EXHIBIT 10.11
CONTRACT TO PURCHASE
This is a legally binding contract. If not understood, seek legal
advice.
OM COLLIERS, INC.
dba COLLIERS INTERNATIONAL
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
000-000-0000 Date: February 8, 1999
FAX: 000-000-0000
1. PROPERTY DESCRIPTION: The undersigned Purchaser offers to
purchase from the Owner through OM Colliers, Inc. dba Colliers
International and its cooperative broker, if any, hereinafter
"Broker" the following described Real Estate ("Real Estate") with
improvements and fixtures thereon and with all appurtenant rights,
privileges and easements, located in the City of Xxxxxxxx, Xxxxxx
County, Ohio, known as an approximately 130,000 square foot two (2)
building industrial complex that is situated on approximately 12.5
acres and whose address is 000 Xxxxxx Xxxxxx as described in
Exhibit "A".
2. INCLUDED IN THE SALE: The Real Estate shall include, without
limitation, all electrical, lighting, and plumbing fixtures,
heating, air conditioning equipment and all other fixtures, if any,
permanently a part of the Real Estate and the improvements thereon.
3. PERSONAL PROPERTY: The following items of personal property shall
be included in the sale: All cranes, rails, bridges and motors
located in the premises. All Security Systems, air lines, air
compressors, dock equipment, and xxxx ducts.
4. OWNER'S CERTIFICATION: The Real Estate is zoned I-2 and B-2 and is
not located in a flood plain; and to the best of Owner's actual
knowledge without independent investigation, inquiry or analysis,
there is not located in or about the property any toxic, hazardous,
or contaminated substances in violation of applicable environmental
laws and there are no underground storage tanks; and is free from
any and all City, State and Federal orders affecting the Real
Estate as of the date of acceptance of this offer.
5. PURCHASER'S EXAMINATION: Purchaser is relying solely upon his/her
own examination of the real estate and inspections herein
required, if any, for its physical condition and character, and the
real estate's suitability for purchaser's intended use thereof and
not upon any representations by the real estate agents involved,
except for those made by said agents directly to the purchaser in
writing. At closing, Purchaser shall accept the Property in "AS
IS" condition without any representation, warranty or covenant from
Owner except for those set forth in this Contract.
6. PRICE AND TERMS: The Purchase Price shall be Seven Hundred and
Twenty Five Thousand Dollars ($725,000), payable as cash at
closing.
a) XXXXXXX MONEY: Fifteen Thousand Dollars ($15,000) Xxxxxxx
Money to apply toward the Purchase Price is to be deposited in
Broker's escrow account upon acceptance of this Contract
pending Closing. In the event that this Contract to Purchase
does not close for any reason other than default on the part
of the Purchaser, the Purchaser's Xxxxxxx Money will be
promptly and fully 1refunded. Such refund shall be
in addition to any remedy, including specific performance,
available to Purchaser.
If Purchaser defaults in the performance of this Contract,
then the Xxxxxxx Money shall be paid to the owner, not as
liquidated damages, but to apply to damages which Owner may
suffer on account of the default of Purchaser.
b) BALANCE: The balance of the Purchase Price shall be payable
as cash at closing.
7. CONTINGENCIES:
The following shall be conditions precedent to Purchaser's
obligation to purchase the property:
a) On or before April 9, 1999, Purchaser shall have
determined that financing can be obtained to purchase the
Property in an amount and on terms satisfactory to Purchaser,
in Purchaser's sole and absolute discretion. Purchaser agrees
to apply for and to make a diligent effort to obtain said
financing. If the commitment for said financing shall not be
obtained on or before April 9, 1999, Purchaser may terminate
this contract by giving Seller written notice thereof on or
before said date.
b) On or before April 9, 1999, Purchaser shall have
determined that Owner's title to the Property is acceptable to
Purchaser in Purchaser's sole and absolute discretion.
Promptly upon the parties' execution of this Contract,
Purchaser shall select a reputable title insurance company and
order a commitment for an owner's title insurance policy. The
cost of obtaining the commitment, and the premium for the
owner's policy, shall be paid by Purchaser. Purchaser shall
provide a copy of the commitment to owner upon Purchaser's
receipt thereof. If title to the Property, as reflected in
the commitment, is not acceptable to Purchaser, Purchaser
shall so notify Owner in writing on or before April 9, 1999,
otherwise, objections to title are waived and this contingency
shall be deemed waived except as to matters later created. In
the event of an objection, Owner may attempt to clear the
title of such matters, and the Closing date shall be extended
if necessary; but either party may terminate this Contract if
such matters cannot be corrected or Owner elects not to
attempt to correct them or Owner fails to remove such matters
within a reasonable time, by giving written notice of such
termination to the other party, and in such event the Xxxxxxx
Money shall be promptly returned to Purchaser. At Closing,
Owner shall deliver a title affidavit to Purchaser in a form
acceptable to Purchaser.
