.
A. STATEMENTS. Seller represents and warrants to Purchaser to the best of
Seller's knowledge as follows:
(1) TITLE. At the Closing, Seller will have the right to, and will,
convey to Purchaser good and indefeasible fee simple title to the Property free
and clear of any and all liens, assessments, unrecorded easements, security
interests and other encumbrances except the Permitted Exceptions. Delivery of
the Title Policy pursuant to Paragraph 12 below will be deemed to satisfy the
obligation of Seller as to the sufficiency of title required under this
Contract. However, delivery of the Title Policy will not release Seller from the
warranties of title set forth in the warranty deed.
(2) LEASES. There are no parties in possession of any portion of the
Property as lessees, tenants at sufferance or trespassers except tenants under
written leases delivered to Purchaser pursuant to this Contract.
(3) NEGATIVE COVENANTS. Seller shall not further encumber the
Property or allow an encumbrance upon the title to the Property, or modify the
terms or conditions of any existing leases, contracts or encumbrances, if any,
without the written consent of Purchaser.
(4) LIENS AND DEBTS. There are no mechanic's liens, Uniform
Commercial Code liens or unrecorded liens against the Property, and Seller
shall not allow any such liens to attach to the Property prior to Closing,
which will not be satisfied out of the Closing proceeds. All obligations of
Seller arising from the ownership and operation of the Property and any
business operated on the Property, including, but not limited to, taxes,
leasing commissions, salaries, contracts, and similar agreements, have been
paid or will be paid prior to Closing. Except for obligations for which
provisions are made in this Contract for prorating at Closing and any
indebtedness taken subject to or assumed, there will be no obligations of
Seller with respect to the Property outstanding as of Closing.
(5) LITIGATION. There is no pending or to the current actual
knowledge of Seller without duty of further inquiry, threatened litigation,
condemnation, or assessment affecting the Property. Seller shall promptly
advise Purchaser of any litigation, condemnation or assessment affecting the
Property which is instituted after the Effective Date.
(8) OPERATION OF THE PROPERTY. After the Effective Date until the
Closing Date, Seller shall (a) operate the Property in the same manner as the
Property has been operated, and (b) maintain the Property in the same condition
and in the same manner as existed on the Effective Date, except for ordinary
wear and tear and any casualty loss.
Page 2
INSERT A
B. SURVIVAL. It is specifically acknowledged and agreed that
representations and warranties made by Seller as set forth in this Contract,
other than the special warranty as to title of the Property, will merge into and
will not survive the inspection or investigation made by or on behalf of
Purchaser and the passage of title from Seller to Purchaser at Closing.
Additionally, all agreements and indemnities of Seller and Purchaser set forth
in this Contract shall, to the extent not consummated at Closing, survive the
Closing of the transaction contemplated by this Contract.
Page 2(a)
9. INSPECTION. [CHECK ONE]
/ / A. INSPECTION DESIRED. Purchaser desires to inspect the Property and
Seller grants to Purchaser the right to inspect the Property as described in
ADDENDUM C, INSPECTION.
/ / B. INSPECTION NOT NECESSARY. Purchaser acknowledges that Purchaser has
inspected the Property, including all buildings and improvements thereon, and is
thoroughly familiar with their condition, and Purchaser hereby accepts the
Property in its present condition, with such changes as may hereafter be caused
by normal wear and tear prior to Closing, but without waiving Purchaser's rights
by virtue of Seller's representations and warranties expressed in this Contract.
10. CASUALTY LOSS. All risk of loss to the Property shall remain upon Seller
prior to the Closing. If, prior to the Closing, the Property is damaged or
destroyed by fire or other casualty, to a Material Extent (defined below),
Purchaser may either terminate this Contract by delivering a written termination
notice to Seller within ten days after the damage occurs, or elect to close. If,
prior to the Closing, the Property is damaged by fire or other casualty to less
than a Material Extent, the parties shall proceed to Closing as provided herein.
