AGREEMENT OF SALE
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Fox Commercial Real Estate Services, Inc.
Licensed Real Estate Broker
THIS AGREEMENT OF SALE ("Agreement") made by and between Xxxxxx X. Xxxxxxx, Xx.
& Xxxxx X. Xxxxxxx, h/w ("Seller") and The First National Bank of West Xxxxxxx
("Buyer") will be effective on the later of: the date it is executed by Seller;
or, the date it is executed by Buyer.
WITNESSETH:
1. Sale.
Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase from
Seller, under the conditions hereinafter set forth, all that certain lot, tract
and parcel of land together with the buildings and improvements thereon erected
and all right, title and interest of Seller in and to the beds of any abutting
roads or streets located in the Township of West Goshen, County of Chester,
Pennsylvania, (the "Property") more fully described as follows:
000 Xxxxx Xxxxxxx Xxxxxx
(24,000 SF building)
Xxxx Xxxxxxx, XX 00000
The zoning classification of the Property is 1-2 Light Industrial
Failure of this Agreement to contain the zoning classification (except
for single family dwelling) shall render this Agreement voidable by the
Buyer and, if voided, any deposits tendered by the Buyer shall be
returned to the Buyer without a requirement of court action.
Flood Zone: No X Yes ____ (Attach Form 5230)
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2. Purchase Price.
Buyer agrees to pay to Seller and Seller agrees to accept from Buyer, the sum of
$1,750,000.00 (One Million Seven Hundred Fifty Thousand Dollars) ("Purchase
Price") in full payment for the Property, payable as follows:
(a) $10,000 in cash or by plain check upon Buyer's execution of this
Agreement.
(b) $65,000 in cash within 14 days of a fully executed agreement
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(c) The balance of the Purchase Price shall be payable as follows: Cash
at time of final settlement.
3. Escrow Provisions.
All monies paid on account of this Agreement shall be delivered and held in
escrow by FOX COMMERCIAL REAL ESTATE SERVICES, INC. ("Broker") in accordance
with the laws of the Commonwealth of Pennsylvania and the provisions of this
Agreement shall be applied to the Purchase Price at the time of Settlement.
Buyer and Seller understand and agree that all monies paid on account of the
Agreement may be held in Broker's trust account pending disbursement as provided
for herein. In the event Broker shall be in doubt as to its duties or
obligations with regard to said escrow monies, Broker shall not be required to
disburse same and may, at its option, continue to hold same until both Buyer and
Seller agree as to its disposition, or until final judgment is entered by a
court of competent jurisdiction directing its disposition, or Broker may place
said xxxxxxx money in the registry of a court of competent jurisdiction and file
an action in interpleader, in which case Broker shall thereupon be released of
all liability for holding xxxxxxx money. Buyer and Seller shall pay all costs
and legal fees of Broker in connection with such action in interpleader or in
connection with any action instituted by either Buyer or Seller related to said
xxxxxxx money. Except for willful breach of the terms of this Agreement or gross
negligence, Broker shall not be liable to any person whomsoever for misdelivery
or other error in the handling of the xxxxxxx money.
4. Settlement.
Settlement ("Settlement") shall be held on or before March 2, 1998 at the office
of the title company insuring Buyer's title at 11:00 AM or at such other
mutually satisfactory time and place as Buyer and Seller agree upon.
5. Apportionments.
At the time of Settlement, real estate taxes, water and sewer charges, rents and
other income from the Property, if any, and all other apportionable charges
shall be apportioned between Buyer and Seller to the day of Settlement. In the
case of real estate taxes, such apportionments are to be based on the period for
which such taxes are assessed and due and payable; that is, either on a calendar
or fiscal year. Insurance premiums, if Buyer accepts an assignment of Seller's
existing policies, are to be apportioned as of the day of Settlement.
All apportionments shall be based upon a 30 day month.
6. Title.
(a) Title to the Property shall be good and marketable, and such as
will be insured at regular rates by any one of the reputable title
insurance companies authorized to do business in Pennsylvania, free
and clear of all encumbrances, except existing restrictions,
easements, zoning ordinances and regulations, including statutes
and ordinances relating to the lines of streets and to other
municipal improvements affecting the Property.
