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CONTRACT FOR PURCHASE AND SALE
THIS CONTRACT FOR PURCHASE AND SALE (the "Contract") is made and
entered into by and between SOLO SERVE CORPORATION, a Delaware corporation (the
"Seller") and GOLDSTAR INVESTMENTS, LTD., a Texas limited partnership (the
"Purchaser").
ARTICLE 1
Sale and Purchase
Section 1.1 The Project. Subject to the terms and provisions hereof,
the Seller agrees to sell to the Purchaser, and the Purchaser agrees to purchase
from the Seller:
(a) Those three (3) certain tracts of real property more
particularly described on Exhibit "A" attached hereto and made a part
hereof as Tract 1, containing approximately 4.29 acres ("San Xxxxx
Tract"); Tract 2 containing approximately .783 acres ("River Tract");
and Tract 3, containing approximately 4.153 acres ("S.W. Military
Tract"), (collectively, the "Land") together with (i) all and singular
the rights, easements and appurtenances pertaining thereto, (ii) all
right, title and interest of the Seller in and to any and all roads,
easements, alleys, streets and rights-of-way bounding the Land,
together with all rights of ingress and egress unto the Land, (iii)
strips or gores, if any, between the Land and abutting properties, and
(iv) any and all oil, gas and minerals lying under, in, on or about or
constituting a part of the Land, and regardless of whether or not the
minerals are considered part of the surface estate or part of the
mineral estate;
(b) That certain retail building containing approximately
56,902 gross square feet situated on the San Xxxxx Tract, that certain
retail building containing approximately 55,701 gross square feet
situated on the River Tract, and that certain retail building
containing approximately 37,500 gross square feet situated on the S.W.
Military Tract, together with all accessions and additions thereto and
including, but not by way of limitation, all other buildings,
structures, fixtures, paving, and other improvements of every kind and
nature presently situated on, in or under or hereafter erected,
installed or used in, on or about the Land (the "Improvements");
(c) All of the fixtures, fittings, apparatus, equipment,
machinery, and other items of tangible and intangible personal property
and replacements thereto, if any, whether affixed or attached or
located within or used in connection with the ownership, operation,
maintenance or management of the Improvements (collectively, "Fixtures
and Operational Equipment"), including, but not limited to, all
mechanical systems, security systems, sprinkler and fire control
systems and HVAC apparatus and equipment, utilities, rights and
permits, water rights, development rights, utility or drainage
capacity, roadway trip capacity, plats, plans and specifications,
expressly excluding, however, Seller's trade fixtures, furniture,
equipment, machinery, point of sales systems, computers, telephone
system, fax machines, inventory, and other tangible and intangible
personal property used by Seller in connection with the operation of
the business in the Improvements.
The Land, Improvements, and Fixtures and Operational Equipment are sometimes
hereinafter referred to collectively as the "Project").
Section 1.2 Effective Date. The "Effective Date" of this Contract shall
be the date the Title Company acknowledges its receipt of a fully executed
version of this Contract and its agreement to be bound by the provisions hereof.
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ARTICLE 2
Purchase Price
Section 2.1 Amount. The Purchase Price (herein so called) for the
Project is and shall be the sum of SIX MILLION FIVE HUNDRED THOUSAND AND NO/100
DOLLARS ($6,500,000.00) which shall be due and payable by Purchaser to Seller in
cash at the Closing (hereinafter defined).
Section 2.2 Independent Contract Consideration. Contemporaneously with
the execution of this Contract, Purchaser hereby delivers to Seller and Seller
hereby acknowledges the receipt of, a check in the amount of Fifty and No/100
Dollars ($50.00) ("Independent Contract Consideration"), which amount the
parties bargained for and agreed to as consideration for the Seller's grant to
Purchaser of Purchaser's exclusive right to purchase the Project pursuant to the
terms hereof and for Seller's execution, delivery and performance of this
Contract. This Independent Contract Consideration is in addition to and
independent of any other consideration or payment provided in this Contract, is
nonrefundable under any circumstances, and shall be retained by Seller
notwithstanding any other provisions of this Contract.
ARTICLE 3
Xxxxxxx Money
Section 3.1 Deposit. Within two (2) business days after the final
execution of this Contract by all parties hereto, the Purchaser shall deliver
its check in the amount of THIRTY THOUSAND AND NO/100 DOLLARS ($30,000.00) (the
"Xxxxxxx Money") to Alamo Title Insurance Company at 000 X. Xxxxx Xxxx, Xxx
Xxxxxxx, Xxxxx 00000; Attn: Xxxxx XxXxxxxxxx (the "Title Company"). In the event
this Contract is not closed, then the Title Company shall disburse the Xxxxxxx
Money in the manner provided for elsewhere herein. The Title Company shall
invest the Xxxxxxx Money in an interest bearing account. All interest or other
earnings on the Xxxxxxx Money shall become a part thereof.
Section 3.2 Release of Xxxxxxx Money. It is expressly agreed by Seller
and Purchaser that, in the event the Title Company should receive written notice
from Purchaser or Purchaser's agent prior to the expiration of the Inspection
Period (hereinafter defined) stating that Purchaser elects to terminate this
Contract, then, and in such event, Title Company shall be authorized, and is
hereby instructed, to release the Xxxxxxx Money to Purchaser without further
inquiry whatsoever. Each of Seller and Purchaser hereby indemnify and hold
harmless Title Company for any loss, damage, claim, cause of action or injury
Title Company may suffer or incur in releasing the Xxxxxxx Money pursuant to
this Section 3.2.
Section 3.3 Title Company Bound. The Title Company must sign this
Contract as evidence that the Title Company agrees to be bound by the
obligations contained herein with respect to the Xxxxxxx Money.
