Exhibit 10.9.9
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Purchase Agreement") is made and
entered into as of February 28, 1997 (the "Effective Date"), by and between
HOLIDAY PROPERTIES, an Ohio general partnership ("Seller"), and CHEMPOWER,
INC., an Ohio corporation ("Buyer").
RECITALS
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A. Seller is the fee simple owner of certain real property
commonly known as 000 Xxxx Xxxxxxxxxx Xxxx Xxxx, Xxxxx, Xxxx, and more
particularly described in Exhibit A attached hereto and incorporated
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herein, together with any and all rights, privileges, easements,
appurtenances and hereditaments belonging thereto and all buildings and
improvements situated thereon, together with the following items currently
located in or on such property: all components of the electrical, heating,
air conditioning, plumbing and bathroom systems; all built-in equipment
(collectively referred to as the "Akron Parcel").
B. Seller is the fee simple owner of certain real property
commonly known as 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx, and more
particularly described in Exhibit B attached hereto and incorporated
---------
herein, together with any and all rights, privileges, easements,
appurtenances and hereditaments belonging thereto and all buildings and
improvements situated thereon, together with the following items currently
located in or on such property: all components of the electrical, heating,
air conditioning, plumbing and bathroom systems; all built-in equipment
(collectively referred to as the "Cincinnati Parcel").
C. Seller is the fee simple owner of certain real property
commonly known as 0000 Xxxx Xxxxxxxx Xxxxx Xxxxx 00, Xxxxxxxx, Xxxx
Xxxxxxxx, and more particularly described in Exhibit C attached hereto and
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incorporated herein, together with any and all rights, privileges,
easements, appurtenances and hereditaments belonging thereto and all
buildings and improvements situated thereon, together with the following
items currently located in or on such property: all components of the
electrical, heating, air conditioning, plumbing and bathroom systems; all
built-in equipment (collectively referred to as the "Winfield Parcel").
D. The Akron Parcel, Cincinnati Parcel and Winfield Parcel are
sometimes collectively referred to as the "Premises," and individually as a
"Parcel."
E. In order to induce First National Bank of Ohio ("Bank") to
create for Buyer a line of credit facility pursuant to that certain Loan
Agreement (the "Loan Agreement") between Buyer and Bank dated as of
February 28, 1997, Seller has agreed to guaranty Buyer's performance under
the Loan Agreement pursuant to that certain Limited Guaranty from Seller to
Buyer dated as of February 28, 1997 (the "Limited Guaranty").
F. Seller has granted and delivered to Bank certain mortgages
and deed of trust (the "Mortgages") upon the Premises to secure the Limited
Guaranty.
G. Buyer desires to purchase from Seller the Premises and Seller
desires to sell to Buyer the Premises under the terms of this Purchase
Agreement.
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the adequacy and sufficiency of which are
hereby acknowledged by this Purchase Agreement, the parties hereto agree to
the following:
SECTION 1. AGREEMENT TO PURCHASE AND SELL. Seller agrees to
sell and convey to Buyer the Premises, and Buyer agrees to purchase from
Seller the Premises under the terms and conditions of this Purchase
Agreement.
SECTION 2. PURCHASE PRICE. The purchase price for the Premises
shall be Four Million Five Hundred Thousand 00/100 Dollars ($4,500,000.00)
(the "Purchase Price") allocated in the following manner:
Parcel Purchase Price
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Akron Parcel $1,500,000.00
Cincinnati Parcel $ 600,000.00
Winfield Parcel $2,400,000.00
In the event this transaction closes, the Purchase Price shall be
payable under the terms and provisions of land installment contracts for
each Parcel (collectively, the "Land Installment Contracts" and
individually, a "Land Installment Contract"), which shall be executed by
the parties at the closing of the transaction contemplated herein
("Closing"), substantially in the form attached hereto as Exhibit D and
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made a part hereof, subject to the permitted encumbrances (the "Permitted
Encumbrances") set forth on Exhibit E attached hereto and made a part
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hereof.
SECTION 3. DEED. Seller shall convey to Buyer fee simple title
to each Parcel by quit claim deed pursuant to the terms and conditions of
the Land Installment Contracts.
SECTION 4. CONDITION OF THE PREMISES. Except and as to the
extent provided in this Purchase Agreement, Buyer acknowledges and agrees
that Seller has made no representation or warranty whatsoever, express or
implied, as to the condition, quantity, design, merchantability, fitness or
quality of the Premises, or any portion thereof. Buyer agrees to accept
the Premises and all portions thereof on the Closing Date (as defined
below) "AS IS" and "WITH ALL FAULTS," subject to all defects therein,
concealed or otherwise, and whether known or unknown to Seller, it being
expressly understood and agreed that Buyer has relied solely on its own
inspections, examinations and evaluations of the Premises. Buyer (and
anyone claiming by, through, or under Buyer) hereby fully and finally
releases Seller from any and all claims that Buyer may now have or
hereafter acquire against Seller for any cost, loss, liability, damage,
expense, demand, action, or cause of action, relating to or arising from
any failure of Seller to disclose any matter with respect to the Premises,
any construction defects, errors, omissions, or other conditions affecting
the Premises and arising out of or resulting from any errors, omissions, or
defects in the Premises including (without limitation) any and all
liability for any release of hazardous substances, pollutants, or
contaminants from any source whatsoever and whenever occurring. Buyer
further acknowledges and agrees that this release shall be given full force
and effect according to each of its express terms and provisions, including
but not limited to those relating to unknown and suspected claims, damages,
and causes of action. This waiver and release of claims shall survive
termination or expiration of this Purchase Agreement and Closing.
SECTION 5. TITLE. Seller and Purchaser acknowledge the issuance
and delivery of the following items:
(a) First American Title Insurance Company Commitment No. A64031
for ALTA Owner's Policy, dated February 19, 1997, showing the condition of
the Akron Parcel (the "Akron Title Commitment").
(b) First American Title Insurance Company Commitment No.
25-57883 for ALTA Owner's Policy, dated February 20, 1997, showing the
condition of the Cincinnati Parcel (the "Cincinnati Title Commitment").
(c) First American Title Insurance Company Commitment No. 96-171
for ALTA Owner's Policy, dated February 21, 1997, showing the condition of
the Winfield Parcel (the "Winfield Title Commitment"; the Winfield Title
Commitment, Akron Title Commitment and Cincinnati Title Commitment are
collectively referred to as the "Title Commitments").
SECTION 6. SELLER'S CONDITION. Seller's obligation to close the
transaction contemplated herein is subject to the condition precedent that
on or before the Closing Date, Buyer causes American Eco Corporation
("American Eco") to deliver to Seller (i) a termination and release
agreement of that certain Real Property Purchase Agreement dated September
10, 1997 between Seller and American Eco, substantially in the form of
Exhibit F attached hereto and made a part hereof, and (ii) a guaranty
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agreement substantially in the form of Exhibit G attached hereto and made a
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part hereof.
SECTION 7. CLOSING. The transaction contemplated by this
Purchase Agreement shall be closed on or before February 28, 1997 (the
"Closing Date"), which shall also be the "Commencement Date" under each
Land Installment Contract, in escrow with Midland Title Security, Inc.,
having an address at Xxx Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxx 00000-0000, Attn.:
Xxxxx Xxxxxx ("Escrow Agent"). Buyer and Seller shall comply with the
following procedures relating to Closing: On the Closing Date (a) Buyer
shall wire into Escrow Agent the "Downpayment," as that term is defined in
each Land Installment Contract, and any and all closing costs Buyer is
responsible for hereunder, (b) Seller shall cause Bank to deposit the
Mortgages with Escrow Agent; (c) Buyer and Seller shall execute, date and
deliver one (1) fully executed copy of Land Installment Contracts for each
Parcel and cause Escrow Agent to file the respective Mortgages and Land
Installment Contracts, in that order, in Summit County, Ohio Records,
Xxxxxxxx County, Ohio Records and Xxxxxx County, West Virginia Records; (d)
Seller shall cause First American Title Insurance Company upon filing each
Land Installment Contract of record, to issue ALTA Owner's Fee Policies of
Title Insurance (Form B - Revised 10-17-70) in the amount of the allocated
Purchase Price, at standard rates, insuring Buyer as the owner of the
vendee's interest in and to fee simple title to each Parcel under the terms
of each Land Installment Contract (collectively the "Title Policies" and
individually a "Title Policy") subject only to the Permitted Encumbrances;
and (e) Escrow Agent shall disburse the net Downpayment proceeds to Seller
by federal wire transfer to the following account:
Acct No.: 00-000-0000
Name: Holiday Properties
Bank: KeyBank
Everhard Road Branch
0000 Xxxxxxxx Xxxx, X.X.
Xxxxxx, Xxxx 00000
Routing #: 000000000
SECTION 8. CLOSING EXPENSES. Except as otherwise provided
herein, the following costs and expenses of this transaction shall be
chargeable to Buyer at Closing: (i) the escrow fee charged by Escrow Agent,
(ii) the cost of the title examinations of the Premises and issuance of the
Title Commitments to Buyer, (iii) the premium charge for each Title Policy
and loan policy of title insurance insuring Bank's mortgage interests in
the Premises, and (iv) Buyer shall pay the transfer taxes, conveyance fees
and recording fees of the Mortgages and Land Installment Contracts.
SECTION 9. BROKERS. Seller and Buyer each represent and warrant
to the other that no other broker or finder was in any way involved in the
transaction contemplated by this Purchase Agreement. Each party to this
Purchase Agreement agrees to indemnify, defend and hold harmless the other
from all loss, costs, expenses, claims and liabilities (including, without
limitation attorneys' fees and expenses) arising from a breach of the
warranty of this section. The provisions of the Section 9 shall survive
the expiration or termination of this Purchase Agreement and Closing.
SECTION 10. NOTICES. Any notice required or permitted hereunder
shall be deemed sufficiently given if made in writing and either delivered
in person or deposited, postage prepaid, in the United States certified or
registered mail, addressed as follows:
To Buyer: To Seller:
Chempower, Inc. Holiday Properties
00 Xxxx Xxxxxxxxxx Xxxx Xxxx 0000 Xxxxxxxxx Xxxx
Xxxxx, Xxxx 00000 Xxxxx Xxxxxx, Xxxx 00000
Attn: X.X. Xxxx, President Attn.: Xxxxxx X. Rochester, General
Partner
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
With a copy to: With a copy to:
Xxxx & Priest LLP Xxxxxxxx Xxxx & Xxxxx LLP
00 Xxxx 00xx Xxxxxx 0000 Xxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxxx Xxxxxx
Xxxx.: Xxxxx X. Xxxx, Esq. Xxxxxxxxx, Xxxx 00000-0000
Telephone: (000) 000-0000 Attn.: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address or addresses as Buyer or Seller may designate from
time to time by notice to the other.
SECTION 11. NO WAIVER. Failure of either party to complain of
any act or omission on the part of the other party, no matter how long the
same may continue, shall not be deemed to be a waiver by said party of any
of its rights hereunder. No waiver by either party at any time, express or
implied, of any breach of any provisions of this Purchase Agreement shall
be deemed a waiver of a breach of any other provision of this Purchase
Agreement or a consent to any subsequent breach of the same or any other
provision. If any action by either party shall require the consent or
approval of the other party, the other party's consent to or approval of
such action on any one occasion shall not be deemed a consent to or
approval of said action on any subsequent occasion or a consent to or
approval of any other action on the same or any subsequent occasion.
SECTION 12. REMEDIES CUMULATIVE. Any and all rights and remedies
which either party may have under this Purchase Agreement or by operation
of law, either at law or in equity, upon any breach, shall be distinct,
separate and cumulative and shall not be deemed inconsistent with each
other; and no one of them, whether exercised by said party or not shall be
deemed to be in exclusion of any other; and any two or more or all of such
rights and remedies may be exercised at the same time.
SECTION 13. AGREEMENT NON-TRANSFERABLE. Neither party shall
sell, assign or transfer or permit to be sold, assigned or transferred any
of such party's interest in the Premises, in any property described herein
or in this Purchase Agreement without first obtaining the written consent
of the other party, which consent shall not be unreasonably withheld.
SECTION 14. BINDING AGREEMENT. This Purchase Agreement shall not
be deemed to lack mutuality by virtue of any condition contained herein,
whether or not such condition must be fulfilled to the satisfaction of the
party for whose benefit it is intended. Each such condition shall be
deemed to require the parties to use their good faith efforts to fulfill
the same. The parties also hereby mutually acknowledge that, in addition
to all other consideration for this Purchase Agreement, they have received
other good and valuable consideration in return for their promise that,
pending fulfillment of such conditions, this Purchase Agreement shall
remain in force and binding upon them.
SECTION 15. COUNTERPARTS. This Purchase Agreement may be
executed in any number of counterparts, each of which shall be an original,
and all such counterparts together shall constitute one and the same
instrument.