If the transaction is to proceed to Closing, despite any damage or destruction,
there shall be no reduction in the Purchase Price and Seller shall, at Seller's
option: (i) fully repair the damage prior to Closing, at Seller's expense; or
(ii) reimburse Purchaser for the entire cost of repairing the Property by
allowing Purchaser to deduct the cost from the cash payable to Seller at the
Closing; or (iii) assign to Purchaser all of Seller's right and interest in any
insurance proceeds resulting from the damage or destruction, plus an amount
equal to any insurance deductible. The term "Material Extent" means damage or
destruction if the cost of repairing and fully restoring the Property to its
previous condition exceeds ten percent (10%) of the Purchase Price. If the
extent of damage or the amount of insurance proceeds to be made available is not
able to be determined prior to the Closing Date, or the repairs are not able to
be completed prior to the Closing Date, either party may postpone the Closing
Date by delivering a written notice to the other party specifying an extended
Closing Date which is not more than thirty (30) days after the previously
scheduled Closing Date.
11. ASSIGNMENT. [CHECK ONLY ONE]
/ / A. ASSIGNMENT PROHIBITED. Purchaser may not assign this Contract without
Seller's prior written consent.
/ / B. ASSIGNMENT PERMITTED. Purchaser may assign this Contract provided the
assignee assumes in writing all obligations and liabilities of Purchaser under
this Contract, in which event Purchaser shall be relieved of any further
liability hereunder.
/X/ C. LIMITED ASSIGNMENT. Purchaser may assign this Contract only to a
related party, defined as (i) an entity in which Purchaser is an owner, partner
or corporate officer, or (ii) a member of the immediate family of the Purchaser.
Purchaser shall remain liable under this Contract after any assignment to a
related party.
12. CLOSING.
A. CLOSING DATE. The closing of the transaction described in this
Contract (the "Closing") shall be held at 10:00 a.m. on the later of [CHECK
ONE]: / / ____ days after the Effective Date; or /x/ 5 days after the expiration
of the Review Period or Inspection Period (whichever is later); or / / on
___________________________ (the "Closing Date") at the offices of the Title
Company at its address stated below. However, if any objections which were
properly and timely made by Purchaser pursuant to this Contract have not been
cured on the scheduled Closing Date, then either party may postpone the date of
the Closing by delivering a written notice to the other party specifying an
extended Closing Date which is not more than thirty (30) days after the
previously scheduled Closing Date.
B. SELLER'S CLOSING DOCUMENTS. At the Closing, Seller shall deliver to
Purchaser at Seller's expense:
(1) A duly executed [CHECK ONE]: / / GENERAL WARRANTY DEED /X/
SPECIAL WARRANTY DEED (with Vendor's Lien retained if not a cash purchase)
conveying the Property in fee simple according to the legal description prepared
by the surveyor as shown on the Survey, subject only to the Permitted
Exceptions;
(2) The Title Policy issued by the underwriter for the Title Company
pursuant to the Title Commitment, subject only to the Permitted Exceptions, in
the full amount of the Purchase Price, dated as of the late of Closing, and (at
an additional premium cost) [CHECK IF APPLICABLE] / / with the survey exception
deleted except as to "shortages in area;"
(3) A Bill of Sale conveying the personal property identified in
Addendum A, PERSONAL PROPERTY, free and clear of liens, security interests and
encumbrances, subject only to the Permitted Exceptions (to the extent
applicable);
(4) Possession of the Property, subject to valid existing leases and
other applicable Permitted Exceptions;
(5) A duly executed assignment of all leases;
(6) A current rent roll certified by Seller to be complete and
accurate;
(7) Evidence of Seller's authority and capacity to close this
transaction;
(8) All other documents reasonably required by the Title Company to
close this transaction.
C. PURCHASER'S CLOSING DOCUMENTS. At the Closing, Purchaser shall deliver
to Seller at Purchaser's expense:
(1) The cash portion of the Purchase Price, with the Xxxxxxx Money
being applied thereto;
(2) The Note and the Deed of Trust, if any;
(3) An Assumption Agreement in recordable form agreeing to pay all
commissions payable under any lease of the Property;
(4) Evidence of Purchaser's authority and capacity to close this
transaction;
(5) All other documents reasonably required by the Title Company to
close this transaction.
