AGREEMENT OF SALE
THIS AGREEMENT OF SALE (the "Agreement") is made this 20th day of October,
2003, by and between ▇▇▇▇▇▇ PARTNERS, a Pennsylvania limited partnership, ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Seller") and, SPITZ, INC.
(the "Purchaser").
W I T N E S S E T H:
1. THE PREMISES. Seller agrees to sell, and Purchaser agrees to purchase
from Seller, subject to the terms and conditions of this Agreement, the real
property and improvements owned by Seller consisting of approximately 16.73"+/-
acres and a 47,496"+/- square foot commercial building, located on the north
side of Baltimore Pike, Chadds Ford, Chadds Ford Township, Delaware County,
Pennsylvania, being Folio No. 04-00-00034-02 (the "Premises").
2. WARRANTY OF OWNERSHIP. Seller represents and warrants to the Purchaser
that Seller is the record owner in fee simple of the Premises.
3. PURCHASE PRICE.
A. The purchase price for the acquisition of the Premises shall be
Three Million Two Hundred Thousand ($3,200,000.00) Dollars (the "Purchase
Price").
B. The Purchase Price for the Premises shall be payable by Purchaser
according to the following schedule:
(1) Upon execution of this Agreement, the sum of One Hundred
Thousand ($100,000.00) Dollars (the "Deposit Money") shall be paid by
Purchaser in cash or by certified or cashiers check, to be held by the
Escrow Agent, as hereinafter defined, in accordance with the laws of
the Commonwealth of Pennsylvania and the provisions of this Agreement.
(2) At Settlement, Purchaser shall pay to Seller in cash,
certified or cashier's check the remaining amount of the Purchase
Price.
4. DEPOSIT.
A. The Deposit Money together with all interest accruing thereon shall
be held by CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc. (the "Escrow Agent") in an
interest-bearing escrow account, and such Deposit Money and all accrued
interest thereon shall be applied against the Purchase Price at the time of
Settlement. In the event of the termination of this Agreement for any
reason other than Purchaser's default hereunder, the Deposit Money and all
accrued interest thereon shall be returned to Purchaser within five (5)
business days, and this Agreement shall be sufficient warrant to the Escrow
Agent.
B. In the event Escrow Agent shall be in doubt as to its duties or
obligations with regard to the Deposit Money, Escrow Agent shall not be
required to disburse same and may, at its option, continue to hold same
until both Purchaser and Seller agree as to its disposition, or until final
judgment is entered by a court of competent jurisdiction directing its
disposition, or Escrow Agent may place the Deposit Money in the registry of
a court of competent jurisdiction and file an action in interpleader, in
which case Escrow Agent shall thereupon be released of all liability for
holding Deposit Money. Purchaser and Seller shall pay all costs and legal
fees of Escrow Agent in connection with such action in interpleader or in
connection with any action instituted by either Purchaser or Seller related
to said Deposit Money. Except for willful breach of the terms of this
Agreement or gross negligence, Escrow Agent shall not be liable to any
person whomsoever for misdelivery or other error in the handling of the
Deposit Money.
5. CONDITION OF TITLE.
A. The title shall be good and marketable and such as will be insured
by a reputable title insurance company in the Southeastern Pennsylvania
area at its regular rates, in fee simple, free and clear of all liens,
encumbrances, restrictions, leases, tenancies and title objections
whatsoever, except for the Permitted Encumbrances (as defined below).
B. Purchaser shall order a Commitment to Insure Title (the
"Commitment") for the Premises and shall send a copy of the Commitment to
Seller within twenty (20) days after the Effective Date of this Agreement,
together with a list of all title objections, exceptions and encumbrances
disclosed in the Commitment which interfere with Purchaser's proposed use
of the Premises and which are unacceptable to Purchaser (the "Title
Defects"); all other title exceptions and objections shown on the
Commitment and not identified as unacceptable by Purchaser are the
"Permitted Encumbrances". Seller shall have ten (10) days following the
date of the receipt of the Commitment to notify Purchaser of Seller's
unwillingness or inability to deliver the title subject only to the
Permitted Encumbrances (the "Seller's Notification"), in which event,
Purchaser shall have the option to either accept such title to the Premises
as Seller can provide or to terminate this Agreement and have all Deposit
Monies and all interest earned thereon returned to Purchaser. Failure by
Seller to notify Purchaser of Seller's inability or unwillingness to
deliver title to the Premises subject only to the Permitted Encumbrances
within such ten (10) day period shall constitute Seller's agreement to
deliver title at Settlement subject only to the Permitted Encumbrances.