SECTION 16. RULES OF CONSTRUCTION. This Purchase Agreement has
been reviewed by counsel for each party hereto prior to its execution, and
no presumptions or rules of construction shall be applicable by reason of
the identity of counsel preparing this Purchase Agreement. This Purchase
Agreement shall be construed according to its fair meaning and neither for
nor against either party.
SECTION 17. NOUNS. As used in this Purchase Agreement, unless
the context otherwise specifically requires, the singular includes the
plural, and vice versa, and the masculine includes the feminine, and vice
versa.
SECTION 18. CAPTIONS. The captions used herein are for
convenience only and shall not control or affect the meaning of
construction of any provisions of this Purchase Agreement.
SECTION 19. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and permitted
assigns, as the case may be.
SECTION 20. APPLICABLE LAW. This Purchase Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Ohio.
SECTION 21. ENTIRE AGREEMENT; MODIFICATION. This Purchase
Agreement constitutes the entire agreement between Buyer and Seller
pertaining to the subject matter contained in it and supersedes all prior
and contemporaneous agreements, representations, and understandings. No
supplement, modification, waiver or amendment of this Purchase Agreement
shall be binding unless specified in a writing executed by the party
against whom such supplement, modification, waiver or amendment is sought
to be enforced.
IN WITNESS WHEREOF, Seller and Buyer have executed this Purchase
Agreement as of the date first written above.
SELLER:
HOLIDAY PROPERTIES
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, General Partner
And by: /s/ Xxxxxx X. Rochester
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Xxxxxx X. Rochester, General
Partner
BUYER:
CHEMPOWER, INC.
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, President
EXHIBIT A
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LEGAL DESCRIPTION
(AKRON PARCEL)
Situated in the City of Green, County of Summit, State of Ohio
and known as being a part of the Northeast Quarter of Section No. 8 in said
township and more fully described as follows, to wit: Beginning at a point
in the South line of said quarter section and the centerline of Turkey Foot
Lake Road (S.R. No. 619), said beginning point being S.85 degrees 55'
E., 1942.33 feet as measured along said quarter section line and road
center from the Southwest corner of said quarter section and thence
North 3 degrees 01' East, 260.0 feet to an iron pipe; thence South 85
degrees 55' East, 100.0 feet to an iron pipe; thence North 3 degrees
01' East, 351.58 feet to an iron pipe on the South line of a tract of
land now or formerly owned by Xxxx X. and Xxxxxx X. Xxxxxxx, as
recorded in Deed Volume 1964, Page 262; thence along the South line
of said tract of land, South 85 degrees 53' 30" East, 200.0 feet to
an iron pipe; thence along the West line of a parcel of land as deeded
to D. O. and U. R. XxXxxxx, as recorded in Deed Volume 2552, Page 268
and also along the West line of a parcel of land now or formerly
owned by M. E. Parks, as recorded in Deed Volume 1995, Page 685,
South 3 degrees 01' West, 611.49 feet to the South line of said
quarter section and the centerline of said Turkey Foot Lake Road
(an iron pipe is N. 3 degrees 01' E. 30.0 feet from this point); thence
along said quarter section line and road center, North 85 degrees 55'
West, 300.0 feet to the place of beginning (an iron pipe is N. 3 degrees
01' E., 30.0 feet from this point) and containing 3.408 acres of land,
as surveyed March 23, 1953, by Xxxxxx & Xxxxxxxx, Surveyors, be the
same more or less, but subject to all legal highways.
EXHIBIT B
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LEGAL DESCRIPTION
(CINCINNATI PARCEL)
Situate in Section 22, Town 4, Fractional Range 2, Miami
Purchase, Columbia Township, City of Cincinnati, Xxxxxxxx County, Ohio; and
being part of Xxx 0 xx Xxxxxxx'x Xxxxxx, Xxxx 00000 of the Xxxxxxxx County
Common Pleas Court, and part of Lot 4 of Xxxxxxx and Xxxxxxxxxx'x Addition,
as recorded in Plat Book 2, Page 20 and being more particularly described
as follows:
Beginning at a point in the southerly line of B & O Railroad,
now CBX Transportation Co. 108.60 feet east of the West line of the
aforementioned Lot 1; thence continuing with said southerly line North 80
degrees 25' East 200.00 feet to an iron pipe at the northeasterly corner of
Registered Land Certificate #7375 of the Xxxxxxxx County Registered Land
Office; thence with the west line of said Registered Land South 0 degrees
04' 07" West, 283.65 feet to a pipe; thence South 82 degrees 11' West,
199.05 feet; thence North 0 degrees 04' 07" East, 277.43 feet to the south
line of said railroad and the place of beginning.
EXHIBIT C
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LEGAL DESCRIPTION
(WINFIELD PARCEL)
All of the following described property, situated in Xxxxx
District, County of Xxxxxx, and State of West Virginia, to-wit:
Beginning at an iron pipe in the westerly line of Xxxx
Xxxxxxxx Xxxxx Xxxxx Xx. 00, said iron pipe being situate in the common
corner of the parcel herein conveyed and parcel of land owned by X. X.
Xxxxxxxx and Xxxxx X. Xxxxxxxx, his wife; thence leaving the line of the
land of X. X. Xxxxxxxx and Xxxxx X. Xxxxxxxx, his wife, and with said line
of Xxxx Xxxxxxxx Xxxxx Xxxxx Xx. 00, S. 17 degrees, 34' W. 549.13 feet to
an iron pipe; thence leaving the line of Xxxx Xxxxxxxx Xxxxx Xxxxx Xx. 00,
N. 64 degrees 37' W. 387.18 feet to an iron pipe; thence N. 17 degrees
27' E. 539.88 feet to an iron pipe in an old fence line and in the line
of the land of X. X. Xxxxxxxx and Xxxxx X. Xxxxxxxx, his wife; thence
with the line of X. X. Xxxxxxxx and Xxxxx X. Xxxxxxxx, his wife, S. 66
degrees 00' E. 387.18 feet to the place of beginning, containing 4.84
acres, more or less, and being: "PARCEL 'A' 4.84 ACRES BEING PART OF
LOT NO. 2", as the same is shown and designated upon that certain map
entitled "PROPERTY MAP FOR K.V.D. INCORPORATED PARCEL 'A' 4.84 ACRES
BEING PART OF LOT NO. 2 SITUATE ON THE WATER OF LONG BRANCH OF POPLAR
FORK", etc.; and being the same property conveyed to Holiday Properties,
an Ohio Partnership, by Kanawha Valley Bank, N.A, a national banking
association, by Deed dated September 12, 1986 and recorded in the Office
of the Clerk of the County Commission of Xxxxxx County, West Virginia,
in Deed Book 297 at page 729.
Subject to all prior easements, whether or not visible upon
the ground, and to the prior reservation of all minerals underlying said
real estate.
EXHIBIT D
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LAND INSTALLMENT CONTRACT
THIS LAND INSTALLMENT CONTRACT (this "Contract") is entered
into at Cleveland, Ohio, as of this 28th day of February, 1997 (the
"Commencement Date"), by and between HOLIDAY PROPERTIES, an Ohio general
partnership ("Seller"), and CHEMPOWER, INC., an Ohio corporation ("Buyer").
RECITALS
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A. Seller is the fee simple owner of certain real property
commonly known as 000 Xxxx Xxxxxxxxxx Xxxx Xxxx, Xxxxx, Xxxx, and more
particularly described in Exhibit A attached hereto and incorporated
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herein, together with any and all rights, privileges, easements,
appurtenances and hereditaments belonging thereto and all buildings and
improvements situated thereon, together with the following items currently
located in or on such property: all components of the electrical, heating,
air conditioning, plumbing and bathroom systems; all built-in equipment
(collectively referred to as the "Akron Parcel").
B. Seller, as vendor, and Buyer, as vendee, have entered
into that certain land installment contract (the "Cincinnati Contract") for
the purchase and sale of that certain real property and improvements
commonly known as 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx, and more
particularly described in the Cincinnati Contract (the "Cincinnati
Parcel").
C. Seller, as vendor, and Buyer, as vendee, have entered
into that certain land installment contract (the "Winfield Contract") for
the purchase and sale of that certain real property and improvements
commonly known as 0000 Xxxx Xxxxxxxx Xxxxx Xxxxx 00, Xxxxxxxx, Xxxx
Xxxxxxxx, and more particularly described in the Winfield Contract (the
"Winfield Parcel").
D. Buyer desires to purchase from Seller the Akron Parcel
and Seller desires to sell to Buyer the Akron Parcel under the terms of
this Contract.
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the adequacy and sufficiency of which are
hereby acknowledged by this Purchase Agreement, the parties hereto agree to
the following:
SECTION 1. THE PARCEL. (a) In consideration of the mutual
promises contained herein, Seller agrees to sell and convey to Buyer, and
Buyer agrees to purchase and pay for, upon the provisions, terms, and
conditions of this Contract, the Akron Parcel.
SECTION 2. CONDITION OF THE AKRON PARCEL. Buyer acknowledges
and agrees that Seller has made no representation or warranty whatsoever,
express or implied, as to the condition, quantity, design, merchantability,
fitness or quality of the Akron Parcel, or any portion thereof. Buyer
agrees to accept the Akron Parcel and all portions thereof on the Transfer
Date (as defined hereinbelow) "AS IS" and "WITH ALL FAULTS," subject to all
defects therein, concealed or otherwise, and whether known or unknown to
Seller, it being expressly understood and agreed that Buyer has relied
solely on its own inspections, examinations and evaluations of the Akron
Parcel. Buyer (and anyone claiming by, through, or under Buyer) hereby
fully and finally releases Seller from any and all claims that Buyer may
now have or hereafter acquire against Seller for any cost, loss, liability,
damage, expense, demand, action, or cause of action, relating to or arising
from any failure of Seller to disclose any matter with respect to the Akron
Parcel, any construction defects, errors, omissions, or other conditions
affecting the Akron Parcel and arising out of or resulting from any errors,
omissions, or defects in the Akron Parcel including (without limitation)
any and all liability for any release of hazardous substances, pollutants,
or contaminants from any source whatsoever and whenever occurring. Buyer
further acknowledges and agrees that this release shall be given full force
and effect according to each of its express terms and provisions, including
but not limited to those relating to unknown and suspected claims, damages,
and causes of action. This waiver and release of claims shall survive
termination or expiration of this Contract and closing ("Closing") of the
transaction contemplated herein.
SECTION 3. PURCHASE PRICE. The purchase price for the Akron
Parcel shall be One Million Five Hundred Thousand and No/100 Dollars
($1,500,000.00) (the "Purchase Price"). The Purchase Price provided for
above shall be in addition to, and over and above, all payments to be made
by Buyer for real estate taxes and assessments, insurance and utilities as
hereinafter provided in this Contract and such Purchase Price shall be
absolutely net to Seller except as and to the extent specifically provided
in this Contract. Seller and Buyer hereby acknowledge and agree that the
transaction contemplated under this Contract is not a consumer transaction.
SECTION 4. PAYMENT OF THE PURCHASE PRICE. The Purchase Price
shall be payable under the following terms and conditions and in the
following manner:
(a) On the Commencement Date, Buyer shall pay Seller the
sum of One Hundred Sixty-Six Thousand Six Hundred Sixty-Seven and
No/100 Dollars ($166,667.00) (the "Downpayment"), as downpayment
against and to be applied toward the Purchase Price.
(b) The outstanding principal balance of the Purchase Price
(after deduction of the Downpayment) as of the Commencement Date is
One Million Three Hundred Thirty-Three Thousand Three Hundred
Thirty-Three and No/100 Dollars ($1,333,333.00) (the "Outstanding
Balance").
(c) The Outstanding Balance shall bear interest at the
following per annum rates:
Month(s) Per Annum
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Rate:
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1 and 2 7.0%
3 and 4 8.0%
5 and 6 9.0%
7 - 9 10.0%
10 - Maturity 11.0%
Date
(d) On or before the first day of the month following the
month in which the Commencement Date occurs, Buyer shall pay Seller
the interest that Buyer has accrued from the Commencement Date upon
the Outstanding Balance. Thereafter, Buyer shall pay Seller monthly
installments of accrued interest commencing on the first day of the
second month following the month in which the Commencement Date occurs
and continuing on the first day of each subsequent month until said
balance and accrued interest are paid in full; provided, however, that
unless sooner paid the remaining unpaid principal balance and all
accrued interest shall be due and payable on or before the date which
is the first anniversary of the Commencement Date (the "Maturity
Date").
(e) All payments described in this Section 4 shall be paid
by Buyer to Seller at 000 X. Xxxxxxxxxx Xxxx Xxxx, Xxxxx, Xxxx 00000,
or such other address as Seller may designate from time to time.
