<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For quarter ended September 30, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from __________ to __________
Commission file number 0-22716
BOLLINGER INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-2502577
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
602 FOUNTAIN PARKWAY, GRAND PRAIRIE, TEXAS 75050
(Address of principal executive offices)
(Zip Code)
(972) 343-1000
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
--- ---
As of September 30, 1997, 4,000,210 shares of the registrant's common
stock, $0.01 par value per share, were outstanding.
<PAGE> 2
BOLLINGER INDUSTRIES, INC.
INDEX
<TABLE>
<CAPTION>
Page No.
--------
<S> <C>
PART I - FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements
Consolidated Balance Sheets -
September 30, 1997 (unaudited), and March 31, 1997 3
Consolidated Statements of Earnings -
Three Months and Six Months Ended September 30, 1997
and September 29, 1996 (unaudited) 4
Consolidated Statements of Cash Flows -
Six Months Ended September 30, 1997 and September 29,
1996 (unaudited) 5
Notes to Consolidated Financial Statements (unaudited) 6 - 7
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 8 - 11
PART II - OTHER INFORMATION
Item 1. Legal Proceedings 12
Item 5. Other Information 12
Item 6. Exhibits and Reports on Form 8-K 12
SIGNATURES 13
INDEX TO EXHIBITS AND EXHIBITS 14
</TABLE>
2
<PAGE> 3
BOLLINGER INDUSTRIES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
ASSETS
<TABLE>
<CAPTION>
September 30, March 31,
1997 1997
------------- ------------
(unaudited)
<S> <C> <C>
CURRENT ASSETS
Cash ...................................................................... $ 56,453 $ 3,481
Accounts receivable
Trade, net of allowance for doubtful accounts of $794,687 and
$844,312 and allowance for returns and allowances of $690,035 and
$1,855,000, respectively .............................................. 12,861,072 16,804,959
Other ................................................................. 48,617 177,208
Inventories (Note C) ...................................................... 12,699,735 16,201,780
Prepaid expenses .......................................................... 726,821 533,215
------------ ------------
Total current assets .................................................. 26,392,698 33,720,643
PROPERTY PLANT AND EQUIPMENT - NET ........................................... 1,594,051 2,083,402
OTHER ASSETS
Goodwill and other intangibles - net ...................................... 1,104,854 1,138,654
Notes receivable and other assets ......................................... 686,198 951,085
Deferred financing fees - net ............................................. 525,399 495,568
------------ ------------
Total Other Assets ................................................... 2,316,451 2,585,307
------------ ------------
TOTAL ASSETS ................................................................. $ 30,303,200 $ 38,389,352
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Current portion of long term debt and other debt (Note D) ............... $ 1,863,799 $ 2,841,645
Accounts payable - trade ................................................ 12,564,760 11,620,367
Other current liabilities ............................................... 858,545 1,104,318
Provision for restructuring of operations (Note F) ...................... 550,805 2,160,169
------------ ------------
Total current liabilities ........................................ 15,837,909 17,726,499
LONG-TERM LIABILITIES
Long term debt, net of current portion .................................. 10,556,383 15,641,720
------------ ------------
Total liabilities .............................................. 26,394,292 33,368,219
------------ ------------
COMMITMENTS AND CONTINGENCIES ................................................ -- --
STOCKHOLDERS' EQUITY
Preferred stock -- $.01 par value; 1,000,000 shares authorized;
none issued ........................................................ -- --
Common stock -- $.01 par value; 8,000,000 shares authorized; issued
and outstanding 4,000,210 at September 30,1997, and March 31,
1997 ............................................................... 40,002 40,002
Capital in excess of par ................................................ 15,323,058 15,323,058
Retained earnings (accumulated deficit) ................................. (11,454,152) (10,341,927)
------------ ------------
Total stockholders' equity ........................................ 3,908,908 5,021,133
------------ ------------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY ................................... $ 30,303,200 $ 38,389,352
============ ============
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
3
<PAGE> 4
BOLLINGER INDUSTRIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF EARNINGS
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Three Months Six Months Six Months
Ended Ended Ended Ended
September 30, September 29, September 30, September 29,
1997 1996 1997 1996
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Net sales ......................... $ 15,107,320 $ 19,092,688 $ 35,623,961 $ 41,526,581
Cost of goods sold ................ 12,355,971 15,481,197 28,858,157 33,135,242
------------- ------------- ------------- -------------
Gross profit ................. 2,751,349 3,611,491 6,765,804 8,391,339
Selling expenses .................. 956,463 1,416,063 2,528,818 3,496,444
Distribution, general and
administrative expenses ....... 2,605,666 2,635,066 5,068,475 5,459,000
------------- ------------- ------------- -------------
3,562,129 4,051,129 7,597,293 8,955,444
------------- ------------- ------------- -------------
Operating profit (loss) ...... (810,780) (439,638) (831,489) (564,105)
Other expense (income)
Interest expense ............. 531,898 661,376 1,156,203 1,311,142
Interest income .............. (454) (26,901) (7,282) (36,414)
Gain on Sale of Assets ........ (868,430) -- (869,245) --
------------- ------------- ------------- -------------
(336,986) 634,475 279,676 1,274,728
------------- ------------- ------------- -------------
Earnings (loss)
before income taxes .... (473,794) (1,074,113) (1,111,165) (1,838,833)
Income tax (expense)
benefit (Note E) ....... -- -- 1,060 --
------------- ------------- ------------- -------------
Earnings (loss) from
continuing operations ............. $ (473,794) $ (1,074,113) $ (1,112,225) $ (1,838,833)
============= ============= ============= =============
Gain on disposal of
discontinued Healthcare
operation ......................... -- 806,696 -- 806,696
------------- ------------- ------------- -------------
Net earnings (loss) .............. $ (473,794) $ (267,417) $ (1,112,225) $ (1,032,137)
Per share data:
Earnings (loss) from
continuing operations ......... $ (.12) $ (.27) $ (.28) $ (.46)
============= ============= ============= =============
Net earnings (loss) ............... $ (.12) $ (.07) $ (.28) $ (.26)
============= ============= ============= =============
Weighted average common
and common equivalent
shares outstanding ............ 4,000,210 4,000,210 4,000,210 4,000,210
============= ============= ============= =============
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
4
<PAGE> 5
BOLLINGER INDUSTRIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED SIX MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 29,
1997 1996
---------------- ----------------
<S> <C> <C>
Cash flow from operating activities
Net earnings (loss) .......................................... $ (1,112,225) $ (1,032,137)
Adjustments to reconcile net earnings (loss) to net cash
provided by (used in) operating activities
(Gain) loss on disposal of assets ............................. (869,245) --
Depreciation and amortization ................................. 514,252 460,317
Provision for restructuring of operations ................ (1,609,364) (1,221,397)
Provision for Returns and Allowances ..................... (1,164,965) (454,280)
Provision for Doubtful Accounts .......................... (49,625) 281,014
Provision for Obsolete Inventory ......................... (260,476) 301,450
Changes in operating assets and liabilities
Trade accounts receivable ................................ 5,158,477 2,088,465
Other receivables ........................................ 128,591 (141,214)
Inventories .............................................. 3,762,521 1,460,210
Prepaid expenses ......................................... (193,606) (365,581)
Other assets ............................................. 9,441 14,248
Accounts payable - Trade ................................. 944,393 234,635
Other current liabilities ................................ (245,773) 156,164
Current assets of discontinued operations ................ -- 967,436
------------- -------------
Net cash provided by (used in) operating activities ... 5,012,396 2,749,330
Cash flow from investing activities
Purchases of property and equipment ........................... (110,765) (58,468)
Payments (advances made) on note receivable ................... 199,315 (142,100)
Proceeds from sale of assets (Note B) ......................... 1,140,209 --
Non-current assets from discontinued operations ............... -- 36,706
------------- -------------
Net cash provided by (used in) investing activities .... 1,228,759 (163,862)
Cash flow from financing activities
Net proceeds from (payments on) long term debt ............... (6,063,183) (1,962,193)
Deferred Financing Fees ...................................... (125,000) (634,577)
------------- -------------
Net cash provided by (used in) financing activities .... (6,188,183) (2,596,770)
Net increase (decrease) in cash ........................ 52,972 (11,302)
Cash at beginning of period ....................................... 3,481 408,871
============= =============
Cash at end of period ............................................. $ 56,453 $ 397,569
============= =============
</TABLE>
The accompany notes are an integral part of these consolidated
financial statements.
