Exhibit 10.97
REAL ESTATE AGREEMENT
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THIS AGREEMENT is made this 9th day of January, 1996, by and between UNITED
STATIONERS SUPPLY CO., an Illinois corporation ("Seller") and XXXX STREET, LTD.,
an Ohio limited liability Company ("Purchaser").
The parties agree as follows:
1. Premises. Seller shall sell to Purchaser and Purchaser shall purchase
from Seller, at the price and on the terms and conditions set forth herein, fee
simple marketable title (subject to Permitted Exceptions hereinafter defined) in
and to certain improved real property, consisting of approximately 24 acres,
more or less, together with improvements thereon or attached thereto, including,
but not limited to, a certain warehouse/office building of approximately Two
Hundred Thirty-Three Thousand (233,000) square feet, and all easements, rights
and privileges appurtenant thereto, including all right, title and interest of
Seller in and to any land lying in the bed of any street, road or avenue opened
or proposed in front of or adjoining the premises, and all riparian rights, said
premises being commonly known as 0000 Xxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx Xxxxxx,
Xxxx, as described in Exhibit A attached hereto and by this reference made a
part hereof ("Premises").
2. Purchase Price. Purchaser shall pay Seller the sum of Five Million Nine
Hundred Sixty-Eight Thousand Dollars ($5,968,000.00) for the Premises ("Purchase
Price"). The Purchase Price shall be paid to Seller as follows:
(a) Concurrently with the execution of this Agreement, Purchaser shall
deposit into escrow with Continental Title Agency Corp. ("Escrow Agent") the sum
of Fifty Thousand Dollars ($50,000.00) on account of the Purchase Price (the
"Xxxxxxx Money"). The Xxxxxxx Money will be deposited into an interest-bearing
account for the benefit of Purchaser.
(b) Upon satisfaction of the conditions specified in Section 3(a) and (b)
below, Purchaser shall deposit with the Escrow Agent the additional sum of Fifty
Thousand Dollars ($50,000.00) on account of the Purchase Price (the "Additional
Xxxxxxx Money"). The Additional Xxxxxxx Money will be added to the interest-
bearing account described in Section 2(a) above.
(c) Purchaser shall pay the balance of the Purchase Price, plus or minus
applicable adjustments and prorations, at Closing in cash, cashier's check or
wire transfer, as the parties shall agree.
3. Conditions Precedent to Closing. Purchaser's obligations hereunder
are subject to the satisfaction of the following conditions:
(a) Within forty-five (45) days after the date of this Agreement, Purchaser
shall have the right to conduct such
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engineering, environmental, and feasibility studies, including soil tests,
borings, drainage tests and similar tests on the Premises as Purchaser deems
necessary to determine the suitability of the Premises for Purchaser's proposed
use, and Purchaser shall have determined, in its reasonable discretion, that the
Premises are suitable for Purchaser's proposed use. Such studies shall be
conducted by Purchaser at its sole cost and expense. Seller agrees to allow
Purchaser reasonable access to the Premises to conduct such studies. In the
event Purchaser is not satisfied, then Purchaser may terminate this Agreement by
giving written notice thereof to the Seller and to the Escrow Agent, in which
event all funds and documents deposited by the parties with the Escrow Agent or
each other shall be returned forthwith to the party who so deposited the same
and the parties shall thereupon be released from any further obligations
hereunder each to the other. The parties acknowledge, however, that in the event
Purchaser is satisfied and/or this condition precedent is waived, nothing
contained herein shall be construed as prohibiting Purchaser from reasonable
access to the Premises or from conducting additional studies, review and tests
after the expiration of the aforesaid 45-day period provided such access shall
not interfere with Seller's normal operations in the conduct of its business.
Purchaser shall save, defend, indemnify, and hold Seller harmless from and
against all claims, lawsuits, judgments, losses, liabilities, or expenses of any
kind
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or nature which may be incurred by Seller as the result of Purchaser's
examination, tests, or studies on the Premises (excluding the discovery of any
preexisting condition on the Premises). The obligations of Purchaser imposed by
the preceding sentence shall survive any termination of this Agreement and shall
survive Closing;
(b) Within seventy-five (75) days of the date of this Agreement, Purchaser
shall have received a commitment for a first mortgage loan on the Premises in
the amount of not less than Five Million Two Hundred Thousand Dollars
($5,200,000.00) or such lesser amount as Purchaser shall accept, with an
interest rate and on terms reasonably acceptable to Purchaser. If Purchaser
makes a good faith effort but is unable to obtain a commitment for the mortgage
loan contemplated herein, or reasonably believes that it cannot comply with the
terms and conditions of such commitment, Purchaser will so notify Seller in
writing within the time specified, indicating the interest rate and terms which
would be acceptable to Purchaser. If Seller is not so notified within said
seventy-five (75) days, Purchaser shall for all purposes be deemed to have
secured such commitment or to have agreed to purchase the Premises without
financing or based upon any mortgage commitment actually obtained. If Seller is
so notified, Seller may, at Seller's option, within thirty (30) days after said
notice, elect to provide purchase money financing or to secure a mortgage
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commitment on behalf of Purchaser upon the same terms and conditions previously
indicated by Purchaser as being acceptable. In such case, Purchaser agrees to
furnish Seller all requested credit and financial information and to sign
commercially reasonable papers relating to application for such mortgage
commitment. If Seller is unable or unwilling to secure such commitment or to
accept purchase money financing, this Agreement shall be of no further force and
effect, and the Xxxxxxx Money shall be returned to Purchaser.