D. CLOSING COSTS. Each party shall pay its share of the closing costs
which are customarily paid by a Seller or Purchaser in a transaction of this
character in the county where the Property is located, or as otherwise agreed.
E. PRORATIONS. Rents, lease commissions, interest, insurance premiums,
maintenance expenses, operating expenses, and ad valorem taxes for the year of
Closing shall be prorated at the Closing effective as of the date of Closing.
Any security deposits held by Seller shall be delivered to Purchaser at the
Closing. If the Closing occurs before the tax rate is fixed for the year of
Closing, the apportionment of the taxes shall be upon the basis of the tax rate
for the proceeding year applied to the latest assessed valuation, but any
difference between estimated taxes for the year of Closing the actual taxes paid
by Purchaser shall be adjusted equitably between the parties upon proof of
payment of the taxes by Purchaser. This provision shall survive the Closing.
F. LOAN ASSUMPTION. If Purchaser assumes an existing mortgage loan at
Closing, Purchaser shall pay (1) to the lender, any assumption fee charged by
the lender; and (2) to Seller, a sum equal to the amount of any reserve accounts
held by the lender for the payment of taxes and/or insurance. Purchaser shall
execute, at the option and expense of Seller, a Deed of Trust to Secure
Assumption. If consent to the assumption is required by the lender, Seller shall
obtain the lender's consent in writing and deliver the consent to Purchaser at
Closing. If Seller does not obtain the lender's written consent (if required)
and deliver it to Purchaser at or before Closing, Purchaser may terminate this
Contract by delivering a written termination notice to Seller whereupon the
refundable portion of the Xxxxxxx Money will be promptly refunded to Purchaser
and the parties shall have no further rights or obligations under this Contract
(except for those which may expressly survive the termination of this Contract).
G. ROLLBACK TAXES. If a change in use of the Property or denial of a
special use valuation on Property claimed by Seller results in the assessment
after Closing of additional taxes for periods of Seller's ownership, the
additional taxes plus any penalties and interest shall be paid by Purchaser.
This obligation shall survive the Closing.
H. FOREIGN PERSON NOTIFICATION. If Seller is a Foreign Person, as
defined by the U.S. Internal Revenue Code, or if Seller fails to deliver to
Purchaser a non-foreign affidavit pursuant to Section 1445 of the Internal
Revenue Code, then Purchaser may withhold from the sales proceeds an amount
sufficient to comply with applicable tax law and deliver the withheld
proceeds to the Internal Revenue Service, together with appropriate tax
forms. The required affidavit(s) from Seller(s) shall include (1) a
statement that Seller is not a foreign person, 2) the U.S. taxpayer
identification number(s) of Seller(s), and (3) other information required by
Section 1445 of the Internal Revenue Code.
Page 3
13. DEFAULT.
A. PURCHASER'S REMEDIES. If Seller fails to close this Contract for any
reason except Purchaser's default or the termination of this Contract pursuant
to a right to terminate set forth in this Contract, Seller shall be in default
and Purchaser may elect one of the following, as Purchaser's sole remedy [CHECK
ALL THAT MAY APPLY]:
[X] (1) Enforce specific performance of this Contract; See Insert B on Page
4(a)
[ ] (2) Bring suit for damages against Seller;
[ ] (3) Enforce specific performance of this Contract and/or bring suit for
damages against Seller; or
[ ] (4) Terminate and release Seller from this Contract and receive the
refundable portion of the Xxxxxxx Money immediately. Seller's failure to satisfy
Purchaser's objections under Paragraph 6 above shall not constitute a default by
Seller.