c) Delivery of possession of the Property to Purchaser,
immediately Upon waiving of all contingencies and deposit of
escrow with Seller.
d) On or before April 9, 1999, Purchaser shall have
determined that the zoning of the Property is satisfactory to
Purchaser, in Purchaser's sole and absolute discretion, and
the Purchaser's intended use will conform with applicable
local, county, and state laws and regulations, and with
existing park covenants, in Purchaser's sole and absolute
discretion.
e) On or before April 29, 1999, Purchaser shall have
determined that the environmental condition of the Property is
satisfactory to the Purchaser, in the Purchaser's sole and
absolute discretion. Upon the execution of this Contract,
Seller shall cause to be ordered from the environmental
consulting firm selected by the Seller, a Phase I
environmental audit report on the Property, a copy of which
will be sent to Purchaser for Purchaser's review. The cost of
the Phase I environmental audit report shall be paid by the
Purchaser.
f) On or before April 9, 1999 Purchaser shall have
determined that the Property is satisfactory for Purchaser's
intended use, in Purchaser's sole and absolute discretion.
During the period from the date hereof through April 9, 1999
(the "Inspection Period"), Purchaser shall have the right to
inspect the Property, including but not limited to, the soil,
subsoil, topography, existing fill, drainage, surface and
groundwater quality, air and water rights, availability of
utilities, zoning, legal compliance, access, suitability of
the Property for Purchaser's manufacturing process,
assessments, encroachments, structural, mechanical, and
architectural components, heating, ventilating, and air
conditioning components, plumbing and electrical components,
curbs, driveways, and parking areas, roof, gutters,
downspouts, siding, and windows and all other inspections
deemed necessary by Purchaser. During the inspection Period,
Purchaser and Purchaser's consultants, agents, inspectors,
contractors, and employees directed by Purchaser, may enter
the Property during regular business hours as reasonably
necessary to inspect the Property, to perform any needed
tests, and to plan any improvements on the Property.
Purchaser shall not make excavations or test borings, disturb
any plants, trees or shrubs, or engage in other activities
destructive to the Property absent specific written consent
from Seller, which consent shall not be unreasonably withheld.
Purchaser shall notify Owner (by telephone or in writing) of
the dates and times during which Purchaser or Purchaser's
agents will be on the Property, and Owner or Owner's agents
shall have the right to accompany Purchaser or Purchaser's
agents while they are on the Property. Purchaser shall
indemnify, defend and hold Owner harmless from and against any
and all claims, actions, liability, damages, costs and
expenses arising or relating to Purchaser's activities on the
Property, and Purchaser shall promptly repair and any and all
damage to the Property caused by Purchaser or its agents in
connection therewith.
If Purchaser determines that the Property is unsatisfactory to
Purchaser based upon its inspections and investigations,
Purchaser may terminate this Contract by giving Owner written
notice thereof on or before April 9, 1999, in which event the
Xxxxxxx Money shall be promptly refunded to Purchaser.
Otherwise, this contingency shall be deemed satisfied.
g) After Purchaser waives its' contingencies but before
closing, Seller shall at its sole cost and expense separate
(create an alley and disconnect the roof and any shared
electrical services) the facility they intend to retain to the
reasonable satisfaction of the Purchaser.
h) After Purchaser waives its' contingencies but before
closing, Seller shall remove all drums and items which may
affect the environmental status of the property.
i) After Purchaser 3waives its' contingencies but
before closing, Seller shall designate what personal property
Seller wishes to store Seller's retained facility after
Purchaser takes occupancy of purchased property. Purchaser
agrees to provide the labor necessary to dispose of or
relocate Seller's personal property, except for any hazardous
waste material. All other costs (dumpsters, hauling, etc.)
shall be at the expense of the Seller. Seller and Purchaser
agree to negotiate a reasonable storage fee for personal
property that remains until Seller disposes of or relocates
the personal property.
In the event any of the contingencies set forth in this section 7
are not satisfied or waived by Purchaser, Purchaser may terminate
this Contract by giving written notice thereof to Owner on or
before April 9, 1999, and Purchaser shall promptly receive a refund
of the Xxxxxxx Money. If Purchaser does not so notify Owner, all
of the contingencies set forth in this section 7 shall be deemed
satisfied (except, with regard to the title contingency, as to
matters later created).
