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EXH 10.5
PURCHASE AGREEMENT
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THIS PURCHASE AGREEMENT is made at Valley View, Ohio, this 3rd day of
March, 1999, between D.I.Y. HOME WAREHOUSE, INC., an Ohio corporation
(hereinafter called "Seller"), and XXXXXXX XXXXXXXX, INC. a West Virginia
corporation (hereinafter called "Buyer").
WHEREAS, Seller owns the real estate described on Exhibit A attached
hereto (hereinafter referred to as the "'Mansfield Property"); and
WHEREAS, Seller owns the real estate described on Exhibit B attached
hereto (hereinafter referred to as the "Canton Property"); and
WHEREAS, Seller desires to sell the Mansfield Property and the Canton
Property (the Mansfield Property and the Canton Property are hereinafter
collectively referred to as the "Properties") to Buyer and Buyer desires to
purchase the Properties from Seller;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties agree as follows:
1. PURCHASE AND SALE. Seller agrees to sell and convey to Buyer, and
Buyer agrees to purchase and pay for, the Properties. The Properties will
include the land and any and all buildings, improvements, rights, privileges,
and easements appertaining thereto.
2. PURCHASE PRICE. The total purchase price for the Properties is Eight
Million Six Hundred Thousand Dollars ($8,600,000). The purchase price is payable
by Buyer as follows:
A. One Hundred Thousand Dollars ($100,000) receipt of which is
hereby acknowledged by Seller, which sum will be non-refundable upon
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satisfactory completion of the Due Diligence Investigation (except in
the case of Seller's breach).
B. A non-refundable (except in the case of Seller's breach)
Four Hundred Forty Thousand Dollars ($440,000) deposit, to be paid,
upon Buyer's satisfactory completion of the Due Diligence
Investigation.
C. The balance of the purchase price, namely Eight Million
Sixty Thousand Dollars ($8,060,000) in cash, which shall be deposited
into escrow on or before the closing date of this transaction.
All deposits shall be held in an interest bearing account, and the
deposits and any accrued interest shall be fully refundable to the Purchaser in
the event of termination of the Agreement during or until the expiration of the
"Due Diligence Investigation." Thereafter, the deposit and any accrued interest
will be non-refundable in the event of a termination by Purchaser (except in the
case of Seller's breach).
3. CLOSING. The closing date of this transaction shall be within thirty
(30) days after the satisfactory completion of Buyer's Due Diligence
Investigation, but in no event will the closing date be later than July 1, 1999.
Possession to the Canton Property will be delivered at Closing and possession of
the Mansfield Property will be delivered within ninety (90) days after the
Closing. At closing, the parties will execute the Post Occupancy Agreement
attached hereto as Exhibit C with respect to the Mansfield Property.
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4. SELLER'S DISCLAIMER. BUYER ACKNOWLEDGES THAT EXCEPT AS IS
SPECIFICALLY SET FORTH HEREIN THAT SELLER IS NOT MAKING ANY REPRESENTATIONS OR
WARRANTIES EITHER EXPRESS OR IMPLIED REGARDING THE CONDITION, FITNESS OR USE OF
THE PROPERTIES. SUBJECT TO BUYER APPROVING THE RESULTS OF ITS DUE DILIGENCE
INVESTIGATION, BUYER HEREBY ACCEPTS THE PROPERTIES IN THEIR "AS IS" "WHERE IS"
CONDITION WITH ALL FAULTS.