B. SELLER'S REMEDIES. If Purchaser fails to close this Contract for any
reason except Seller's default or the termination of this Contract pursuant to a
right to terminate set forth in this Contract, Purchaser shall be in default and
Seller may elect one of the following, as Seller's sole remedy [CHECK ALL THAT
MAY APPLY]:
[ ] (1) Enforce specific performance of this Contract;
[ ] (2) Bring suit for damages against Purchaser;
[ ] (3) Enforce specific performance of this Contract and/or bring suit for
damages against Purchaser; or
[X] (4) Have the Xxxxxxx Money paid to Seller as liquidated damages for the
Purchaser's breach of this Contract, thereby releasing Purchaser from this
Contract.
15. PROFESSIONAL SERVICE FEE.
16. MISCELLANEOUS PROVISIONS.
A. EFFECTIVE DATE. The term "Effective Date" means the latter of the two
dates on which this Contract is signed by Seller and Purchaser, as indicated by
their signatures below. If the last party to execute this Contract fails to
complete the date of execution below that party's signature, the Effective Date
shall be the date this fully executed Contract is delivered to the Title
Company.
B. NOTICES. All notices and other communications required or permitted
under this Contract must be in writing and shall be deemed delivered, whether
actually received or not, on the earlier of: (i) actual receipt, if delivered in
person or by messenger with evidence of delivery; or (ii) receipt of an
electronic facsimile transmission ("Fax"); or (iii) upon deposit in the United
States Mail as required below. Notices may be transmitted by Fax to the Fax
telephone numbers specified below, if any. Notices delivered by mail must be
deposited in the U.S. Postal Service, first class postage prepaid, and properly
addressed to the intended recipient at the address set forth below. Any party
may change its address for notice purposes by delivering written notice of its
new address to all other parties in the manner set forth above. Copies of all
written notices should also be delivered to the Principal Broker and to the
Title Company, but failure to notify the Principal Broker or the Title Company
will not cause an otherwise properly delivered notice to be ineffective.
Page 4
INSERT B
against Seller unless Seller is in default hereunder as a result of a warranty
or representation of Seller being untrue or inaccurate in any material respect
and Seller had no knowledge that such warranty or representation was untrue or
inaccurate in which case, Purchaser's sole and exclusive remedy shall be to
terminate this Contract by written notice delivered to Seller at or prior to the
Closing whereupon the refundable portion of the Xxxxxxx Money will be promptly
returned by the Title Company to Purchaser and neither party will have any
further rights or obligations under this Contract (except for those which may
expressly survive the termination of this Contract).
Page 4(a)
C. MUTUAL TERMINATION. If this Contract is terminated by agreement of
both parties at any time prior to Closing, the obligations of each party under
this Contract shall terminate, except that (1) Seller and Purchaser shall each
pay one-half of the cost of the Survey (if Survey costs are incurred), (2)
Purchaser shall pay the costs to repair any damage to the Property caused by
Purchaser or its agents, (3) Purchaser shall deliver to Seller any reports or
documents in Purchaser's possession concerning the Property, (4) Seller shall
pay the Fee owed to the Principal Broker, and (5) each party shall perform any
other obligations which expressly survive the termination of this Contract. The
obligations of this paragraph shall survive the termination of this Contract.
D. FORMS. In case of a dispute as to the form of any document required
under this Contract, the most recent form prepared by the State Bar of Texas,
modified as necessary to conform to the requirements of this Contract, shall be
deemed reasonable.
E. ATTORNEYS FEES. The prevailing party in any legal proceeding brought in
relation to this Contract or transaction shall be entitled to recover from the
non-prevailing parties court costs, reasonable attorneys' fees and all other
reasonable litigation expenses.
F. INTEGRATION. This Contract contains the complete agreement between the
parties with respect to the Property and cannot be varied except by written
agreement. The parties agree that there are no oral or signed agreements,
understandings, representations or warranties made by the parties which are not
expressly set forth herein.
G. SURVIVAL. Any warranty, representation, covenant, condition or
obligation contained in this Contract not otherwise consummated at the Closing
will survive the Closing of this transaction.
H. BINDING EFFECT. This Contract shall inure to the benefit of and be
binding upon the parties to this Contract and their respective heirs, legal
representatives, successors and assigns.