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ARTICLE 4
Survey and Title Matters
Section 4.1 Survey. Within fifteen (15) days from the Effective Date,
at the Seller's sole cost and expense, the Seller shall cause an "as-built"
survey (herein the "Survey") to be made of the Project, dated or updated to a
date subsequent to the date hereof, by a licensed surveyor or Registered
Professional Engineer acceptable to Purchaser and the Title Company in each of
their reasonable discretions and shall furnish the Purchaser and Purchaser's
counsel with two (2) copies each of the field notes and survey plat prepared by
such surveyor or engineer. A copy of such field notes and survey plat shall also
be furnished to the Title Company by the Seller. The Survey shall be sufficient
to permit the Title Company to modify the standard printed exception in the
Owner's Policy of Title Insurance pertaining to discrepancies, conflicts,
shortages in area or boundary lines, encroachments, overlapping of improvements
or similar matters (herein called the "Survey Exception"). The Survey shall
contain a surveyor's certification in the form attached hereto as Exhibit "B"
and made a part hereof for all purposes. Without limiting the foregoing, the
survey plats furnished to the Purchaser shall indicate the following:
(a) That the corners of the Land have been properly monumented
and the point of beginning designated;
(b) The perimeter boundaries of the Land;
(c) The location of all improvements located, encroaching or
protruding on the Land, including, without limitation, the
Improvements;
(d) The location of all easements within or traversing the
Land, if any, together with identification thereof by recording
information;
(e) The location of all roadways, traversing, adjoining or
bounding the Land and the owners of all tracts bounding the Land;
(f) That portion of the Land and Improvements, if any,
situated within a flood hazardous or flood prone area as designated by
applicable governing authority; and
(g) The tax parcel identification numbers assigned to the
Land.
Section 4.2 UCC Searches. Within fifteen (15) days from the Effective
Date, the Purchaser, at the Purchaser's sole cost and expense, may elect to
obtain an original UCC search (both county and state) (collectively, the "UCC
Searches") in the name of Seller and copies of all financing statements
indicated by such UCC Searches to the extent relevant to the Project.
Section 4.3 Title Commitment-Review. Within fifteen (15) days from the
Effective Date, the Seller, at the Seller's sole cost and expense, shall furnish
to the Purchaser and Purchaser's counsel a current commitment (hereinafter
called the "Title Commitment") for the issuance of an Owner's Policy of Title
Insurance to the Purchaser from the Title Company, together with good legible
copies of all documents constituting exceptions to Seller's title as reflected
in the Title Commitment. Purchaser shall have a period of fifteen (15) days from
receipt of the last of the UCC Searches, Survey, Title Commitment and the
documents referred to therein as conditions or exceptions to title to the
Project in which to review such items and to deliver to Seller in writing such
objections as Purchaser may have to anything contained or set forth in the UCC
Searches, Title Commitment or Survey. Any items to which Purchaser does not
object within the fifteen (15) day review period shall be deemed to be
"Permitted Exceptions" (herein so called), provided, Purchaser shall not be
required to object to consensual liens against the Project securing indebtedness
of Seller and any such liens shall not be Permitted Exceptions. As to items to
which
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Purchaser makes objection, Seller shall use its reasonable good faith efforts to
effectuate the cure of such objections, provided Seller shall not be required to
incur costs other than (i) its administrative time and expense in effectuating
any such cure, (ii) relatively minor expenses payable to utility companies or
governmental entities pursuant to standard fee schedules for common curative
measures (e.g., easement abandonment, etc.), and (iii) amounts due and owing to
satisfy consensual financial liens or security interests existing against all or
any portion of the Project that secures indebtedness of Seller. In the event
Seller is not able to cure such matters prior to Closing, Purchaser shall have
the right to either (1) terminate this Contract and receive a full refund of the
Xxxxxxx Money or (2) waive such title matters and proceed to Closing, whereupon
such waived title matters shall also be deemed "Permitted Exceptions;" provided,
however, in the event that Purchaser fails to terminate this Contract by written
notice to Seller within the Inspection Period, Purchaser shall be deemed to have
waived its objections to such title matters.
Section 4.4 Title Policy. At Closing, the Seller shall furnish the
Purchaser, at the Seller's sole cost and expense, with an Owner's Policy of
Title Insurance issued by the Title Company on the standard form in use in the
State of Texas, on the policy of Chicago Title Insurance Company insuring good
and indefeasible title to the Project in the Purchaser, subject only to the
Permitted Exceptions and the standard printed exceptions, except:
(a) The exception relating to restrictions against the Project
shall be deleted unless restrictive covenants are included in the
Permitted Exceptions;
(b) The exception relating to discrepancies, conflicts or
shortages in area or boundary lines, or any encroachments or
protrusions or any overlapping of improvements shall be modified to
delete such exception, except as to "shortages in area", at the
election and cost of Purchaser;
(c) The exception relating to ad valorem taxes shall except
only to standby fees and taxes for the current and subsequent years and
subsequent assessments for prior years due to change in land usage or
ownership;
(d) There shall be no exception for "easements or rights which
a survey might show" or "lack of a right of access to and from the
land" or similar matters; and
(e) There shall be no exception for "rights of parties in
possession" but rather only an exception for "rights of tenants, as
tenants only, under written but unrecorded leases".
ARTICLE 5
Additional Items to be Furnished
to Purchaser by Seller
Section 5.1 Submission Items. Within twenty (20) days after the
Effective Date, Seller shall furnish to Purchaser or Purchaser shall obtain the
following:
(a) Copies of the tax statements on the Land and the
Improvements for the three (3) calendar years preceding the Effective
Date.
(b) A list of personal property, if any, to be conveyed to
Purchaser at Closing.
(c) The Certificate(s) of Occupancy for the Improvements and
any amendments thereto, and a zoning verification letter issued to
Purchaser from the City of San Antonio.
(d) An XXXXX certificate of insurance summarizing the policies
covering or affecting the Project, both casualty and liability.
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(e) A phase I environmental report (the "Environmental
Report") certified to Purchaser evidencing the lack of any Hazardous
Substances (hereinafter defined) on the Project. As used herein,
"Hazardous Substances" shall mean and include, but shall not be limited
to, all substances and materials which are included under or regulated
by any local, state or federal law, rule or regulation, pertaining to
environmental regulation , contamination, clean-up or disclosure
("Applicable Environmental Laws"), including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of
1980 (42 U.S.C. ss. 9601 et seq.), the Resource, Conservation and
Recovery Act (42 U.S.C. ss. 6901 et seq.), Superfund Amendments and
Reauthorization Act of 1986 (Pub. L. 00-000 000 Stat. 1613), the Toxic
Substances Control Act (15 U.S.C. ss. 2601 et seq.), the Emergency
Planning and Community Right to Know Act of 1986 (42 U.S.C. ss. 1101 et
seq.) and all amendments of the foregoing, or any state superlien or
environmental clean-up or disclosure statutes. Without limiting the
foregoing, the term Hazardous Substances shall include asbestos,
asbestos containing materials, polychlorinated biphenyls, petroleum
products and raw materials which include hazardous constituents.