(c) The conditions of the title to the Premises and survey matters shall
have been approved by Purchaser in accordance with the procedure set forth in
Sections 11 and 12.
(d) Prior to Closing, Purchaser shall have received an executed original of
Seller's certification of nonforeign status made pursuant to Section 1445 of the
Internal Revenue Code and in a form substantially similar to Exhibit B attached
hereto and incorporated by this reference;
(e) Prior to Closing and after satisfaction of the conditions set forth in
Sections 3(a) and (b) above, Seller agrees that the Purchaser shall have the
right to file, at Purchaser's sole cost and expense, any and all plans required
in order to obtain a building permit, zoning or rezoning, subdivision or lot
split, or any other approval or permit from any and all governmental authorities
having jurisdiction over the Premises.
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Seller agrees that, upon Purchaser's request, Seller shall join in the execution
of any application or plat required in order to obtain such permit or approval,
and that Seller otherwise shall cooperate with Purchaser with respect to any
permit or approval process. Without limiting the foregoing, Seller also agrees
that it will not institute any legal proceedings against Purchaser and/or any
governmental authority in opposition to any building permit, zoning or rezoning,
subdivision, lot split or other approval or permit sought by Purchaser with
respect to the Premises.
(f) Purchaser shall have the periods specified in Sections 3(a) and (b) in
which to determine whether the conditions set forth therein are satisfied and,
in the case of the condition of title and survey matters, the periods set forth
in Sections 11 and 12. If any of such conditions are not satisfied, in the
reasonable judgment of Purchaser, Purchaser may terminate this Agreement upon
written notice to Seller within the applicable time, (subject to the right of
Seller, if it elects, to seek to obtain or provide financing in accordance with
Section (3)(b)). Absent such written notice to Seller, Purchaser shall be
deemed to have waived all unsatisfied conditions and shall proceed to close this
transaction.
4. Risk of Condemnation and Loss
(a) if any governmental entity or any other entity with the power of
condemnation gives Seller notice that it intends to
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commence condemnation of or commences condemnation for all or any portion of or
interest in the Premises or improvements thereto, Seller shall immediately
notify Purchaser of such event. In such event, Purchaser may, at its option
within ten (10) days of receipt of such notice from Seller, terminate this
Agreement and neither party shall have any further rights or obligations under
this Agreement, except as provided in Section 22. Should Purchaser elect not to
exercise the foregoing option to terminate this Agreement, Seller shall appoint
Purchaser as its agent to conduct all negotiations with the condemning party
and, at Closing, shall assign to Purchaser all of its rights against the
condemning party or proceeds received from the condemning party. In such case,
the sale provided for herein shall be closed without reduction in or adjustment
to the Purchase Price.
(b) All risk of loss or damage to the Premises from fire or other casualty
shall remain with the Seller to the date of transfer of title. If, prior to
Closing, the Premises or any portion thereof, is totally or partially damaged by
any casualty, Seller shall promptly so notify Purchaser, and Purchaser shall, to
the extent that the cost of repair of the damage equals or exceeds Fifty
Thousand Dollars ($50,000.00), have the right, for a period of ten (10) days
after receipt of such notice, to terminate the Agreement by written notice to
Seller. If the Agreement is terminated pursuant to this Section 4(b), neither
party hereto
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shall be liable to the other hereunder, except for Purchaser's obligations under
Section 3(a) (if still appropriate in light of the scope of damage) and this
Agreement shall be null and void. If Purchaser shall not terminate this
Agreement or if there shall be damage to the Premises not in excess of Fifty
Thousand Dollars ($50,000.00), the parties shall proceed to Closing, in which
event Purchaser shall be entitled to a credit against the Purchase Price in an
amount equal to the cost of restoring the Premises to a condition substantially
equivalent to that which existed immediately prior to the occurrence of the
casualty (as calculated by a reputable contractor or engineer retained by
Purchaser and reasonably acceptable to Seller). Notwithstanding the above, the
Closing Date shall be postponed (by no more than sixty (60) days) if Purchaser's
mortgagee so requires in order to insure that the provisions of this Section
shall be complied with by the parties.
(c) Seller covenants and agrees to maintain insurance coverage on the
Premises in an amount of not less than the Purchase Price through the Closing
Date, and to cooperate with Purchaser in the event of the occurrence of any
casualty described in Section 4(b).
