EXHIBIT 10.98
REAL ESTATE AGREEMENT
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BY THIS AGREEMENT, made and entered into this 19th day of October, 1995,
UNITED STATIONERS, INC. ("Seller") and BOISE CASCADE OFFICE PRODUCTS CORPORATION
("Purchaser") do hereby 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, the real property and all appurtenances and improvements thereto which
are located in Xxxx County, Georgia, and are more particularly described in
Exhibit A, attached hereto and by this reference made a part hereof
("Premises").
2. Personal Property. The personal property described in Exhibit C,
attached hereto and by this reference made a part hereof, is included in the
sale of the Premises ("Personal Property"). At Closing, Seller shall deliver to
Purchaser a xxxx of sale substantially in the form of Exhibit C. Seller
represents and warrants that it has or at Closing will have good and marketable
title to such Personal Property, free and clear of all liens, claims, and
encumbrances.
3. Purchase Price. Purchaser shall pay Seller the sum of $4,000,000 for
the Premises and $220,000 for the Personal Property, ("Purchase Price"). The
Purchase Price shall be paid at Closing as hereinafter defined).
4. Conditions Precedent to Closing. Purchaser's obligations
hereunder are subject to the satisfaction of the following conditions:
(a) Purchaser shall have had sufficient opportunity to have completed
an examination of the Premises and conducted such engineering, environmental,
and feasibility studies, including soil tests and borings on the Premises as are
necessary to determine the physical and economical suitability of the Premises
for Purchaser's proposed use, in order for Purchaser to have determined, in its
reasonable discretion, that the Premises are suitable for Purchaser's proposed
use and that its proposed use is economically feasible.
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. Purchaser shall save, defend, indemnify, and hold Seller harmless
from and against all claims, lawsuits, judgments, losses, liabilities, or
expenses of any kind or nature which may be incurred by Seller as the result of
Purchaser's negligence or misconduct with respect to any examination, test, or
study 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) Purchaser shall have received an executed original of Seller's
certification of nonforeign status made pursuant to Section 1445(b)(2) of the
Internal Revenue Code and in a form substantially similar to Exhibit B attached
hereto and incorporated by this reference;
(c) Purchaser shall have determined to its satisfaction that
utilities, including water, sanitary sewer, storm sewer, natural gas, and
electricity are available to the Premises in a location and capacity adequate to
accommodate Purchaser's intended use of the Premises;
(d) Purchaser shall have determined to its satisfaction that the
zoning of the Premises will permit Purchaser's proposed use of the Premises;
(e) 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 13 and 14.
Within ten days of full execution of this Agreement, Seller shall
deliver to Purchaser a copy of each existing survey, plat map, environmental or
soils study, and the like in Seller's possession which further describes the
Premises in order to assist Purchaser in its investigation of the Premises.
Purchaser shall have 45 days from date hereof in which to determine
whether the conditions set forth in this Section 4 are satisfied and, in the
case of the condition of title and survey matters, the periods set forth in
Sections 13 and 14. If any of such
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conditions are not satisfied, in the sole judgment of Purchaser, Purchaser may
terminate this Agreement upon written notice to Seller within 60 days. Absent
such written notice to Seller, Purchaser shall be deemed to have waived all
unsatisfied conditions. If Purchaser terminates this Agreement pursuant to the
foregoing option, neither party shall have any further rights or obligations
under this Agreement, except as provided in Section 22.
5. Risk of Condemnation.
(a) If any governmental entity or any other entity with the power of
condemnation gives Seller notice that it intends to 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.
Purchaser may, at its option, 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) If all or any material portion of the improvements to the
Premises are destroyed at any time prior to Closing, Seller shall promptly
provide Purchaser with a written report describing the damage. Purchaser may
within 15 days thereafter and prior to Closing terminate this Agreement. If
this Agreement is so terminated, neither party shall have any further obligation
to the other hereunder, except as provided in Section 22.
If Purchaser elects not to terminate this Agreement or if the damages
are not material, the sale provided for herein shall be Closed without reduction
or other adjustment in the Purchase Price except that the Purchaser shall be
entitled to the proceeds of any property damage insurance carried on the damaged
or destroyed improvements (other than proceeds of insurance on any of Seller's
property not intended to be transferred hereunder). In such event,
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Seller shall permit and authorize Purchaser to conduct all negotiations with
claims adjusters representing the carriers of such coverage and shall assist in
Purchaser's efforts to collect such proceeds.
6. Taxes and Assessments: Closing Costs. Real estate taxes (and personal
property taxes, utilities, and other similar items, if any) shall be prorated
between the parties as of the date of Closing. Seller shall not assign any
policies of liability or property damage insurance covering the Premises. No
insurance premiums shall be prorated. Purchaser shall be entitled to a credit
against the Purchase Price for the amount of any unpaid special assessments.