(f) A report (the "Pest Report") from a licensed pest control
operator, dated after the date hereof, stating that such operator has
inspected the Project and that it is free and clear of visible evidence
of termites, dry rot, other wood destroying insects, and rodents. If
the Pest Report discloses infestation, Seller agrees to pay all costs
of eliminating such infestation and repairing any damage; provided,
however, that such costs to be paid by Seller shall not include the
costs of work to prevent future infestation.
(g) An accurate, complete true and correct schedule (herein
"Operating Schedule") reflecting, with respect to the Project for the
prior two years: (i) ad valorem taxes payable for the Project; (ii)
annual insurance premiums for such years for fire, extended coverage,
general liability, and other forms of insurance carried by Seller;
(iii) expenses incurred for such period for water, electricity, natural
gas and other utility charges; (iv) other operating expenses; (v)
expenses incurred for maintenance and repair items and a listing of any
capital improvements made to the Project for such period.
(h) To the extent available to and in the possession of
Seller, a copy of the final sets of plans and specifications for the
Project.
The items described in this Section 5.1 are hereinafter collectively referred to
as the "Submission Items". The Submission Items shall be obtained by Seller at
Seller's sole cost and expense with the exception of the Environmental Report
and Pest Report, which shall be obtained by Purchaser, with the final cost of
said reports being shared equally between Seller and Purchaser. In the event
this Contract is not closed for any reason other than a default by Purchaser,
Seller shall reimburse Purchaser for Purchaser's portion of the cost of the
Environmental Report and Pest Report, and Purchaser shall deliver to Seller such
materials.
Section 5.2 Condition to Closing.
(a) Purchaser's obligation to close the transaction
contemplated by this Contract is further expressly conditioned upon the
certifications called for in Section 5.1 being true and correct when
made.
(b) Seller's Conditions Precedent to Closing: Seller's
obligation to sell the Project to Purchaser is subject to the following
conditions precedent ("Seller's Conditions Precedent"), which shall be
satisfied or waived by written notice to Purchaser within twenty (20)
days from the effective date of this Contract or as otherwise stated
(if written notice is not given, Seller will be deemed to have
satisfied the condition precedent):
(i) Seller obtaining the consent of Sanwa Business Credit
Corporation ("SANWA"), and/or any other lender providing
working capital financing to Seller, to this transaction;
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(ii) Seller obtaining the consent of Texas Commerce
Bank National Association to the prepayment of the
indebtedness owed to it which is secured by the Project;
(iii) Seller obtaining the consent of Met Life
Capital Corporation, who holds the lien on certain of the
furniture, fixtures and equipment located in the Improvements,
to this transaction; and
(iv) Seller obtaining the approval of its Board of
Directors to this transaction and this Contract.
(c) Failure of Seller's Conditions Precedent. If any of the
Seller's Conditions Precedent have not been fulfilled within the
applicable time period, Seller may, as its sole and exclusive remedy:
(i) Waive the condition or disapproval by written
notice and proceed in accordance with this Contract; or
(ii) Terminate this Contract by written notice to
Purchaser and Title Company, and in such event, Purchaser
shall be entitled to the return of the Xxxxxxx Money and all
accrued interest thereon.
ARTICLE 6
Lease by Seller
At Closing, Seller shall lease the Project from Purchaser for purposes
of continuing a retail operation in the improvements on each of the three tracts
under the name "Solo Serve". During the Inspection Period, the parties shall in
good faith endeavor to agree upon the form of Lease Agreement (herein so called)
for the Project which will, among other provisions, provide for a ten (10) year
lease term with an increase in the base rental rate at the expiration of the
fifth (5th) year of the term. The Lease Agreement shall also provide that
repairs, replacements and maintenance, whether to the interior or the structure
of the improvements and whether ordinary or capital in nature shall be the sole
responsibility of Seller during the term of the Lease Agreement. The base rent
payable under the Lease shall be calculated based on a twelve percent (12%)
capitalization rate applied to the Purchase Price. In the event a Lease
Agreement acceptable to Seller and Purchaser has not been agreed upon prior to
the expiration of the Inspection Period, either Seller or Purchaser may
terminate this Contract based on such failure to agree at or prior to the
expiration of the Inspection Period. Upon such termination, all Xxxxxxx Money
shall be immediately returned to Purchaser.
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ARTICLE 7
Inspection and Audit
Section 7.1 Scope of Inspection. The Seller agrees that prior to
Closing, the Purchaser, personally or through independent contractors or his
authorized agents or representatives, shall be entitled to enter upon the
Project at all reasonable times and to conduct such inspections and audits
thereon as Purchaser may desire, so long as such activities do not unreasonably
interfere with the tenants in possession. Without limiting the foregoing,
Purchaser shall be allowed access to the entire Project, including, at
Purchaser's option, an opportunity to inspect any and all space currently
subject to a tenant lease, subject, however, to Seller's reasonable notice and
timing constraints so as to minimize the interference with tenants. Furthermore,
as a part of Purchaser's inspections, Purchaser shall be entitled to cause such
engineering and environmental inspections or studies to be conducted at the
Project as Purchaser may desire, including, without limitation, inspections or
studies which may require the drilling of holes in the parking lot or
non-structural components of the Improvements, the removal of small soil, carpet
or similar samples, and the conducting of air tests as Purchaser may require.
The Seller agrees to also make available to the Purchaser personally, or to his
duly authorized agents or representatives, all applicable books and records
relating to the Project and the operation and maintenance thereof. Such books
and records may be examined by Purchaser after reasonable notice to Seller at
reasonable times.
Section 7.2 Indemnity. Purchaser hereby indemnifies and holds Seller
harmless from and against any loss, damage, injury, claim or cause of action
Seller may suffer or incur as a result of Purchaser or Purchaser's contractors,
employees or agents causing any personal injuries or property damage in
connection with any of their presence on the Project or permitting or suffering
to exist any mechanic's or materialmen's liens against the Project, or any
portion thereof, by any party claiming to be performing or to have performed an
inspection or audit of, or other work on, the Project on Purchaser's behalf
during the pendency of this Contract.