5. DUE DILIGENCE. This Agreement, and Buyer's obligation to purchase
the Properties hereunder, is subject to Buyer satisfactorily completing to its
sole reasonable discretion a diligent investigation and inspection of the
Properties within ninety (90) days from the date hereof (the "Due Diligence
Investigation"). Buyer's investigations and inspections may include, without
limitation, tests of the subsurface soil conditions of the Properties, boundary
surveys, engineering reports, feasibility studies (including, without
limitation, economic feasibility studies), and environmental inspections. Buyer.
and Buyer's agents will have reasonable access to the Properties for such
inspections. Buyer hereby agrees to defend, indemnify and hold Seller harmless
from the acts of Buyer or Buyer's agents resulting from access to the
Properties during the Due Diligence Investigation. Buyer's failure to object in
writing to Seller within such 90-day period shall be deemed to be satisfactory
completion of the Buyer's Due Diligence Investigation. If within such ninety
(90) day period, Buyer objects to an item relating to the Properties, and Seller
does not remediate such item prior to the closing date, then this transaction
will be null and void and any purchase price already paid will be returned to
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Buyer. Buyer agrees to keep the results of its Due Diligence Investigation
confidential, except that full disclosure will be made to Seller.
6. TITLE. Seller shall convey the Properties to Buyer by general
warranty deed, warranting title to be free and clear of all liens, encumbrances,
clouds and defects whatsoever caused by Seller, except restrictions,
reservations, limitations, easements and conditions of record which are approved
by Buyer in accordance with subparagraph 7.B. below, zoning ordinances, and
taxes and assessments, both general and special, which are a lien but not yet
due and payable. Said deed shall be deposited into escrow on or before the
closing date.
7. TITLE INSURANCE. A. On the closing date, Buyer will obtain an
Owner's Policy of Title Insurance in the full amount of the purchase price to be
issued by the Akron office of Chicago Title Insurance Company (hereinafter
called "title company") in its customary form, insuring marketable title to the
Properties to be good in Buyer, subject only to any exceptions to be set forth
in the deed which are approved by Buyer as set forth below. Prior to closing,
each party will receive an insured closing letter from Chicago Title Insurance
Company.
B. A preliminary title report, with a special tax search included, in
the form of a commitment to issue the required title policy requested by Buyer
("title report") will be ordered by Seller for the benefit of Buyer upon
execution hereof. In addition, upon execution hereof, Buyer will order an ALTA
survey of the Properties. The title report and the survey must be completed
within forty-five (45) days from the date hereof. Within ten (10) days of
Buyer's receipt of the title report and the ALTA survey for both Properties,
Buyer will notify Seller and the title company of any restrictions,
reservations, limitations, easements and conditions of
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record (together herein called "title defects") disclosed in said title report
or survey which are objectionable to Buyer. Buyer's failure to object in writing
within such 10-day period shall be deemed to be an approval by Buyer for the
items set forth therein and a waiver of any items so disclosed. If Buyer
objects to a title defect, and Seller does not remove such title defect within
twenty (20) days thereafter, then this transaction will be null and void and any
purchase price already paid will be returned to Buyer.
On the closing date, the escrow agent shall notify Seller and Buyer as
to whether the title company is then in a position to issue its title insurance.
If the escrow agent shall notify the parties that (a) the title company will
issue the title insurance, this transaction shall be consummated in accordance
with the terms and provisions of this Agreement; or (b) the title company will
not issue the title insurance, and if Buyer does not forthwith waive the title
defects that the escrow agent shall recite as preventing such issuance, or if
Seller does not forthwith cure the same, then the closing of this transaction
shall be postponed for a reasonable period of time not to exceed thirty (30)
days until Seller shall remove said title defects. If Seller is unable to cure
such title defects within said thirty (30) days, this Agreement shall be null
and void, all funds and documents previously deposited in escrow shall be
returned to the parties, and there shall be no further liability between the
parties. If Buyer shall waive such title defects by so notifying the escrow
agent in writing, or if Seller shall have cured such defects, as provided
herein, the obligations of the parties hereunder shall not be affected by reason
thereof, there shall be no abatement or reduction of the purchase price, and
this transaction shall be consummated in
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accordance with the terms and provisions of this Agreement, except that such
title defects that are waived by Buyer, if any, shall be set forth as
exceptions in the deed and in the title insurance.