Nothing herein shall be construed to preclude the parties from extending in
writing the date by which such Commitment or Seller's Notification must be
given.
C. In the event the Seller is unable to convey title to the Premises
as aforesaid at the time of Settlement, the Purchaser shall have the option
of taking such title as the Seller can give without abatement of the
Purchase Price or of having the Deposit Money and all interest earned
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thereon paid to the Purchaser together with any title cancellation fees
which Purchaser may incur; in such latter event, this Agreement shall
become null and void and there shall be no further liability on either of
the parties hereto.
D. Seller agrees not to voluntarily further alter or encumber in any
way title to the Premises after the Effective Date of this Agreement
without the express written consent of Purchaser. Purchaser shall have a
continuing right to examine title to all or any portion of the Premises,
and Seller shall, within ten (10) days of notice from Purchaser, cure
and/or satisfy, at Seller's expense, any additional encumbrances not
previously approved by Purchaser and as to which Purchaser gives notice to
Seller. If Seller fails to do so, Purchaser shall have the option of taking
such title as the Seller can give without abatement of the Purchase Price
or of having the Deposit Money and all interest earned thereon paid to
Purchaser, in which latter event, this Agreement shall be null and void and
all parties shall be released of further liability hereunder.
6. SETTLEMENT.
A. Settlement for the Premises shall be held on or before ten (10)
business days after the expiration of the Due Diligence Period, as
hereinafter defined, provided that Purchaser has not terminated this
Agreement in accordance with the provisions of this Agreement (the
"Settlement"). Conveyance of the Premises shall be made by a deed of
special warranty executed by Seller (the "Deed"). Possession of the
Premises is to be delivered by Seller to Purchaser at Settlement free of
all debris and not subject to any lease(s), excepting a certain lease
between Seller and Spitz, Inc. dated June 1, 1986, as amended November 30,
1987, as amended October 31,1992 and as further amended April 24, 1998 (the
"Spitz Lease"). Formal tender of the Deed and purchase money is hereby
waived. Time is of the essence.
7. APPORTIONMENTS; TRANSFER TAXES, ETC.
A. At the time of Settlement, real estate taxes, water and sewer
charges, rents and other income and expenses of the Premises, if any, and
all other apportionable charges shall be apportioned between Purchaser and
Seller as of the date of Settlement, and such apportionments are to be
based on the period for which taxes or other charges are assessed and due
and payable. All real estate transfer taxes shall be divided equally
between Purchaser and Seller.
B. In the event that all or any portion of the Premises has been
granted tax relief, including, without limitation, by reason of the
Pennsylvania Farm Land and Forest Land Assessment Act of 1974, as amended,
72 Pa. C.S.A. S5490.1, et seq., as amended, or Act 515, as amended, 16 P.S.
S11941, et seq., as amended, Seller shall be responsible for the payment of
and shall deposit in escrow with the title company at the time of
Settlement, the estimated pro-rata portion of all taxes, penalties,
interest and related costs assessed or to be assessed against the Premises
due to termination of such relief, before or after Settlement, attributable
to any time period prior to the conveyance of the Premises to Purchaser.
The provisions hereof shall survive Settlement under this Agreement.
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8. RISK OF LOSS.
A. Seller shall maintain the Premises (including all items mentioned
in paragraph 8 herein) and any personal property specifically scheduled
herein in its present condition, normal wear and tear excepted.
B. Seller shall bear risk of loss from fire or other casualties until
time of settlement.
C. If all or any material part of the Premises is destroyed or damaged
prior to Settlement, Seller shall deliver written notice to Purchaser of
such damage or destruction and of Seller's insurance coverage. Purchaser
shall elect within thirty (30) days of receipt of such notice, by
delivering written notice to Seller, either (a) not to purchase the
Premises, in which event the Deposit Money together with all accrued
thereon shall be refunded to Purchaser and the parties shall be relieved of
any further obligations hereunder; or (b) to close the transaction
contemplated hereunder, in which case Seller shall assign to Purchaser all
of the Seller's rights, title and interest in any insurance proceeds paid
or payable to Seller in connection with such damage or destruction. If
Purchaser does not so notify Seller, Purchaser shall be deemed to have
elected to close the transaction contemplated hereby in accordance with
clause (b) of this Section.