I. TIME FOR PERFORMANCE. Time is of the essence under each provision of
this Contract. Strict compliance with the times for performance is required.
J. RIGHT OF ENTRY. Upon reasonable advance notice and during normal
business hours, Purchaser, Purchaser's representatives and the Brokers have the
right to enter upon the Property prior to Closing for purposes of viewing,
inspecting and conducting studies of the Property, so long as they do not
unreasonably interfere with the use of the Property by Seller or any tenants, or
cause undue damage to the Property.
K. BUSINESS DAY. If any date of performance under this Contract falls on
a Saturday, Sunday or Texas legal holiday, such date of performance shall be
deferred to the next day which is not a Saturday, Sunday or Texas legal holiday.
L. GOVERNING LAW. This Contract shall be construed under and governed by
the laws of the State of Texas, and unless otherwise provided herein, all
obligations of the parties created under this Contract are to be performed in
the county where the Property is located.
M. SEVERABILITY. If any provision of this Contract is held to be invalid,
illegal, or unenforceable by a court of competent jurisdiction, the invalid,
illegal or unenforceable provision shall not affect any other provisions, and
this Contract shall be construed as if the invalid, illegal, or unenforceable
provision is severed and deleted from this Contract.
O. COUNTERPARTS. This Contract may be executed in a number of identical
counterparts. Each counterpart is deemed an original and all counterparts shall,
collectively, constitute one agreement.
P. GENDER; NUMBER. Unless the context requires otherwise, all pronouns
used in this Contract shall be construed to include the other genders, whether
used in the masculine, feminine or neuter gender. Words in the singular number
shall be construed to include the plural, and words in the plural shall be
construed to include the singular.
Q. MEDIATION. If any dispute arises relating to this Contract (the
"Dispute"), including but not limited to payment of the Fee, then any party may
give written notice to the other party(s) requiring all involved parties to
attempt to resolve the Dispute by mediation. Except in those circumstances when
a party reasonably believes that an applicable statute of limitations period is
about to expire, or a party requires injunctive or equitable relief, the parties
are obligated to use this mediation procedure prior to initiating arbitration or
any other action. Within seven (7) days after receiving the mediation notice,
each party must deliver a written designation to all other parties stating the
names of one or more individuals with authority to resolve the Dispute on such
party's behalf. Within ten (10) days after the date of designation, the parties
shall make a good faith effort to select a qualified mediator to mediate the
Dispute. If the parties are unable to timely agree upon a mutually acceptable
mediator, the parties shall request any State or Federal district judge to
appoint a mediator. In consultation with the mediator, the parties shall
promptly designate a mutually convenient time and place for the mediation which
is no later than thirty (30) days after selection of the mediator. In the
mediation, each party shall be represented by persons with authority and
discretion to negotiate a resolution of the Dispute, and may be represented by
counsel. The mediation shall be governed by the provisions of Chapter 154 of the
Texas Remedies and Practice Code, and such other rules as the mediator may
prescribe. The fees and expenses of the mediator shall be shared equally by all
parties.
R. ARBITRATION. If the parties are unable to resolve any Dispute by
mediation, then the parties agree to submit the Dispute to binding arbitration
before a single arbitrator. The Dispute shall be decided by arbitration in
accordance with the applicable arbitration statute and the then existing rules
of the American Arbitration Association. Any party may initiate the arbitration
procedure by delivering a written notice of demand for arbitration to the other
parties. Within ten (10) days after the receipt by all parties of the written
notice of demand for arbitration, the parties shall attempt to select a
qualified arbitrator who is acceptable to all parties. If the parties are unable
to agree upon an arbitrator who is acceptable to all parties, then upon
application of any party a court of competent jurisdiction shall appoint an
arbitrator. This agreement to arbitrate shall be specifically enforceable under
the prevailing arbitration law.