Section 7.3 Inspection Period. The Purchaser shall have thirty (30)
days from the date of receipt by Purchaser of the last of the Title Commitment,
Survey and Submission Items (the "Inspection Period") within which to review all
of the Submission Items and to make any physical inspections and to conduct any
audits of the Project as may be desired by the Purchaser. IF, WITHIN THE
INSPECTION PERIOD, THE PURCHASER DETERMINES THAT PURCHASER DOES NOT DESIRE TO
CLOSE THIS CONTRACT, PURCHASER SHALL GIVE WRITTEN NOTICE OF SUCH FACT TO THE
SELLER. IN THAT EVENT, THE XXXXXXX MONEY SHALL BE IMMEDIATELY PAID OVER TO
SELLER BY THE TITLE COMPANY AND THIS CONTRACT SHALL IMMEDIATELY TERMINATE
WITHOUT FURTHER LIABILITY ON THE PART OF THE PURCHASER OR THE SELLER, EXCEPT FOR
ANY LIABILITY EVIDENCED BY THE INDEMNITIES DESCRIBED IN SECTION 7.2 OR SECTION
11.2 HEREOF.
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ARTICLE 8
Casualty or Condemnation Prior to Closing
Section 8.1 Casualty. In the event the Improvements or any of the
items constituting the Personal Property should be damaged by any casualty prior
to Closing, then Purchaser shall have the option to terminate this Contract
whereupon Purchaser shall immediately be provided a full refund of the Xxxxxxx
Money and neither party hereto shall owe any further obligations one to the
other hereunder, excepting only the indemnity provisions in Section 7.2 and
Section 11.2 hereof. If the Purchaser does not exercise its option to so
terminate this Contract, then the Closing shall occur as scheduled, and the
Seller shall pay to the Purchaser, at Closing, all insurance proceeds payable
for such damage, together with the amount of any deductible required by Seller's
insurance policy, and shall further assign to Purchaser any and all right of
Seller to insurance proceeds or awards not yet received from such insurance
carriers as a result of such casualty; provided, however, that in no event shall
Seller pay to Purchaser any amount or assign to Purchaser any rights to
insurance proceeds not yet received, that in the aggregate exceed the Purchase
Price. In such event, Seller shall fully cooperate with Purchaser in Purchaser's
efforts to obtain such insurance proceeds after Closing.
Section 8.2 Condemnation. In the event proceedings or actions are
commenced during the term of this Contract for the taking or condemnation of all
of the Project, or any portion of the Project which, in Purchaser's reasonable
opinion, is material to the use of the remainder, Purchaser shall have the
option to terminate this Contract upon written notice to Seller prior to
Closing, in which event the Xxxxxxx Money shall be promptly refunded by the
Title Company to Purchaser, and neither Purchaser nor Seller shall have any
further rights or obligations hereunder except with respect to the indemnities
provided in Section 7.2. and Section 11.2. If Purchaser does not exercise its
option to so terminate this Contract, then the Contract shall remain in full
force and effect and Seller shall pay to Purchaser at Closing all condemnation
proceeds then received by Seller and shall further assign to Purchaser all of
Seller's interest in and to any and all condemnation awards or proceeds from any
such proceedings or actions not yet received. In such event, Seller shall fully
cooperate with Purchaser in Purchaser's efforts to obtain such condemnation
proceeds after Closing.
ARTICLE 9
Covenants, Representations and Warranties of Seller
Section 9.1 Representations and Warranties. The Seller represents and
warrants to the Purchaser that:
(a) Seller is a corporation duly organized and in good
standing under the laws of the State of Delaware. The execution and
delivery of this Contract by the signatories hereto on behalf of Seller
and the performance of this Contract by Seller have been duly
authorized by Seller, and this Contract is binding on Seller and
enforceable against Seller in accordance with its terms.
(b) The Seller has good and indefeasible title to the Project,
subject only to matters of record in the real property records of the
county where the Land is located and those three certain sublease
agreements with a jewelry retailer occupying specific space within each
of the buildings comprising the Improvements ("Jewelry Leases").
(c) There are no parties in possession of any portion of the
Project except for Seller or Seller's agents or employees and the
tenants under the Jewelry Leases. There are no adverse parties in
possession of any portion of the Project whatsoever.
(d) There is no suit, action, legal or other proceeding
pending, or to Seller's best knowledge, threatened, which affect the
Project.
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(e) To the best of Seller's knowledge, without any duty of
investigation or inquiry, but specifically excluding the roof on the
S.W. Military Tract Improvements which requires replacement, the
Improvements and all other properties and interests constituting a part
of the Project (including, without limitation, all heating and air
conditioning equipment) are in good working order and there are no
material defects in such Improvements and interests except
inconsequential items calling for repair due to normal wear and tear.
(f) As of the Effective Date, to the best of Seller's
knowledge, without any duty of investigation or inquiry, there are no
mechanic's or materialman's liens against the Project.
(g) Except in accordance with applicable laws, Seller has
never, nor to Seller's best knowledge, without any duty of
investigation or inquiry, has any previous owner of the Project or any
other party ever generated, stored or disposed of any Hazardous
Substances on the Project or from the Project to any other location. To
the best of Seller's knowledge, the Improvements do not contain any
asbestos or asbestos containing materials and there are no underground
storage tanks at the Project.
(h) Seller has received no written notice from any municipal,
state, federal or other governmental authority of zoning, building,
fire, water, use, health, environmental or other statute, ordinance,
code or regulatory violations issued in respect of the Project which
have not been heretofore corrected.
Section 9.2 Covenants. In addition to Seller's other agreements and
undertakings hereunder, Seller hereby covenants and agrees with the Purchaser
that, at its sole cost and expense: Seller will cause the Improvements and
Personal Property to be maintained in a good condition of repair, except for
normal wear and tear, and will not remove any items of Personal Property from
the Project, except such items as are worn out or obsolete and immediately
replaced with new versions of such items to the extent the same are necessary or
desirable for the operation of the Project in the manner presently operated.
Section 9.3 Closing Condition. The obligation of the Purchaser to
close this transaction is expressly conditioned upon the representations and
warranties contained in Section 9.1 hereof being true and correct on the date of
Closing and the covenants contained in Section 9.2 hereof being fully satisfied
on the date of Closing. At Closing, Seller shall provide to Purchaser a Seller
Closing Certificate (herein so called) which shall certify to Purchaser as of
the date of Closing that the covenants contained in Section 9.2 have been fully
satisfied and that the representations and warranties contained in Section 9.1
continue to be true and correct as of the date of Closing. Each of the
representations and the warranties shall survive the Closing and continue in
full force and effect for a period of one year from the Closing Date. Except for
the specific representations and warranties set forth in this Contract, Seller
makes no representations or warranties, express or implied, other than
warranties of title and Purchaser is acquiring the Project on an AS IS basis.