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 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 6.
7. Deed. Seller shall convey the Premises to Purchaser by general
warranty deed conveying marketable title to the Premises subject only to the
following exceptions:
A. Building and zoning laws, ordinances, state and federal
regulations;
B. Current real estate taxes;
C. Rights-of-way, easements, restrictions, reservations and
mineral rights of record (which are approved by Purchaser
pursuant to Section 13 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 14.
8. Possession. Purchaser shall be entitled to possession of the
Premises at Closing. The Premises shall be delivered in 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
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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. In the event Seller cannot deliver possession of the
Premises to Purchaser on January 15, 1996, Purchaser shall be entitled to a
refund of $220,000. In the event such delay extends beyond February 15, 1996,
Purchaser may, at its option, terminate this Agreement and obtain a full refund
of the Purchase Price. 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.
Prior to Closing, Seller shall have removed from the Premises all
personal property (to include product inventory, leased equipment and personal
effects of employees) stored or in use thereon which belongs to Seller or others
that is not to be conveyed to Purchaser pursuant to Paragraph 2 of this
Agreement. If Seller fails to remove such personal property prior to Closing,
Purchaser may remove and dispose of such personal property as it sees fit, and
it may recover its costs of doing so, net of any salvage value of the personal
property, from the Seller.
9. Warranty of Title. Seller warrants that it has or will have at Closing
good and marketable title to the Premises, free and clear of all liens, claims,
and encumbrances except for restrictions, reservations, easements, and mineral
interests of record shown in the Commitment (as hereinafter defined).
10. Closing. The term "Closing" as used in this Agreement means the
payment by Purchaser to Seller of the Purchase Price at Closing and the
delivery by Seller to Purchaser of the general warranty deed. Unless otherwise
agreed by the parties, Closing shall take place on January 15, 1996. This
transaction shall be closed through an escrow that is to be held by a local
office of First American Title Insurance Company. Each party shall execute and
deliver on a timely basis all escrow instructions, deeds, funds, and other
documents reasonably necessary to accomplish Closing.
11. Brokers. Purchaser warrants to Seller that no person or other entity
of any sort is entitled to any commission, broker's fee, finder's fee, or other
payment by reason of the action of Purchaser
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in connection with this transaction. Seller warrants to Purchaser that 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. Each party shall hold harmless, indemnify, and
defend the other from and against all claims by third parties for such
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 11.
12. Default. If Purchaser fails to close this transaction when and as
required hereby, Seller may terminate this Agreement, in which case Purchaser
shall have no further rights or interest in the Premises. The foregoing remedy
shall be in addition to any other remedy 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.
13. Title Approval. Seller shall deliver to Purchaser, within 20 days
from the date hereof, at Seller's expense,a commitment for title insurance (the
"Commitment") from First American Title Insurance Company for title insurance in
the amount of the purchase price, and legible copies of all recorded instruments
affecting the Premises and recited as exceptions in the Commitment. If Purchaser
has an objection to items disclosed in such Commitment, Purchaser shall have 10
days after receipt of such instrument and the property survey described in
Section 14 to make written objections to Seller. If Purchaser makes such
objections, Seller shall have 15 days from the date such objections are
disclosed to cure the same, and the Closing date shall be extended if necessary.
If the objections are not satisfied within such time period, Purchaser may (i)
terminate this Agreement and neither party shall have any further rights or
obligations under this Agreement, except as provided in Section 22, or (ii)
waive the unsatisfied objections and close the transaction in accordance with
this Agreement, except that the amount of all
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monetary encumbrances shall be credited against the Purchase Price. If Purchaser
does not notify Seller in writing of objections to the condition of title within
the time period provided for above, Purchaser shall be deemed to have agreed to
accept title to the Premises in the condition shown in the Commitment. Seller
shall bear the cost of the title insurance.
14. Property Survey. Within 30 days from date hereof, Seller, at Seller's
sole cost and expense, shall cause to be delivered to Purchaser a current survey
of the Premises prepared by a surveyor acceptable to the parties and the title
company closing this transaction. The survey shall certify to the Purchaser and
the title company that: (i) the survey was made and staked on the ground; (ii)
the survey shows the location of all improvements, highways, streets, roads,
railroads, rivers, creeks or other waterways, fences, easements and rights-of-
way on or adjacent to the Premises, if any; (iii) there are no visible
discrepancies, conflicts or encroachments except as shown on the survey; (iv)
the survey is a true, correct and accurate representation of the Premises; (v)
the survey sets forth the number of total acres/square feet comprising the
Premises, together with a metes and bounds description thereof; (vi) the current
zoning; and (vii) the Premises do not lie within a designated flood plain area.