5
<PAGE> 6
BOLLINGER INDUSTRIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE A - GENERAL
The consolidated interim financial statements include the accounts of
Bollinger Industries, Inc., its wholly owned subsidiaries and Bollinger
Industries, L.P., a partnership wholly owned by Bollinger's subsidiaries
(collectively the "Company").
The consolidated interim financial statements included herein have been
prepared by the Company pursuant to the rules and regulations of the Securities
and Exchange Commission (the "SEC"). Certain information and footnote disclosure
normally included in financial statements prepared in accordance with Generally
Accepted Accounting Principals ("GAAP") have been condensed or omitted pursuant
to such rules and regulations, although the Company believes that the
disclosures are adequate to make the information presented not misleading. It is
suggested that these financial statements be read in conjunction with the
Company's form 10-K consolidated financial statements and notes for the year
ended March 31, 1997.
In the opinion of management, the unaudited interim consolidated
financial statements of the Company contains all adjustments, consisting only of
those of a normal recurring nature, necessary to present fairly the Company's
financial position and the results of its operations and cash flows for the
periods presented. The results of operations for the periods presented are not
necessarily indicative of the results to be expected for the full year.
The preparation of financial statements in accordance with GAAP
requires management to make estimates and assumptions. Such estimates and
assumptions affect the reported amounts of assets and liabilities, as well as
the disclosure of contingent assets and liabilities at the date of the financial
statements, and the reported amounts of revenue and expense during the reporting
period. Actual results could differ from these estimates.
Certain prior year amounts have been reclassified to conform with the
current year presentation.
Revenue Recognition and Provisions for Chargebacks and Buybacks
---------------------------------------------------------------
The Company recognizes sales revenue at the time the products are
shipped to its customer. Provision is made currently for estimated product
returns and deductions which may occur. These returns are generally for products
that are salable with minor reworking of packaging or replacement of missing
components. The term "chargebacks" refers to the action taken by the customer to
withhold from payments or to apply for credit amounts for items such as volume
discounts or rebates under marketing programs or pricing discrepancies,
penalties, vendor compliance issues, shipping shortages and any other similar
item under vendor compliance guidelines established by the customer. The
provision for returns is estimated based on current trends and historical
experience of returns. The provision for chargebacks is estimated based on the
marketing programs designed for the customer, and recent historical experience
based on volume.
NOTE B - CONSOLIDATED STATEMENTS OF CASH FLOWS
Supplemental disclosures:
<TABLE>
<CAPTION>
Six Months Six Months
Ended Ended
September 30, September 29,
------------- -------------
1997 1996
------------- -------------
<S> <C> <C>
Interest paid $ 1,313,068 $ 1,366,136
</TABLE>
On July 18, 1997, the Company entered into an agreement for the sale of the
Irving facility. On September 26, 1997, the contract was executed with the
following cash flow effect:
<TABLE>
<S> <C>
Sales Price $ 1,200,000
Commission and Fees 81,224
-----------
Proceeds from sale of building $ 1,118,776
Liabilities assumed by buyer 12,429
-----------
Cash received $ 1,106,347
</TABLE>
6
<PAGE> 7
BOLLINGER INDUSTRIES, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited - continued)
NOTE C - INVENTORIES
<TABLE>
<CAPTION>
September 30, March 31,
1997 1997
------------- -------------
<S> <C> <C>
Raw materials $ 3,705,109 $ 9,013,914
Work-in-process 308,562 328,436
Finished goods 9,985,356 8,419,200
Reserve for obsolescence (1,299,292) (1,559,770)
------------- -------------
$ 12,699,735 $ 16,201,780
============= =============
</TABLE>
NOTE D - NOTES PAYABLE
The Company obtained a credit facility with a financial institution on
August 16, 1996 with a maximum line of $25 million and a three-year term. This
credit line was subsequently extended to four years with modification to several
of the financial covenants. Availability, pursuant to the credit line, is based
on the levels of specific current assets namely accounts receivable and
inventory. The outstanding obligation at September 30, 1997, was $11.2 million
with undrawn availability of $42,000, pursuant to the asset based formula. On
September 30, 1997, $1,106,347 cash proceeds from the sale of the building in
Irving were paid to the lien holder to reduce debt.
NOTE E - INCOME TAXES
The Company's effective federal income tax rates for the three month
and six month period ended September 29, 1996 and September 30, 1997
respectively were 0% and 0%, based on providing a 100% valuation allowance
against the deferred tax benefit.
NOTE F - RESTRUCTURED INVENTORY
In connection with the Company plan for restructuring of inventory, as
disclosed in the Company's annual report and Form 10-K for year ended March 31,
1996, the Company has implemented measures to reduce inventory levels of
targeted products. Of the approximately $12 million in inventory originally
designated for liquidation, approximately $10.5 million of inventory was sold
for $7.1 million with a resultant charge to the reserve of $3.4 million.
<TABLE>
<CAPTION>
March 31, 1996 March 31, 1997 September 30, 1997
------------------------- ------------------------- -------------------------
Inventory Reserve Inventory Reserve Inventory Reserve
Value Amount Value Amount Value Amount
----------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Celebrity
Endorsed
Product $ 5,175,000 $ 1,730,000 $ 843,000 $ 250,000 $ 109,000 $ 33,000
Other
Product 6,625,000 2,028,000 3,188,000 1,910,000 1,231,000 518,000
Other Costs -- 202,000 -- -- -- --
----------- ----------- ----------- ----------- ----------- -----------
Total $11,800,000 $ 3,960,000 $ 4,031,000 $ 2,160,000 $ 1,340,000 $ 551,000
=========== =========== =========== =========== =========== ===========
</TABLE>
NOTE G - SUBSEQUENT EVENTS
The Company and its wholly owned subsidiary NBF, Inc. entered into on
November 13, 1997 an asset purchase agreement for the sale of its trampoline
division to Hedstrom Corporation. The cash purchase price under the purchase
agreement is $14,250,000, subject to an upward or downward adjustment for the
Company's trampoline inventory at the closing. The purchase agreement covers
inventory, equipment, and other assets of the Company and NBF that are related
to the Company's trampoline division.