Purchaser further acknowledges and agrees that having been given the opportunity
to inspect the Project, except for the representations and warranties set forth
in Section 9.1 above and the Submission Items described in Section 5.1(h),
Purchaser further expressly acknowledges and agrees that the same were prepared
by independent third parties and Seller makes no representation or warranty with
respect to the sufficiency or accuracy thereof. It is understood and agreed that
the Purchase Price has been adjusted by prior negotiation to reflect that all of
the Project is sold by Seller and purchased by Purchaser subject to the
foregoing. At the Closing, the Deed shall include the provisions of this Section
9.3.
ARTICLE 10
Closing
Section 10.1 Time and Place. The exchange of documents and funds (the
"Closing") hereinafter described shall take place at the offices of Alamo Title
Insurance Company. The Closing shall occur at 10:00 a.m.
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on the fifteenth (15th) day following the expiration of the Inspection Period
(the "Closing Date"), or on such earlier date as may be mutually agreed upon by
Seller and Purchaser in writing. Purchaser may elect by notifying Seller, to
extend the Closing Date for thirty (30) days, whereupon Purchaser shall deliver
to the Title Company on or before the original Closing Date, the sum of Fifty
Thousand and No/100 Dollars ($50,000.00) which shall constitute additional
Xxxxxxx Money under the terms of this Contract and shall apply to the Purchase
Price.
Section 10.2 Seller Delivery. At the Closing, Seller shall deliver or
cause to be delivered to Purchaser, at Seller's sole cost and expense, each of
the following items:
(a) A special warranty deed duly executed and acknowledged by
Seller, and in form for recording, conveying good and indefeasible fee
simple title in the Land and Improvements to Purchaser, subject only to
the Permitted Exceptions.
(b) A Blanket Conveyance, Xxxx of Sale and Assignment
("Blanket Conveyance") duly executed and acknowledged by Seller,
conveying to Purchaser the Personal Property with covenants of special
warranty, subject only to the Permitted Exceptions, and assigning to
Purchaser all of Seller's rights, title and interest in the
Miscellaneous Contracts. The Blanket Conveyance shall contain, as
exhibits, recertified and updated lists of Miscellaneous Contracts and
inventories of the Personal Property.
(c) An executed Lease Agreement.
(d) The Seller Closing Certificate.
(e) An affidavit in a form acceptable to Purchaser from Seller
and any other parties reasonably requested by Purchaser or required
pursuant to Section 1445 of the Code and/or Regulations relating
thereto stating, under the penalty of perjury (a) that neither Seller
nor any other party so swearing is a foreign person, (b) the Seller's
(and other persons so swearing) name, U. S. taxpayer identification
number and address (home address for individuals, office address for
entities), and (c) such other information as may be required by Section
1445 of the Code or the Regulations thereunder. An executed counterpart
of this affidavit may be furnished to the Internal Revenue Service at
or following Closing.
(f) The Owner Policy in the form specified in Section 4.4
hereof.
(g) An affidavit(s) as to debts, liens and parties in
possession in a form acceptable to the Title Company, addressed to each
of Purchaser and the Title Company, and executed by Seller.
(h) Such evidence or documents as may be reasonably required
by the Purchaser or the Title Company evidencing the status and
capacity of Seller and the authority of the person or persons who are
executing the various documents on behalf of the Seller in connection
with the sale of the Project.
(i) Any other additional documents and instruments as in the
mutual opinion of Purchaser's counsel and Seller's counsel are
reasonably necessary to the proper consummation of this transaction.
Section 10.3 Purchaser Delivery. At the Closing, Purchaser shall
deliver to Seller the following items:
(a) The Purchase Price in the amount specified in Section 2.1
hereof.
(b) An executed Lease Agreement.
(c) Such evidence or documents as may reasonably be required
by the Seller or the Title Company evidencing the capacity of Purchaser
to close the transaction and the authority of the person or
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persons who are executing the various documents on behalf of the
Purchaser in connection with the sale of the Project.
(d) Any other additional documents or instruments as in the
mutual opinion of Purchaser's counsel and Seller's counsel are
reasonably necessary to the proper consummation of this transaction.
Section 10.4 Adjustments and Prorations. At Closing, all adjustments
and prorations between Seller and Purchaser shall be made in accordance with the
Lease Agreement.
Section 10.5 Foreign Person. If Seller is a foreign person within the
meaning of Section 1445 of the Code or the Regulations promulgated thereunder,
Purchaser must and shall at Closing withhold from the Purchase Price to be paid
as set forth hereinabove a sum equal to ten percent (10%) of the total amount
which otherwise would have been realized from this transaction, which sum will
be paid by Purchaser to the Internal Revenue Service pursuant to the
requirements of Section 1445 of the Code and the regulations promulgated
thereunder.
Section 10.6 Possession. Possession of the Project shall be delivered
to Purchaser by Seller at the Closing, subject only to the Permitted Exceptions,
rights of tenants in possession under written lease agreements and such rights
of others as have been expressly disclosed herein.
Section 10.7 Reporting Person. Each of Seller and Purchaser hereby
designate the Title Company as the "Reporting Person" as such term is utilized
in Section 6045 of the Code and regulations thereunder. Seller agrees to provide
the Title Company with such information as may be required for the Title Company
to file a Form 1099 or other required form relative to the Closing with the
Internal Revenue Service. A copy of the filed Form 1099 or other filed form
shall be provided to Seller and Purchaser simultaneously with its being provided
to the Internal Revenue Service.
Section 10.8 Costs and Expenses. All costs and expenses in connection
with the transaction contemplated by this Contract shall, except as otherwise
expressly provided herein, be borne by Seller and Purchaser in the manner in
which such costs and expenses are customarily allocated between the parties at
closings of the purchase or sale of real property similar to the Project in the
San Antonio, Texas area.
Section 10.9 Seller Indemnity. The Seller agrees to indemnify and hold
the Purchaser harmless of and from any and all liabilities, claims, demands and
expenses, of any kind or nature (except those items which by this Contract
specifically become the obligation of the Purchaser), arising or accruing prior
to the date and time of Closing and which are in any way related to the
ownership, construction, occupancy, maintenance or operation of the Project, and
all expenses related thereto, including, without limitation, court costs and
attorneys' fees. The foregoing indemnity applies, without limitation, to any
such claims, demand, causes of action, losses, damages, liabilities, costs or
expenses asserted against or incurred by Purchaser from time to time by reason
of or arising out of the breach of any representation or warranty by Seller set
forth herein; provided, however, this indemnity shall not apply with respect to
matters caused by or arising out of the negligence or willful misconduct of
Purchaser.