SECTION 5. PREPAYMENT. Buyer shall have the right to prepay
the Purchase Price, in whole or in partial payment of at least Three
Hundred Seventy-Five Thousand and No/100 Dollars ($375,000.00), at any time
without charge or penalty, provided that Buyer gives to Seller written
notice of any such intent to prepay at least ten (10) days prior to making
such prepayment and further provided that any partial prepayment applied
against the Purchase Price shall be applied in inverse order of the date
due, beginning with the last such payment due.
SECTION 6. POSSESSION. Buyer shall have possession of the
Akron Parcel on the Commencement Date and continuing thereafter so long as
Buyer is not in default under this Contract.
SECTION 7. UTILITIES. To the extent utilities are not
already in Buyer's name, Buyer shall make application for water, gas,
electric, telephone and other utility services for the Akron Parcel in the
name of Buyer. Buyer shall pay directly to the supplying utilities all
amounts billed by the supplying utilities for services used or consumed on
the Akron Parcel.
SECTION 8. REAL ESTATE TAXES AND ASSESSMENTS. During the
term of this Contract, Buyer shall pay all real estate taxes and
assessments, both general and special, on the Akron Parcel as bills are
rendered without regard to periods covered thereunder accruing on and after
the Commencement Date.
SECTION 9. INSURANCE; WAIVER OF SUBROGATION. (a) Buyer
shall, at its own cost and expense, throughout the term of this Contract
maintain on the Akron Parcel (i) commercial general liability insurance for
bodily injury and/or property damage in the amount of Two Million and
00/100 Dollars ($2,000,000.00) single limit and Two Million and 00/100
Dollars ($2,000,000.00) per occurrence, and (ii) all-risk fire insurance in
an amount equal to 100% of replacement cost (which replacement cost shall
be determined by mutual agreement of the parties or, if the parties cannot
agree, by an independent appraiser selected by mutual agreement of the
parties) and otherwise sufficient to prevent Seller from becoming a co--
insured under said policies of insurance, but in no event less than the
unpaid principal balance due under this Contract. Seller and Buyer shall
both be named as insured parties in the insurance policies required above,
as their interests may appear, and copies of all such policies shall be
delivered to Seller on the Commencement Date and thereafter annually.
(b) To the extent that no insurance coverage is invalidated
and that the right of the waiving party to recover under its insurance is
not prejudiced, Seller and Buyer each hereby release and relieve the other,
and waive their entire right of recovery against the other for loss or
damage arising out of or incident to the perils insured against under
Section 9(a) of this Contract, which perils occur in, on, or about the
Akron Parcel, whether due to the negligence of Seller or Buyer or their
agents, employees, contractors and/or invitees. Seller and Buyer shall,
upon obtaining the policies of insurance required hereunder, give notice to
the insurance carrier or carriers that the foregoing mutual waiver of
subrogation is contained in this Contract. Each policy of insurance will
include the waiver of subrogation set forth in this Section 9.
SECTION 10. BENEFICIAL OWNERSHIP. On the Commencement Date,
beneficial ownership of the Akron Parcel, subject to defeasance only in the
event of termination of this Contract, shall be conveyed by Seller to
Buyer.
SECTION 11. TITLE. The Akron Parcel is currently subject to
the liens and encumbrances set forth on Exhibit B attached hereto and made
---------
a part hereof. During the term of this Contract, neither Seller nor Buyer
shall create, permit or suffer any liens or encumbrances against the Akron
Parcel without the prior written consent of the other party, except the
lien of current real estate taxes and assessments not yet due and payable
and this Contract.
SECTION 12. LEGAL TITLE. Seller shall convey to Buyer fee
simple title to the Akron Parcel by quit claim deed (the "Deed") on the
Transfer Date.
SECTION 13. CLOSING. The transaction contemplated by this
Contract shall be closed (the "Closing") within three (3) business days
after Buyer's payment of the full Purchase Price for the Akron Parcel,
Cincinnati Parcel and Winfield Parcel, with interest due thereon and in the
manner and at the time as required or permitted by the terms and conditions
of this Contract and the Cincinnati Contract and Winfield Contract, and
upon Buyer's performance of all other covenants and agreements required of
Buyer by the terms and conditions of this Contract and the Cincinnati
Contract and Winfield Contract (the "Transfer Date"). Closing shall occur
at Midland Title Security, Inc. ("Escrow Agent"), as agent for First
American Title Insurance Company ("Title Company"), or at such other
location as the parties hereto shall mutually agree. Seller shall do all
things necessary to cause Escrow Agent to convey the Akron Parcel to Buyer
by filing the Deed with the Summit County, Ohio Recorder.
SECTION 14. CLOSING EXPENSES. Except as otherwise
provided herein, the following costs and expenses of this transaction shall
be chargeable to Buyer at Closing: (a) the escrow fee charged by Escrow
Agent, and (b) the recording, conveyance and transfer fees of the Deed.
SECTION 15. DUTY TO MAINTAIN; COMPLIANCE WITH LAWS;
INDEMNITY. (a) Buyer acknowledges and agrees that the Akron Parcel is in
good condition, order and repair, and that Buyer shall, at its own cost and
expense, maintain the Akron Parcel in at least as good order and repair as
they are in on the date of this Contract, reasonable wear and tear
excepted.
(b) Buyer shall be responsible for compliance with all
applicable statutes, ordinances, rules, regulations and orders governing
the Akron Parcel and Buyer's use thereof, or the operation of the business
of Buyer on the Akron Parcel.
(c) Buyer shall defend, indemnify and hold harmless Seller
from and against all losses, claims, damages and expenses resulting from
any accident or other occurrence on or about the Akron Parcel resulting in
injury or death to any person or damage to any property. The provisions of
this Section 15(c) shall survive Closing or the termination or expiration
of this Contract.
SECTION 16. TENANT ALTERATIONS OR IMPROVEMENTS. (a) Buyer
shall not remove or permit the removal from the Akron Parcel of any
building or other improvement located thereon or of any other property
described herein without first obtaining written consent of Seller, nor
shall Buyer commit or permit to be committed any waste of the Premises or
of any such building, improvement or other property.
(b) Buyer shall not renovate, remodel or alter any building
or improvement now or hereafter situated on the Akron Parcel, or construct
any additional building, buildings or improvements on the Premises without
obtaining Seller's prior written approval of plans for such renovating,
remodeling or construction, which approval Seller may withhold in its sole
discretion.
SECTION 17. CASUALTY. In the event of any damage to or
destruction of the Akron Parcel by fire or other casualty during the term
of this Contract, Buyer shall restore the Akron Parcel substantially to its
condition prior to such damage or destruction to the extent of insurance
proceeds payable by reason of such damage or destruction.
SECTION 18. EMINENT DOMAIN. Any award or payment received in
connection with the exercise of the right of eminent domain, the alteration
of the grade of any street, or any other injury to or decrease in the value
of the Akron Parcel or any part thereof, shall be the property of Buyer and
Buyer shall bear the risk of any such taking, injury or decrease in value.
SECTION 19. DEFAULT; REMEDIES. (a) If Buyer shall fail to
make payment of any sums due hereunder and shall fail to cure such failure
within ten (10) days from the date that such payment is overdue or shall
default in the performance of any other obligation or covenant herein for
more than thirty (30) days after written notice thereof by Seller to Buyer
(or such longer period as is reasonably required to cure such default if
Buyer promptly commenced and is diligently pursuing the cure thereof, but
in any event such period shall not exceed sixty (60) days); or if an order
for relief shall be issued in any bankruptcy or similar proceeding
commenced by or against Buyer and such order is not dismissed within sixty
(60) days; or if a receiver shall be appointed for all or part of Buyer's
properties and not dismissed within sixty (60) days after the appointment
thereof (each of the foregoing being an "Event of Default"), then and in
any such event Seller may at any time thereafter do any one or more of the
following to the extent not prohibited by law:
(i) Seller shall have the right to assess a late charge of
10% for any sums not paid by the fifteenth (15th) day following the
due date of such sum;
(ii) Seller shall have the right to cause any defaulted
obligation or covenant to be performed, in which event the expense
thereof shall at once be due and payable, to be added to and be a part
of the then remaining balance of the Purchase Price, and shall draw
interest at the rate of fifteen percent (15%) per annum until paid; or
(iii) If such Event of Default occurs at any time during the
term of this Contract or under the terms of the Cincinnati Contract
and/or Winfield Contract, Seller shall have the right to terminate
this Contract and recover possession of any or all of the Premises by
legal proceeding for forcible entry and detainer or otherwise as may
be provided by law.
(b) In addition to and without limitation of the foregoing
remedies, upon occurrence of an Event of Default that is not cured by Buyer
as provided above, Buyer shall reimburse Seller for any and all reasonable
costs and expenses incurred by Seller resulting from such Event of Default,
including without limitation fees and commissions of any real estate
brokers and reasonable attorney's fees as provided below.
(c) In the event either party hereto initiates litigation
or hires legal counsel to enforce or protect its rights under this
Contract, the prevailing party shall be entitled to recover from the
unsuccessful party, in addition to any other damages or relief awarded or
obtained, all court costs and reasonable attorney's fees incurred in
connection with such litigation or action by legal counsel.
SECTION 20. BROKERS. Seller and Buyer each represent and
warrant to the other that no other broker or finder was in any way involved
in the transaction contemplated by this Contract. Each party to this
Contract agrees to indemnify, defend and hold harmless the other from all
loss, costs, expenses, claims and liabilities (including, without
limitation attorneys' fees and expenses) arising from a breach of the
warranty of this section. The provisions of this Section 20 shall survive
Closing or the expiration or termination of this Contract.
SECTION 21. NOTICES. Any notice required or permitted
hereunder shall be deemed sufficiently given if made in writing and either
delivered in person or deposited, postage prepaid, in the United States
certified or registered mail, addressed as follows:
To Buyer: To Seller:
Chempower, Inc. Holiday Properties
00 Xxxx Xxxxxxxxxx Lake 0000 Xxxxxxxxx Xxxx
Xxxx Xxxxx Xxxxxx, Xxxx 00000
Xxxxx, Xxxx 00000 Attn.: Xxxxxx X. Rochester,
Attn: X.X. Xxxx, General Partner
President Telephone: (000) 000-0000
Telephone: (000) 000-0000 Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: With a copy to:
Xxxx & Priest LLP Xxxxxxxx Xxxx & Xxxxx LLP
00 Xxxx 00xx Xxxxxx 0000 Xxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxxx Xxxxxx
Xxxx.: Xxxxx X. Xxxx, Xxxxxxxxx, Xxxx 00000-0000
Esq. Attn.: Xxxxxx X. Xxxxxxx,
Telephone: (000) 000-0000 Esq.
Facsimile: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address or addresses as Buyer or Seller may designate from
time to time by notice to the other.
SECTION 22. ENVIRONMENTAL INDEMNIFICATION. Buyer shall
defend, indemnify and hold harmless Seller from and against any and all
losses, claims, liabilities, damages, demands, fines, costs and expenses
(including reasonable legal expenses) of whatever kind and nature resulting
from any accident, occurrence or condition caused by the release by Buyer
or any third party acting on behalf or at the direction of Buyer of any
toxic or hazardous substance or waste in, on, under, about or affecting the
Akron Parcel that results in any injury or death to any person or damage to
any property (other than damage to property of the type insurable under a
standard form all risk fire and extended coverage insurance policy) or
which requires the removal or treatment of such hazardous or toxic
substance or waste or any other remedial action or fine under the terms of
any properly constituted law, regulation, rule or directive of any federal,
state or local governmental authority. The provisions of this Section 22
shall survive Closing or the expiration or termination of this Contract.
SECTION 23. NO WAIVER. Failure of either party to complain
of any act or omission on the part of the other party, no matter how long
the same may continue, shall not be deemed to be a waiver by said party of
any of its rights hereunder. No waiver by either party at any time,
express or implied, of any breach of any provisions of this Contract shall
be deemed a waiver of a breach of any other provision of this Contract or a
consent to any subsequent breach of the same or any other provision. If any
action by either party shall require the consent or approval of the other
party, the other party's consent to or approval of such action on any one
occasion shall not be deemed a consent to or approval of said action on any
subsequent occasion or a consent to or approval of any other action on the
same or any subsequent occasion.
SECTION 24. REMEDIES CUMULATIVE. Any and all rights and
remedies that either party may have under this Contract or by operation of
law, either at law or in equity, upon any breach, shall be distinct,
separate and cumulative and shall not be deemed inconsistent with each
other; and no one of them, whether exercised by said party or not shall be
deemed to be in exclusion of any other; and any two or more or all of such
rights and remedies may be exercised at the same time.