The completion of the asset sale to Hedstrom is subject to closing
contingencies. These include funding approval by Hedstrom's senior lenders and
Hedstrom's due diligence with respect to the Company's trampoline customers.
Subject to the closing contingencies and an extension of the closing date by
the parties, the initial closing date is scheduled for November 21, 1997. If
the sale is concluded, the Company will no longer be engaged in the
manufacture and sale of trampolines after a short post closing transition
period.
7
<PAGE> 8
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
RESULTS OF OPERATIONS
The following discussion should be read in conjunction with the Company's Form
10-K and consolidated financial statements for the fiscal year ended March 31,
1997 and March 31, 1996; the Company's Form 10-Q for the quarters ending June
30, 1996, September 29, 1996, June 30, 1997; and the consolidated financial
statements and related notes, for the quarter ended September 30, 1997, found
elsewhere in this report.
THREE MONTHS AND SIX MONTHS ENDED SEPTEMBER 30, 1997, COMPARED WITH THE THREE
MONTH AND SIX MONTH PERIOD ENDED SEPTEMBER 29 , 1996
As disclosed in the Company's annual report and Form 10-K for the year ended
March 31, 1996, and updated at March 31, 1997, the Company has embarked on a
restructuring plan whereby it is focusing on its name brand products, and
greatly reducing its use of celebrity endorsed products.
Consolidated net sales for the quarter ended September 30, 1997, decreased by
$4.0 million as compared to the quarter ended September 30, 1996, a decrease of
21%. Approximately $2.0 million of this decrease is attributable to net sales of
Trampoline Products which decreased 27.8%. This decline was primarily the result
of major customers inventory reduction plans. The reduction of approximately
$2.0 million is attributable to net sales of other fitness accessory product,
which decreased 16.8%. The Company successfully sold approximately $2.3 million
of targeted inventory as part of the restructuring plan for this quarter. Net
sales for the six months ended September 30, 1997, decreased by $5.9 million
compared to the same period in 1996, a decrease of 14.2%. A decline in the sales
of the fitness accessory product line of $7.0 million, a decrease of 28.7%
was partially offset by a gain in the sales of trampolines of $1.0 million,
an increase of 6.2%. In the first six months of the current year, the Company
successfully sold approximately $2.7 million of targeted inventory as part of
the restructuring plan. The decrease in net sales of other fitness accessory
products resulted from a continuing trend of a slow down of purchases of the
Company's light equipment items.
Gross profit for the quarter ended September 30, 1997, decreased $.9 million as
compared to the quarter ended September 29, 1996, and decreased as a percentage
of net sales from 18.9% in 1996 to 18.2% in 1997 for the same period. The
reduction in gross profit was primarily due to non-recurring sale of inventory,
pursuant to the restructuring plan and the decline in net sales, offset
partially by the increase in trampoline sales. Gross profit percent on
trampoline sales have increased significantly from 15.9% to 19.7% for the
comparable quarters. Gross profit for the six months ended September 30, 1997,
decreased $1.6 million and decreased 1.2% as a percentage of net sales as
compared to the six months ended September 29, 1996. The shift in the margin
percent was the result of the low margin on targeted
8
<PAGE> 9
inventory sales and the increase in trampoline sales that earn a lower gross
margin than other fitness products. In addition, trampolines were a higher
proportion of sales in the six months ended September 30, 1997.
The major thrust of the restructuring plan comprised the liquidation of certain
inventories. The Company's initiative on vendor pricing, which was designed to
significantly reduce purchase prices, will not have a significant effect on
gross profit until the targeted inventory is liquidated. Management expects to
sell the remainder of the targeted inventory during the third quarter.
Selling expenses for the quarter ended September 30, 1997, decreased by $460,000
as compared to the quarter ended September 29, 1996, and decreased as a
percentage of net sales from 7.4 to 6.3%. The dollar decrease in selling
expense, as well as the percentage decrease was directly related to the reversal
of previously accrued royalty commissions of $508,000. Selling expenses for the
six months ended September 30, 1997, decreased by $968,000 as compared to the
first half of 1996, and decreased as a percentage of net sales from 8.4% to
7.1%.
Distribution, general and administrative expenses for the quarter ended
September 30, 1997, decreased by $29,000 as compared to the quarter ended
September 29, 1996, and increased as a percentage of net sales from 13.8% in
1996 to 17.2% in 1997. Distribution, general and administrative expenses for the
six months ended September 30,1997 decreased $391,000 from the same period in
the prior year. As a percentage, this category of expenses increased from
13.1% of net sales in the prior year to 14.2% in the current year. Reduction in
rent, contract labor, consulting fees, and bad debt expense, partially offset by
increased legal fees, led to the overall dollar reduction. The percentage
increase resulted in much of distribution, general and administrative costs
being fixed.
The Company sustained an operating loss of $811,000 for the quarter ended
September 30, 1997, as compared to an operating loss of $440,000 in the same
quarter last year. The gross profit decline of $860,000 is partially offset by
lower selling and distribution, general, and administrative expenses. The
Company sustained an operating loss of $831,000 for the six months ended
September 30, 1997, as compared to an operating loss of $564,000 for the same
period last year. The gross profit decline of $1,625,000 is partially offset by
lower selling and distribution, general and administrative expenses.
Interest expense for the quarter ended September 30, 1997, was $532,000 compared
to $661,000 the previous year. Interest expense for the six months ended
September 30, 1997 was $1,156,000 compared to $1,311,000 the same period last
year.
In the quarter ending September 30, 1997, the Company recorded $869,000 as a
gain on the sale of fixed assets primarily from the sale of the building in
Irving. In the quarter ending September 29, 1996 the Company recorded $807,000
as a gain on disposal of discontinued Healthcare operation.
9
<PAGE> 10
LIQUIDITY AND CAPITAL RESOURCES
To date, the Company's principal source of financing has been borrowings from
various financial institutions and its initial public offering. Net cash
generated by operating activities for the six months ended September 30, 1997,
was $5,012,000 compared to cash provided by operating activities for the same
period in the prior year of $2,749,000. Cash generated during both periods was
primarily from the reduction of accounts receivables and inventories.
In 1996, the Company secured a revolving credit facility with a financial
institution providing a maximum line of credit of $25.0 million, subject to
certain borrowing base requirements and covenants. Availability, pursuant to the
credit line, is based on the levels of specific current assets namely accounts
receivable and inventory. As of September 30, 1997, the outstanding balance was
approximately $11.2 million with an unused availability of approximately
$42,000. This facility matures August 16, 2000. The Company is currently in
compliance with all terms and covenants of the agreement. Cash generated from
operating and investment activities was used to reduce the line of credit by
$6,188,000 for the six months period ended September 30, 1997 and by $2,597,000
for the six months ended September 29, 1996.
Outstanding balances in the second quarter bore interest at an approximate rate
of 10.25% compared to a rate of 10.5% for the second quarter last year. The
Company also has a long term note payable which bears interest at 11.50% per
annum which was substantially reduced with the sale of the Irving building.
In 1997 the Company received $1,106,347 cash from the sale of the Irving
facility. In 1996, the Company received $1,246,157 cash and $293,547 in notes on
the disposal of the Healthcare operation.