Section 10.10 Purchaser Indemnity. The Purchaser agrees to indemnify
and hold the Seller harmless of and from any and all liabilities, claims,
demands and expenses, of any kind or nature (except those items which by this
Contract specifically remain the obligation of the Seller) arising or accruing
subsequent to the date and time of Closing and which are in any way related to
the ownership, construction, maintenance or operation of the Project, and all
expenses related thereto, including, without limitation, court costs and
attorneys' fees; provided, however, this indemnity shall not apply with respect
to matters caused by or arising out of the negligence or willful misconduct of
Seller.
Section 10.11 Indemnity Notice. In the event either party hereto
receives notice of a claim or demand which results or may result in
indemnification pursuant to Section 10.9 or Section 10.10, such party shall
immediately give notice thereof to the other party to this Contract. The party
receiving such notice shall immediately take such measures as may be reasonably
required to properly and effectively defend such claim, and
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such party may defend same with counsel of such party's own choosing. In the
event the party receiving such notice fails to properly and effectively defend
such claim and in the event such party is liable therefor, then the party so
giving such notice may defend such claim at the expense of the party receiving
such notice.
ARTICLE 11
Real Estate Commission
Section 11.1 Commission. Seller and Purchaser covenant and agree one
with the other that no real estate commissions, finders' fees or brokers' fees
have been or will be incurred in connection with the Contract or the sale
contemplated hereby, except for a commission (the "Commission") to Xxxxx & Xxxxx
(the "Broker") the terms of which are set forth in a in a separate agreement.
Section 11.2 Indemnity. Each party hereto represents to the other that,
except as set forth above in the immediately preceding Section, such respective
party has not authorized any broker or finder to act on such party's behalf in
connection with the sale and purchase hereunder. Each party hereto agrees to
indemnify and hold harmless the other party from and against any and all claims,
losses, damages, costs or expenses of any kind or character arising out of or
resulting from any agreement, arrangement or understanding (except as set forth
in the immediately preceding Section) alleged to have been made by such party
with any broker or finder in connection with this Contract or the transaction
contemplated hereby. This obligation shall survive the Closing or any earlier
termination of this Contract.
Section 11.3 Title. Purchaser acknowledges that, at the time of
execution of this Contract, the Broker advised Purchaser by this writing that
Purchaser should have the abstract covering the Project examined by an attorney
of Purchaser's own selection or that Purchaser should be furnished with or
obtain a policy of title insurance.
ARTICLE 12
Remedies of Default
Section 12.1 Seller Default. Seller shall be in default hereunder upon
the occurrence of any one or more of the following events:
(i) any of Seller's warranties or representations set forth
herein are untrue or inaccurate in any material respect; or
(ii) Seller shall fail to meet, comply with or perform any
covenant, agreement, or obligation within the time limits and in the
manner required in this Contract.
In the event of a default by Seller hereunder, Purchaser, at Purchaser's sole
option, but as Purchaser's sole and exclusive remedy, shall be entitled to
either:
(i) terminate this Contract by written notice delivered to
Seller at or prior to the Closing in which event the Xxxxxxx Money
shall be immediately returned to Purchaser by Title Company without the
necessity of the consent of Seller; or
(ii) enforce specific performance of this Contract against
Seller.
Section 12.2 Purchaser Default. Purchaser shall be in default
hereunder if Purchaser shall fail to deliver at the Closing any of the items
required of Purchaser in Section 10.3 hereof, for any reason other than a
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default by Seller hereunder. In the event of a default by Purchaser hereunder,
Seller, as Seller's sole and exclusive remedy for such default, shall be
entitled to terminate this Contract by notice to Purchaser and retain the
Xxxxxxx Money, it being agreed between Purchaser and Seller that such sum shall
be liquidated damages for a default by Purchaser hereunder because of the
difficulty, inconvenience, and uncertainty of ascertaining actual damages for
such default.
ARTICLE 13
Miscellaneous
Section 13.1 Notices. All notices, demands, or other communications of
any type (herein collectively referred to as "Notices") given by the Seller to
the Purchaser or by the Purchaser to the Seller, whether required by this
Contract or in any way related to the transactions contracted for herein, shall
be void and of no effect unless given in accordance with the provisions of this
Section 13.1. All notices shall be in writing and delivered to the person to
whom the notice is directed, either in person (provided that such delivery is
confirmed by the courier delivery service), or by expedited delivery service
with proof of delivery, or by United States Mail, postage prepaid, as a
Registered or Certified item, Return Receipt Requested. Notices delivered by
personal delivery shall be deemed to have been given at the time of such
delivery and notices delivered by mail shall be effective when deposited in a
Post Office or other depository under the care or custody of the United States
Postal Service, enclosed in a wrapper with proper postage affixed and addressed,
as provided below. Notice may additionally be provided by facsimile transmission
so long as a copy of such notice is substantially contemporaneously forwarded by
one of the other means described above. Facsimile notice shall be effective upon
receipt at the facsimile station indicated below. The proper address and
facsimile number for Purchaser is as follows:
Goldstar Investments, Ltd.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxxxx
Fax No. 512/000-0000
with copy to: Xxxxx X. Xxxxxxx
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
000 Xxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax No. 512/000-0000
The proper address and facsimile number for Seller is as follows:
Solo Serve Corporation
0000 Xxxxxxxxx Xxxx.
Xxx Xxxxxxx, Xxxxx 00000
Fax No. (000) 000-0000
Attn: Xxxx X. Xxxxx
with copy to: Xxxxx X. XxXxxxxxx
Xxx & Xxxxx
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
Fax No. (000) 000-0000
Any party hereto may change the address for notice specified above by giving the
other party ten (10) days' advance written notice of such change of address.
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Section 13.2 Limited Duration of Offer. At Purchaser's option, this
Contract shall be null and void unless two (2) copies hereof, executed by
Seller, have been delivered to the Purchaser on or before February 19, 1998.
Section 13.3 Assignment. This Contract may be assigned by the
Purchaser to any entity which the Purchaser may, at its sole discretion, choose,
so long as such entity is controlled by Purchaser, Xxxx X. Xxxxxxx, or an entity
controlled by Xxxx X. Xxxxxxx and such assignment shall be binding upon and
inure to the benefit of the parties hereto. Any other assignment of this
Contract shall require the prior written consent of Seller, which shall not be
unreasonably withheld, conditioned or delayed.