5. Taxes and Assessments: Closing Costs.
(a) Real estate taxes, general and special ("Taxes") (and personal property
taxes, utilities, and other similar items, if any) shall be prorated between the
parties as of the date of
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Closing, such that credits and charges for the Closing Date and all days
preceding the Closing Date shall be allocated to Seller, and credits and charges
for all days after the Closing Date shall be allocated to Purchaser. The
Purchase Price shall be adjusted at the Closing to reflect the prorations.
(b) If the actual amount of Taxes is not known on the Closing Date, Taxes
shall be prorated on the basis of the last available certified duplicates and
rates, with Seller and Purchaser re-prorating Taxes upon issuance of the actual
tax bills. All special assessments, reassessed assessments, and/or respread
Taxes upon the Premises shall be paid out of Seller's funds at Closing.
(c) If any errors or omissions are made regarding adjustments and
prorations as aforesaid, the parties shall make the appropriate corrections
promptly upon the discovery thereof. If any estimations are made at the Closing
regarding adjustments or prorations, the parties shall make the appropriate
correction promptly when accurate information becomes available. Any corrected
adjustment or proration shall be paid in cash to the party entitled thereto.
(d) Seller shall not assign any policies of liability or property damage
insurance covering the Premises. No insurance premiums shall be prorated.
Purchaser shall pay for recording fees and for one-half of any Closing fees,
including escrow fees. Transfer taxes and assessments, deed stamps and one-half
of any
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Closing fees, including escrow fees, shall be paid by Seller. Each party shall
pay its own attorneys' fees and all expenses incurred by it other than expenses
specifically enumerated in this Section 5.
6. Deed. Subject to Purchaser's review and acceptance of Title Evidence
defined in Section 11 hereinafter, Seller shall convey the Premises to Purchaser
by general warranty deed (the "Deed") conveying good and marketable,
indefeasible fee simple title to the Premises subject only to the following
(collectively the "Permitted Exceptions"):
a. Building and zoning laws, ordinances, state and federal
regulations;
b. Current real estate taxes and special assessments;
c. Rights-of-way, easements, restrictions, reservations and
mineral rights of record (which are approved by Purchaser
pursuant to Section 11 hereof);
d. Acts done or suffered or judgments against Purchaser or any
person claiming by, through or under Purchaser.
Such deed shall contain a legal description of the Premises which is based
upon and consistent with the survey of the Premises provided for in Section 12.
In addition to the obligations required to be performed hereunder by Seller
at the Closing, Seller agrees to perform such other acts, and/or to execute and
deliver to Purchaser such
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further instruments, documents and other materials, as are reasonably requested
by Purchaser at or subsequent to Closing in order to effectuate the consummation
of the transaction contemplated herein and to vest title to the Premises in
Purchaser, including, without limitation, the assignment of all rights of Seller
in and to any easements for the benefit of the Premises; provided, however, that
the foregoing instruments and other materials, if any, shall not enlarge the
scope of Seller's liabilities hereunder.
7. Possession. Purchaser shall be entitled to possession of the Premises
at Closing. The Premises shall be delivered in substantially the same condition
of repair and working order as at the date of signing this Agreement, free of
debris and in broom-clean condition. If the Premises are not so delivered to
Purchaser, Seller agrees to reimburse Purchaser for the cost of making such
repairs and cleaning as necessary to achieve such condition of the Premises.
Prior to Closing, Seller shall have removed from the Premises all personal
property stored or in use thereon which belongs to Seller or others that is not
to be conveyed to Purchaser under the terms of this Agreement (the "Excluded
Personalty). If Seller fails to remove such Excluded Personalty prior to
Closing, Purchaser may remove and dispose of such
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Excluded Property as it sees fit, and it may recover its costs of doing so from
the Seller.
Purchaser represents that it has investigated the Premises and/or will have
further investigated the Premises pursuant to Section 3(a) above to Purchaser's
satisfaction. Except as otherwise provided in this Agreement, Purchaser agrees
that the Premises are being sold in its present condition "AS IS".
8. Closing. The term "Closing" as used in this Agreement means the
payment by Purchaser to Seller of the Purchase Price and the delivery by Seller
to Purchaser of the Deed. Unless otherwise agreed by the parties, Closing shall
take place on July 1, 1996, at 10:00 a.m. Cleveland time. This transaction shall
be closed through an escrow that is to be held by Continental Title Agency Corp.