S. CONSULT AN ATTORNEY. This document is an enforceable, legally binding
agreement. Read it carefully. The Broker(s) involved in the negotiation of the
transaction described in this Contract cannot give you legal advice. By law, the
Broker(s) are limited to discussing factual and business details of the
transaction. The parties to this Contract acknowledge that they have been
advised by the Broker(s) to have this Contract reviewed by legal counsel before
signing this Contract to discuss the legal effects of its terms and provisions.
Page 5
17. ADDITIONAL PROVISIONS. [ADDITIONAL PROVISIONS AS DIRECTED BY SELLER OR
PURCHASER MAY BE SET FORTH BELOW.]
18. EXHIBITS AND ADDENDA. All Exhibits and Addenda attached to this Contract
are incorporated herein by reference and are made a part of this Contract for
all purposes. [CHECK ALL THAT APPLY.]
/ / Addendum A Personal Property
/X/ Exhibit A Survey and/or Legal Description / / Addendum B Financing
/ / Exhibit B Site Plan / / Addendum C Inspection
/ / Exhibit C ___________________________ / / Addendum D Disclosure Notice
/X/ Addendum E Special Provisions Addendum
19. CONTRACT AS OFFER. The execution of this Contract by the first party to do
so constitutes an offer to purchase or sell the Property. Unless within five
(____) days from the date of execution of this Contract by the first party, this
Contract is accepted by the other party by signing the offer and delivering a
fully executed copy to the first party, the offer of this Contract shall be
deemed automatically withdrawn and terminated, and the Xxxxxxx Money, if any,
shall be promptly returned to Purchaser.
EXECUTED on the dates stated below, to be effective on the Effective Date.
SELLER PURCHASER
Waxahachie Garment Company - Nevada National Fibernet, Inc.
---------------------------- -----------------------------------------
By [SIGNATURE]: Xxx Xxxxxx III By [SIGNATURE]: X.X. Xxxx
--------------------------- --------------------------
Name: Xxx Xxxxxx III Name: D.I. Cole
------------------------------------ -----------------------------------
Title: Chairman/CEO Title: President
----------------------------------- ----------------------------------
Address: 0000 Xxxxxx Xxxxxx Address: P.O. Box 1030
-------------------------------- --------------------------------
Dallas, Texas 75209 DeSoto, Texas 75123
----------------------------------------- -----------------------------------------
----------------------------------------- -----------------------------------------
Telephone: 000-000-0000 Fax:000-000-0000 Telephone: 000-000-0000 Fax: 000-000-0000
------------ ------------- ------------ ------------
Tax I.D. No: 75 0641494 Tax I.D. No:
---------------------------- -----------------------------
Date of Execution: January 28, 1992 Date of Execution:
---------------------- -----------------------
PRINCIPAL BROKER COOPERATING BROKER
None
---------------------------------------- -----------------------------------------
By [SIGNATURE]: By [SIGNATURE]:
-------------------------- --------------------------
Name: Name:
------------------------------------ ------------------------------------
Title: Title:
----------------------------------- -----------------------------------
Address: Address:
--------------------------------- ---------------------------------
----------------------------------------- -----------------------------------------
----------------------------------------- -----------------------------------------
Telephone: Fax: Telephone: Fax:
----------- --------------- ------------- -------------
TITLE COMPANY ACCEPTANCE. The Title Company acknowledges receipt of the Xxxxxxx
Money on____________________ and accepts the Xxxxxxx Money subject to the terms
and conditions set forth in this Contract.