SECTION 25. CONTRACT NON-TRANSFERABLE. Neither party shall
sell, assign or transfer or permit to be sold, assigned or transferred any
of such party's interest in the Premises, in any property described herein
or in this Contract without first obtaining the written consent of the
other party, which consent shall not be unreasonably withheld, conditioned
or delayed.
SECTION 26. BINDING CONTRACT. This Contract shall not be
deemed to lack mutuality by virtue of any condition contained herein,
whether or not such condition must be fulfilled to the satisfaction of the
party for whose benefit it is intended. Each such condition shall be
deemed to require the parties to use their good faith efforts to fulfill
the same. The parties also hereby mutually acknowledge that, in addition
to all other consideration for this Contract, they have received other good
and valuable consideration in return for their promise that, pending
fulfillment of such conditions, this Contract shall remain in force and
binding upon them.
SECTION 27. QUADRUPLICATES. This Contract shall be executed
in quadruplicate, each of which shall be an original.
SECTION 28. RULES OF CONSTRUCTION. This Contract has been
reviewed by counsel for each party hereto prior to its execution, and no
presumptions or rules of construction shall be applicable by reason of the
identity of counsel preparing this Contract. This Contract shall be
construed according to its fair meaning and neither for nor against either
party.
SECTION 29. NOUNS. As used in this Contract, unless the
context otherwise specifically requires, the singular includes the plural,
and vice versa, and the masculine includes the feminine, and vice versa.
SECTION 30. CAPTIONS. The captions used herein are for
convenience only and shall not control or affect the meaning of
construction of any provisions of this Contract. All references to
"Sections" shall be to Sections of this Contract unless otherwise
specified.
SECTION 31. SUCCESSORS AND ASSIGNS. This Contract shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and permitted
assigns, as the case may be.
SECTION 32. APPLICABLE LAW. This Contract shall be governed
by, and construed and enforced in accordance with, the laws of the state
where the Akron Parcel is located.
IN WITNESS WHEREOF, Seller and Buyer have executed this
Contract as of the date first written above.
Signed and acknowledged in the SELLER:
presence of:
(both signatures) HOLIDAY PROPERTIES
By:
---------------------------
-------------------------------- Xxxxxx X. Xxxx, General
Printed name: Partner
-------------------
And by:
-----------------------
-------------------------------- Xxxxxx X. Rochester, General
Printed name: Partner
-------------------
Signed and acknowledged BUYER:
in the presence of:
CHEMPOWER, INC.
By:
---------------------------
-------------------------------- Xxxxxx X. Xxxx, General
Printed name: Partner
-------------------
--------------------------------
Printed name:
-------------------
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said county and state,
personally appeared Xxxxxx X. Xxxx and Xxxxxx X. Rochester, the General
Partners of Holiday Properties, an Ohio general partnership, who
acknowledged that they did sign the foregoing instrument on behalf of said
general partnership and the same is their free act and deed and the free
act and deed of said general partnership.
IN WITNESS WHEREOF, I hereunto set my hand this 28th day of
February, 1997.
[seal]
---------------------------------------------
Notary Public
My commission expires:
-----------------------
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said county and state,
personally appeared Xxxxxx X. Xxxx, the President of Chempower, Inc., an
Ohio corporation, who acknowledged that he did sign the foregoing
instrument on behalf of said corporation and the same is his free act and
deed and the free act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand this 28th day of
February, 1997.
[seal]
---------------------------------------------
Notary Public
My commission expires:
-----------------------
This instrument prepared by:
Xxxxxxxx Xxxx & Xxxxx LLP
0000 Xxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
LAND INSTALLMENT CONTRACT
THIS LAND INSTALLMENT CONTRACT (this "Contract") is entered
into at Cleveland, Ohio, as of this 28th day of February, 1997 (the
"Commencement Date"), by and between HOLIDAY PROPERTIES, an Ohio general
partnership ("Seller"), and CHEMPOWER, INC., an Ohio corporation ("Buyer").
RECITALS
--------
A. Seller is the fee simple owner of certain real property
commonly known as 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx, and more
particularly described in Exhibit A attached hereto and incorporated
---------
herein, together with any and all rights, privileges, easements,
appurtenances and hereditaments belonging thereto and all buildings and
improvements situated thereon, together with the following items currently
located in or on such property: all components of the electrical, heating,
air conditioning, plumbing and bathroom systems; all built-in equipment
(collectively referred to as the "Cincinnati Parcel").
B. Seller, as vendor, and Buyer, as vendee, have entered
into that certain land installment contract (the "Akron Contract") for the
purchase and sale of that certain real property and improvements commonly
known as 000 Xxxx Xxxxxxxxxx Xxxx Xxxx, Xxxxx, Xxxx, and more particularly
described in the Akron Contract (the "Akron Parcel").
C. Seller, as vendor, and Buyer, as vendee, have entered
into that certain land installment contract (the "Winfield Contract") for
the purchase and sale of that certain real property and improvements
commonly known as 0000 Xxxx Xxxxxxxx Xxxxx Xxxxx 00, Xxxxxxxx, Xxxx
Xxxxxxxx, and more particularly described in the Winfield Contract (the
"Winfield Parcel").
D. Buyer desires to purchase from Seller the Cincinnati
Parcel and Seller desires to sell to Buyer the Cincinnati Parcel under the
terms of this Contract.
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the adequacy and sufficiency of which are
hereby acknowledged by this Purchase Agreement, the parties hereto agree to
the following:
SECTION 1. THE PARCEL. (a) In consideration of the mutual
promises contained herein, Seller agrees to sell and convey to Buyer, and
Buyer agrees to purchase and pay for, upon the provisions, terms, and
conditions of this Contract, the Cincinnati Parcel.
SECTION 2. CONDITION OF THE CINCINNATI PARCEL. Buyer
acknowledges and agrees that Seller has made no representation or warranty
whatsoever, express or implied, as to the condition, quantity, design,
merchantability, fitness or quality of the Cincinnati Parcel, or any
portion thereof. Buyer agrees to accept the Cincinnati Parcel and all
portions thereof on the Transfer Date (as defined hereinbelow) "AS IS" and
"WITH ALL FAULTS," subject to all defects therein, concealed or otherwise,
and whether known or unknown to Seller, it being expressly understood and
agreed that Buyer has relied solely on its own inspections, examinations
and evaluations of the Cincinnati Parcel. Buyer (and anyone claiming by,
through, or under Buyer) hereby fully and finally releases Seller from any
and all claims that Buyer may now have or hereafter acquire against Seller
for any cost, loss, liability, damage, expense, demand, action, or cause of
action, relating to or arising from any failure of Seller to disclose any
matter with respect to the Cincinnati Parcel, any construction defects,
errors, omissions, or other conditions affecting the Cincinnati Parcel and
arising out of or resulting from any errors, omissions, or defects in the
Cincinnati Parcel including (without limitation) any and all liability for
any release of hazardous substances, pollutants, or contaminants from any
source whatsoever and whenever occurring. Buyer further acknowledges and
agrees that this release shall be given full force and effect according to
each of its express terms and provisions, including but not limited to
those relating to unknown and suspected claims, damages, and causes of
action. This waiver and release of claims shall survive termination or
expiration of this Contract and closing ("Closing") of the transaction
contemplated herein.
SECTION 3. PURCHASE PRICE. The purchase price for the
Cincinnati Parcel shall be Six Hundred Thousand and No/100 Dollars
($600,000.00) (the "Purchase Price"). The Purchase Price provided for
above shall be in addition to, and over and above, all payments to be made
by Buyer for real estate taxes and assessments, insurance and utilities as
hereinafter provided in this Contract and such Purchase Price shall be
absolutely net to Seller except as and to the extent specifically provided
in this Contract. Seller and Buyer hereby acknowledge and agree that the
transaction contemplated under this Contract is not a consumer transaction.
SECTION 4. PAYMENT OF THE PURCHASE PRICE. The Purchase Price
shall be payable under the following terms and conditions and in the
following manner:
(a) On the Commencement Date, Buyer shall pay Seller the
sum of Sixty-Six Thousand Six Hundred Sixty-Six and No/100 Dollars
($66,666.00) (the "Downpayment"), as downpayment against and to be
applied toward the Purchase Price.
(b) The outstanding principal balance of the Purchase Price
(after deduction of the Downpayment) as of the Commencement Date is
Five Hundred Thirty-Three Thousand Three Hundred Thirty-Four and
No/100 Dollars ($533,334.00) (the "Outstanding Balance").
(c) The Outstanding Balance shall bear interest at the
following per annum rates:
Month(s) Per Annum
-------- ---------
Rate:
-----
1 and 2 7.0%
3 and 4 8.0%
5 and 6 9.0%
7 - 9 10.0%
10 - Maturity 11.0%
Date
(d) On or before the first day of the month following the
month in which the Commencement Date occurs, Buyer shall pay Seller
the interest that Buyer has accrued from the Commencement Date upon
the Outstanding Balance. Thereafter, Buyer shall pay Seller monthly
installments of accrued interest commencing on the first day of the
second month following the month in which the Commencement Date occurs
and continuing on the first day of each subsequent month until said
balance and accrued interest are paid in full; provided, however, that
unless sooner paid the remaining unpaid principal balance and all
accrued interest shall be due and payable on or before the date which
is the first anniversary of the Commencement Date (the "Maturity
Date").
(e) All payments described in this Section 4 shall be paid
by Buyer to Seller at 000 X. Xxxxxxxxxx Xxxx Xxxx, Xxxxx, Xxxx 00000,
or such other address as Seller may designate from time to time.
SECTION 5. PREPAYMENT. Buyer shall have the right to prepay
the Purchase Price, in whole or in partial payment of at least One Hundred
Fifty Thousand and No/100 Dollars ($150,000.00), at any time without charge
or penalty, provided that Buyer gives to Seller written notice of any such
intent to prepay at least ten (10) days prior to making such prepayment and
further provided that any partial prepayment applied against the Purchase
Price shall be applied in inverse order of the date due, beginning with the
last such payment due.
SECTION 6. POSSESSION. Buyer shall have possession of the
Cincinnati Parcel on the Commencement Date and continuing thereafter so
long as Buyer is not in default under this Contract.
SECTION 7. UTILITIES. To the extent utilities are not
already in Buyer's name, Buyer shall make application for water, gas,
electric, telephone and other utility services for the Cincinnati Parcel in
the name of Buyer. Buyer shall pay directly to the supplying utilities all
amounts billed by the supplying utilities for services used or consumed on
the Cincinnati Parcel.
SECTION 8. REAL ESTATE TAXES AND ASSESSMENTS. During the
term of this Contract, Buyer shall pay all real estate taxes and
assessments, both general and special, on the Cincinnati Parcel as bills
are rendered without regard to periods covered thereunder accruing on and
after the Commencement Date.
SECTION 9. INSURANCE; WAIVER OF SUBROGATION. (a) Buyer
shall, at its own cost and expense, throughout the term of this Contract
maintain on the Cincinnati Parcel (i) commercial general liability
insurance for bodily injury and/or property damage in the amount of Two
Million and 00/100 Dollars ($2,000,000.00) single limit and Two Million and
00/100 Dollars ($2,000,000.00) per occurrence, and (ii) all-risk fire
insurance in an amount equal to 100% of replacement cost (which replacement
cost shall be determined by mutual agreement of the parties or, if the
parties cannot agree, by an independent appraiser selected by mutual
agreement of the parties) and otherwise sufficient to prevent Seller from
becoming a co-insured under said policies of insurance, but in no event
less than the unpaid principal balance due under this Contract. Seller and
Buyer shall both be named as insured parties in the insurance policies
required above, as their interests may appear, and copies of all such
policies shall be delivered to Seller on the Commencement Date and
thereafter annually.
(b) To the extent that no insurance coverage is invalidated
and that the right of the waiving party to recover under its insurance is
not prejudiced, Seller and Buyer each hereby release and relieve the other,
and waive their entire right of recovery against the other for loss or
damage arising out of or incident to the perils insured against under
Section 9(a) of this Contract, which perils occur in, on, or about the
Cincinnati Parcel, whether due to the negligence of Seller or Buyer or
their agents, employees, contractors and/or invitees. Seller and Buyer
shall, upon obtaining the policies of insurance required hereunder, give
notice to the insurance carrier or carriers that the foregoing mutual
waiver of subrogation is contained in this Contract. Each policy of
insurance will include the waiver of subrogation set forth in this Section
9.
SECTION 10. BENEFICIAL OWNERSHIP. On the Commencement Date,
beneficial ownership of the Cincinnati Parcel, subject to defeasance only
in the event of termination of this Contract, shall be conveyed by Seller
to Buyer.
SECTION 11. TITLE. The Cincinnati Parcel is currently
subject to the liens and encumbrances set forth on Exhibit B attached
---------
hereto and made a part hereof. During the term of this Contract, neither
Seller nor Buyer shall create, permit or suffer any liens or encumbrances
against the Cincinnati Parcel without the prior written consent of the
other party, except the lien of current real estate taxes and assessments
not yet due and payable and this Contract.