(also sometimes referred to herein as the "Title Company"), in accordance with
the general provisions of the usual form of escrow agreement then in use by such
Title Company for transactions similar to this with such special provisions
inserted as may be required to conform with this Agreement. Each party shall
execute and deliver on a timely basis all escrow instructions, deeds, funds, and
other documents reasonably necessary to accomplish Closing. In addition to, and
not in limitation of, the foregoing:
a. On or before the Closing Date, Seller shall execute items (i),
(ii), (iii) and (iv) below and
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deliver or cause to be delivered to the Title Company all of the
items listed below:
(i) The Deed;
(ii) Any instruments then required pursuant to Section 6;
(iii) Title Affidavits, if any, required by the Title Company;
(iv) Seller's affidavit of non-foreign status, as contemplated
by Section 1445 of the Internal Revenue Code of 1986, as
amended; and
b. On or before the Closing date, Purchaser shall deliver or cause
to be delivered to Title Company all of the items listed below:
(i) The balance of the Purchase Price, subject to the
prorations as hereinafter provided.
c. The transactions provided for in this Agreement shall be completed
by the Title Company on the Closing Date by doing the following:
(i) by delivering the Deed to Purchaser by filing the Deed for
record in Deed Records of Cuyahoga County, Ohio (which
shall be deemed delivery to Purchaser);
(ii) by causing the issuance of the Title Policy, subject only
to the Permitted Exceptions, and forwarding the Title
Policy to Purchaser with a copy to Seller;
(iii) by prorating taxes and assessments, in accordance with
Section 5 with respect to the Premises, and paying and
charging Purchaser and Seller for those costs and expenses
to be paid by Seller and Purchaser pursuant to Section 11;
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(iv) by delivering to Purchaser the FIRPTA Affidavit executed by
Seller; and
(v) by preparing and forwarding to both Purchaser and Seller two
(2) signed copies of the Title Company's Settlement
Statement setting forth all receipts and disbursements
provided for herein.
Purchaser shall, concurrent with Title Company's performance of the
foregoing items, deliver to Seller (or cause to deliver, by instruction to its
first mortgagee), in cash or by wire transfer, the Purchase Price less the full
amount of Seller's closing costs under Section 5), the payoff of all mortgages,
liens or other encumbrances which can be satisfied with the payment of money,
and prorations and credits to which Purchaser is entitled.
d. In the event the Title Company is unable to simultaneously perform
all instructions set forth in Section 8(c)(i) through (v) on the Closing Date,
the Title Company shall so notify Seller and Purchaser, and shall retain all
documents deposited with the Title Company until receipt by the Title Company of
written instructions executed by Seller and Purchaser or by a Court of competent
jurisdiction.
e. If either Purchaser or Seller (i) disapproves any condition
referred to in this Agreement within the applicable time period and in the
manner set forth in the Agreement, or (ii) is otherwise allowed to terminate
this Agreement and cancel the
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Escrow, without thereby committing an act of default under this Agreement or the
Escrow and does so, all obligations of the parties under this Agreement shall,
except as otherwise set forth, terminate and neither party shall have any
further obligation to the other under this Agreement. In such event, Escrow
Agent shall return all funds (after deducting its charges, if its charges are to
be borne by the party depositing such funds) and documents then in Escrow to the
party depositing same, and each party shall promptly return all documents in the
possession of such party to the other party. If Escrow fails to close due to a
breach of this Agreement by Seller, Seller agrees to promptly direct Escrow
Agent to return the Escrow Deposit to Purchaser.
f. In the event Escrow fails to close because of failure of
Purchaser to comply with its obligations hereunder, the Escrow cancellation
charges shall be paid by Purchaser. In the event Escrow fails to close because
of failure of Seller to comply with its obligations hereunder, such costs shall
be paid by Seller. In the event Escrow shall fail to close for any other
reason, such costs shall be divided equally between the parties.
g. Section 1445 of the Internal Revenue Code provides that the
transferee of a United States real property interest must deduct and withhold a
tax equal to ten percent (10%) of the amount realized by the transferor on the
disposition, if the
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transferor is a foreign person. Seller is not a foreign person, and the "FIRPTA"
certification will be provided to Purchaser as provided for in Section 3(c)
hereinabove.
9. Brokers. Purchaser warrants to Seller that, other than The Xxxxxxxxx
Company ("Xxxxxxxxx"), no person or other entity of any sort is entitled to any
commissions or other fees, broker's fee, finder's fee, or other payment by
reason of the action of Purchaser in connection with this transaction, Seller
warrants to Purchaser that, other than Xxxxx & Xxxxx ("Xxxxx"), no person or
other entity of any sort is entitled to any commission, broker's fee, finder's
fee, or any other payment by reason of the action of Seller in connection with
this transaction. Upon and in the event of Closing, Seller shall pay a
commission to Xxxxx in the total amount of One Hundred Thirty-Two Thousand
Dollars ($132,000.00). Purchaser shall be responsible for any and all
commission to be paid to Xxxxxxxxx upon and in the event of Closing. Each party
shall hold harmless, indemnify, and defend the other from and against all claims
by parties other than The Xxxxxxxxx Company and Xxxxx & Xxxxx for commissions or
other fees which arise from or are based upon the actions of the indemnifying
party and which constitute a violation of the indemnifying party's warranty
contained in this Section 9.