10
<PAGE> 11
FACTORS THAT COULD AFFECT FUTURE PERFORMANCE
Certain statements contained in this Quarterly Report on Form 10-Q, including
without limitation, statements containing the words "believes", "anticipates",
"intends", "expects", and words of similar import, constitute "forward-looking
statements". Such forward-looking statements involve numerous assumptions about
known and unknown risks, uncertainties and other factors which may ultimately
prove to be inaccurate. Certain of these factors are discussed in more detail
elsewhere in this Quarterly Report, including without limitation under
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and include the Company's ability to maintain sufficient gross
margins, to reduce general, administrative and warehouse expenses, to increase
sales of fitness accessory products, and to achieve profitability. Actual
results may differ materially from any future results expressed or implied by
such forward-looking statements. The Company disclaims any obligation to update
any forward-looking statements or publicly revise any of the forward-looking
statements contained herein to reflect future events or developments.
11
<PAGE> 12
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company filed a lawsuit against Denise Austin on December 2, 1996
in the 162nd District Court of Dallas County, Texas that was subsequently
removed to the United States District Court for the Northern District of Texas,
Dallas Division Case Number 3-97-CV-0246-G on February 6, 1997. Subsequently a
suit was filed on December 30, 1996 by Denise Austin in the United States
District Court, Eastern District of Virginia. The suit was filed for payment of
royalties alleged to be due of approximately $655,000 . The Company filed
counter claims in excess of such amount. Both of these suits were settled in
July, 1997. In connection with the settlement, the Company recorded the
reversal of accrued royalty commission of $508,000 which is reflected in the
income of the quarter.
ITEM 5. OTHER INFORMATION
Subsequent Events
The Company and its wholly owned subsidiary NBF, Inc. entered into on
November 13, 1997 an asset purchase agreement for the sale of its trampoline
division to Hedstrom Corporation. The cash purchase price under the purchase
agreement is $14,250,000, subject to an upward or downward adjustment for the
Company's trampoline inventory at the closing. The purchase agreement covers
inventory, equipment, and other assets of the Company and NBF that are related
to the Company's trampoline division.
The completion of the asset sale to Hedstrom is subject to closing
contingencies. These include funding approval by Hedstrom's senior lenders and
Hedstrom's due diligence with respect to the Company's trampoline customers.
Subject to the closing contingencies and an extension of the closing date by
the parties, the initial closing date is scheduled for November 21, 1997. If
the sale is concluded, the Company will no longer be engaged in the
manufacture and sale of trampolines after a short post closing transition
period.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
10.60 Commercial contract of sale dated July 18, 1997
between Bollinger Industries, Inc. and Hsiehs
Investments Inc., a Texas Corporation
11.1 Computation of Earnings Per Share
27.1 Financial Data Schedule
(b) No reports on Form 8-K were filed during the three month period
ended September 30, 1997.
12
<PAGE> 13
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
BOLLINGER INDUSTRIES, INC.
Date: November 13, 1997 /s/ Glenn D. Bollinger
----------------- ------------------------------------------
Glenn D. Bollinger
Chairman of the Board and
Chief Executive Officer
Date: November 13, 1997 /s/ Rose Turner
----------------- ------------------------------------------
Rose Turner
Executive Vice President - Finance, Chief
Financial Officer, Treasurer and Secretary
Date: November 13, 1997 /s/ Floyd DePauw
----------------- ------------------------------------------
Floyd DePauw
Controller and Chief Accounting Officer
13
<PAGE> 14
BOLLINGER INDUSTRIES, INC. AND SUBSIDIARIES
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibits Description
-------- -----------
<S> <C>
10.60 Commercial contract of sale dated July 18, 1997 between
Bollinger Industries, Inc. and Hsiehs Investments Inc., a
Texas Corporation
11.1 Computation of Earnings Per Share
27.1 Financial Data Schedule
</TABLE>
<PAGE> 1
EXHIBIT 10.60
FULTSONCOR
NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS(R)
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: BOLLINGER INDUSTRIES INC., A TEXAS CORPORATION (the "Seller")
shall sell and convey to HSIEHS INVESTMENTS INC., A TEXAS CORPORATION (the
"Purchaser") and Purchaser shall buy and pay for the Property (defined below).
2. PROPERTY: Being a APPROXIMATELY 43,300 SQUARE FEET OF OFFICE/WAREHOUSE
SPACE ON APPROXIMATELY 1.66 ACRES OF LAND with an address of 222 W. AIRPORT
FREEWAY at the City of IRVING, DALLAS County, Texas, further described as:
or as described in EXHIBIT A, SURVEY AND/OR LEGAL DESCRIPTION, and/or as shown
on EXHIBIT B, FLOOR PLAN AND/OR SITE PLAN, 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 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 $1,200,000.00 (the
"Purchase Price"), payable as follows:
[ ] A. The Purchase Price shall be adjusted up or down based upon the
[strike one] GROSS LAND AREA/NET LAND AREA (as defined below) 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: $1,200,000.00.
[X] C. The balance of the Purchase Price shall be payable according to the
provisions in ADDENDUM B, FINANCING.
4. EARNEST MONEY.
A. EARNEST MONEY DEPOSIT. Within two business days after the Effective
Date of this Contract, Purchaser shall deposit earnest money in the form of a
certified or cashier's check in the amount of $25,000.00 (the "Earnest Money")
payable to STEWART TITLE COMPANY (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 Earnest Money with the Title Company. If Purchaser fails
to timely deposit the Earnest 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 Earnest Money
in the amount of $250.00 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 Earnest 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 Earnest 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 Earnest Money. At Closing the Earnest Money shall
be applied to the Purchase Price. See additional provisions in Section 17.
B. ESCROW. The Earnest 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 Earnest 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 Earnest 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 Earnest Money. If only
one party makes demand for payment of the refundable portion of the Earnest
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, improvements, streets, pavements,
easements, rights-of-way, protrusions, encroachments, fences, building lines,
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 encroachment
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,
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.
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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 of 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 previsions of Section
50.301, Texas Water Code, then Seller shall given to Purchaser as part of the
Title Documents the required written notice. 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
owners' association, Seller shall notify Purchase 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.
6. REVIEW OF TITLE DOCUMENTS.
A. REVIEW PERIOD. Purchaser shall have fifteen calendar (15) 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 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 notice, or does not
commit in the 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 Case Period; or (ii) the scheduled Closing
Date. If Purchaser properly and timely terminates this Contract, the
refundable portion of the Earnest Money shall be immediately returned to
Purchaser and neither party shall have any rights or obligations under this
Contract, then Purchaser shall be deemed to have waived any incurred objections
and must accept title as Seller is able to convey at Closing.
7. SELLER'S WARRANTIES AND REPRESENTATIONS.
A. STATEMENTS. Seller represents and warrants to Purchaser to the best of
Seller's knowledge the following:
(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 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 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 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.
(6) MATERIAL DEFECTS. Seller has disclosed to Purchaser any and all
known conditions of a material nature with respect to the Property which may
affect the health or safety of any tenant or occupant of the Property. Except
as disclosed in writing by Seller to Purchaser, the Property has no known
latent structural defects or construction defects of a material nature, and
none of the improvements have been constructed with materials known to be a
potential health hazard to occupants of the Property. Purchaser acknowledges
that the Broker(s) have not made any warranties or representations with respect
to the condition of the Property or otherwise, and Purchaser is relying solely
upon Purchaser's own investigations and the representations of Seller, if any.