SECTION 12. LEGAL TITLE. Seller shall convey to Buyer fee
simple title to the Cincinnati Parcel by quit claim deed (the "Deed") on
the Transfer Date.
SECTION 13. CLOSING. The transaction contemplated by this
Contract shall be closed (the "Closing") within three (3) business days
after Buyer's payment of the full Purchase Price for the Cincinnati Parcel,
Akron Parcel and Winfield Parcel, with interest due thereon and in the
manner and at the time as required or permitted by the terms and conditions
of this Contract and the Akron Contract and Winfield Contract, and upon
Buyer's performance of all other covenants and agreements required of Buyer
by the terms and conditions of this Contract and the Akron Contract and
Winfield Contract (the "Transfer Date"). Closing shall occur at Midland
Title Security, Inc. ("Escrow Agent"), as agent for First American Title
Insurance Company ("Title Company"), or at such other location as the
parties hereto shall mutually agree. Seller shall do all things necessary
to cause Escrow Agent to convey the Cincinnati Parcel to Buyer by filing
the Deed with the Xxxxxxxx County, Ohio Recorder.
SECTION 14. CLOSING EXPENSES. Except as otherwise provided
herein, the following costs and expenses of this transaction shall be
chargeable to Buyer at Closing: (a) the escrow fee charged by Escrow
Agent, and (b) the recording, conveyance and transfer fees of the Deed.
SECTION 15. DUTY TO MAINTAIN; COMPLIANCE WITH LAWS;
INDEMNITY. (a) Buyer acknowledges and agrees that the Cincinnati Parcel is
in good condition, order and repair, and that Buyer shall, at its own cost
and expense, maintain the Cincinnati Parcel in at least as good order and
repair as they are in on the date of this Contract, reasonable wear and
tear excepted.
(b) Buyer shall be responsible for compliance with all
applicable statutes, ordinances, rules, regulations and orders governing
the Cincinnati Parcel and Buyer's use thereof, or the operation of the
business of Buyer on the Cincinnati Parcel.
(c) Buyer shall defend, indemnify and hold harmless Seller
from and against all losses, claims, damages and expenses resulting from
any accident or other occurrence on or about the Cincinnati Parcel
resulting in injury or death to any person or damage to any property. The
provisions of this Section 15(c) shall survive Closing or the termination
or expiration of this Contract.
SECTION 16. TENANT ALTERATIONS OR IMPROVEMENTS. (a) Buyer
shall not remove or permit the removal from the Cincinnati Parcel of any
building or other improvement located thereon or of any other property
described herein without first obtaining written consent of Seller, nor
shall Buyer commit or permit to be committed any waste of the Premises or
of any such building, improvement or other property.
(b) Buyer shall not renovate, remodel or alter any building
or improvement now or hereafter situated on the Cincinnati Parcel, or
construct any additional building, buildings or improvements on the
Premises without obtaining Seller's prior written approval of plans for
such renovating, remodeling or construction, which approval Seller may
withhold in its sole discretion.
SECTION 17. CASUALTY. In the event of any damage to or
destruction of the Cincinnati Parcel by fire or other casualty during the
term of this Contract, Buyer shall restore the Cincinnati Parcel
substantially to its condition prior to such damage or destruction to the
extent of insurance proceeds payable by reason of such damage or
destruction.
SECTION 18. EMINENT DOMAIN. Any award or payment received in
connection with the exercise of the right of eminent domain, the alteration
of the grade of any street, or any other injury to or decrease in the value
of the Cincinnati Parcel or any part thereof, shall be the property of
Buyer and Buyer shall bear the risk of any such taking, injury or decrease
in value.
SECTION 19. DEFAULT; REMEDIES. (a) If Buyer shall fail to
make payment of any sums due hereunder and shall fail to cure such failure
within ten (10) days from the date that such payment is overdue or shall
default in the performance of any other obligation or covenant herein for
more than thirty (30) days after written notice thereof by Seller to Buyer
(or such longer period as is reasonably required to cure such default if
Buyer promptly commenced and is diligently pursuing the cure thereof, but
in any event such period shall not exceed sixty (60) days); or if an order
for relief shall be issued in any bankruptcy or similar proceeding
commenced by or against Buyer and such order is not dismissed within sixty
(60) days; or if a receiver shall be appointed for all or part of Buyer's
properties and not dismissed within sixty (60) days after the appointment
thereof (each of the foregoing being an "Event of Default"), then and in
any such event Seller may at any time thereafter do any one or more of the
following to the extent not prohibited by law:
(i) Seller shall have the right to assess a late charge of
10% for any sums not paid by the fifteenth (15th) day following the
due date of such sum;
(ii) Seller shall have the right to cause any defaulted
obligation or covenant to be performed, in which event the expense
thereof shall at once be due and payable, to be added to and be a part
of the then remaining balance of the Purchase Price, and shall draw
interest at the rate of fifteen percent (15%) per annum until paid; or
(iii) If such Event of Default occurs at any time during the
term of this Contract or under the terms of the Akron Contract and/or
Winfield Contract, Seller shall have the right to terminate this
Contract and recover possession of any or all of the Premises by legal
proceeding for forcible entry and detainer or otherwise as may be
provided by law.
(b) In addition to and without limitation of the foregoing
remedies, upon occurrence of an Event of Default that is not cured by Buyer
as provided above, Buyer shall reimburse Seller for any and all reasonable
costs and expenses incurred by Seller resulting from such Event of Default,
including without limitation fees and commissions of any real estate
brokers and reasonable attorney's fees as provided below.
(c) In the event either party hereto initiates litigation
or hires legal counsel to enforce or protect its rights under this
Contract, the prevailing party shall be entitled to recover from the
unsuccessful party, in addition to any other damages or relief awarded or
obtained, all court costs and reasonable attorney's fees incurred in
connection with such litigation or action by legal counsel.
SECTION 20. BROKERS. Seller and Buyer each represent and
warrant to the other that no other broker or finder was in any way involved
in the transaction contemplated by this Contract. Each party to this
Contract agrees to indemnify, defend and hold harmless the other from all
loss, costs, expenses, claims and liabilities (including, without
limitation attorneys' fees and expenses) arising from a breach of the
warranty of this section. The provisions of this Section 20 shall survive
Closing or the expiration or termination of this Contract.
SECTION 21. NOTICES. Any notice required or permitted
hereunder shall be deemed sufficiently given if made in writing and either
delivered in person or deposited, postage prepaid, in the United States
certified or registered mail, addressed as follows:
To Buyer: To Seller:
Chempower, Inc. Holiday Properties
00 Xxxx Xxxxxxxxxx Lake 0000 Xxxxxxxxx Xxxx
Xxxx Xxxxx Xxxxxx, Xxxx 00000
Xxxxx, Xxxx 00000 Attn.: Xxxxxx X. Rochester,
Attn: X.X. Xxxx, General Partner
President Telephone: (000) 000-0000
Telephone: (000) 000-0000 Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: With a copy to:
Xxxx & Priest LLP Xxxxxxxx Xxxx & Xxxxx LLP
00 Xxxx 00xx Xxxxxx 0000 Xxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxxx Xxxxxx
Xxxx.: Xxxxx X. Xxxx, Xxxxxxxxx, Xxxx 00000-0000
Esq. Attn.: Xxxxxx X. Xxxxxxx,
Telephone: (000) 000-0000 Esq.
Facsimile: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address or addresses as Buyer or Seller may designate from
time to time by notice to the other.
SECTION 22. ENVIRONMENTAL INDEMNIFICATION. Buyer shall
defend, indemnify and hold harmless Seller from and against any and all
losses, claims, liabilities, damages, demands, fines, costs and expenses
(including reasonable legal expenses) of whatever kind and nature resulting
from any accident, occurrence or condition caused by the release by Buyer
or any third party acting on behalf or at the direction of Buyer of any
toxic or hazardous substance or waste in, on, under, about or affecting the
Cincinnati Parcel that results in any injury or death to any person or
damage to any property (other than damage to property of the type insurable
under a standard form all-risk fire and extended coverage insurance policy)
or which requires the removal or treatment of such hazardous or toxic
substance or waste or any other remedial action or fine under the terms of
any properly constituted law, regulation, rule or directive of any federal,
state or local governmental authority. The provisions of this Section 22
shall survive Closing or the expiration or termination of this Contract.
SECTION 23. NO WAIVER. Failure of either party to complain
of any act or omission on the part of the other party, no matter how long
the same may continue, shall not be deemed to be a waiver by said party of
any of its rights hereunder. No waiver by either party at any time,
express or implied, of any breach of any provisions of this Contract shall
be deemed a waiver of a breach of any other provision of this Contract or a
consent to any subsequent breach of the same or any other provision. If any
action by either party shall require the consent or approval of the other
party, the other party's consent to or approval of such action on any one
occasion shall not be deemed a consent to or approval of said action on any
subsequent occasion or a consent to or approval of any other action on the
same or any subsequent occasion.
SECTION 24. REMEDIES CUMULATIVE. Any and all rights and
remedies that either party may have under this Contract or by operation of
law, either at law or in equity, upon any breach, shall be distinct,
separate and cumulative and shall not be deemed inconsistent with each
other; and no one of them, whether exercised by said party or not shall be
deemed to be in exclusion of any other; and any two or more or all of such
rights and remedies may be exercised at the same time.
SECTION 25. CONTRACT NON-TRANSFERABLE. Neither party shall
sell, assign or transfer or permit to be sold, assigned or transferred any
of such party's interest in the Premises, in any property described herein
or in this Contract without first obtaining the written consent of the
other party, which consent shall not be unreasonably withheld, conditioned
or delayed.
SECTION 26. BINDING CONTRACT. This Contract shall not be
deemed to lack mutuality by virtue of any condition contained herein,
whether or not such condition must be fulfilled to the satisfaction of the
party for whose benefit it is intended. Each such condition shall be
deemed to require the parties to use their good faith efforts to fulfill
the same. The parties also hereby mutually acknowledge that, in addition
to all other consideration for this Contract, they have received other good
and valuable consideration in return for their promise that, pending
fulfillment of such conditions, this Contract shall remain in force and
binding upon them.
SECTION 27. QUADRUPLICATES. This Contract shall be executed
in quadruplicate, each of which shall be an original.
SECTION 28. RULES OF CONSTRUCTION. This Contract has been
reviewed by counsel for each party hereto prior to its execution, and no
presumptions or rules of construction shall be applicable by reason of the
identity of counsel preparing this Contract. This Contract shall be
construed according to its fair meaning and neither for nor against either
party.
SECTION 29. NOUNS. As used in this Contract, unless the
context otherwise specifically requires, the singular includes the plural,
and vice versa, and the masculine includes the feminine, and vice versa.
SECTION 30. CAPTIONS. The captions used herein are for
convenience only and shall not control or affect the meaning of
construction of any provisions of this Contract. All references to
"Sections" shall be to Sections of this Contract unless otherwise
specified.
SECTION 31. SUCCESSORS AND ASSIGNS. This Contract shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and permitted
assigns, as the case may be.
SECTION 32. APPLICABLE LAW. This Contract shall be governed
by, and construed and enforced in accordance with, the laws of the state
where the Cincinnati Parcel is located.
IN WITNESS WHEREOF, Seller and Buyer have executed this
Contract as of the date first written above.
Signed and acknowledged in the SELLER:
presence of:
(both signatures) HOLIDAY PROPERTIES
By:
---------------------------
-------------------------------- Xxxxxx X. Xxxx, General
Printed name: Partner
-------------------
And by:
-----------------------
-------------------------------- Xxxxxx X. Rochester, General
Printed name: Partner
-------------------
Signed and acknowledged BUYER:
in the presence of:
CHEMPOWER, INC.
By:
---------------------------
-------------------------------- Xxxxxx X. Xxxx, General
Printed name: Partner
-------------------
--------------------------------
Printed name:
-------------------
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said county and state,
personally appeared Xxxxxx X. Xxxx and Xxxxxx X. Rochester, the General
Partners of Holiday Properties, an Ohio general partnership, who
acknowledged that they did sign the foregoing instrument on behalf of said
general partnership and the same is their free act and deed and the free
act and deed of said general partnership
IN WITNESS WHEREOF, I hereunto set my hand this 28th day
of February, 1997.
[seal]
---------------------------------------------
Notary Public
My commission expires:
-----------------------
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said county and state,
personally appeared Xxxxxx X. Xxxx, the President of Chempower, Inc., an
Ohio corporation, who acknowledged that he did sign the foregoing
instrument on behalf of said corporation and the same is his free act and
deed and the free act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand this 28th day of
February, 1997.