8. SELLER'S INFORMATION. Seller, shall use reasonable efforts to
furnish Buyer with copies of its existing surveys, building plans, environmental
studies and other pertinent or relevant information or reports within its
possession or control relating to the Properties (the "Information"). If the
Information is too voluminous, Buyer will send a representative to Seller's
office to review the Information. Buyer shall immediately review the Information
and within twenty (20) days of Buyer's receipt of the Information, Buyer will
notify Seller in writing of any item disclosed in the Information which is
objectionable to Buyer and whether Buyer still intends to proceed with the
transaction described herein or to abandon such transaction.
NOTWITHSTANDING THE FOREGOING TO THE CONTRARY, SELLER IS NOT MAKING ANY
REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY OF THE INFORMATION AND
SELLER HEREBY DISCLAIMS ANY SUCH WARRANTIES EITHER EXPRESS OR IMPLIED. THE
PARTIES ACKNOWLEDGE THAT BUYER IS CONDUCTING THE DUE DILIGENCE INVESTIGATION OF
THE PROPERTY AND THAT BUYER WILL RELY EXCLUSIVELY ON THE RESULTS THEREOF.
9. SELLER'S REPRESENTATIONS. Seller hereby represents, which
representations shall be effective as of the closing date and shall survive the
transfer of title to Buyer or Buyer's nominee, as follows:
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(a) Seller has received no notices or orders from any governmental
authority with respect to the condition of the Properties or repair of the
same, or with respect to any claim of a violation of any laws, ordinances,
zoning codes, building codes or orders applicable thereto;
(b) that there are no actions, suits or proceedings against the Seller
with respect to the Properties, and that, to its actual knowledge, there are no
investigations pending or actions, suits or proceedings at law or in equity or
investigations threatened against Seller that would adversely affect this
transaction or the Properties being sold hereunder;
(c) that, to its actual knowledge, all documents delivered or required
hereunder to be delivered to Buyer and ail warranties herein made by Seller are
accurate and complete and there has been no material change in any of the facts,
circumstances or subject matter of this transaction of which Buyer has not been
informed; and
(d) that the sale and transfer of the Properties aforesaid is or shall
be prior to the closing date duly authorized in accordance with law, and within
the scope of authority of the party or parties conveying the Properties, and
evidence of such authority shall be presented to Buyer prior to the closing of
this transaction.
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10. DAMAGE. From the date hereof, through the closing date, Seller
agrees to maintain its existing property and casualty insurance relating to the
Property. If there is any significant structural damage to the Properties prior.
to transfer of record title then Buyer may, at Buyer's option, (i) elect to
continue this Agreement In full force and effect, in which case Seller shall
forthwith assign to Buyer all rights of Seller to the insurance recovery due by
reason of said damage (if any); or (ii) elect to rescind and void this
Agreement, and thereupon there shall be returned to Buyer all money, papers or
documents deposited by Buyer, and there shall be returned to Seller all papers
or documents deposited by Seller. After transfer of record title to the
Properties to Buyer, the risk of loss shall be and is assumed by Buyer.
11. TAXES AND ASSESSMENTS. Real estate taxes and assessments, both
general and special will be prorated as of the date of the transfer of title
based upon the most recent tax duplicate.
12. BROKER. Seller and Buyer represent to each other, which
representation shall survive the closing of this transaction, that no real
estate broker was involved in this transaction and that no brokerage fees or
other compensation is due any real estate broker or any other person because of
this transaction except for Xxx Xxxxxxx Real Estate and Petroplus & Associates,
Inc. whose commission of two and one-half percent (2.5%) of the purchase price
will be the responsibility of Seller. The commission will be split equally
between such brokers and will be paid only in the event title to the Property
transfers to Buyer and the purchase price is paid to Seller. The parties shall
indemnify and hold each other harmless from any other broker claims made under
their authority.
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13. ESCROW. This transaction shall be placed in escrow with the title
company ("escrow agent"). An executed counterpart of this Agreement shall be
deposited with the escrow agent by Buyer, and this Agreement shall serve as the
escrow instructions. The escrow agent may attach its standard conditions of
acceptance thereto; provided, however, that in the event said standard
conditions are inconsistent or in conflict with the terms of this Agreement,
then this Agreement shall control.