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10. Default. If Purchaser fails to close this transaction when and as
required hereby, Seller may terminate this Agreement, in which case Seller shall
be entitled to all remedies as Seller may have at law or in equity. If Seller
fails to close this transaction in accordance with its terms, Purchaser may
terminate this Agreement. The foregoing remedy shall be in addition to any
other remedy Purchaser may have at law or in equity, including but not limited
to the right of specific performance.
11. Title Commitment; Defects.
a. The Seller shall cause the Title Company to issue and deliver its
commitment (the "Commitment") for issuance of an ALTA owner's policy (Form B -
revised 10-17-70) of title insurance covering the Premises in the full amount of
the Purchase Price, which Commitment shall show marketable fee simple title to
the Premises to be good in Seller. The Commitment shall show the results of a
special tax search of the Premises. Copies of the Commitment, together with
copies of each document affecting title to the Premises, shall be delivered to
Purchaser not later than twenty (20) days after the date of this Agreement. The
cost and expense of the Commitment shall be borne by the Seller.
b. The Commitment and the Survey (as hereinafter defined in Section
12) are referred to as the "Title Evidence". Purchaser shall notify Seller of
Purchaser's disapproval of any
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matter contained in the Title Evidence within ten (10) days after Purchaser's
receipt of all of the Title Evidence and copies of the documents referred to in
the Title Evidence as exceptions or exclusions from coverage. If the Title
Evidence is not satisfactory to Purchaser (Collectively, "Defects"), those
Defects shall, as a condition to Purchaser's obligations under this Agreement,
be cured or removed from the Title Evidence within thirty (30) days after notice
to Seller of the item of Title Evidence disclosing the Defects, or at Closing if
the Defects consist of mortgages, other security instruments or monetary liens
that Seller intends to discharge and cancel at the Closing out of the Purchase
Price. If Seller elects not to cure and remove all Defects, this Agreement may
be terminated, at Purchaser's election, by written notice given to Seller within
five (5) days after expiration of the period allowed for cure or Purchaser may,
at Purchaser's sole election, proceed to close this transaction notwithstanding
any Defects. Upon termination, the parties will be release from further
liability hereunder, except for Purchaser's obligations, if any, under
Section 3.
c. Notwithstanding any provision of this Section 11 to the contrary,
Seller shall have the obligation, on or prior to the Closing Date, to secure
releases, discharges, or satisfactions, or otherwise cure at no cost to
Purchaser, any Defect which is a lien for the payment of money only (except real
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estate taxes and assessments which shall be prorated in accordance with Section
5), including, without limitation, all mortgages, any lien or encumbrance which
may be released or discharged by the payment of a definite sum of money or any
exception to title which arose after the date of this Agreement as the result of
the act or violation of Seller or anyone claiming by, from, through or under
Seller.
d. It shall be a condition precedent to Purchaser's obligation to
consummate the transaction contemplated hereby that the Title Company can and
will, upon filing the instruments of conveyance of record, issue its ALTA
owner's fee policy (Form B revised 10-17-70) of title insurance (the "Title
Policy") in the full amount of the Purchase Price, at standard rates, insuring
Purchaser as the owner in fee simple of the Premises subject only to the
Permitted Exceptions, and without the exception for certain of the standard
printed exceptions (encroachments, overlaps, boundary line disputes, or any
other matters which would be disclosed by an accurate survey or inspection of
the Premises, easements or claims of easements not shown by the public records,
or any lien or right to a lien for services, labor, or materials furnished to
the Premises, imposed by law, and not shown by the public records), unless and
except to the extent that any such matters included in the so-called standard
printed exceptions have been approved or waived by Purchaser.
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The Title Policy shall also affirmatively insure: (i) Purchaser's right to use
any appurtenant easements in accordance with their terms and conditions; (ii)
contiguity of the parcels described in Exhibit "A" (if more than one parcel);
(iii) that the Premises has the benefit of full and free ingress and egress,
both pedestrian and vehicular, to and from a public highway, either directly or
by a perpetual easement; and (iv) that the Premises is zoned for its intended
purpose of an office, warehousing and distribution facility. Seller agrees to
execute and deliver to the Title Company such affidavits and instruments as may
be reasonably required to permit the Title Company to issue Purchaser's Title
Evidence in the form required by this subsection and to provide a copy of such
affidavits and instruments to Purchaser. The parties hereto agree that the
Seller shall bear all of the cost of the Title Policy.
e. Notwithstanding the foregoing, in no event shall the Closing take
place later than September 1, 1996, unless a later date shall be mutually agreed
upon by Seller and Purchaser.
12. Survey. Within sixty (60) days after the date of this Agreement,
Seller shall cause a registered surveyor or professional engineer to prepare a
survey (the "Survey") in form sufficient to enable the Title Company to delete
from the Title Policy the so-called standard exception for matters disclosed by
an accurate survey. If Purchaser so requests, a perimeter legal
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description of the Premises as prepared by such surveyor or engineer shall be
used to describe the Premises in the Deed. The cost and expense of such survey
shall be borne by the Seller.