[seal]
---------------------------------------------
Notary Public
My commission expires:
-----------------------
This instrument prepared by:
Xxxxxxxx Xxxx & Xxxxx LLP
0000 Xxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
LAND INSTALLMENT CONTRACT
THIS LAND INSTALLMENT CONTRACT (this "Contract") is entered
into at Cleveland, Ohio, as of this 28th day of February, 1997 (the
"Commencement Date"), by and between HOLIDAY PROPERTIES, an Ohio general
partnership ("Seller"), and CHEMPOWER, INC., an Ohio corporation ("Buyer").
RECITALS
--------
A. Seller is the fee simple owner of certain real property
commonly known as 0000 Xxxx Xxxxxxxx Xxxxx Xxxxx 00, Xxxxxxxx, Xxxx
Xxxxxxxx, and more particularly described in Exhibit A attached hereto and
---------
incorporated herein, together with any and all rights, privileges,
easements, appurtenances and hereditaments belonging thereto and all
buildings and improvements situated thereon, together with the following
items currently located in or on such property: all components of the
electrical, heating, air conditioning, plumbing and bathroom systems; all
built-in equipment (collectively referred to as the "Winfield Parcel").
B. Seller, as vendor, and Buyer, as vendee, have entered
into that certain land installment contract (the "Akron Contract") for the
purchase and sale of that certain real property and improvements commonly
known as 000 Xxxx Xxxxxxxxxx Xxxx Xxxx, Xxxxx, Xxxx, and more particularly
described in the Akron Contract (the "Akron Parcel").
C. Seller, as vendor, and Buyer, as vendee, have entered
into that certain land installment contract (the "Cincinnati Contract") for
the purchase and sale of that certain real property and improvements
commonly known as 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx, and more
particularly described in the Cincinnati Contract (the "Cincinnati
Parcel").
D. Buyer desires to purchase from Seller the Winfield
Parcel and Seller desires to sell to Buyer the Winfield Parcel under the
terms of this Contract.
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the adequacy and sufficiency of which are
hereby acknowledged by this Purchase Agreement, the parties hereto agree to
the following:
SECTION 1. THE PARCEL. (a) In consideration of the mutual
promises contained herein, Seller agrees to sell and convey to Buyer, and
Buyer agrees to purchase and pay for, upon the provisions, terms, and
conditions of this Contract, the Winfield Parcel.
SECTION 2. CONDITION OF THE WINFIELD PARCEL. Buyer
acknowledges and agrees that Seller has made no representation or warranty
whatsoever, express or implied, as to the condition, quantity, design,
merchantability, fitness or quality of the Winfield Parcel, or any portion
thereof. Buyer agrees to accept the Winfield Parcel and all portions
thereof on the Transfer Date (as defined hereinbelow) "AS IS" and "WITH ALL
FAULTS," subject to all defects therein, concealed or otherwise, and
whether known or unknown to Seller, it being expressly understood and
agreed that Buyer has relied solely on its own inspections, examinations
and evaluations of the Winfield Parcel. Buyer (and anyone claiming by,
through, or under Buyer) hereby fully and finally releases Seller from any
and all claims that Buyer may now have or hereafter acquire against Seller
for any cost, loss, liability, damage, expense, demand, action, or cause of
action, relating to or arising from any failure of Seller to disclose any
matter with respect to the Winfield Parcel, any construction defects,
errors, omissions, or other conditions affecting the Winfield Parcel and
arising out of or resulting from any errors, omissions, or defects in the
Winfield Parcel including (without limitation) any and all liability for
any release of hazardous substances, pollutants, or contaminants from any
source whatsoever and whenever occurring. Buyer further acknowledges and
agrees that this release shall be given full force and effect according to
each of its express terms and provisions, including but not limited to
those relating to unknown and suspected claims, damages, and causes of
action. This waiver and release of claims shall survive termination or
expiration of this Contract and closing ("Closing") of the transaction
contemplated herein.
SECTION 3. PURCHASE PRICE. The purchase price for the
Winfield Parcel shall be Two Million Four Hundred Thousand and No/100
Dollars ($2,400,000.00) (the "Purchase Price"). The Purchase Price
provided for above shall be in addition to, and over and above, all
payments to be made by Buyer for real estate taxes and assessments,
insurance and utilities as hereinafter provided in this Contract and such
Purchase Price shall be absolutely net to Seller except as and to the
extent specifically provided in this Contract. Seller and Buyer hereby
acknowledge and agree that the transaction contemplated under this Contract
is not a consumer transaction.
SECTION 4. PAYMENT OF THE PURCHASE PRICE. The Purchase Price
shall be payable under the following terms and conditions and in the
following manner:
(a) On the Commencement Date, Buyer shall pay Seller the
sum of Two Hundred Sixty-Six Thousand Six Hundred Sixty-Seven and
No/100 Dollars ($266,667.00) (the "Downpayment"), as downpayment
against and to be applied toward the Purchase Price.
(b) The outstanding principal balance of the Purchase Price
(after deduction of the Downpayment) as of the Commencement Date is
Two Million One Hundred Thirty-Three Thousand Three Hundred
Thirty-Three and No/100 Dollars ($2,133,333.00) (the "Outstanding
Balance").
(c) The Outstanding Balance shall bear interest at the
following per annum rates:
Month(s) Per Annum
-------- ---------
Rate:
-----
1 and 2 7.0%
3 and 4 8.0%
5 and 6 9.0%
7 - 9 10.0%
10 - Maturity 11.0%
Date
(d) On or before the first day of the month following the
month in which the Commencement Date occurs, Buyer shall pay Seller
the interest that Buyer has accrued from the Commencement Date upon
the Outstanding Balance. Thereafter, Buyer shall pay Seller monthly
installments of accrued interest commencing on the first day of the
second month following the month in which the Commencement Date occurs
and continuing on the first day of each subsequent month until said
balance and accrued interest are paid in full; provided, however, that
unless sooner paid the remaining unpaid principal balance and all
accrued interest shall be due and payable on or before the date which
is the first anniversary of the Commencement Date (the "Maturity
Date").
(e) All payments described in this Section 4 shall be paid
by Buyer to Seller at 000 X. Xxxxxxxxxx Xxxx Xxxx, Xxxxx, Xxxx 00000,
or such other address as Seller may designate from time to time.
SECTION 5. PREPAYMENT. Buyer shall have the right to prepay
the Purchase Price, in whole or in partial payment of at least Six Hundred
Thousand and No/100 Dollars ($600,000.00), at any time without charge or
penalty, provided that Buyer gives to Seller written notice of any such
intent to prepay at least ten (10) days prior to making such prepayment and
further provided that any partial prepayment applied against the Purchase
Price shall be applied in inverse order of the date due, beginning with the
last such payment due.
SECTION 6. POSSESSION. Buyer shall have possession of the
Winfield Parcel on the Commencement Date and continuing thereafter so long
as Buyer is not in default under this Contract.
SECTION 7. UTILITIES. To the extent utilities are not
already in Buyer's name, Buyer shall make application for water, gas,
electric, telephone and other utility services for the Winfield Parcel in
the name of Buyer. Buyer shall pay directly to the supplying utilities all
amounts billed by the supplying utilities for services used or consumed on
the Winfield Parcel.
SECTION 8. REAL ESTATE TAXES AND ASSESSMENTS. During the
term of this Contract, Buyer shall pay all real estate taxes and
assessments, both general and special, on the Winfield Parcel as bills are
rendered without regard to periods covered thereunder accruing on and after
the Commencement Date.
SECTION 9. INSURANCE; WAIVER OF SUBROGATION. (a) Buyer
shall, at its own cost and expense, throughout the term of this Contract
maintain on the Winfield Parcel (i) commercial general liability insurance
for bodily injury and/or property damage in the amount of Two Million and
00/100 Dollars ($2,000,000.00) single limit and Two Million and 00/100
Dollars ($2,000,000.00) per occurrence, and (ii) all-risk fire insurance in
an amount equal to 100% of replacement cost (which replacement cost shall
be determined by mutual agreement of the parties or, if the parties cannot
agree, by an independent appraiser selected by mutual agreement of the
parties) and otherwise sufficient to prevent Seller from becoming a co--
insured under said policies of insurance, but in no event less than the
unpaid principal balance due under this Contract. Seller and Buyer shall
both be named as insured parties in the insurance policies required above,
as their interests may appear, and copies of all such policies shall be
delivered to Seller on the Commencement Date and thereafter annually.
(b) To the extent that no insurance coverage is invalidated
and that the right of the waiving party to recover under its insurance is
not prejudiced, Seller and Buyer each hereby release and relieve the other,
and waive their entire right of recovery against the other for loss or
damage arising out of or incident to the perils insured against under
Section 9(a) of this Contract, which perils occur in, on, or about the
Winfield Parcel, whether due to the negligence of Seller or Buyer or their
agents, employees, contractors and/or invitees. Seller and Buyer shall,
upon obtaining the policies of insurance required hereunder, give notice to
the insurance carrier or carriers that the foregoing mutual waiver of
subrogation is contained in this Contract. Each policy of insurance will
include the waiver of subrogation set forth in this Section 9.
SECTION 10. BENEFICIAL OWNERSHIP. On the Commencement Date,
beneficial ownership of the Winfield Parcel, subject to defeasance only in
the event of termination of this Contract, shall be conveyed by Seller to
Buyer.
SECTION 11. TITLE. The Winfield Parcel is currently subject
to the liens and encumbrances set forth on Exhibit B attached hereto and
---------
made a part hereof. During the term of this Contract, neither Seller nor
Buyer shall create, permit or suffer any liens or encumbrances against the
Winfield Parcel without the prior written consent of the other party,
except the lien of current real estate taxes and assessments not yet due
and payable and this Contract.
SECTION 12. LEGAL TITLE. Seller shall convey to Buyer fee
simple title to the Winfield Parcel by quit claim deed (the "Deed") on the
Transfer Date.
SECTION 13. CLOSING. The transaction contemplated by this
Contract shall be closed (the "Closing") within three (3) business days
after Buyer's payment of the full Purchase Price for the Winfield Parcel,
Akron Parcel and Cincinnati Parcel, with interest due thereon and in the
manner and at the time as required or permitted by the terms and conditions
of this Contract and the Akron Contract and Cincinnati Contract, and upon
Buyer's performance of all other covenants and agreements required of Buyer
by the terms and conditions of this Contract and the Akron Contract and
Cincinnati Contract (the "Transfer Date"). Closing shall occur at Midland
Title Security, Inc. ("Escrow Agent"), as agent for First American Title
Insurance Company ("Title Company"), or at such other location as the
parties hereto shall mutually agree. Seller shall do all things necessary
to cause Escrow Agent to convey the Winfield Parcel to Buyer by filing the
Deed with the Xxxxxx County, West Virginia Recorder.
SECTION 14. CLOSING EXPENSES. Except as otherwise provided
herein, the following costs and expenses of this transaction shall be
chargeable to Buyer at Closing: (a) the escrow fee charged by Escrow
Agent, and (b) the recording, conveyance and transfer fees of the Deed.
SECTION 15. DUTY TO MAINTAIN; COMPLIANCE WITH LAWS;
INDEMNITY. (a) Buyer acknowledges and agrees that the Winfield Parcel is
in good condition, order and repair, and that Buyer shall, at its own cost
and expense, maintain the Winfield Parcel in at least as good order and
repair as they are in on the date of this Contract, reasonable wear and
tear excepted.
(b) Buyer shall be responsible for compliance with all
applicable statutes, ordinances, rules, regulations and orders governing
the Winfield Parcel and Buyer's use thereof, or the operation of the
business of Buyer on the Winfield Parcel.
(c) Buyer shall defend, indemnify and hold harmless Seller
from and against all losses, claims, damages and expenses resulting from
any accident or other occurrence on or about the Winfield Parcel resulting
in injury or death to any person or damage to any property. The provisions
of this Section 15(c) shall survive Closing or the termination or
expiration of this Contract.
SECTION 16. TENANT ALTERATIONS OR IMPROVEMENTS. (a) Buyer
shall not remove or permit the removal from the Winfield Parcel of any
building or other improvement located thereon or of any other property
described herein without first obtaining written consent of Seller, nor
shall Buyer commit or permit to be committed any waste of the Premises or
of any such building, improvement or other property.
(b) Buyer shall not renovate, remodel or alter any building
or improvement now or hereafter situated on the Winfield Parcel, or
construct any additional building, buildings or improvements on the
Premises without obtaining Seller's prior written approval of plans for
such renovating, remodeling or construction, which approval Seller may
withhold in its sole discretion.
SECTION 17. CASUALTY. In the event of any damage to or
destruction of the Winfield Parcel by fire or other casualty during the
term of this Contract, Buyer shall restore the Winfield Parcel
substantially to its condition prior to such damage or destruction to the
extent of insurance proceeds payable by reason of such damage or
destruction.