14. CLOSING DATE. On the closing date, the escrow agent shall file for
record the deed and any other instruments required to be recorded and shall
thereupon deliver to each of the parties the funds and documents to which they
shall be respectively entitled, together with its escrow statement, provided
that the escrow agent shall then have on hand all funds and documents necessary
to complete the within transaction and provided the title company has stated in
writing that it shall be in a position to, and will issue and deliver, upon the
filing of the deed for record, title insurance required hereunder.
In closing this transaction, the escrow agent shall charge Seller with
the following:
(a) the cost of any transfer tax;
(b) one-half (1/2) the escrow fee;
(c) the brokerage commissions; and
(d) all other charges properly borne by Seller consistent with the
terms of this Agreement;
and immediately thereafter shall deliver to Seller the balance of the funds in
its hands due under the terms hereof, and any documents due Seller.
On closing, said escrow agent shall charge Buyer with the following:
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(a) any cost of financing this transaction which may be arranged
for by Buyer;
(b) the cost of filing the deed for record;
(c) the cost of a title report, title search and the title
insurance policy;
(d) one-half (1/2) the escrow fee; and
(e) all other charges properly borne by Buyer consistent with the
terms of this Agreement;
and immediately thereafter, said escrow agent shall deliver to Buyer the title
policy, the recorded deed or Recorder's receipt therefor, any prorations to
which Buyer is entitled, and any other funds or documents due Buyer.
15. NOTICES. Any notice which may be or is required to be given
pursuant to the provisions of this Agreement shall be deemed to be sufficiently
given if personally delivered or sent by certified or registered mail, postage
prepaid, return receipt requested, and addressed as follows:
If to Seller, to: D.I.Y. Home Warehouse, Inc.
0000 Xxxxx Xxxx
Xxxxxx Xxxx, Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxx, President
With a copy to: Xx. Xxxxxxx Xxxxxxxxxxx
Edgemere Enterprises, Inc.
00 X. Xxxx Xxxx Xxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
With a copy to: Xx. Xxxxxx X. Xxxxxxxx, Xx.
Cavitch, Familo, Xxxxxx & Xxxxxxx Co., L.P.A.
00xx Xxxxx, Xxx Xxxx Xxxx Xxxxxxxx
Xxxxxxxxx, Xxxx 00000
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If to Buyer, to: Xxxxxxx Xxxxxxxx, Inc.
Real Estate Department
00 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
With a copy to: Xx. Xxxxx Petroplus
Petroplus & Associates, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx X
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
With a copy to: Xx. Xxxx X. London
Xxxxxxx & Xxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
With a copy to: Mr. Xxxxxx Xxxxxx
Xxx Xxxxxxx Real Estate
Xxx Xxxxxxx Xxxxx
Xxxxx, Xxxx 00000
16. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of Seller and Buyer and their respective administrators, successors
and assigns.
17. CONFIDENTIAL NATURE OF TRANSFER. The parties agree to keep the
existence of this transaction confidential until transfer of title. Buyer agrees
to notify all employees and/or agents that have or will have knowledge of this
transaction of the confidential nature of this transaction, including, without
limitation, employees or agents that will conduct the Due Diligence
Investigation. The parties agree that they will jointly approve any news
release(s) regarding this transaction. Buyer acknowledges that Seller may suffer
significant damages if the existence of this transaction becomes known to
customers and/or employees prior to the transfer of title to Buyer.
18. CLOSING OF BOTH PROPERTIES. The parties acknowledge that this
transaction contemplates the purchase of the Mansfield Property and the Canton
Property and that the
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Properties may not be separately purchased hereunder, and that this transaction
is contingent upon Buyer acquiring both of the Properties.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
the day and year first above written.
SELLER:
D.I.Y. HOME WAREHOUSE, INC.
By: /s/ R. Xxxxx Xxxxx
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Title: V. P. Operations
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Printed Name: R. Xxxxx Xxxxx
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BUYER:
XXXXXXX XXXXXXXX, INC.