All easements and rights-of-way shall be referenced to the recording information
applicable to the documents creating such easements or rights-of-way which have
been recorded with the county clerk of the county in which the Premises are
located. The survey shall locate and xxxx all corners and angles of the Premises
perimeter on the ground with permanent, buried iron surveyor's stakes.
If the survey discloses any condition or defect in the legal
description or physical condition of the Premises (including, without
limitation, encroachments, failure to close any legal descriptions,
discrepancies between the legal description in Seller's chain of title and the
surveyed legal description, or the existence of easements) which, in the sole
discretion of Purchaser, are unacceptable or will interfere with its intended
use of the Premises, Purchaser may by notice given to Seller within 10 days of
Purchaser's
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receipt of such survey, object to such defect. If the Seller fails to effect a
cure of the defect complained of within 15 days thereafter, Purchaser may at its
option exercised by delivery of written notice either: (i) terminate this
Agreement or (ii) elect to Close without cure of the defect complained of. If
the Purchaser elects to terminate this Agreement, neither party shall have any
further obligation hereunder, except as provided in Section 22. If the Purchaser
fails to notify Seller of any objection to survey defects within the timeframe
provided for above, Purchaser shall be deemed to have agreed to accept the
Premises subject to all of the survey defects disclosed by the survey.
15. Environmental Representations and Warranties. As an inducement to
Purchaser to purchase the Premises, Seller hereby covenants, represents, and
warrants to Purchaser the following:
(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 asbestos or asbestos-containing
material to be placed on or under the Premises;
(c) There are currently no underground storage tanks on or under the
Premises and there have not been any underground storage tanks on or under the
Premises at any time in the past;
(d) To the best of Seller's knowledge, 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;
(f) As of the date of Closing, Seller will possess and be in full
compliance with all environmental permits, licenses, and other governmental
approvals that are required with respect to the Premises and the activities
conducted thereon; and
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(g) Seller agrees, to the maximum extent permitted by law, to
indemnify, defend and save Boise Cascade and its successors in interest in the
Premises harmless from and against any and all claims, demands, causes of
action, proceedings and/or suits, damages (actual and punitive), including the
cost of correcting or compensating for injuries (to persons, property, the
environment, or natural resources), and for fines, interest, penalties, losses,
and other costs (including engineering costs and attorneys fees), and
liabilities (hereinafter referred to as "Indemnifiable Damages") which are
asserted against or are incurred by Boise Cascade, its agents, licensees,
invitees, contractors, or assigns, or its successors in interest in the Premises
("Indemnified Parties"), as a result (direct or indirect) of, the untruth or
inaccuracy of any of the foregoing matters represented and warranted by Seller
to Boise Cascade or the breach of any of the foregoing covenants and warranties
of Seller, whether discovered prior to or after Closing. The foregoing
indemnification shall include all attorneys' fees incurred by the Indemnified
Party in resolving issues that constitute breaches of the foregoing warranties.
This indemnity does not extend to contamination of the Premises occurring after
the Closing, nor does it extend to contamination caused solely by the negligent
or willful act of any of the Indemnified Parties, nor does it extend to any
matter covered by that certain Environmental Indemnity Agreement dated January
31, 1992 among Boise Cascade Office Products Corporation and Boise Cascade
Corporation as Indemnifying Parties and Associated Stationers, Inc., which
agreement, and the obligations set forth therein, remain in full force and
effect for the benefit of Seller as successor-in-interest to Associated
Stationers, Inc. and shall survive the Closing forever.
The obligations imposed upon Seller by this environmental indemnity
provision shall not be offset by any claims which may be made by Seller against
any of the Indemnified Parties, except under the Environmental Indemnity
Agreement dated January 31, 1992, and shall survive the Closing forever.
The foregoing indemnification obligations shall apply regardless of
whether such Indemnifiable Damages are founded upon municipal,
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state, or federal, statutory or common law, rules or principles or this
Agreement. All Indemnified Damages shall be paid by Seller to the Indemnified
Party making the claim within 30 days of presentment for payment by any of the
Indemnified Parties.
Any Indemnified Party making a claim under this Section 15 shall give
prompt notice to the Seller of the assertion of any claim, or the commencement
of any suit, action or proceeding in respect to which indemnification may be
sought hereunder, specifying, if known, the facts pertaining thereto and the
amount or an estimate of the amount of the liability arising therefrom. Any
Indemnified Party's failure to give such notice shall not relieve the Seller of
any liability hereunder (except to the extent that the Seller has suffered
actual prejudice thereby). The Seller shall assume the defense of any such suit,
action or proceeding at its own expense, and the Indemnified Parties shall have
the right (but not the duty) to participate in the defense thereof. The Seller
and the Indemnified Parties shall cooperate in the defense of prosecution
thereof and shall take all such actions as may be reasonably requested by the
other in connection therewith. No investigation by any of the Indemnified
Parties at or prior to the Closing shall relieve the Seller of any liability
hereunder.