8. CONVEYANCE AND CLOSING: Owner shall be responsible for transfer
taxes, conveyance fees, deed preparation; and shall convey
marketable title to the Real Estate by deed of general warranty in
fee simple absolute, with release of dower, if any, in writing, to
the purchaser or purchaser's designee or nominee.
Closing will be held within thirty (30) days of waiving of all
contingencies.
9. POSSESSION: Possession shall be given upon Purchasers waiving of
all contingencies and deposit of escrow with Seller. Purchaser
shall be granted rent free occupancy until closing and Purchaser
shall be responsible for all cost associated with building
occupancy, including but not limited to real estate taxes, property
insurance and building maintenance.
10. PRORATIONS: Real estate taxes, installments of assessments, if
any, shall be prorated as of the date of occupancy by Purchaser.
Owner shall receive a credit for any prepaid taxes.
11. CONDITION OF IMPROVEMENTS: Owner agrees that upon delivery of
deed, the improvements constituting part of the Real Estate shall
be in the same condition as they are on the date of this offer,
reasonable wear and tear excepted. Owner shall continue to insure
the improvements until Closing. In the event of loss before
Closing such loss may be repaired by and at the cost of Owner prior
to Closing, and if not so repaired, the Purchaser may elect to
accept the property in its damaged condition, or terminate this
Contract, and upon such termination Purchaser shall be entitled to
a return of the Xxxxxxx Money.
12. INDEMNITY BY OWNER: Owner recognizes that Colliers International
is relying on all information provided herein or supplied by Owner
in connection with the Real Estate, and agrees to indemnify and
hold Colliers International, its sales associates and cooperating
brokers harmless from any claims, demands, damages, suits,
liabilities, costs and expenses (including reasonable attorney's
fees) arising out of any intentional misrepresentation made herein
by Owner or because of intentional concealment by the Owner.
13. SOLE CONTRACT: The parties agree that this Contract constitutes
their entire agreement, and that no oral or implied agreement
exists. Any amendments to this agreement shall be made in writing,
signed by both parties and copies shall be attached to all copies
of this original agreement. This Contract shall be binding not
only upon the parties hereto but also upon their heirs,
administrators, executors, successors and assigns.
14. AGENCY DISCLOSURE: Purchaser and Owner acknowledge receipt of the
attached Agency Disclosure Statement submitted for their review
and signature. Owner authorizes Broker to divide commissions
received under this Contract with cooperating brokers, if any,
regardless of their agency relationships with the parties.
15. EXPIRATION AND APPROVAL: This offer shall remain open for
acceptance until 12:00 noon Cincinnati time on Tuesday February 9,
1999, and a signed copy shall be promptly returned to Purchaser or
Owner, as the case may be, upon acceptance by the other party.
Production Manufacturing Inc. or assigns
/s/ Xxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
___________________________ ________________________________
Witness Purchaser:
February 9, 1999 @ 9:56 AM President
Date:______________________ _______________________________
Brokers (if any): West Shell - Listing Agent, Colliers Intl.- Buyers Agent
16. RECEIPT OF BROKER: I hereby acknowledge receipt of a check in the
amount of Fifteen Thousand Dollars ($15,000) from Production
Manufacturing Inc. which shall be deposited upon execution of this
Contract by both parties as Xxxxxxx Money to be retained by West
Shell Inc. (Broker) in accordance with this Contract. The Xxxxxxx
Money check shall be promptly returned if offer is rejected.
Broker:____________________________
By:________________________________
Date:______________________________
17. ACTION BY SELLER: The undersigned Seller has read and fully
understands the foregoing offer and hereby: ( X ) accepts said
offer and agrees to convey the Real Estate according to the above
terms and conditions, ( ) rejects said offer, or ( )
counteroffers according to the above modifications initialed by
Seller, which counter offer shall become null and void if not
accepted in writing on or before 6 o'clock (P.M.) CINCINNATI
TIME________________, 19_____. Seller acknowledged that the Ohio
Agency Disclosure Statement is signed and attached. Seller agrees
to pay West Shell a commission ("Commission") of six (6)% of the
Purchase Price at Closing and further authorizes West Shell to pay
Colliers Intl. fifty percent (50%) of the "commission" at closing
and to apply as much of the Xxxxxxx Money as may be necessary to
pay Commission. No commission shall become due and payable until
the closing occurs and Owner receives the net sales proceeds.
XXXXXXX INTERNATIONAL INC.
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxxxxxxxx
________________________________ __________________________________
Witness Seller
February 8, 1999
__________________________________
Date