Seller and Purchaser agree to hold the Broker(s)
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harmless from any and all damages, claims, costs and expenses of every kind and
character resulting from or related to the furnishing to the Broker(s) or
Purchaser of any false, incorrect or inaccurate information with respect to the
Property, or Seller's concealing any material information with respect to the
condition of the Property.
(7) HAZARDOUS MATERIALS. Except as otherwise disclosed in writing by
Seller to Purchaser, Seller warrants and represents that the Property
(including the improvements located thereon) does not contain any Hazardous
Materials (defined below). Purchaser acknowledges that current and future
federal, state, and local laws and regulations may require any Hazardous
Materials to be removed at the expense of those persons who may have had or
continue to have any interest in the Property. The expense of such removal may
be substantial. Purchaser further acknowledges that the Broker(s) have no
expertise with respect to Hazardous Materials, although the Broker(s) will
disclose any actual knowledge the Broker(s) may have regarding the presence of
Hazardous Materials on the Property. Purchaser agrees to look solely to
experts and professionals selected or approved by Purchaser to advise Purchaser
with respect to the condition of the Property and will not hold the Broker(s)
responsible for any Hazardous Materials condition relating to the Property.
Seller and Purchaser agree to indemnify, defend and hold the Broker(s) harmless
from and against any liability, claim, debt, damage, cost, or expense,
including but not limited to reasonable attorneys' fees and court costs,
related to or arising out of Hazardous Materials affecting the Property. For
purposes of this Contract, the term "Hazardous Materials" means any pollutants,
toxic substances, oils, hazardous wastes, hazardous materials or hazardous
substances as defined in or pursuant to the Resource Conservation and Recovery
Act, as amended, the Comprehensive Environmental Response, Compensation and
Liability Act, as amended, the Federal Clean Water Act, as amended, or any
other federal, state or local environmental law, regulation, ordinance, rule, or
bylaw, whether existing as of the Effective Date, or subsequently enacted.
(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.
B. REMEDIES. If Purchaser discovers prior to Closing that any of
Seller's warranties or representations has been misrepresented or is
inaccurate, Purchaser may notify Seller promptly in writing, and Seller may
attempt to correct or remedy the misrepresentation or inaccuracy. If the
misrepresentation or inaccuracy is not remedied prior to Closing, upon written
notice to Seller, Purchaser may: (i) proceed to Closing without waiving any
claim for breach of warranty or misrepresentation; or (ii) delay Closing, if
Seller agrees to the delay, until ten (10) days after the misrepresentation or
inaccuracy is remedied; or (iii) exercise Purchaser's remedies for default by
Seller under this Contract.
8. NONCONFORMANCE. Purchaser has or will independently investigate and verify
to Purchaser's satisfaction the extent of any limitations or permitted uses of
the Property. Purchaser acknowledges that the current use of the Property or
the improvements located on the Property (or both) may not conform to
applicable federal, state or municipal laws, ordinances, codes or regulations.
Zoning, permitted uses, height limitations, setback requirements, minimum
parking requirements, limitations on coverage of improvements to total area of
land, requirements of the Americans with Disabilities Act, wetlands
restrictions and other matters may have a significant economic impact upon the
intended use of the Property by Purchaser. However, if Seller is aware of
zoning changes and/or nonconformance with any federal, state or local laws,
ordinances, codes or regulations, Seller shall disclose same to Purchaser.
Purchaser is not relying upon Seller's warranties or representations, or of the
Broker(s), concerning the permitted uses of the Property or with respect to any
nonconformance of the Property.
9. INSPECTION [Check one]
[X] 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, and is
thoroughly familiar with its condition. 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]
[X] 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.
[ ] C. LIMITED ASSIGNMENT. Purchaser may assign this Contract only to a
related party, defined as (i) any entity in which Purchaser is an owner,
partner or corporate officer, or (ii) a member(s) of the immediate family of
the Purchaser. Purchaser shall remain liable under this Contract after any
assignment to a related party.
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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] 30 calendar 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) An updated Title Commitment committing the underwriter for the
Title Company to issue promptly after closing the Title Policy pursuant to the
Title Commitment, subject only to the Permitted Exceptions, in the full amount
of the Purchase Price, dated as of the date of Closing, and (at an additional
premium cost) [check only one if applicable] [ ] with the survey exception
deleted at Seller's expense but not as to "shortages in area") or [X] with the
survey exception deleted at Purchaser's expense (but not 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) An 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 Earnest 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 preceding year applied to the latest assessed valuation, but any
difference between estimated taxes for the year of Closing and 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 Earnest 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 this sale or a change in use of the Property or
denial of a special use valuation on the 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 Seller to Purchaser immediately upon receipt by Seller of a statement for
the taxes, unless this box [ ] is checked in which case Purchaser shall pay
the additional taxes plus any penalties and interest. 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.
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 then elect one of the following, as Purchaser's
sole remedy [Check all that may apply]:
[ ] (1) Enforce specific performance of this Contract;
[ ] (2) Bring suit for damages against Seller;
[ ] (3) Enforce specific performance of this Contract and/or bring suit for
damages against Seller; or
[X] (4) Terminate and release Seller from this Contract and immediately
receive the refundable portion of the Earnest Money. Seller's failure to
satisfy Purchaser's objections under Paragraph 6 above shall not constitute a
default by Seller.
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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 then 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 Earnest Money paid to Seller as liquidated damages for the
Purchaser's breach of this Contract, thereby releasing Purchaser from
this Contract.
14. AGENCY DISCLOSURE.
A. AGENCY RELATIONSHIPS. The term "Broker(s)" refers to the Principal
Broker and/or the Cooperating Broker, if applicable, as set forth on the
signature page. Each Broker has duties only to the party(s) the Broker
represents as identified below. If either Broker is acting as an Intermediary,
then that Broker will have only the duties of an intermediary, and the
intermediary disclosure and consent provisions apply as set forth below. [Each
Broker check only one.]
(1) The Principal Broker is: [X] agent for Seller only; or [ ] agent for
Purchaser only; or [ ] an intermediary.
(2) The Cooperating Broker is: [ ] agent for Seller only; or [X] agent
for Purchaser only; or [ ] an intermediary.
B. OTHER BROKERS. Seller and Purchaser each represent and warrant to the
other party that such party has had no dealings with any person, firm, agent or
finder in connection with the negotiation of this Contract and/or the
consummation of the purchase and sale contemplated herein, other than the
Broker(s) named in this Contract, and no real estate broker, agent, attorney,
person, firm or entity, other than the Broker(s) is entitled to any commission
or finder's fee in connection with this transaction as the result of any
dealings or acts of either Seller or Purchaser. Each party hereby agrees to
indemnify, defend, protect and hold the other party harmless from and against
any costs, expenses or liability for compensation, commission, fee, or charges
which may be claimed by any agent, finder or other similar party, other than
the named Broker(s), by reason of any dealings or acts of the indemnifying
party.
C. FEE SHARING. Seller and Purchaser each acknowledge that the Principal
Broker may pay a portion of the Fee (defined below) to the Cooperating Broker.