9. ITEMS INCLUDED IN SALE; CONDITION OF PREMISES. All trees, shrubbery,
plants, and topsoil, buildings and improvements now in or on the Premises are to
become the property of the Purchaser and are included in the sale. Without
Purchaser's prior consent, Seller shall not remove any of the foregoing items,
engage in any excavation or construction upon the Premises, deposit any
materials of any kind upon the Premises, or in any way change the character of
the Premises prior to Settlement.
10. STUDIES BY PURCHASER/ACCESS TO PREMISES.
A. For a period of thirty (30) days after the Effective Date of this
Agreement (the "Due Diligence Period"), Purchaser shall have the right to
conduct, update and/or secure a Phase I environmental study from a
qualified environmental consultant satisfactory to Purchaser, in
Purchaser's sole discretion, with respect to the Premises or the
Purchaser's contemplated use thereof. Purchaser shall have the right to
terminate this Agreement, if Purchaser, in Purchaser's sole discretion, is
dissatisfied with any of the reports, studies, etc. by providing Seller
written notice of Purchaser's intent to terminate, which notice shall be
provided in writing to Seller on or before the expiration of the Due
Diligence Period.
B. Purchaser and the Purchaser's representatives shall be given access
to the Premises by the Seller at such reasonable times and from time to
time, on not less than twenty four (24) hours prior notice to Seller, as
the Purchaser may desire to make inspections, tests, surveys, borings and
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studies as to the contemplated use of the Premises by the Purchaser;
provided, however, that the Purchaser shall restore the Premises to its
prior condition upon completion of such inspections, tests, surveys, etc.,
and hold the Seller harmless from any and all mechanics' liens or similar
charges which may affect the Premises as a consequence of such work.
Purchaser shall indemnify Seller from any claim, loss, liability or damage,
including reasonable attorney's fees and litigation costs resulting or
arising from Purchaser's use of or access to the Premises under this
paragraph, and shall, on request of Seller, provide Seller with proof of
insurance certifying that Purchaser is insured against such liability and
naming Seller as an additional insured.
11. HAZARDOUS WASTE WARRANTY.
A. Seller hereby represents and warrants to Purchaser that to the best
of Seller's knowledge, without independent investigation, the Premises does
not contain Contamination, as hereinafter defined. Contamination for
purposes of this paragraph shall mean the presence of hazardous substances
or hazardous wastes at the Premises, or arising from the Premises, which
may require remediation under any applicable Federal or State law, or any
other federal, state or local governmental law, ordinance or regulations.
In making this warranty and representation, Seller has considered, inter
alia, all such hazardous substances as are the subject of regulation under
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. S9601 et seq., as amended by the Superfund Amendments and
Reauthorization Act of 1986, Pub. L. ▇▇. ▇▇-▇▇▇, ▇▇▇ ▇▇▇▇. ▇▇▇▇ (▇▇▇. 17,
1986), "regulated substances" within the meaning of subtitle I of the
Resource Conservation and Recovery Act, 42 U.S.C. S6991-6991i et seq.,
amended through Oct. 24, 1992, as amended by the Superfund Amendments and
Reauthorization Act of 1986, Pub. L. ▇▇. ▇▇-▇▇▇, ▇▇▇ ▇▇▇▇. ▇▇▇▇ (▇▇▇. 17,
1986), and "hazardous wastes" as defined pursuant to Section 103 of the
Pennsylvania Solid Waste Management Act, Pa. 35 P.S. S6018.103, and the
Pennsylvania Hazardous Sites Clean-Up Act, 35 P.S. S6020.102 to .1305, or
any other substances which may be the subject of liability pursuant to
Section 316 or 401 of the Pennsylvania Clean Streams Law, 35 P.S. S691.1 to
.1001, or any subsequent amendments to any of the foregoing statutes.
B. Seller represents that Seller has no reason to know or suspect that
any such substances are present on the Premises, whether by reason of:
odors emanating from the water or ground; discoloration of soil or water on
or under the Premises; the existence of any tanks or containers visible in
whole or part above or below the ground, the past or present contents of
which are unidentified or have been identified as hazardous; or any other
facts or circumstances whatsoever. Seller hereby agrees to fully cooperate
with Purchaser in any site investigations conducted on behalf of Purchaser
prior to Settlement.