SECTION 18. EMINENT DOMAIN. Any award or payment received in
connection with the exercise of the right of eminent domain, the alteration
of the grade of any street, or any other injury to or decrease in the value
of the Winfield Parcel or any part thereof, shall be the property of Buyer
and Buyer shall bear the risk of any such taking, injury or decrease in
value.
SECTION 19. DEFAULT; REMEDIES. (a) If Buyer shall fail to
make payment of any sums due hereunder and shall fail to cure such failure
within ten (10) days from the date that such payment is overdue or shall
default in the performance of any other obligation or covenant herein for
more than thirty (30) days after written notice thereof by Seller to Buyer
(or such longer period as is reasonably required to cure such default if
Buyer promptly commenced and is diligently pursuing the cure thereof, but
in any event such period shall not exceed sixty (60) days); or if an order
for relief shall be issued in any bankruptcy or similar proceeding
commenced by or against Buyer and such order is not dismissed within sixty
(60) days; or if a receiver shall be appointed for all or part of Buyer's
properties and not dismissed within sixty (60) days after the appointment
thereof (each of the foregoing being an "Event of Default"), then and in
any such event Seller may at any time thereafter do any one or more of the
following to the extent not prohibited by law:
(i) Seller shall have the right to assess a late charge of
10% for any sums not paid by the fifteenth (15th) day following the
due date of such sum;
(ii) Seller shall have the right to cause any defaulted
obligation or covenant to be performed, in which event the expense
thereof shall at once be due and payable, to be added to and be a part
of the then remaining balance of the Purchase Price, and shall draw
interest at the rate of fifteen percent (15%) per annum until paid; or
(iii) If such Event of Default occurs at any time during the
term of this Contract or under the terms of the Akron Contract and/or
Cincinnati Contract, Seller shall have the right to terminate this
Contract and recover possession of any or all of the Premises by legal
proceeding for forcible entry and detainer or otherwise as may be
provided by law.
(b) In addition to and without limitation of the foregoing
remedies, upon occurrence of an Event of Default that is not cured by Buyer
as provided above, Buyer shall reimburse Seller for any and all reasonable
costs and expenses incurred by Seller resulting from such Event of Default,
including without limitation fees and commissions of any real estate
brokers and reasonable attorney's fees as provided below.
(c) In the event either party hereto initiates litigation
or hires legal counsel to enforce or protect its rights under this
Contract, the prevailing party shall be entitled to recover from the
unsuccessful party, in addition to any other damages or relief awarded or
obtained, all court costs and reasonable attorney's fees incurred in
connection with such litigation or action by legal counsel.
SECTION 20. BROKERS. Seller and Buyer each represent and
warrant to the other that no other broker or finder was in any way involved
in the transaction contemplated by this Contract. Each party to this
Contract agrees to indemnify, defend and hold harmless the other from all
loss, costs, expenses, claims and liabilities (including, without
limitation attorneys' fees and expenses) arising from a breach of the
warranty of this section. The provisions of this Section 20 shall survive
Closing or the expiration or termination of this Contract.
SECTION 21. NOTICES. Any notice required or permitted
hereunder shall be deemed sufficiently given if made in writing and either
delivered in person or deposited, postage prepaid, in the United States
certified or registered mail, addressed as follows:
To Buyer: To Seller:
Chempower, Inc. Holiday Properties
00 Xxxx Xxxxxxxxxx Lake 0000 Xxxxxxxxx Xxxx
Xxxx Xxxxx Xxxxxx, Xxxx 00000
Xxxxx, Xxxx 00000 Attn.: Xxxxxx X. Rochester,
Attn: X.X. Xxxx, General Partner
President Telephone: (000) 000-0000
Telephone: (000) 000-0000 Facsimile: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: With a copy to:
Xxxx & Priest LLP Xxxxxxxx Xxxx & Xxxxx LLP
00 Xxxx 00xx Xxxxxx 0000 Xxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 000 Xxxxxx Xxxxxx
Xxxx.: Xxxxx X. Xxxx, Xxxxxxxxx, Xxxx 00000-0000
Esq. Attn.: Xxxxxx X. Xxxxxxx,
Telephone: (000) 000-0000 Esq.
Facsimile: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address or addresses as Buyer or Seller may designate from
time to time by notice to the other.
SECTION 22. ENVIRONMENTAL INDEMNIFICATION. Buyer shall
defend, indemnify and hold harmless Seller from and against any and all
losses, claims, liabilities, damages, demands, fines, costs and expenses
(including reasonable legal expenses) of whatever kind and nature resulting
from any accident, occurrence or condition caused by the release by Buyer
or any third party acting on behalf or at the direction of Buyer of any
toxic or hazardous substance or waste in, on, under, about or affecting the
Winfield Parcel that results in any injury or death to any person or damage
to any property (other than damage to property of the type insurable under
a standard form all-risk fire and extended coverage insurance policy) or
which requires the removal or treatment of such hazardous or toxic
substance or waste or any other remedial action or fine under the terms of
any properly constituted law, regulation, rule or directive of any federal,
state or local governmental authority. The provisions of this Section 22
shall survive Closing or the expiration or termination of this Contract.
SECTION 23. NO WAIVER. Failure of either party to complain
of any act or omission on the part of the other party, no matter how long
the same may continue, shall not be deemed to be a waiver by said party of
any of its rights hereunder. No waiver by either party at any time,
express or implied, of any breach of any provisions of this Contract shall
be deemed a waiver of a breach of any other provision of this Contract or a
consent to any subsequent breach of the same or any other provision. If any
action by either party shall require the consent or approval of the other
party, the other party's consent to or approval of such action on any one
occasion shall not be deemed a consent to or approval of said action on any
subsequent occasion or a consent to or approval of any other action on the
same or any subsequent occasion.
SECTION 24. REMEDIES CUMULATIVE. Any and all rights and
remedies that either party may have under this Contract or by operation of
law, either at law or in equity, upon any breach, shall be distinct,
separate and cumulative and shall not be deemed inconsistent with each
other; and no one of them, whether exercised by said party or not shall he
deemed to be in exclusion of any other; and any two or more or all of such
rights and remedies may be exercised at the same time.
SECTION 25. CONTRACT NON-TRANSFERABLE. Neither party shall
sell, assign or transfer or permit to be sold, assigned or transferred any
of such party's interest in the Premises, in any property described herein
or in this Contract without first obtaining the written consent of the
other party, which consent shall not be unreasonably withheld, conditioned
or delayed.
SECTION 26. BINDING CONTRACT. This Contract shall not be
deemed to lack mutuality by virtue of any condition contained herein,
whether or not such condition must be fulfilled to the satisfaction of the
party for whose benefit it is intended. Each such condition shall be
deemed to require the parties to use their good faith efforts to fulfill
the same. The parties also hereby mutually acknowledge that, in addition
to all other consideration for this Contract, they have received other good
and valuable consideration in return for their promise that, pending
fulfillment of such conditions, this Contract shall remain in force and
binding upon them.
SECTION 27. QUADRUPLICATES. This Contract shall be executed
in quadruplicate, each of which shall be an original.
SECTION 28. RULES OF CONSTRUCTION. This Contract has been
reviewed by counsel for each party hereto prior to its execution, and no
presumptions or rules of construction shall be applicable by reason of the
identity of counsel preparing this Contract. This Contract shall be
construed according to its fair meaning and neither for nor against either
party.
SECTION 29. NOUNS. As used in this Contract, unless the
context otherwise specifically requires, the singular includes the plural,
and vice versa, and the masculine includes the feminine, and vice versa.
SECTION 30. CAPTIONS. The captions used herein are for
convenience only and shall not control or affect the meaning of
construction of any provisions of this Contract. All references to
"Sections" shall be to Sections of this Contract unless otherwise
specified.
SECTION 31. SUCCESSORS AND ASSIGNS. This Contract shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and permitted
assigns, as the case may be.
SECTION 32. APPLICABLE LAW. This Contract shall be governed
by, and construed and enforced in accordance with, the laws of the state
where the Winfield Parcel is located.
IN WITNESS WHEREOF, Seller and Buyer have executed this
Contract as of the date first written above.
Signed and acknowledged in the SELLER:
presence of:
(both signatures) HOLIDAY PROPERTIES
By:
---------------------------
-------------------------------- Xxxxxx X. Xxxx, General
Printed name: Partner
-------------------
And by:
-----------------------
-------------------------------- Xxxxxx X. Rochester, General
Printed name: Partner
-------------------
Signed and acknowledged BUYER:
in the presence of:
CHEMPOWER, INC.
By:
-------------------------------- ---------------------------
Printed name: Xxxxxx X. Xxxx, General
------------------- Partner
--------------------------------
Printed name:
-------------------
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said county and state,
personally appeared Xxxxxx X. Xxxx and Xxxxxx X. Rochester, the General
Partners of Holiday Properties, an Ohio general partnership, who
acknowledged that they did sign the foregoing instrument on behalf of said
general partnership and the same is their free act and deed and the free
act and deed of said general partnership
IN WITNESS WHEREOF, I hereunto set my hand this 28th day
of February, 1997.
[seal]
---------------------------------------------
Notary Public
My commission expires:
-----------------------
STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said county and state,
personally appeared Xxxxxx X. Xxxx, the President of Chempower, Inc., an
Ohio corporation, who acknowledged that he did sign the foregoing
instrument on behalf of said corporation and the same is his free act and
deed and the free act and deed of said corporation.
IN WITNESS WHEREOF, I hereunto set my hand this 28th day of
February, 1997.
[seal]
---------------------------------------------
Notary Public
My commission expires:
-----------------------
This instrument prepared by:
Xxxxxxxx Xxxx & Xxxxx LLP
0000 Xxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
EXHIBIT E
---------
PERMITTED ENCUMBRANCES
(Akron Parcel)
1. Real estate taxes and assessments, both general and special, which are
a lien but not yet due and payable.
2. Lease for oil and gas from Xxxxx Xxxxxxxxxx, et al., to The Ohio Oil
Company, dated November 6, 1905 and recorded in Volume 307, Page 215
of Summit County Records.
3. Lease for oil and gas from Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxx to X.
X. Xxxxxxx, dated August 10, 1928 and recorded in Volume 1295, Page
162 of Summit County Records.
4. Supplemental Gas Storage Agreement by and between O. F. Xxxxxx and The
East Ohio Gas Company, dated April 27, 1943, recorded in Volume 2038,
Page 287 of Summit County Records.
5. Partial Release of Oil and Gas Lease and Supplemental Gas Storage
Agreement by The East Ohio Gas Company, dated April 18, 1951, recorded
in Volume 2830, Page 413 of Summit County Records.
6. Easement for pole lines from Xxxxxx X. Xxxxxx to Ohio Edison Company,
dated April 4, 1941, recorded in Volume 1875, Page 627 of Summit
County Records.
7. Easement for highway purposes from Xxxxxxx Xxxxxx, Xxxxxx X. Xxxxxxxx
and Xxxxx X. Xxxxxxxx to the State of Ohio, dated September 19, 1958,
recorded in Volume 3633, Page 135 of Summit County Records.
8. Easement for highway purposes from Xxxxxx X. Xxxxxxxx and Xxxxx X.
Xxxxxxxx to the State of Ohio dated September 29, 1958, recorded in
Volume 3638, Page 364 of Summit County Records.
9. Easement for pole lines from 1201 Corporation to Ohio Edison Company,
dated October 30, 1973, recorded in Volume 5496, Page 766 of Summit
County Records.
10. Mortgage deed from Holiday Properties to First National Bank of Ohio,
covering caption premises, in the amount of $250,000.00 dated November
15, 1993, filed November 19, 1993 at 10:53 A.M. and recorded in Volume
OR 1523, page 99 of Summit County Records.
11. Assignment of Rentals Under Lease by Holiday Properties in favor of
First National Bank of Ohio, dated November 9, 1993, filed November
19, 1993 at 10:53 A.M. and recorded in Volume OR 1523, Page 105 of
Summit County Records.
12. Mortgage dated as of February 28, 1997 from Holiday Properties to
First National Bank of Ohio (to be recorded at Closing).
PERMITTED ENCUMBRANCES
(CINCINNATI PARCEL)
1. Real estate taxes and assessments, both general and special, which are
a lien but not yet due and payable.
2. Easement to The C G & E Company as set forth in Deed Book 1536, Page
375, Recorder's Office, Xxxxxxxx County, Ohio.
3. Perpetual Use and Maintenance Easement, as set forth in Deed Book
2879, page 208, Xxxxxxxx County, Ohio Records.
4. Easement to C G & E Company as set forth in Deed Book 3221, page 69,
Recorder's Office, Xxxxxxxx County, Ohio Records.
5. Easement to C G & E Company as set forth in Deed Book 1537, page 339,
Recorder's Office, Xxxxxxxx County, Ohio.