TITLE COMPANY
Trinity Abstract and Title Company
----------------------------------------
By [SIGNATURE:]
--------------------------
Name: Xxxx Xxxxxxx
----------------------------------
Title: Executive Vice President
---------------------------------
Address: 000 Xxxxxx Xxxxxx
-------------------------------
Waxahachie, Texas 75165
----------------------------------------
Telephone: 000-000-0000 Fax:
------------ -----------
EXHIBIT "A"
BEING all that certain lot, tract or parcel of land lying in the City of
Waxahachie, Xxxxx County, Texas and being part of the X.X. XXXXXXXXX SURVEY,
A-6 and being part of a called 10.0 acre tract of land as conveyed by deed
and recorded in Volume 454, Page 487, of the Deed Records of Xxxxx County,
Texas, (DRECT) and including all of a called 0.56 acre tract of land as
conveyed by deed and recorded in Volume 454, Page 488, DRECT, said two tracts
being contiguous and hereinafter considered as one tract of land, and being
more particularly described as follows:
BEGINNING at a 1/2" steel rod set at the intersection of the south line of the
Xxxxxxxxx Survey with the northeast right of way line of I.H. 35-E, said point
also being the southwest corner of the aforesaid 0.56 acre tract and being the
same for this tract, said point also being the northwest corner of a called 8.00
acre tract as conveyed by deed and recorded in Volume 688, Page 1034. DRECT;
THENCE N 34 DEG. 52'00" W, 399.04 feet (Record Reference Bearing, 398.7 feet)
along said northeast line of I.H. 35-E to a 1/2" steel rod set for corner;
THENCE N 01 DEG. 48'28" W, 84.91 feet (Deed - N 02 DEG. 25' W, 84.4 feet) to a
1/2" steel rod set at a fence corner in the south line of F.M. 876;
THENCE N 30 DEG. 08'27" E, 752.06 feet (Deed - N 30 DEG. 01' E, 733.4 feet)
along said south line of F.M. 876 to a 1/2" steel rod found for most
northernmost corner of this tract, said point also being the west corner of a
0.0359 acre tract conveyed to the Waxahachie I.S.D. as recorded in Volume
781, Page 773 DRECT;
THENCE S 59 DEG. 28'53" E, 74.85 feet (Deed - S 59 DEG. 59' E, 74.54 feet) to
a 1/2" steel rod found for corner in the east line of the aforesaid 10.0 acre
tract, said point also being the south corner of the aforesaid 0.0359 acre
tract and also being in the west line of a 14.30 acre tract of land as
conveyed by deed to the W.I.S.D. and recorded in Volume 745, Page 190 DRECT;
THENCE S 30 DEG. 19'27" E, 779.06 feet (S 30 DEG. 35' E, 780.51 feet) along said
east line of the 10.0 acre tract to a 1/2" steel rod found for the southwest
xxxxx of the W.I.S.D. and the north line of the aforesaid 8.0 acre tract;
said point also being the southeast corner of the aforesaid 10.0 acre tract
and being the same for this tract, said point also being in the south line of
said X.X. Xxxxxxxxx Survey;
THENCE S 59 DEG. 46'56" W, 699.74 feet (Deed - S 59 DEG. 30' W, 684.5 feet)
along the south line of the aforesaid 10.0 acre and 0.56 acre tracts and the
south line of the Xxxxxxxxx Survey to the POINT OF BEGINNING.
ADDENDUM E
SPECIAL PROVISIONS ADDENDUM
PROPERTY: Manufacturing facility and land located in Waxahachie, Texas
SELLER: Waxahachie Garment Company - Nevada
PURCHASER: National Fibernet, Inc.
This Special Provisions Addendum (herein so called) is attached to and made
a part of that one certain Contract of Sale (the "Contract"), by and between
Waxahachie Garment Company - Nevada, as "Seller", and National Fibernet, Inc. as
"Purchaser." In the event a conflict arises between the provisions of this
Special Provisions Addendum and any other part of this Contract, this Special
Provisions Addendum shall modify and supersede such other part of this Contract
to the extent necessary to eliminate any such conflict but no further. All terms
which are defined in the Contract shall have the same meaning when used herein,
unless otherwise defined herein.
A. PROPERTY DESCRIPTION. The property described on EXHIBIT "A" attached
hereto is an approximate description of the Property to be conveyed hereunder
and is attached for reasonable identification of the Property. The exact
description to be used for purposes of this Contract and the conveyance
documents shall be the metes and bounds description set forth on the Survey,
which description shall become a part of this Contract as the description of the
Property and shall be incorporated herein by reference for all purposes.