12. ADDITIONAL REPRESENTATIONS AND WARRANTIES OF SELLER. Seller, in order
to induce Purchaser to enter into this Agreement and to complete the purchase of
the Premises hereunder, represents and warrants to Purchaser that to the best of
Seller's knowledge:
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A. Disclaimer of Warranties. Purchaser hereby acknowledges that
Purchaser has had, pursuant to this Agreement, an adequate opportunity to
make such legal, factual and other inquiries and investigations as
Purchaser deems necessary, desirable or appropriate with respect to the
Premises. Such inquiries and investigations of Purchaser shall be deemed to
include, but shall not be limited to, the physical components of all
portions of the Premises, such state of facts as an accurate survey and
inspection would show, the present and future zoning ordinances,
resolutions and regulations of the township and county where the Premises
is located, the environmental condition of the Premises and the value and
marketability of the Premises. Purchaser hereby acknowledges that it shall
not be entitled to and should not rely on Seller or its agents as to (i)
the quality, nature, adequacy or physical condition of the Premises,
including, but not limited to the structural elements, foundation, roof,
appurtenances, access, landscaping, parking facilities or the electrical,
mechanical, HVAC, plumbing, sewage, water or utility systems, facilities or
appliances at the Premises, if any; (ii) the quality, nature, adequacy or
physical condition of soils, subsurface support or ground water at the
Premises; (iii) the existence, quality, nature, adequacy or physical
condition of any utilities serving the Premises, or access thereto; (iv)
the development potential of the Premises, its habitability,
merchantability or fitness, suitability or adequacy of the Premises for any
particular purpose; (v) the zoning classification, use or other legal
status of the Premises; (vi) the Premises' or its operations' compliance
with any applicable codes, laws, regulations, statutes, ordinances,
covenants, setback requirements, conditions or restrictions of any
governmental or quasi-governmental entity or any other person or entity.
Except as otherwise expressly set forth in this Agreement, Purchaser
acknowledges that Seller has not, does not and will not make any warranties
or representations, express or implied, or arising by operation of law,
including but not limited to, any warranty of condition, merchantability,
habitability or fitness for a particular use, or with respect to the value,
profitability or marketability of the Premises. Except as otherwise
expressly set forth in this Agreement, Purchaser acknowledges that Seller
has not, does not and will not make any representation or warranty with
regard to past, present or future compliance with any environmental
protection, pollution or land use laws, rules, regulations, orders or
requirements, including but not limited to those pertaining to the
handling, generating, treating, storing or disposing of any hazardous
waste, material or substance. Except as otherwise expressly set forth in
this Agreement, Purchaser represents, warrants and acknowledges to and
agrees with Seller, that Purchaser is purchasing the Premises in an as-is
condition with all faults and specifically and expressly without any
warranties, representations or guarantees, either express or implied, of
any kind, nature or type whatsoever from or on behalf of Seller.
B. To the best of Seller's knowledge, there are no violations of any
federal, state, county or municipal law, ordinance, order, regulation or
requirement affecting any portion of the Premises, and no written notice of
any such violation has been issued by any governmental authority. There is
no action, suit or proceeding pending or threatened against or affecting
Seller or the Premises or any portion thereof or relating to or arising out
of the ownership of the Premises, in any court or before by any federal,
state, county or municipal department, commission, board, bureau or agency
or other governmental instrumentality. To its knowledge, no ordinance has
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been enacted authorizing or requiring new public improvements. Seller
agrees to comply with all notices affecting the Premises issued or enacted
between the Effective Date of this Agreement and the date of Settlement.
C. Seller has not received any notice or communication that the
Premises is or will be the subject of condemnation proceedings. In the
event that any notice or communication respecting condemnation is received
by the Seller after the date of this Agreement, the Seller shall promptly
notify the Purchaser in writing, and the Purchaser shall have the option,
exercisable within thirty (30) days after the receipt of such notice from
Seller, of proceeding hereunder or of having the Deposit Money together
with all accrued interest returned to the Purchaser, and in the latter
event, this Agreement shall become null and void and there shall be no
further liability on either of the parties hereto. If Purchaser makes
Settlement, the Seller shall give the Purchaser full opportunity, with the
cooperation of the Seller, but at Purchaser's sole cost, to contest such
governmental action or to initiate or participate in such proceedings as
the Purchaser may deem necessary or desirable to protect the Purchaser's
interests, and (provided that Settlement takes place hereunder) the entire
condemnation proceeds or award allocable to the Premises shall belong and
be paid to the Purchaser, without any claim thereto being asserted by the
Seller.