The Survey shall include:
(a) a full metes and bounds legal description of the Premises;
(b) identification of all perimeter lines with distance, angles and
monuments either set or found at each corner;
(c) a statement of the total acreage contained in the Premises and
specifically identifying the portion of the Premises and the
acreage thereof in any public highway, right-of-way or dedicated
street;
(d) identification of all streets adjacent to the Premises, and
further identification of all right-of-way lines, including for
both their respective distance from the nearest intersection
streets;
(e) identification of all curb cuts, driveways and fences;
(f) the location of all structures and improvements on the Premises;
(g) identification of all utility lines servicing the Premises
(including sewer, gas, electric and telephone), together with the
recording information of all easements over private property
through which such lines pass between the Premises and a properly
dedicated and accepted street;
(h) identification of all easements and rights-of-way either of
record or visible on the ground which either benefit or burden
the Premises, indicating for each recording information as to the
volume and page of recording and date of recording, or stating
that the easement is unrecorded;
(i) identification of all front, rear and side building set-back
lines;
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(j) identification of all encroachments of the Premises onto
adjoining land and all encroachments onto the Premises by
improvements on adjoining land, or a positive statement that no
encroachment exists;
(k) the point of beginning of the legal description and the true
point of beginning of the Premises and all calls of the legal
description between them; and
(l) a statement that no portion of the Premises is located within a
flood plain or flood way area as designated by the U.S.
Department of Interior, or indicating which portions are located
within such flood plain or flood way.
In the event the Survey discloses any encroachments, overlaps, boundary line
disputes or any other matter affecting title to the Premises or which violates
any law, rule, or regulation, such matter(s) shall be considered to be a
Defect(s) and the relative rights and obligations of the parties with respect
thereto shall be governed by the provisions of Section 11(b) hereof.
13. Environmental Matters.
a. Purchaser shall cause a reputable environmental evaluation and/or
consulting firm (the "Consultant") selected by Purchaser to conduct an
environmental inspection and audit of the Premises (the "Audit"). The cost and
expense of such Audit shall be borne by Purchaser. Purchaser and Seller shall
cooperate to insure that the Audit is performed as soon as practicable and is
completed no later than thirty-five (35) days from execution of this Agreement,
and shall assist the Consultant in designing the
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parameters of the Audit which shall include without limitation a view of the
Premises, inquiry into present and past uses of the Premises, review of records
of the United States Environmental Protection Agency, the Ohio Environmental
Protection Agency, or other governmental entity having jurisdiction relating to
environmental matters, field observations, determination of the integrity of any
above-ground and underground storage or process tanks, and such additional
investigation and testing as Purchaser and the Consultant shall agree are
appropriate to determine if the Premises has been contaminated by, or contains
any pollutant, industrial or other waste, or toxic or hazardous waste, substance
or material, including but not limited to those defined, registered or listed as
such pursuant to the Ohio Revised Code, Comprehensive Environmental Response
Compensation and Liability Act or the Toxic Substances Control Act and any lead
paint, asbestos or asbestos-containing material ("environmental condition"). In
addition to providing any information reasonably requested by the Consultant,
Seller shall cooperate with Purchaser and the Consultant throughout the course
of the Audit and shall cooperate in any other way reasonably requested by
Purchaser or the Consultant. Promptly upon completion of the Audit, the
Consultant shall deliver a copy of the Audit to Purchaser. The report shall
certify that an appropriate inquiry was made into the previous ownership and
uses of the Premises
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consistent with good commercial and customary practices, in an effort to
minimize possible liability of Purchaser for an environmental condition.
b. Purchaser shall have until 5:00 p.m. on the forty-fifth (45th) day
from execution of this Agreement to accept or reject said Audit. If Purchaser
rejects said Audit, Purchaser shall have the right to terminate this Agreement
by giving Seller notice of such termination on or before 5:00 p.m. on such date.
Thereafter, neither of the parties hereto shall be liable to the other hereunder
and this Agreement shall be null and void except for Purchaser's obligations, if
any, under Section 3(a). If Purchaser fails to terminate this Agreement within
such forty-five (45) days or fails to complete or have the Audit completed
within forty-five (45) days after the date hereof, then Purchaser shall be
deemed to have accepted the environmental status of the Premises and this
transaction shall proceed to Close in accordance with the terms and conditions
contained herein.
c. If required by Purchaser or its mortgagee, such Audit shall be
updated (the "Update") by the Consultant at or prior to the Closing. If an
adverse change has occurred between the date of the Audit and the completion of
the Update, Purchaser shall have the rights afforded to it pursuant to Section
13(b) hereinabove.