By: /s/ Xxxxx Xxxxxxx
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Title: Pres.
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Printed Name: Xxxxx Xxxxxxx
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PARCEL 1
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Located in the Southwest Quarter, Section 13, Springfield Township, Village of
Ontario, Richland County, Ohio, being a part of an area formerly known as Gramac
Allotment and recorded in Plat Volume 17, Page 158, consisting of inlot numbers
1694 through 1699, 1705 through 1718, of the consecutive numbered inlots in the
Village of Ontario, together with portions of Sigrud Road, Xxxxx Road, and
Xxxxxx Road, all now vacated. The same being more particularly described as
follows:
Beginning at the Northwest corner of inlot 1697, the same being located
on the south right-of-way line of Xxxx Xxxxxx Xxxxxx Xxxx (XX 00 X);
Thence South 75(degrees) 15' 00" East a distance of 104 feet, more or
less, and continuing South 79(degrees) 56' 40" East a distance of
138.99 feet, all on and along the South right-of-way of West Fourth
Street Road;
Thence South 11(degrees) 16' 00" West 184 feet, more or less, to a
point thence South 79(degrees) 56' 40" East 147 feet, more or less to
point
Thence South 11(degrees) 16' 00" West on and along the centerline of
Xxxxxx Road a distance of 192.92 feet to a point on the westerly
extension of the North line of inlot 1719;
Thence South 89(degrees) 38' 00" East on and along the extension of the
North line of inlot 1719, a distance of 25.03 feet to a point on the
East right-of-way of Xxxxxx Road;
Thence South 00(degrees) 00' 20" West on and along the East
right-of-way of Xxxxxx Road, a distance of 255.74 feet to a point on
the North right-of-way of US Route 20 S;
Thence South 70(degrees) 20' 00" West a distance of 58.42 feet, and
continuing South 62(degrees) 01' 20" West a distance of 200.70 feet all
on and along the North right-of-way of US Route 30 S to a point on the
South right-of-way on Xxxxx Road, now vacated;
EXHIBIT A
Page 1 of 4
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PARCEL 1 CONTINUED
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Thence North 89(degrees) 05' 40" West on and along the South right-of-way of
Xxxxx Road, the same also being the North right-of-way of US Route 30 S, a
distance of 489.89 feet to Northeast corner of inlot 1756;
Thence North 00(degrees) 54' 20" East on and along the northerly extension of
the east line of inlot 1756, a distance of 25.00 feet to a point on centerline
of Xxxxx Road, now vacated;
Thence North 89(degrees) 05' 40" West a distance of 90.00 feet and continuing
North 83(degrees) 41' 30" West a distance of 33.13 feet on and along the
centerline of Xxxxx Road and the westerly extension thereof to a point on the
West right-of-way of Xxxxx Road;
Thence North 01(degrees) 59' 00" East on and along the West right-of-way of
Xxxxx Road, now vacated, and the northerly extension thereof a distance of
280.50 feet to a point on the centerline of Sigrud Road, thence South
88(degrees) 02' 00" East a distance of 45.03 feet, and continuing North
87(degrees) 55' 24" East a distance of 180.45 feet all on and along the
centerline of Sigrud Road, now vacated, to a point on the southerly extension of
the west line of inlot 1705;
Thence North 01(degrees) 59' 00" East on and along the west line of inlot 1705
1705 and the extension thereof a distance of 253.60 feet to the northwest corner
of inlot 1705;
Thence South 87(degrees) 54' 00" East on and along the north line of inlot
numbers 1705 and 1706 a distance of 99.75 feet to the southwest corner of inlot
1699;
Thence North 01(degrees) 39' 00" East on and along the west line of inlot 1699 a
distance of 88 feet, more or less to a point; thence South 79(degrees) 56' 40"
East 137 feet, more or less, thence South 11(degrees) 16' 00" West 180.00 feet,
more or less to the northwest corner of inlot 1697, the same beginning the place
of beginning of parcel of land herein described.