D. Seller has made, and prior to Settlement hereunder will continue to
make as appropriate, full disclosure to Purchaser of all facts, conditions
and obligations, oral and written, relating to the Premises on the subjects
covered in this Agreement and Seller acknowledges that Purchaser is
entering into this Agreement in reliance on full disclosure by Seller.
E. There is no action, suit or proceeding pending or, to the knowledge
of Seller, threatened against the Premises or any portion thereof, or
relating or arising out of the ownership, management or operation of the
Premises, in any court or before any federal, state or local department,
commission, board, bureau or agency or other governmental instrumentality
which could, if adversely decided, have any adverse effect on Purchaser's
acquisition or proposed development of the Premises.
F. The representatives of Seller who have executed this Agreement on
behalf of Seller hereby warrant and confirm that they have the authority to
execute this Agreement on behalf of Seller.
13. DEFAULT. In the event of the failure by the Purchaser or the Seller to
comply with the terms of this Agreement, the non-defaulting party shall give the
defaulting party a written notice of default which shall provide a fifteen (15)
day cure period. In the event that a default is not cured within the applicable
cure period, if any, the non-defaulting party shall have the following remedies
available at law or equity:
A. Purchaser's Default. If Purchaser fails to complete Settlement on
or before the date for Settlement provided for herein, or otherwise
defaults in any of the terms and conditions of this Agreement, including in
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any way interfering with the Spitz Lease, the Deposit Money may, at the
option of Seller, be retained by the Seller: (i) on account of the
purchase, or (ii) as monies to be applied to the Seller's damages, or (iii)
as liquidated damages for such breach, as the Seller may elect, and in the
event that the Seller elects to retain the Deposit Money as liquidated
damages, Seller shall be released from all liability or obligations and
this Agreement shall be NULL AND VOID and all copies will be returned to
the Seller's Agent for cancellation.
B. Seller's Default. In the event of Seller default under the terms of
this Agreement, or if title is not as agreed, then in any such event,
Purchaser shall have the option of (1) completing Settlement subject to any
such defect in title or violation that may exist without abatement of the
Purchase Price; or (2) suing Seller for specific performance; or (3)
terminating this Agreement, in which latter event all executed original
copies of this Agreement in Purchaser's possession shall be returned to
Seller, and all Deposit Monies paid on account hereof shall be refunded to
Purchaser, and Seller shall reimburse Purchaser for the reasonable costs
expended by Purchaser for a title search, whereupon this Agreement shall
become null and void and neither party shall have any further liability
hereunder.
14. NOTICES. All notices, requests and other communications under this
Agreement shall be in writing and shall be delivered in person or given by (i)
registered or certified mail, return receipt requested, or (ii) recognized
overnight delivery service providing positive tracking of items (for example,
Federal Express), addressed as follows or to such other address of which Seller
or Purchaser shall have given notice as herein provided:
If intended for Seller:
▇▇▇▇▇▇ Partners
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, III, Esquire
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If intended for Purchaser:
Spitz, Inc.
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, EVP/CFO
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With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire
Petrikin, Wellman, Damico, ▇▇▇▇▇ & Petrosa
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Such notice shall be deemed to be given when received if delivered personally or
two (2) business days after the date mailed if sent by certified or registered
mail, return receipt requested or one (1) day after deposited with Federal
Express or other nationally recognized overnight courier service in time for
next day delivery, provided such next day delivery is not a Saturday, Sunday or
holiday. Any notice of any change in such address shall also be given in the
manner set forth above. Whenever the giving of notice is required, the giving of
such notice may be waived in writing by the party entitled to receive such
notice. All such notices, requests and other communications shall be deemed to
have been sufficiently given for all purposes hereof only upon receipt by the
party to whom such notice is sent.
15. BROKERS.
A. CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc. has acted as broker for Seller ("Broker").
Broker shall be paid a total commission by Seller equal to four percent
(4%) of the gross sales price of the Premises, at Settlement. If Purchaser
defaults, Seller shall pay Broker twenty five percent (25%) of the Deposit
Money received on account of the Purchase Price. Seller's representatives
are authorized and directed to deduct such amount from the proceeds of the
sale and to pay the same to the Broker at the time of Settlement.