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14. Environmental Representations. As an inducement to Purchaser to
purchase the Premises, Seller hereby represents to Purchaser that, to the best
of Seller's knowledge:
(a) Seller has not caused and will not cause, and there never has
occurred during the xxxx Xxxxxx has occupied the Premises, the release of any
"hazardous substance" on the Premises as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended;
(b) Seller has not caused any lead paint, asbestos or asbestos-
containing material to be placed on or under the Premises;
(c) There are no underground storage tanks on or under the Premises;
(d) The Premises are not subject to any federal, state, or local
"Superfund" lien, proceeding claim, liability or action, or the threat or
likelihood thereof, for the cleanup, removal, or remediation of any such
"hazardous substance" from the Premises;
(e) Seller has at all times complied with all applicable federal,
state, and local environmental laws and regulations applicable to the Premises
and the operations conducted thereon.
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15. Additional Seller's Warranties and Representations.
a. Seller hereby represents and warrants to Purchaser that, on the
date hereof:
(i) Seller is a Illinois corporation, duly organized and validly
existing under the laws of the State of Illinois.
(ii) Seller has full power and authority to enter into this
Agreement and to perform its obligations hereunder, and this
Agreement constitutes the legal, valid and binding
obligation of Seller, enforceable against Seller in
accordance with its terms. The Board of Directors of Seller
has approved this Agreement and the transactions
contemplated herein.
(iii) To the best of Seller's knowledge, there are no outstanding
written or oral leases covering or in any way affecting the
Premises that will survive the Closing, and no person or
entity has any right to acquire the Premises (whether by
option to purchase, contract, or otherwise).
(iv) Neither the execution of this Agreement nor the consummation
of the transaction contemplated hereby will constitute a
violation of or be in conflict with or constitute a default
under any term or provision of any agreement or instrument
to which Seller is a party or by which the Premises or any
part thereof is bound.
(v) To the best of Seller's knowledge, there are no service or
maintenance contracts or other agreements of any type
whatsoever affecting the Premises, which cannot be
terminated by Purchaser on thirty (30) days notice.
(vi) Seller has received no notices nor to Seller's best
knowledge are there any legal or administrative proceedings
or other legal or governmental actions with respect to the
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Premises which have been commenced or threatened.
(vii) Seller has not requested, given its consent for or otherwise
received notice of any pending zoning variance or change
with respect to the Premises.
(viii) The Premises are free from mechanics' liens or the
possibility of the rightful filing thereof.
(ix) Any information with respect to the Property that Seller has
delivered to Purchaser is true and complete in all material
respects.
b. Seller shall notify Purchaser of facts of which it hereafter may
receive notice which would cause any of the warranties and representations
contained in this Agreement to be untrue on the Closing Date. All of the
foregoing representations and warranties shall survive the Closing and shall not
be merged into the Deed.
16. Purchaser's Warranties and Representations.
a. Purchaser hereby represents and warrants to Seller that, on the
date hereof:
(i) Purchaser is an Ohio limited liability company organized and
duly formed under the laws of the State of Ohio.
(ii) Purchaser has full power and authority to enter into this
Agreement and to perform its obligations hereunder, and this
Agreement constitutes the legal, valid and binding
obligation of Purchaser, enforceable against Purchaser in
accordance with its terms.
(iii) Neither the execution of this Agreement nor the consummation
of the transaction
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contemplated hereby will constitute a violation of or be in
conflict with or constitute a default under any term or
provision of any agreement or instrument to which Purchaser
is a party or by which the Premises or any part thereof are
bound.
17. Assignment. Neither this Agreement nor any rights arising under it
may be assigned or mortgaged by either party without the prior written consent
of the other party, and any attempt to transfer this Agreement or any rights or
interests arising hereunder, by operation of law or otherwise, without such
consent shall be void and of no force or effect,
18. Modification Waivers. No part of this Agreement may be amended or
modified without the express written consent of both parties. Neither party
shall be held to have waived any of its rights hereunder except by delivery of a
written instrument expressing a clear and specific intent to waive such right.
19. Notices. Any notice or demand required or permitted to be given
under the terms of this Agreement shall be deemed to be effective and to have
been duly given or made if given by any of the following methods:
(a) On first attempted delivery, if deposited in the United States
mail, in a sealed envelope, postage prepaid, by registered or certified mail,
return receipt requested, or hand delivered, respectively addressed as follows:
28
To Purchaser:
Xxxx Street, Ltd.
000 Xxxx Xxxxx
Xxxxxx, Xxxx 00000
Attn: Xxxxx Xxxx, Member
Telephone number: (000) 000-0000
with copy to:
Xxxxxxx X. Xxxxxxx, Esq.
XxXxxxxx, Xxxxx, Xxxxxxx
& Haiman Co., L.P.A.
0000 Xxxxxxx Xxxxxxxx
000 Xxxxxxxx Xxxxxx, Xxxx
Xxxxxxxxx, Xxxx 00xx0
Telephone Number: (000) 000-0000
Telecopy Number: (000) 000-0000
To Seller:
United Stationers Supply Co.