EXHIBIT A
Page 2 of 4
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PARCEL 2
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Located in the Southwest Quarter, Section 13, Springfield Township, Village of
Ontario, Richland County, Ohio, being a part of an area formerly known as Framac
Allotment and recorded in Plat Volume 17, Page 158, consisting of inlot numbers
1694 through 1700, 1705 through 1718, of the consecutive numbered inlots in the
Village of Ontario, together with portions of Sigrud Road, Xxxxx Road, and
Xxxxxx Road, all now vacated. The same being more particularly described as
follows:
Beginning at the Northwest corner of inlet 1697, the same being located
on the South right-of-way line of Xxxx Xxxxxx Xxxxxx Xxxx (XX 00 X):
thence, North 75(degrees) 15' 00" West 152.00 feet to a point, thence,
North 76(degrees) 09' 00" West 13.65 feet to the corner of said lot,
thence South 01(degrees) 39' 00" West a distance of 195.40 feet to a
corner, thence South 79(degrees) 56' 40" East a distance of 132.74 feet
to a corner, thence North 11(degrees) 16' 00" East a distance of 180.00
feet to the northwest corner of inlot 1697, the same being the place of
beginning of the parcel of land herein described.
SAVE AND EXCEPT THE FOLLOWING:
Situated in the Village of Ontario, Township of Springfield, County of Richland,
State of OH and being a part of the Southwest Quarter of Section 13, Range 19,
Township 21, also known as part of the Gramac Allotment recorded in Plat Volume
17, Page 158, being a part of Inlot Numbers One Thousand Six Hundred
Ninety-seven (#1697), One Thousand Six Hundred Ninety-eight (#1698) and One
Thousand Six Hundred Ninety-nine (#1699), being more particularly described as
follows: Beginning at a survey marker set at the Northwest corner of Inlot #1699
thence South 76 degrees 26 minutes 15 seconds East along the Southerly right of
way of West Fourth Street, a distance of 13.65 feet to 3/4 inch water pipe
found; thence South 75 degrees 22 minutes 43 seconds East along the Southerly
right xx xxx xx Xxxx Xxxxxx Xxxxxx a distance of 190.83 feet to a survey marker
set; thence South 14 degrees 17 minutes 46 seconds West distance of 187.84 feet
to a railroad spike set; thence North 76 degrees 53 minutes 49 seconds West a
distance of 160.81 feet to a railroad spike set on the East line of lands now or
formerly owned by Joy Limited Partnership as recorded in Deed Volume 904, Page
265; thence North ??? degree 28 minutes 46 seconds East along the East line of
said Joy Partnership Lands, a distance of 197.00 feet to the survey marker set
at the point of beginning, containing 0.798 acres of land more or less, subject
to all highways, easements, and use restrictions of record. This description is
based upon an actual field survey. All bearings are based upon the South line of
lands not or formerly owned by D.I.Y. Home Warehouse, Inc., as recorded in
Official Record volume 295 Page 200, also being the Northerly right of way of
U.S.R. 30-S, bearing being North 89 degrees 04 minutes 50 seconds West. Bearings
are for the determination of angular measurement only. Survey markers set are
5/8 inch x 30 inch long reinforcing bar with plastic cap stamped "RICHLAND ENG.
R.L.S. 4939". Deed References: Official Record Volume 295, Page 200 According to
survey made by Xxxxxx X. Xxxxxxx, Registered Surveyor #4939.
Permanent Parcel #______________________________________
EXHIBIT A
Page 3 of 4
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ALSO SAVE AND ACCEPT THE FOLLOWING:
Located in the Village of Ontario, Township of Springfield, County of Richland,
State of Ohio and being a part of the Southwest Quarter of Section 13,
Township 21, Range 19, also known as part of the former Gramac Allotment
recorded in Plat Volume 17, Page 158 and being a part of Lot Number 1711
together with portions of Sigrud and Xxxxx Roads now vacated and more
particularly described as follows:
Beginning at a point in the intersection of the centerline of Lexington-
Springmill Rd. C.H. 133 with its intersection with the centerline of Sigrud Rd.