Payment of a portion of the Fee by the Principal Broker to the Cooperating
Broker shall not alter the fiduciary relationships between the parties and the
Brokers. Seller is liable for payment of the Fee to the Principal Broker
only. The Cooperating Broker shall have no claims directly against Seller.
D. INTERMEDIARY RELATIONSHIP. If either of the Brokers has indicated in
Section 14.A above that Broker is acting as an intermediary in this
transaction, then Purchaser and Seller hereby consent to the intermediary
relationship, authorize the respective Broker(s) to act as an intermediary in
this transaction, and acknowledge that the source of any expected compensation
to the Broker(s) will be the Seller, and the Broker(s) may also be paid a fee
by Purchaser. A real estate broker who acts as an intermediary between parties
in a transaction:
(1) may not disclose to the Purchaser that Seller will accept a price less
than the asking price unless otherwise instructed in a separate writing by
Seller;
(2) may not disclose to Seller that Purchaser will pay a price greater
than the price submitted in a written offer to the Seller unless otherwise
instructed in a separate writing by the Purchaser;
(3) may not disclose any confidential information, or any information a
party specifically instructs the real estate broker in writing not to disclose,
unless otherwise instructed in a separate writing by the respective party or
required to disclose such information by the Texas Real Estate License Act or a
court order or if the information materially relates to the condition of the
property;
(4) shall treat all parties to the transaction honestly; and
(5) shall comply with the Texas Real Estate License Act.
APPOINTMENTS. Broker is authorized to appoint, by providing written
notice to the parties, one or more licensees associated with Broker to
communicate with and carry out instructions of one party, and one or more other
licensees associated with Broker to communicate with and carry out instructions
of the other party or parties. During negotiations, an appointed licensee may
provide opinions and advice to the party to whom the licensee is appointed.
15. PROFESSIONAL SERVICE FEE.
A. PAYMENT OF FEE. Seller agrees to pay the Principal Broker a
professional service fee in cash (the "Fee")for procuring the Purchaser and for
assisting in the negotiation of this Contract as follows: SIX PERCENT (6%) OF
THE SALES PRICE TO BE SPLIT THREE PERCENT (3%) TO FULTS ONCOR PERCENT (3%) TO
PARK ONE - NORTH DALLAS REALTORS. The fee shall be earned upon the execution
of this Contract and shall be paid at Closing. The Fee is earned
notwithstanding (i) any subsequent termination of this Contract (except a
termination by Purchaser pursuant to a right of termination in this Contract);
or (ii) any default by Seller. If the transaction described in this Contract
is not consummated by reason of Purchaser's default and Seller does not elect
to enforce specific performance, the Fee shall not exceed one-half of the
Earnest Money. The Fee shall be payable by Seller to the Principal Broker in
the county in which the Property is located. Seller shall pay any applicable
sales taxes on the Fee. The Fee shall be paid at the Closing of a sale of the
Property by Seller pursuant to this Contract (as may be amended or assigned),
or in the event of default under this Contract by Seller or Purchaser, within
ten (10) days after the scheduled Closing Date. The Title Company or other
escrow agent is authorized and directed to pay the Fee to the Principal Broker
out of the closing proceeds, or, if applicable, out of the Earnest Money or any
other escrow deposit made pursuant to this Contract.
B. CONSENT REQUIRED. Purchaser, Seller and Title Company agree that the
Broker(s) is/are a third party beneficiary(s) of this Contract with respect to
the Fee, and that no change may be made by Purchaser, Seller or the Title
Company as to the time of payment, amount of payment, or the conditions for
payment of the Fee without the written consent of the Broker(s).
Page 5
<PAGE> 6
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 acknowledged by 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") with confirmation of delivery; 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.
C. MUTUAL TERMINATION. If this Contract is terminated by mutual
agreement of both parties at any time prior to Closing, the obligations of each
party under this Contract shall terminate, except that (i) Seller and Purchaser
shall each pay one-half of the cost of the Survey (if Survey costs are
incurred), (ii) Purchaser shall pay the costs to repair any damage to the
Property caused by Purchaser or its agents, (iii) Purchaser shall deliver to
Seller any reports or documents in Purchaser's possession concerning the
Property, (iv) Seller shall pay the Fee owed to the Principal Broker, and (v)
each party shall perform any other obligations which expressly survive the
termination of this Contract. The obligations under this paragraph shall
survive the termination of this Contract. The terms of any mutual termination
agreement will supersede and control over the provisions of this Section 16.C
to the extent of any conflict. This Section 16.C does not apply if Purchaser
unilaterally terminates this Contract by virtue of a terminate right set forth
elsewhere in 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 North Texas
Commercial Association of Realtors, Inc., if available, or 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 discharged at the Closing
will survive the Closing of this transaction.
H. BINDING EFFECT. This Contract shall insure 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 Broker(s) 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
reasonably 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.
N. DISCLAIMER. Purchaser understands that a real estate broker is
qualified to advise on matters concerning real estate and is not an expert in
matters of law, tax, financing, surveying, hazardous materials, engineering,
construction, safety, zoning, land planning, architecture, or the Americans
with Disabilities Act. However, the Broker(s) will disclose to Purchaser
any material factual knowledge which the Broker(s) may possess about the
condition of the Property. Purchaser acknowledges that Purchaser has been
advised by the Broker(s) to seek expert assistance on such matters. The
Broker(s) do not investigate a property's compliance with building codes,
governmental ordinances, statutes and laws that relate to the use or condition
of the Property or its construction, or that relate to its acquisition. If
the Broker(s) provide names of consultants or sources for advice or assistance,
the Broker(s) do not warrant the services of the advisors or their products and
cannot warrant the suitability of property to be acquired. The Broker(s) do not
warrant that the Seller will disclose any or all property defects or other
matters pertaining to the Property or its condition. Both Seller and Purchaser
agree to indemnify, defend, and hold the Broker(s) participating in this
transaction harmless from and against any and all liabilities, claims, debts,
damages, costs, and expenses, including but not limited to reasonable
attorneys' fees and court costs, related to or arising out of or in any way
connected to representations about the Property or matters analyzed by
experts. In addition, to the extent permitted by applicable law, Broker(s)
liability for errors and omissions, negligence, or otherwise, is limited to the
return of the Fee, if any, paid to the Broker(s) pursuant to this Contract.
Page 6
<PAGE> 7
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
(including the Broker(s)) 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 closely available public alternative dispute
resolution service coordinator 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 included in the Dispute.
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
any party may apply to the American Arbitration Association to provide 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 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.
17. ADDITIONAL PROVISIONS.
PURSUANT TO THE PROVISIONS IN PARAGRAPHS 4.A., 4,B., AND THE THIRD PARTY
FINANCING ADDENDUM B-1, PARAGRAPH C, $15,000.00 OF PURCHASER'S EARNEST MONEY
DEPOSIT SHALL BECOME NON-REFUNDABLE (THE "NON-REFUNDABLE PORTION") AT 1:00
P.M., AUGUST 25, 1997, (THE "NOTIFICATION DATE") UNLESS PURCHASER DELIVERS TO
THE TITLE COMPANY WRITTEN NOTICE OF PURCHASER'S TERMINATION OF THIS CONTRACT
PRIOR TO THE NOTIFICATION DATE.