Section 13.4 Governing Law. THIS CONTRACT SHALL BE CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE
OBLIGATIONS OF THE PARTIES HERETO ARE AND SHALL BE PERFORMABLE IN THE COUNTY
WHEREIN THE PROJECT IS LOCATED. BY EXECUTING THIS CONTRACT, EACH PARTY HERETO
EXPRESSLY (a) CONSENTS AND SUBMITS TO PERSONAL JURISDICTION CONSISTENT WITH THE
PREVIOUS SENTENCE, (b) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY CLAIM
OR DEFENSE THAT SUCH VENUE IS NOT PROPER OR CONVENIENT, AND (c) CONSENTS TO THE
SERVICE OF PROCESS IN ANY MANNER AUTHORIZED BY TEXAS LAW. ANY FINAL JUDGMENT
ENTERED IN AN ACTION BROUGHT HEREUNDER SHALL BE CONCLUSIVE AND BINDING UPON THE
PARTIES HERETO.
Section 13.5 No Oral Modification. This Contract may not be modified
or amended, except by an agreement in writing signed by both the Seller and the
Purchaser.
Section 13.6 No Oral Waiver. The parties may waive any of the
conditions contained herein or any of the obligations of the other party
hereunder, but any such waiver shall be effective only if in writing and signed
by the party waiving such conditions or obligations.
Section 13.7 Time of Essence. Time is of the essence of this Contract.
Section 13.8 Attorneys' Fees. In the event it becomes necessary for
either party hereto to file a suit to enforce this Contract or any provisions
contained herein, the party prevailing in such action shall be entitled to
recover, in addition to all other remedies or damages, reasonable attorneys'
fees and court costs incurred by such prevailing party in such suit.
Section 13.9 Headings. The descriptive headings of the various
Articles and Sections contained in this Contract are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
Section 13.10 Total Agreement. This Contract, including the Exhibits
hereto and the items to be furnished in accordance with Article 5 hereof,
constitutes the entire agreement among the parties pertaining to the subject
matter hereof and supersedes all prior and contemporaneous agreements and
understandings of the parties in connection therewith. No representation,
warranty, covenant, agreement or condition not expressed in this Contract shall
be binding upon the parties hereto or shall affect or be effective to interpret,
change or restrict the provisions of this Contract; provided, however, that all
certifications, representations and warranties of Seller contained in the
statements and schedules to be furnished pursuant to Article 5 shall become a
part of the Contract as though set forth herein.
Section 13.11 Partial Invalidity. If any clause or provisions of this
Contract is or should ever be held to be illegal, invalid, or unenforceable
under any present or future law applicable to the terms hereof, then and in the
event, it is the intention of the parties hereto that the remainder of this
Contract shall not be affected thereby, and that in lieu of each such clause or
provision of this Contract that is illegal, invalid, or unenforceable, there be
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added as a part of this Contract a clause or provision as similar in terms to
such illegal, invalid, or unenforceable clause or provision as may be possible
and be legal, valid, and enforceable.
Section 13.12 Counterpart Execution. To facilitate execution, this
Contract may be executed in as many counterparts as may be convenient or
required. It shall not be necessary that the signature of all persons required
to bind any party, appear on each counterpart. All counterparts shall
collectively constitute a single instrument. It shall not be necessary in making
proof of this Contract to produce or account for more than a single counterpart
containing the respective signatures of, or on behalf of, each of the parties
hereto. Any signature page to any counterpart may be detached from such
counterpart without impairing the legal effect of the signatures thereon and
thereafter attached to another counterpart identical thereto except having
attached to it additional signature pages.
Section 13.13 Holidays. In the event that the date upon which any
duties or obligations hereunder to be performed shall occur upon a Saturday,
Sunday or legal holiday, then, in such event, the due date for performance of
any duty or obligation shall thereupon be automatically extended to the next
succeeding business day.
EXECUTED on this the 16th day of February, 1998 by Purchaser.
GOLDSTAR INVESTMENTS, LTD.,
a Texas limited partnership
By: INSIGHT INVESTMENTS, INC.
a Texas corporation, General Partner
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Xxxx X. Xxxxxxx, President
EXECUTED on this the 16th day of February, 1998 by Seller.
SOLO SERVE CORPORATION
a Delaware corporation
By:/s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx, Executive
Vice President
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The Contract has been received by the Title Company this the 17th day
of February, 1998. The undersigned Title Company agrees to be bound by the terms
and provisions of this Contract, including those described in Article 3 hereof.
ALAMO TITLE INSURANCE COMPANY
By:/s/ Xxxxx X. XxXxxxxxxx
-------------------------------------
Name: Xxxxx X. XxXxxxxxxx
Title: Vice President
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FIRST AMENDMENT TO CONTRACT FOR PURCHASE AND SALE
This Second Amendment to Contract for Purchase and Sale (the
"Amendment") is entered into between SOLO SERVE CORPORATION, a Delaware
corporation ("Seller") and GOLDSTAR INVESTMENTS, LTD., a Texas limited
partnership ("Purchaser").
A. Seller and Purchaser are parties to that certain Contract for
Purchase and Sale dated February 17, 1998 (the "Contract"), concerning three (3)
tracts of improved property located in Bexar County, Texas, as more particularly
described in the Contract (the "Project");
B. The parties desire to enter into this Amendment for the purpose of
further extending the expiration of the Inspection Period, and the Closing Date.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
agree as follows:
1. The first sentence of Section 7.3 is restated in its entirety
to read as follows:
The Purchaser shall have until 5:00 p.m. CST on April 9, 1998
("Inspection Period") within which to review all the Submission Items
and make any physical inspections and to conduct any audits of the
Project as may be desired by Purchaser.
2. A telecopied facsimile of a duly executed counterpart of this
Amendment shall be sufficient to evidence the binding agreement of each party to
the terms herein. Except as amended hereby, all terms and conditions of the
Contract are and remain in full force and effect as therein written. Capitalized
term which are used herein but not defined and/or amended shall have the same
meaning given to such terms in the Contract.
EXECUTED effective as of the 25th day of March, 1998.
SELLER:
SOLO SERVE CORPORATION,
a Delaware corporation
By: /s/ Xxxx X. Xxxxx
--------------------------------
Xxxx X. Xxxxx,
Executive Vice President
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PURCHASER:
GOLDSTAR INVESTMENTS, LTD.,
a Texas limited partnership
By: INSIGHT INVESTMENTS, INC.