6. Mortgage dated as of February 28, 1997 from Holiday Properties to
First National Bank of Ohio (to be recorded at Closing).
PERMITTED ENCUMBRANCES
(WINFIELD PARCEL)
1. Real estate taxes and assessments, both general and special, which are
a lien but not yet due and payable.
2. Reservation of all minerals as contained in Deed from W. Xxxx Xxxx and
wife to KVD, Inc., a corporation, dated August 15, 1972, of record in
Deed Book 192, Page 709.
3. Deed dated July 8, 1941, in Deed Book 75, Page 487, X. X. Xxxxxxxx
granted West Virginia Gas Corporation a right-of-way and easement for
a pipeline, which was assigned to Xxxx X. Xxxxxxx and Xxxxx Oil
Company by Deed dated June 21, 1973, in Oil and Gas Book 57, Page 303.
4. Deed dated April 30, 1947, in Deed Book 89, Page 22, X. X. Xxxxxxxx
granted Xxxxxxx Gas Co. a right-of-way and easement for a gas line 2
inches to 4 inches in diameter.
5. Deed dated July 27, 1948, in Deed Book 94, Page 70, X. X. Xxxxxxxx
granted Appalachian Power Company a right-of-way and easement.
6. By Deed dated May 3, 1950, in Deed Book 98, Page 574, X. X. Xxxxxxxx
granted Appalachian Power Company a right-of-way and easement.
7. By Deed dated September 9, 1947, in Deed Book 127, Page 55, Xxxxx X.
Xxxxxx and other granted unto Appalachian Power Company a right-of-way
and easement.
8. Deed dated July 19, 1960, in Deed Book 000, Xxxx 000, X Xxxx Xxxx and
wife granted Appalachian Power Company a right-of-way and easement.
9. Deed of Trust dated as of February 28, 1997, from Holiday Properties
to First National Bank of Ohio (to be recorded at Closing).
EXHIBIT F
---------
TERMINATION AGREEMENT AND MUTUAL RELEASE
THIS TERMINATION AGREEMENT AND MUTUAL RELEASE (this
"Termination Agreement") is made and entered into as of the 28th day of
February, 1997, by and between AMERICAN ECO CORPORATION, a Canadian
corporation ("American Eco"), and HOLIDAY PROPERTIES, an Ohio general
partnership ("HP").
R E C I T A L S:
- - - - - - - -
(a) American Eco, as Buyer, and HP, as Seller, have entered
into that certain Real Property Purchase Agreement dated September 10, 1996
(the "Purchase Agreement"), pursuant to which Seller agreed to convey and
Buyer agreed to purchase certain described premises located in Akron, Ohio,
Cincinnati, Ohio, and Winfield, West Virginia (collectively the
"Premises").
(b) American Eco and HP each desire to cancel and terminate
the Purchase Agreement and to release each other of all claims, rights of
action and causes of action, including, but not limited to, all of the
respective rights and obligations of American Eco and HP under the Purchase
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. American Eco and HP each acknowledge and agree that the
Purchase Agreement shall be terminated and null and void as of February 28,
1997.
2. The parties hereto each for itself, its employees,
partners, directors, officers, successors, subsidiaries, agents, partners
and assigns, does hereby release and forever discharge the other and their
employees, partners, directors, officers, successors, subsidiaries and
assigns, of and from any and all claims, damages, demands, actions, duties,
causes of action, judgments, controversies and liabilities whatsoever,
known or unknown, matured or unmatured, fixed or contingent, arising out of
contract (including, without limitation, the Purchase Agreement) or
otherwise, in law or equity, against the other which it has now or may have
by reason of any matter whatsoever from the beginning of the world to the
date of this Termination Agreement.
3. This Termination Agreement shall be binding upon and
shall inure to the benefit of the successors and assigns of the parties
hereto.
4. This Termination Agreement embodies and constitutes the
entire understanding between the parties with respect to the Purchase
Agreement and the Premises and all matters relating thereto and may not be
amended or modified except in writing executed by the parties hereto.
IN WITNESS WHEREOF, American Eco and HP have hereunto executed
this Termination Agreement and Mutual Release as of the day and year first
above written.
HOLIDAY PROPERTIES
By:
----------------------------------
Xxxxxx X. Xxxx, General Partner
And by:
------------------------------
Xxxxxx X. Rochester, General
Partner
AMERICAN ECO CORPORATION
By:
----------------------------------
Xxxxxxx X. XxXxxxxx, President
EXHIBIT G
---------
THIS INSTRUMENT AND THE OBLIGATIONS REPRESENTED THEREBY IS SUBORDINATE IN
ALL RESPECTS TO CERTAIN OBLIGATIONS OF CHEMPOWER, INC. AND ITS SUBSIDIARIES
TO FIRST NATIONAL BANK OF OHIO, INCLUDING A PROMISSORY NOTE IN THE MAXIMUM
PRINCIPAL AMOUNT OF $15,700,000 DATED AS OF FEBRUARY 28, 1997.
GUARANTY
--------
THIS GUARANTY (this "Guaranty") is made as of this 28th day of
February, 1997, by AMERICAN ECO CORPORATION, an Ontario, Canada corporation
("Guarantor") in favor of HOLIDAY PROPERTIES, an Ohio general partnership
("HP").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Guarantor has this date executed and delivered in
favor of First National Bank of Ohio (the "Bank") a certain Commercial
Guaranty (the "Commercial Guaranty"); and
WHEREAS, pursuant to the Commercial Guaranty, Guarantor has
guaranteed the obligations of Chempower, Inc., an Ohio corporation
("Chempower") to the Bank; and
WHEREAS, HP has this date executed and delivered in favor of
the Bank a certain Unconditional and Continuing Limited Non-Recourse
Guaranty (the "Non-Recourse Guaranty") pursuant to which HP has guaranteed,
on a non-recourse basis, the obligations of Chempower to the Bank; and
WHEREAS, the Non-Recourse Guaranty will insure to the benefit
of Guarantor, and the execution and delivery of this Guaranty by Guarantor
to HP is a condition of HP's willingness to execute and deliver the
Non-Recourse Guaranty;
NOW, THEREFORE, for good and valuable consideration, the
Guarantor agrees as follows:
1. Definitions. The term "Guaranteed Obligations" shall
-----------
mean the obligations of HP pursuant to the Non-Recourse Guaranty to pay all
of the indebtedness evidenced by the Non-Recourse Guaranty and any and all
other indebtedness of HP to the Bank pursuant to the terms of and
transactions and agreements provided for in the Non-Recourse Guaranty.
2. Unconditional Guarantee. Guarantor hereby represents
-----------------------
and warrants to HP that it is the sole shareholder of Chempower and that it
will receive substantial benefits in respect of the Non-Recourse Guaranty.
Guarantor hereby absolutely and unconditionally guarantees to HP, its
successors and assigns:
(a) the punctual and full payment when due of all the
Guaranteed Obligations; it being the intention of Guarantor that this
Guaranty be an absolute, irrevocable, and unconditional guarantee of
payment; and
(b) the performance and observance by Chempower of all its
obligations, agreements, and covenants with HP under any land installment
contracts or related agreements or undertakings; the guarantee of such
performance and observance to be absolute, irrevocable and unconditional
(the obligations, agreements, and covenants referred to in this
subparagraph (b) also being included within and being a part of the
Guaranteed Obligations).
Guarantor further agrees that its guarantee hereunder will not
be discharged or affected by the fact that the Guaranteed Obligations or
any of them shall be or become invalid or unenforceable for any reason.
Guarantor represents and warrants to HP that it has full power, authority,
and capacity to enter into and to fully perform all of its obligations
under this Guaranty.
3. Costs. In addition to its obligations under Section 2
-----
above, Guarantor agrees to pay all costs and expenses incurred by HP in the
enforcement and/or collection of any and all of the Guaranteed Obligations,
including, without limitation, reasonable attorneys' fees.
4. Dealing with Guaranteed Obligations. Guarantor hereby
-----------------------------------
grants to HP full power and authority, and without notice to or the consent
of Guarantor:
(a) to modify, supplement, or otherwise change any terms of
the Guaranteed Obligations; to grant any extensions or renewals of the
Guaranteed Obligations; to grant any other waiver or indulgence with
respect to the Guaranteed Obligations; and to effect any release,
compromise, or settlement with respect to the Guaranteed Obligations;
and
(b) to accelerate the maturity of the Guaranteed
Obligations from and after the occurrence of a default thereunder; to
fail to set off any amounts owing by Chempower to HP; to waive or
enter into any agreement of forbearance with respect to the Guaranteed
Obligations; and to change the term of any such waiver or agreement of
forbearance.
No action which HP may take or fail to take pursuant to the foregoing
powers shall operate to release or terminate this Guaranty or impose any
liability on HP.
5. HP Not Required to Pursue Chempower or Exhaust
----------------------------------------------
Collateral. Guarantor hereby waives any right to require payment of the
----------
Guaranteed Obligations by Chempower, or to require HP to proceed against
any collateral or security for the Guaranteed Obligations, or to require
any action or proceeding against Chempower on the Guaranteed Obligations,
or otherwise to require HP to exhaust any and all remedies against
Chempower or any other person before proceeding against Guarantor on this
Guaranty.
6. Waiver of Acceptance, Etc. Guarantor waives
--------------------------
acceptance and notice of acceptance hereof, presentment, demand, protest or
other notice of any kind, promptness in commencing suit and/or giving
notice to or in making any claim or demand upon it, and agrees that no act
or omission of any kind on the part of HP shall in any event affect or
impair this Guaranty.
7. Notices. If HP desires to give notice to Guarantor,
-------
such notice shall be deemed given when mailed, certified mail, return
receipt requested, postage prepaid, addressed to Guarantor at 00000 Xxxxx
Xxxx, Xxxxxxx, Xxxxx 00000, or to such other address as Guarantor may from
time to time file in writing with HP for notices to it.
8. Binding Effect. All of the terms, provisions, and
--------------
agreements of this Guaranty shall inure to the benefit of and be
enforceable by HP, its successors and assigns, and shall be binding upon
and be enforceable against Guarantor and its successors and assigns.
9. No Right of Subrogation. Guarantor shall not have any
-----------------------
right of reimbursement, subrogation, or setoff with respect to the
Guaranteed Obligations unless and until HP shall have received payment in
full of all Guaranteed Obligations.
10. Reinstatement of Guaranty. This Guaranty shall continue
-------------------------
to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any amount paid by or on behalf of
Chempower with respect to the Guaranteed Obligations is rescinded or must
otherwise be restored or returned upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of Chempower or, upon or as a
result of the appointment of a receiver, intervenor, or conservator of, or
trustee or similar officer for, or any substantial part of its property, or
otherwise, all as though such payments had not been made.
11. Governing Law. This Guaranty is a contract entered into
-------------
under and pursuant to the laws of the State of Ohio, and shall be in all
respects governed, construed, applied and enforced in accordance with the
laws of such state.
12. Termination of Guaranty. This Guaranty shall remain in
-----------------------
full force and effect until all Guaranteed Obligations have been paid and
performed in full.
13. Warrant of Attorney. Guarantor hereby irrevocably
-------------------
authorizes any attorney-at-law to appear for Guarantor in an action on this
Guaranty at any time after the same becomes due, whether by acceleration or
otherwise, in any court of record in the State of Ohio or elsewhere and to
waive the issuing of service of process against Guarantor and to confess
judgment in favor of HP, its successors and assigns, and against Guarantor,
for all amounts that may be due, together with costs of suit, and thereupon
to waive all errors and all rights of appeal and stays of execution in
respect of the judgment rendered. Guarantor hereby expressly (a) waives
any conflict of interest in an attorney retained by HP confessing judgment
against the Guarantor upon this Guaranty, and (b) consents to any attorney
retained by HP receiving a legal fee or other value from HP for legal
services rendered for confessing judgment against the Guarantor upon this
Guaranty. The foregoing warrant of attorney shall survive any judgment,
and if any judgment is vacated for any reason, HP may thereafter use the
foregoing warrant of attorney to obtain additional judgment or judgments
against Guarantor. A copy of this Guaranty, certified by the Agent, may be
filed in any proceeding in place of filing the original as a warrant of
attorney.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be
executed and delivered to HP as of the date first above written.
--------------------------------------------------------------------------
"WARNING BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO
-------------------------------------------------------
NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A
----------------------------------------------------
COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR
----------------------------------------------------
PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO
--------------------------------------------------------
COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE
------------------------------------------------------
AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY
-------------------------------------------------------
GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
-------------------------------------------------------
OR ANY OTHER CAUSE."
-------------------
---------------------------------------------------------------------------
AMERICAN ECO CORPORATION
By:
----------------------------------
Xxxxxxx X. XxXxxxxx, President