B. INSPECTION. Any tests, studies and inspections desired by Purchaser
are to be conducted in a manner as not to physically damage the Property.
Purchaser and its agents and representatives shall: (a) promptly pay when due
the costs of all tests, investigations and examinations done with regard to the
Property in connection with Purchaser's inspection; (b) not permit any liens to
attach to the Property by reason of the exercise of Purchaser's rights
hereunder; (c) restore the surface of the Property and any improvements thereon
to the condition in which the same were found before any such inspections or
tests were undertaken; and (d) not reveal or disclose any information obtained
during Purchaser's inspections concerning the Property to anyone outside
Purchaser's organization. Purchaser hereby indemnifies and holds Seller
harmless from and against any and all liens, claims, causes of action, and
expenses (including reasonable attorneys' fees) arising out of any violation of
the provisions of this Paragraph B of Addendum E. Notwithstanding any provision
of this Contract, no termination of this Contract shall terminate Purchaser's
obligations pursuant to this paragraph, and the limitation of damages as set
forth in Paragraph 13.B. of this Contract shall not be applicable to any cause
of action arising pursuant to this Paragraph B of Addendum E.
C. DISCLOSURE. Seller has informed Purchaser and Purchaser is aware that
the Property has been vacant for approximately 10 years.
D. AS-IS. Notwithstanding anything contained in this Contract to the
contrary except for the representations and warranties set forth herein,
Purchaser has examined and investigated or may examine or investigate the
Property, and Purchaser will rely solely on its own investigation of the
Property and not on any information provided or to be provided by or on behalf
of Seller except for the representations and warranties set forth herein.
Except as expressly set forth herein, it is understood and agreed that Seller is
making no representations or warranties, whether express or implied, by
operation of law or otherwise with respect to (i) environmental matters of any
nature or kind whatsoever relating to the Property or any portion thereof,
including, without limitation, compliance with any environmental protection,
underground storage tank, pollution or land use laws, rules, regulations,
orders or requirements and the existence in or on the Property of any hazardous
or toxic materials; (ii) geological conditions, including, without limitation,
subsidence, subsurface conditions, water table, underground water reservoirs,
and limitations regarding withdrawal of water therefrom; (iii) whether or not
and to the extent to which the Property or any portion thereof is affected by
any stream (surface or underground), body of water, floodprone area, flood
plain, floodway or special flood hazard; (iv) drainage; (v) soil conditions;
(vi) zoning to which the Property or any portion thereof may be subject; (vii)
availability of any utilities to the Property or any portion thereof, including
without limitation, water, sewage, gas and electric; (viii) usage of any
adjoining property; (ix) access to the Property or any portion thereof; (x) the
compliance or non-compliance of any of the Property with any applicable federal,
state or local building codes, ordinances, laws, statutes, rules or regulations;
(xi) the value, compliance with plans or specifications, location, use,
merchantability, construction, workmanlike condition, order, repair,
maintenance, design, quality, description, durability, operation or condition of
the Property or any portion thereof; (xii) the quality of the labor and
materials included in the Improvements; (xiii) the suitability of the Property
or any portion thereof for Purchaser's purposes or fitness for any usage or
purpose whatsoever; or (xiv) any other matter relating to the Property. Except
as expressly provided herein, Purchaser hereby agrees that Purchaser is
accepting the Property "AS IS, WHERE
Page 1
IS, WITH ALL FAULTS AND WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER,
EXPRESS OR IMPLIED", subject to all deficiencies or other matters whether known
or unknown; however, none of the foregoing shall impair or further restrict the
special warranty of title by which the Property is to be conveyed pursuant to
this Contract or the representations and warranties set forth herein.
SELLER:
WAXAHACHIE GARMENT COMPANY - NEVADA
By: Xxx Xxxxxx XXX
-------------------------------
Name (Print): Xxx Xxxxxx III
----------------------
Title: Chairman/CEO
------------------------------
PURCHASER:
NATIONAL FIBERNET, INC.
By: X.X. Xxxx
------------------------------
X.X. Xxxx, President
Page 2