Page 7
<PAGE> 8
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.]
<TABLE>
<S> <C> <C> <C>
[ ] Exhibit A Survey and/or Legal Description [ ] Addendum A Personal Property
[ ] Exhibit B Floor Plan and/or Site Plan [X] Addendum B-1 Third Party Financing
[ ] Exhibit C Other _________________________ [ ] Addendum B-2 Seller Financing
[X] Addendum C Inspection
[ ] Addendum D Disclosure Notice
[ ] Addendum E Other _____________________________
</TABLE>
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
THREE CALENDAR (3) 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
Earnest Money, if any, shall be promptly returned to Purchaser.
EXECUTED on the dates stated below, to be effective on the Effective Date.
<TABLE>
<S> <C>
SELLER PURCHASER
BOLLINGER INDUSTRIES INC., A TEXAS CORPORATION HSIEHS INVESTMENTS INC., A TEXAS CORPORATION
By [Signature]: /s/ GLENN BOLLINGER By [Signature]: /s/ JUDY HSIEH
----------------------------------- ----------------------------------------
Name: GLENN BOLLINGER Name: JUDY HSIEH
--------------------------------------------- --------------------------------------------------
Title: CHIEF EXECUTIVE OFFICER Title: PRESIDENT
-------------------------------------------- -------------------------------------------------
Address: 1905 110TH STREET Address: 1506 CONCORD
------------------------------------------ -----------------------------------------------
GRAND PRAIRIE, TEXAS 75050 RICHARDSON, TEXAS 75081
- -------------------------------------------------- -------------------------------------------------------
- -------------------------------------------------- -------------------------------------------------------
Telephone: 972-343-1000 Fax: 972-343-1195 Telephone: 972-253-5000 Fax: 972-253-6179
------------------ ------------------ -------------------- ---------------------
Tax I.D. No.: Tax I.D. No.:
------------------------------------- ------------------------------------------
Date of Execution: July 18, 1997 Date of Execution: July 18, 1997
-------------------------------- -------------------------------------
</TABLE>
<TABLE>
<S> <C>
PRINCIPAL BROKER COOPERATING BROKER
FULTSONCOR PARK ONE - NORTH DALLAS REALTORS
By [Signature]: /s/ THOMAS O. PEARSON By [Signature]: /s/ JACK C. HSIEH
----------------------------------- ----------------------------------------
Name: THOMAS O. PEARSON, SIOR Name: JACK C. HSIEH
--------------------------------------------- --------------------------------------------------
Title: EXECUTIVE VICE PRESIDENT, PRINCIPAL Title: AGENT
-------------------------------------------- -------------------------------------------------
Address: 1819 PROMENADE CENTER Address: 1819 PROMENADE CENTER
------------------------------------------ -----------------------------------------------
RICHARDSON, TEXAS 75080
- -------------------------------------------------- -------------------------------------------------------
9400 N. CENTRAL EXPRESSWAY DALLAS, TX 75231
- -------------------------------------------------- -------------------------------------------------------
Telephone: (214) 871-6666 Fax: Telephone: 972 238 9388 Fax: 972 238 8388
------------------ ------------------ -------------------- ---------------------
</TABLE>
TITLE COMPANY ACCEPTANCE. The Title Company acknowledges receipt of the
Earnest Money on ______________________ (date) from HSIEHS INVESTMENTS, INC., A
TEXAS CORPORATION, in the amount of $25,000.00 in the form of CASH and accepts
the Earnest Money subject to the terms and conditions of this Contract.
TITLE COMPANY
STEWART TITLE COMPANY
By [Signature]:
-----------------------------------
Name: GAYLE WILLIAMS
---------------------------------------------
Title: OFFICE MANAGER, CLOSER
--------------------------------------------
Address: 2208 WEST PARK ROW, SUITE 108
------------------------------------------
ARLINGTON, TEXAS 76013
- --------------------------------------------------
- --------------------------------------------------
Telephone: 817-261-0861 Fax: 817-274-2465
------------------ ------------------
Copyright Notice: This form is provided for the use of members of the North
Texas Commercial Association of Realtors, Inc. Permission is hereby granted to
make limited copies of this form for use in a particular Texas real estate
transaction. Contact the NTCAR office to confirm that you are using the
current version of this form.
Page 8
<PAGE> 9
FULTSONCOR
NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS(R)
ADDENDUM C TO CONTRACT OF SALE
INSPECTION
PROPERTY DESCRIPTION/ADDRESS: 222 W. AIRPORT FREEWAY, IRVING, TEXAS
A. INSPECTION PERIOD. Purchaser shall have a period of THIRTY CALENDAR (30)
days after the Effective Date (the "Inspection Period") to inspect the Property
and to conduct feasibility studies regarding Purchaser's intended use of the
Property. Purchaser's studies may include without limitation: (i) core
borings; (ii) environmental and architectural tests and investigations; (iii)
physical inspections of all improvements, fixtures, equipment, subsurface
soils, structural members, and personal property; and (iv) examination of
plans, specifications, manuals, and other documents relating to the
construction and condition of the Property. Purchaser and Purchaser's agents,
employees, consultants and contractors shall have the right of reasonable entry
onto the Property during normal business hours, and upon reasonable advance
notice to Seller and/or Seller's tenants, for purposes of the inspections,
studies, tests and examinations deemed necessary by Purchaser. All
inspections, studies, tests and examinations performed hereunder shall be at
Purchaser's expense.
B. REPORTS.
[ ] 1. Within _________ (____) days after the Effective Date, Seller shall
deliver to Purchaser written report of an environmental assessment of the
Property. The report shall be prepared, at Seller's expense, by a Registered
Professional Engineer reasonably acceptable to Purchaser, who is proficient or
certified in environmental risk assessment. The environmental assessment
report must include a "Phase I" investigation into the existence of Hazardous
Materials (as defined in Paragraph 7.A.(7) of this Contract) on or around the
Property. The environmental assessment must also include a land use history
search, engineering inspections, research and/or studies which may be necessary
to discover the existence, past or present, of Hazardous Materials (but not to
include physical tests), and shall comply, at a minimum, with the current ASTM
Standard E.1527.
[ ] 2. Within ten (10) days after the Effective Date, Seller shall deliver to
Purchaser copies of all reports in Seller's possession of engineering
investigations, tests and/or environmental studies which have been made with
respect to the Property within the two year period prior to the Effective Date.
[ ] 3. If Purchaser terminates this Contract, Purchaser shall deliver to
Seller, at Purchaser's expense and contemporaneously with the termination,
copies of all written reports, inspections, plats, drawings and studies made by
Purchaser and Purchaser's agents, consultants and contractors. This provision
shall survive the termination of this Contract.
C. TERMINATION. If Purchaser determines, in Purchaser's sole discretion, no
matter how arbitrary, that the Property is not in satisfactory condition or is
not suitable for Purchaser's intended use or purpose, then Purchaser may
terminate this Contract by delivering a written notice to Seller on or before
the last day of the Inspection Period, and the refundable portion of the
Earnest Money shall be promptly returned by the Title Company to Purchaser and
neither party shall have any further rights or obligations under this Contract
(except for those which may expressly survive the termination of this Contract).