B. Purchaser and Seller each represent and warrant to the other that
each party has not, except for Broker, dealt with a broker, agent or finder
in connection with this transaction, and Purchaser and Seller covenant and
agree, each to the other, to indemnify and hold each other harmless from
any and all losses, damages, costs and expenses, including, but not limited
to, attorney's fees and court costs that may be incurred or suffered by the
indemnitee because of any claim for any fee, commission or similar
compensation with respect to this transaction made by any indemnitor,
whether or not such claim is meritorious.
16. DEPOSIT AND RECOVERY FUND. There has been established under the
Pennsylvania Real Estate Licensing and Registration Act, a Real Estate Recovery
Fund, the purpose of which, subject to the provisions of the Act, is to provide
a fund for the payment to aggrieved parties under grounds of fraud,
misrepresentation or deceit in connection with a transaction for which a license
is required under the Act. Questions concerning such fund should be directed to
the Real Estate Commission whose number is 717.783.3658.
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17. MISCELLANEOUS.
A. The parties hereto agree to comply with all applicable federal,
state and local laws, regulations, codes, ordinances and administrative
orders having jurisdiction over the parties, property or the subject matter
of this Agreement, including, but not limited to, the 1964 Civil Rights Act
and all amendments thereto, the Foreign Investment in Real Property Tax
Act, the Comprehensive Environmental Response Compensation and Liability
Act, and the Americans With Disabilities Act.
B. The Foreign Investment in Real Property Tax Act (FIRPTA), IRC 1445,
requires that every purchaser of United States real property must, unless
an exemption applies, deduct and withhold from Seller's proceeds ten
percent (10%) of the gross sales price. The primary exemptions which might
be applicable are (1) Seller provides Purchaser with an affidavit under
penalty of perjury that Seller is not a "foreign person" as defined in
FIRPTA, or (2) Seller and Purchaser agree to execute and deliver as
appropriate, any instrument affidavit and statement, and to perform any
acts reasonably necessary to carry out the provisions of FIRPTA and
regulations promulgated thereunder. Seller shall provide Purchaser with a
non-foreign person affidavit.
C. Except for the Seller's representations in paragraph 12.A. of this
Agreement, none of the representations and warranties contained in this
Agreement shall survive Settlement.
D. In the event that for any reason one or more of the provisions of
this Agreement or their application to any person or circumstances shall be
held to be invalid, illegal, or unenforceable in any respect or to any
extent, such provisions shall nevertheless remain valid, legal and
enforceable in all other respects and to such extent as may be permissible.
In addition, any such invalidity, illegality or unenforceability shall not
affect any other provisions of this Agreement, but this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
E. At the time of Settlement, Seller shall assign the Spitz Lease to
Purchaser and will transfer any security deposit held under the Spitz Lease
to the Purchaser.
18. ZONING. Seller represents to Purchaser that the Premises is zoned
Commercial.
19. NOMINEE OR ASSIGNEE. Seller agrees that the following persons or
entities may be nominated as a Purchaser hereunder, and that this Agreement may
be assigned to any corporation, partnership or other entity which is either
wholly owned by Purchaser or in which Purchaser's majority or controlling
interest holders maintain or own a majority interest.
20. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
parties hereto and their respective permitted successors, heirs, executors,
administrators and assigns.
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21. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
understanding between the parties hereto; all prior negotiations and agreement
with respect to the subject matter hereto are merged herein and superseded
hereby. This Agreement may be amended or varied in any of its terms only by a
written instrument signed by both parties hereto.
22. RECORDING. This Agreement shall not be recorded in the Office for the
Recording of Deeds or in any other office or place of public record and if
Purchaser causes or permits this Agreement to be recorded, Seller may elect to
treat such act as a breach of this Agreement.
23. TIME OF ESSENCE; GOVERNING LAW. Time is of the essence of this
Agreement. This Agreement shall be construed and interpreted in accordance with
the laws and ordinances of the Commonwealth of Pennsylvania.
24. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each counterpart shall be deemed an original, but all such
counterparts shall constitute but one and the same agreement.
26. EFFECTIVE DATE. The date that this Agreement is last signed and
initialed by both Purchaser and Seller shall be the Effective Date of this
Agreement.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby and in consideration of the mutual covenants contained herein, have
caused this Agreement to be duly executed as of the day and year first above
written.
SELLER:
▇▇▇▇▇▇ PARTNERS, a Pennsylvania
limited partnership, by
its sole General Partner,
C.J.J., INC.
11/21/03 BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------- --------------------------------
DATE ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
PURCHASER:
SPITZ, INC.
11/21/03 BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------- --------------------------------
DATE ▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice-President
11