This Section 15 shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns; provided,
however, that regardless of any such succession or assignment, the parties
hereto shall continue to be liable for their respective obligations contained
herein.
16. Access to Premises. Upon execution of this Agreement, Purchaser and
its consultants or invitees shall be entitled to reasonable access to the
Premises during normal business hours upon reasonable notice to Seller for the
purpose of designing changes to the Premises.
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
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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 have been duly given or
made if given by any of the following methods:
(a) 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:
To Boise Cascade: Boise Cascade Office Products
Corporation
Attention: General Counsel
Xxx Xxxxxxxxx Xxxxxx
X.X. Xxx 00
Xxxxx, XX 00000
Telecopy number (000) 000-0000
Telephone number (000) 000-0000
with a copy to: Boise Cascade Office Products
Corporation
Attention: Vice President &
General Manager
000 X. Xxxx Xxxx Xxx.
Xxxxxx, XX 00000
To Seller: United Stationers Supply Co.
0000 Xxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 00000
Attention: President
Telecopy number (000) 000-0000
Telephone number (000) 000-0000
With a copy to: Xxxx X. Xxxxxxx
000 Xxxx Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Telecopy number (000) 000-0000
Telephone number (000) 000-0000
(b) Sent to the above address via an established national overnight
delivery service (such as Federal Express), charges prepaid, or
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(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. Notices shall
be effective when sent or when hand delivered.
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, including but not limited to Seller's obligations set forth
in Section 15.
23. Time. Time is of the essence to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
SELLER:
UNITED STATIONERS SUPPLY CO.
By Xxxxxx X. Xxxxxxx
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Title EVP & CFO
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PURCHASER:
BOISE CASCADE OFFICE PRODUCTS CORPORATION
By __________________________
Title CEO/PRES
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EXHIBIT A
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REAL PROPERTY DESCRIPTION
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The property located at 0000 Xxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxxxx,
legally described as follows:
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TRANSFEROR'S CERTIFICATION OF NONFOREIGN STATUS
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To inform Boise Cascade Office Products Corporation, a Delaware
corporation ("Transferee"), that withholding of tax under Section 1445 of the
Internal Revenue Code of 1954, as amended ("Code"), will not be required upon
the transfer of certain real property to the Transferee by United Stationers
Supply Co., an Illinois corporation ("Transferor"), the undersigned hereby
certifies the following on behalf of the Transferor:
1. The Transferor is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the Code and the
Income Tax Regulations promulgated hereunder),
2. The Transferor's U.S. employer identification number is 00-0000000, and
3. The Transferor's office address is 0000 Xxxx Xxxx Xxxx, Xxx Xxxxxxx,
Xxxxxxxx 00000.
The Transferor understands that this Certification may be disclosed to
the Internal Revenue Service by the Transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
The Transferor understands that the Transferee is relying on this
Certification in determining whether withholding is required upon said transfer.
Under penalty of perjury, I declare that I have examined this
Certificate and, to the best of my knowledge and belief, it is true, correct,
and complete, and I further declare that I have authority to sign this document
on behalf of the Transferor.
Date of this _______ day of _________________, 19___.
TRANSFEROR:
United Stationers Supply Co.
By _______________________________
Its _______________________________
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XXXX OF SALE
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For valuable consideration, the receipt of which is acknowledged, UNITED
STATIONERS SUPPLY CO. ("United"), an Illinois corporation, having its principal
place of business at 0000 Xxxx Xxxx Xxxx, Xxx Xxxxxxx, Xxxxxxxx 00000, hereby
sells, transfers, assigns and conveys to BOISE CASCADE OFFICE PRODUCTS
CORPORATION ("Boise Cascade"), all of United's rights, title, and interest in
the following personal property:
Personal Property: All warehouse and office property located at 0000
Xxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxxxx, (excluding United's product inventory,
any leased equipment, and personal effects of employees) and including, but
not limited to, all pallet racking, all conveyor systems, all bin shelving,
all mobile equipment, both powered and non-powered and all associated
batteries and chargers, all owned security systems, all office furniture,
wall fixtures, cafeteria equipment, and telephone and voice mail systems.
United hereby represents and warrants to Boise Cascade that United is the
absolute owner of the Personal Property, that the Personal Property is free and
clear of all liens, charges, and encumbrances, and that United has full right,
power, and authority to sell the Personal Property and to execute this Xxxx of
Sale.
ALL WARRANTIES OF QUALITY, FITNESS AND MERCHANTABILITY ARE EXPRESSLY EXCLUDED.
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IN WITNESS WHEREOF, this Xxxx of Sale has been executed by the undersigned
effective as of _____________________, 1996.
UNITED STATIONERS SUPPLY CO.
By ______________________________
Title ___________________________
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