Thence S 88 degrees 09' 21" E along the centerline of Sigrud Rd. a distance of
159.97 feet to a pk nail set and the True Place of Beginning.
Thence continuing S 88 degrees 09' 21" E along the centerline of vacated
Sigrud Rd. a distance of 41.73 feet to a pk nail set.
Thence N 88 degrees 23' 06" E along the centerline of vacated Sigrud Rd. a
distance of 38.35 feet to a pk nail set.
Thence S 02 degrees 06' 38" W a distance of 284.17 feet to a pk nail set on the
centerline of vacated Edgar Rd.
Thence N 89 degrees 07' 48" W along the centerline of vacated Edgar Rd. a
distance of 51.51 feet to an iron pin set.
Thence N 83 degrees 41' 00" W a distance of 28.58 feet to an iron pin found on
the west line of vacated Edgar Rd.
Thence N 02 degrees 06' 38" E along the west line of vacated Edgar Rd. a
distance of 280.50 feet to the True Place of Beginning and containing
22608.2650 square feet but subject to all legal highways also all easements of
record.
EXHIBIT A
Page 4 of 4
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[MAP]
EXHIBIT B
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POST-OCCUPANCY AGREEMENT
This Post-Occupancy Agreement Made this ___ day of ____________, 1999, by
and between DIY HOME WAREHOUSE, INC., an Ohio Corporation, party of the first
part, ("Seller"), and XXXXXXX XXXXXXXX, INC., a West Virginia Corporation, party
of the second part, ("Purchaser"), the same parties under that Purchase and Sale
Agreement regarding the real estate situate in the cities of Mansfield and
Canton, State of Ohio, (collectively the "Property"), as more fully described on
Exhibit A and Exhibit B attached hereto.
WHEREAS, the Seller and the Purchaser have agreed to enter into this
Occupancy Agreement, thereby permitting the continued occupancy of the Property
by the Seller under the terms and conditions set forth herein and made a part of
this Occupancy Agreement.
WITNESSETH:
That in and for valuable consideration, the sufficiency of which is hereby
acknowledged by the parties, the Purchaser hereby agrees, and the Seller hereby
accepts the following provisions of the Agreement:
1. The date of occupancy by the Seller shall be from the date of closing
until midnight of the ninetieth (90th) day after the closing (the "90-day
post-occupancy period").
2. The Seller may at their option vacate the Property prior to expiration
of the "90-day post-occupancy period".
3. Seller shall pay no rent during the "90-day post-occupancy period".
4. During the Seller's "90-day post-occupancy period", Purchaser shall be
permitted free and full access to the Property.
5. The Seller agrees to hold the Purchaser harmless from any claims or
actions which arise as a result of Seller's actions, the act of their agents, or
any other persons entering upon the Property during the Seller's "90-day
post-occupancy period".
6. The Seller agrees to maintain its existing property and casualty
insurance on the Property during the "90-day post-occupancy period".
7. This Post-Occupancy Agreement is solely for the Seller's right of
possession of the Property, pursuant to the provisions of this Agreement, and is
not intended to establish a landlord/tenant relationship.
EXHIBIT C
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8. The Seller agrees to pay any and all bills for usage of available
utilities on the Property incurred by Seller during the "90-day post-occupancy
period".
9. The Seller agrees to pay its pro-rata share of the general and special
real estate taxes assessed upon the Property during the "90-day post-occupancy
period".
10. In the event Seller fails to vacate the Property at the expiration of
the "90-day post occupancy period", Seller shall pay to purchaser the sum of
Nine Thousand Dollars, ($9,000.00) per week. Payments shall be made only on a
weekly basis, and payment shall not be subject to proration on a daily basis.
WITNESS the following signatures and seals:
WITNESSES: Xxxxxxx Xxxxxxxx, Inc.,
A West Virginia Corporation
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By:
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Its:
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Date:
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DIY Home Warehouse, Inc.,
An Ohio Corporation
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By:
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Its:
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Date:
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