0000 Xxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Exec. Vice President and CFO
Telecopy number (708)* 699-4716
Telephone number (708)* 000-0000, Ext. 2135
with copy to:
Xxxx X. Xxxxxxx General Counsel
0000 Xxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000-0000
Telecopy number (708)* 699-3193
Telephone number (708)* 000-0000, Ext. 2309
*effective January 20, 1996, area code will be (847)
(b) Sent to the above address via an established national overnight
delivery service (such as Federal Express), charges prepaid, or
29
(c) Sent via any electronic communications method, provided the sender
obtains written confirmation of receipt of the communication by the electronic
communication equipment at the office of the addressee listed above, provided,
if this method is used, the party shall immediately follow such notice with a
second notice in the method set forth in (a) or (b) above.
20. Enforcement and Attorneys' Fees. In the event suit or other
action is instituted to enforce or interpret any of the terms or obligations
under this Agreement, the prevailing party shall be entitled to recover its
costs and reasonable attorneys' fees from the other party as determined by the
court.
21. Integration. This Agreement contains the entire agreement of the
parties concerning the subject hereof, including all oral understandings or
agreements, and there are no collateral understandings or agreements or
representations or warranties not expressly included herein.
22. Survival. All representations and warranties made herein shall be
true and correct as of Closing and shall survive Closing. All obligations of
either party to hold harmless, indemnify, or defend the other party shall
survive Closing.
23. Time. Time is of the essence of this Agreement.
24. Tax Reporting. The parties hereby designate the Escrow Agent to
serve as "Real Estate Broker", as defined in Section 6045
30
of the Internal Revenue Code as amended, for the purpose of making such reports
and filing such returns as shall be required thereunder from time to time.
25. Title Company. It is hereby agreed that Continental Title Agency Corp.,
000 Xxxx Xxxxx Xxxxxxxx, Xxxxxxxxx, Xxxx 00xx0, shall act as Title Company and
Escrow Agent in regard to this transaction, and this Agreement shall constitute
instructions to said Title Company both as to Title Company and Escrow Agent
subject to the terms and conditions of its regular and usual printed form of
acceptance, insofar as such terms and conditions are applicable to and are
consistent with this Agreement. In the event of any inconsistency between such
acceptance and this Agreement, this Agreement shall control. In addition, the
Title Company agrees to assume full responsibility for compliance with
subsection (e) of Section 6045 of the Internal Revenue Code of 1986 ("I.R.C."),
by filing a return in accordance with subsection (a) of Section 6045 I.R.C., and
a statement under subsection (b) of Section 6045 I.R.C., with respect to this
transaction. After receipt of a copy of this Agreement and acceptance of these
terms by the Title Company, the Title Company shall acknowledge its acceptance
of these terms and its agreement with this Section 24 by delivering to the
Seller and the Purchaser, forthwith, a signed and dated copy of the document
attached hereto and referred to as "Acknowledgment of Title Company".
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26. Further Assurances. Provided it does not enlarge the liabilities of the
parties hereunder, the Seller and Purchaser both agree that each one, at any
time and from time to time upon request of the other, will do, execute,
acknowledge and deliver or cause to be done, executed, acknowledged and
delivered all such further acts, deeds, assignments, transfers, conveyances, and
assurances as may be required for the conveyance of the Premises by the Seller,
its successors and assigns to the Purchaser, its successors and assigns.
27. Section Headings. All section headings and other titles and captions
herein are for convenience only, do not form any substantive part of this
Agreement, and shall not restrict or enlarge any substantive provisions hereof
or thereof.
28. Applicable Law. This Agreement shall be governed by the laws of the
State of Ohio.
29. Successors and Assigns. This Agreement shall be binding upon, and inure
to the benefit of the parties hereto and their respective successors, personal
representatives and assigns; provided, however, that nothing contained herein
shall be construed as waiving the restriction against assignment set forth in
Section 16 hereinabove.
IN WITNESS WHEREOF, the parties have executed multiple counterparts of this
Agreement, each of which shall be deemed an original thereof, as of the date
first above written.
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SELLER: PURCHASER:
UNITED STATIONERS SUPPLY CO. XXXX STREET, LTD., an Ohio
Limited Liability Company
By: By:
------------------------ ---------------------------
Xxxxxx X. Xxxxxxx Xxxxx Xxxx, Member
Executive Vice President
and CFO
ACKNOWLEDGMENT
--------------
OF
--
TITLE COMPANY
-------------
The undersigned hereby acknowledges receipt of that certain Agreement
between United Stationers Supply Co. and Xxxx Street, Ltd. and agrees to be
bound by the terms of said Agreement as they pertain to the responsibilities and
obligations of the Title Company set forth in said Agreement.
CONTINENTAL TITLE AGENCY CORP.
Dated: _____________, 1996 By ____________________________
33