D. ACCEPTANCE. If Purchaser does not properly and timely terminate this
Contract before the expiration of the Inspection Period (or if Purchaser
accepts the Property in writing) then Purchaser will be deemed to have waived
all objections to the Property under this Contract except for any title
objections which may be outstanding pursuant to Section 6 of this Contract. In
that event, Purchaser agrees to purchase the Property in its current condition
without any further representations or warranties of Seller, except any
objections which Seller may expressly agree in writing to cure, and this
Contract shall continue in full force and effect and the parties shall proceed
to Closing. However this provision does not waive or otherwise limit or
invalidate any express representations or warranties Seller has made in this
Contract.
E. RESTORATION. If the transaction described in this Contract does not
close, through no fault of Seller, and the condition of the Property was
altered due to tests and inspections performed by Purchaser or on Purchaser's
behalf, Purchaser must restore the Property to its original condition.
<PAGE> 10
FULTSONCOR
NORTH TEXAS COMMERCIAL ASSOCIATION OF REALTORS(R)
ADDENDUM B-1 TO CONTRACT OF SALE
THIRD PARTY FINANCING
PROPERTY DESCRIPTION/ADDRESS: 222 W. AIRPORT FREEWAY, IRVING, TEXAS
---------------------------------------------------
[CHECK ALL BOXES WHICH APPLY AND COMPLETE ALL BLANKS WHICH APPLY TO THIS
TRANSACTION. BOXES NOT CHECKED DO NOT APPLY TO THIS CONTRACT.]
[ ] A. ASSUMPTION.
1. Purchaser shall assume the unpaid principal balance of a first lien
promissory note payable to ____________________ dated __________ which unpaid
balance at Closing will be approximately $______________, and those obligations
imposed by the Deed of Trust which secures the promissory note being assumed.
Purchaser's initial payment shall be the first payment due after Closing.
2. The transaction described in this Contract [ ] is [ ] is not
conditioned upon Seller's obtaining a release of liability under the first lien
promissory note from the holder of the note.
3. The cash payable at Closing shall be adjusted by the amount of any
variance in the loan balance(s) stated above. However, if the total principal
balance of all assumed loans varies at Closing from the total of the amount
stated above by an amount greater than $_______________, either party may
terminate this Contract and the Earnest Money shall be refunded to Purchaser. If
the noteholder on assumption requires;
a. Purchaser to pay an assumption fee in excess of $_____________ and
Seller declines to pay such excess; or
b. an increase in the interest rate above ___________%; or
c. any other modification of the loan documents; then Purchaser may
terminate this Contract and the Earnest Money shall be refunded to Purchaser.
The cash payable at Closing shall be adjusted by the amount of any variance from
the loan balance above.
NOTICE TO SELLER: You may still be liable for payment of the promissory note
after assumption of the Note by Purchaser. Please check with your attorney or
lender.
[ ] B. SUBJECT TO. Purchaser shall take the Property subject to, but not
assuming, the unpaid principal balance of a first lien promissory note payable
to_________________________________________________, dated____________________,
which unpaid balance at Closing will be approximately $_______________________,
and those obligations imposed by the Deed of Trust which secures the promissory
note. Purchaser's initial payment shall be the first payment due after Closing.
If the unpaid balance of the loan varies at Closing from the amount stated
above by an amount greater than $___________________, either party may terminate
this Contract and the refundable portion of the refundable portion of the
Earnest Money shall be refunded to Purchaser. If the existing interest rate is
increased above ________________% or the terms of the loan documents are
modified or Purchaser is required to pay a transfer fee in excess of $__________
and Seller declines to pay such excess, Purchaser may terminate this Contract
and the refundable portion of the Earnest Money shall be refunded to Purchaser.
The cash payable at Closing shall be adjusted by the amount of any variance
from the loan balance shown above.
NOTICE TO SELLER: You may still be liable for payment of the promissory note
after the Property is sold subject to the Note. Please check with your attorney
or lender.
[X] C. THIRD PARTY FINANCING. This Contract is subject to approval for
Purchaser of a third party first lien note in the amount of $__________________
payable at _______________ intervals based on an amortization of not less than
________________ years, with a payment term of not less than __________________
years, and with the initial interest rate not to exceed ________________% per
annum for the first _________________ year(s) of the loan.
Application Period. Purchaser shall apply for all third party financing or
noteholder's waiver of any right to accelerate the note within three (3) days
after the Effective Date and shall make every reasonable effort to obtain the
financing or waiver. If the financing or noteholder's waiver is not obtained
within sixty (60) days after the Effective Date, this Contract shall terminate
and the refundable portion of the Ernest Money shall be refunded to Purchaser.
NOTICE TO PURCHASER: Loan payments, interest rates or other terms of some
loans may be adjusted after Closing. Before signing this Contract, Purchaser
is advised to examine all notes and deeds of trust to determine their terms and
the possibility of future adjustments.
<PAGE> 1
Exhibit 11.1
COMPUTATION OF EARNINGS PER SHARE
<TABLE>
<CAPTION>
Three Months Three Months Six Months Six Months
Period Period Period Period
Ended Ended Ended Ended
September 30, September 29, September 30, September 29,
1997 1996 1997 1996
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Earnings (loss) from Continuing
Operations .............................. $ (473,794) $ (1,074,113) $ (1,112,225) $ (1,838,833)
Net earnings (loss) ........................... $ (473,794) $ (267,417) $ (1,112,225) $ (1,032,137)
============= ============= ============= =============
Weighted average number of common
shares outstanding during
the period .............................. 4,000,210 4,000,210 4,000,210 4,000,210
Net effect of dilutive stock options based
on the treasury stock method at
market prices ........................... -- -- -- --
------------- ------------- ------------- -------------
Shares used for computation ................... 4,000,210 4,000,210 4,000,210 4,000,210
============= ============= ============= =============
Net earnings (loss) from
continuing operations ................... $ (.12) $ (.27) $ (.28) $ (.46)
============= ============= ============= =============
Net earnings (loss) per share ................. $ (.12) $ (.07) $ (.28) $ (.26)
============= ============= ============= =============
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> MAR-31-1998
<PERIOD-END> SEP-30-1997
<CASH> 56,453
<SECURITIES> 0
<RECEIVABLES> 12,861,072
<ALLOWANCES> 794,687
<INVENTORY> 12,699,735
<CURRENT-ASSETS> 26,392,698
<PP&E> 3,264,240
<DEPRECIATION> 1,670,189
<TOTAL-ASSETS> 30,303,200
<CURRENT-LIABILITIES> 15,837,909
<BONDS> 0
0
0
<COMMON> 40,002
<OTHER-SE> 3,868,906
<TOTAL-LIABILITY-AND-EQUITY> 30,303,200
<SALES> 35,623,961
<TOTAL-REVENUES> 35,623,961
<CGS> 28,858,157
<TOTAL-COSTS> 2,528,818
<OTHER-EXPENSES> 0
<LOSS-PROVISION> (49,625)
<INTEREST-EXPENSE> 1,156,203
<INCOME-PRETAX> (1,111,165)
<INCOME-TAX> 1,060
<INCOME-CONTINUING> (1,112,225)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,112,225)
<EPS-PRIMARY> (.28)
<EPS-DILUTED> (.28)
</TABLE>