General Partner
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx, President
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SECOND AMENDMENT TO CONTRACT FOR PURCHASE AND SALE
This Second Amendment to Contract for Purchase and Sale (the
"Amendment") is entered into between SOLO SERVE CORPORATION, a Delaware
corporation ("Seller") and GOLDSTAR INVESTMENTS, LTD., a Texas limited
partnership ("Purchaser").
A. Seller and Purchaser are parties to that certain Contract for
Purchase and Sale dated February 17, 1998 (the "Contract"), as amended by that
certain First Amendment to Contract for Purchase and Sale dated March 25, 1998,
concerning three (3) tracts of improved property located in Bexar County, Texas,
as more particularly described in the Contract (the "Project");
B. The parties desire to enter into this Amendment for the purpose of
further extending the expiration of the Inspection Period, and the Closing Date.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
agree as follows:
1. The first sentence of Section 7.3 is restated in its entirety
to read as follows:
The Purchaser shall have until 5:00 p.m. CST on April 17, 1998
("Inspection Period") within which to review all of the Submission
Items and make any physical inspections and to conduct any audits of
the Project as may be desired by Purchaser.
2. Section 10.1 is restated in its entirety to read as follows:
Time and Place. The exchange of documents and funds (the
"Closing") hereinafter described shall take place at the offices of
Alamo Title Insurance Company. The Closing Date shall occur at 10:00
a.m. on April 30, 1998 (the "Closing Date"), or on such earlier date as
may be mutually agreed upon by Seller and Purchaser in writing.
Purchaser may elect by notifying Seller, to extend the Closing Date for
thirty (30) days, whereupon Purchaser shall deliver to the Title
Company on or before the original Closing Date, the sum of Fifty
Thousand and No/100 Dollars ($50,000.00) which shall constitute
additional Xxxxxxx money under the term of this Contract and shall
apply to the Purchase Price.
3. A telecopied facsimile of a duly executed counterpart of this
Amendment shall be sufficient to evidence the binding agreement of each party to
the term herein. Except as amended hereby, all terms and conditions of the
Contract are and remain in full force and effect as therein written. Capitalized
terms which are used herein but not defined and/or amended shall have the same
meaning given to such terms in the Contract.
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EXECUTED effective as of the 9th day of April, 1998.
SELLER:
SOLO SERVE CORPORATION,
a Delaware corporation
By: /s/ Xxxx X. Xxxxx
--------------------------------
Xxxx X. Xxxxx,
Executive Vice President
PURCHASER:
GOLDSTAR INVESTMENTS, LTD.,
a Texas limited partnership
By: INSIGHT INVESTMENTS, INC.
General Partner
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx, President
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THIRD AMENDMENT TO CONTRACT FOR PURCHASE AND SALE
This Third Amendment to Contract for Purchase and Sale (the
"Amendment") is entered into between SOLO SERVE CORPORATION, a Delaware
corporation ("Seller") and GOLDSTAR INVESTMENTS, LTD., a Texas limited
partnership ("Purchaser").
A. Seller and Purchaser are parties to that certain Contract for
Purchase and Sale dated February 17, 1998 (the "Contract"), as amended by that
certain First Amendment to Contract for Purchase and Sale dated March 25, 1998,
and as further amended by that certain Second Amendment to Contract for Purchase
and Sale dated April 9, 1998, concerning three (3) tracts of improved property
located in Bexar County, Texas, as more particularly described in the Contract
(the "Project");
B. The parties desire to enter into this Amendment for the purpose of
(i) Purchase depositing One Hundred Fifty Thousand and No/100 ($150,000.00)
directly with Seller as additional xxxxxxx money, and (ii) further extending the
Closing Date.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
agree as follows:
1. Purchaser and Seller hereby confirm that (i) the Inspection
Period (as defined in the Contract) expired April 17, 1998,
and (ii) Purchaser's right to terminate the Contract and
receive a refund of the Xxxxxxx Money (as defined in the
Contract) pursuant to either Article 6 or 7 has likewise
expired and may no longer be exercised by Purchaser.
2. Section 2.1 is restated in its entirety to read as follows:
Amount. The Purchase Price (herein so called) for the
Project is and shall be the sum of SIX MILLION THREE HUNDRED
THOUSAND AND NO/100 DOLLARS ($6,300,000.00) which shall be due
and payable by Purchaser to Seller in cash at the Closing
(hereinafter defined).
3. Section 10.1 is restated in its entirety to read as follows:
Time and Place. The exchange of documents and funds
(the "Closing") hereinafter described shall take place at the
offices of Alamo Title Insurance Company. The Closing Date
shall occur at 10:00 a.m. on September 1, 1998 (the "Closing
Date"), or on such earlier date as may be mutually agreed upon
by Seller and Purchaser in writing. In consideration of the
extension of the Closing from April 30, 1998 to September 1,
1998, Purchaser has agreed to pay to Seller on or before 5:00
p.m. April 30, 1998, as additional nonrefundable Xxxxxxx Money
under the Contract, One Hundred Fifty Thousand and No/100
($150,000) in cash or by any other means of immediately
available funds. From and after the date of such
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deposit with Seller, such funds shall be deemed to constitute
Xxxxxxx Money for all purposes under the Contract, so that
notwithstanding that such deposit is stated to be
nonrefundable, it may be refunded to Purchaser, together with
the initial Xxxxxxx Money deposit of Thirty Thousand and
No/100 ($30,000) in accordance with Article 12 upon the
occurrence of an event of a default by Seller, or in
accordance with Article 8 upon the occurrence of a casualty
to, or condemnation, of the Property.
4. A telecopied facsimile of a duly executed counterpart of
this Amendment shall be sufficient to evidence the binding
agreement of each party to the terms herein. Except as amended
hereby, all terms and conditions of the Contract are and
remain in full force and effect as therein written.
Capitalized terms which are used herein but not defined and/or
amended shall have the same meaning given to such terms in the
Contract.
EXECUTED effective as of the 9th day of April, 1998.
SELLER:
SOLO SERVE CORPORATION,
a Delaware corporation
By: /s/ Xxxx X. Xxxxx
--------------------------------
Xxxx X. Xxxxx
Executive Vice President
PURCHASER:
GOLDSTAR INVESTMENTS, LTD.,
a Texas limited partnership
By: INSIGHT INVESTMENTS, INC.
General Partner
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx
President
2