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(b) Within thirty (30) days following the effective date of this
Agreement, Buyer shall pay for and furnish to Seller, a title
report on the Property, together with all exceptions set forth
therein, and a written notification to Seller of Buyer's
disapproval of any exceptions shown in said title report. In the
event of any disapproval, Seller shall have until the date for
Settlement within which to eliminate any disapproved exception(s)
from the policy or title insurance to be issued in favor of Buyer
and if not eliminated, then the Settlement shall be canceled unless
Buyer elects to waive, in writing, its prior disapproval. Failure
of Buyer to disapprove any exception(s) within the aforementioned
time limit shall be deemed an approval of said title report.
(c) Buyer shall submit to Seller, no later than thirty (30) days prior
to the date of Settlement, a Special Warranty Deed conveying title
in accordance with the terms of this Agreement. At the time of
Settlement, Buyer shall be responsible for all conveyancing and
recording charges, notary fees and other routine settlement costs
customarily paid by the Buyer in the jurisdiction where the
Property is located. All transfer taxes imposed upon the
transaction contemplated by this Agreement shall be divided equally
between Buyer and Seller. 7. Commission.
7. Commission.
(a) Seller hereby agrees to pay to Broker, as compensation for its
services in connection with this sale, an amount equal to six
percent (6%) of the Purchase Price. Seller's settlement
representative(s) is hereby authorized and directed to deduct such
amount from the proceeds of the sale and to pay the same to Broker
at the time of Settlement. Furthermore, Seller agrees that, if it
has executed an exclusive sales listing agreement with Broker, and
if Settlement does not occur hereunder, Seller will be bound by the
terms of such exclusive sales listing agreement.
(b) Seller and Buyer each warrant to the other and to Broker that it
has had no dealings with any real estate broker, agent, finder or
other intermediary in connection with the negotiation of the
transaction contemplated by this Agreement excepting only Broker
and none other and neither know of any other real estate broker,
agent, finder or other intermediary who is entitled to a commission
in connection with such transaction. Seller will indemnify and hold
harmless Buyer and Broker from any loss, claim or damage, including
all costs, expenses and attorneys' fees arising from any claim for
commission or fees from any person or other entity, excluding
Broker and none other , claiming by, under or through Seller. Buyer
will indemnify and hold harmless Seller and Broker and none other ,
from any loss, claim or damage, including all costs, expenses and
attorneys' fees arising from any claim for commission or fees from
any person or other entity, excluding Broker and none other ,
claiming by, under or through Buyer.
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(c) If there is a failure of Settlement by reason of Buyer's default, a
commission shall be paid by Seller to Broker only to the extent of
50% of any monies paid on account of this Agreement by Buyer (in
which event Broker shall remit to Seller the balance of the monies
paid on account of this Agreement), but in no event will the sum
paid to the Broker be in excess of the Broker's commission
specified in Paragraph 7 (a) above. Thereafter, Broker shall have
no further liability or responsibility to either Seller or Buyer.
8. Notices of Improvement.
8. Notices of Improvement.
Provided Settlement is completed hereunder, Buyer agrees to comply, at Buyer's
sole cost and expense, with the requirements of any notices or ordinances
relating to the Property or to any streets bounding thereon, which may be issued
or enacted by any governmental authority having jurisdiction over the Property
on or after the effective date of this Agreement by such authority. Seller
agrees to comply, at Seller's sole cost and expense, with the requirements of
any authority at any time prior to the effective date of this Agreement. Seller
agrees to forward to Buyer copies of any such notices received by Seller on or
after the effective date of this Agreement.
9. Damage.
(a) Seller shall maintain the Property (including all items referred to
in Paragraph 12 herein) and any personal property as specifically
scheduled herein in its present condition, normal wear and tear
excepted.
(b) Seller shall bear the risk of loss from fire or other casualty
until the time of Settlement. In the event of damage to any
property included in this sale by fire or other casualties, not
repaired or replaced prior to Settlement, Buyer shall have the
option to declare this Agreement null and void and receiving all
monies paid on account, or to accept the Property in the then
condition together with the proceeds of any insurance recovery
obtainable by the Seller. Buyer is hereby notified that it may
insure its equitable interest in this Property as of the time of
the acceptance of this Agreement. 10. Buyer's Default.
10. Buyer's Default.
If Buyer 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, the amount paid on account of this Agreement, together with such
further sum or sums of money as may be paid on account, or as consideration for
any extension or amendment of the terms and conditions hereof, at the option of
Seller may:
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(a) Be retained by Seller as assessed and liquidated damages and not as
penalty;
11. Buyer's Remedies.
In the event title is not as agreed, or in the event of failure of area, or in
case the zoning classification or present use of the Property is not as herein
set forth, then in any such event, Buyer shall only have the option of
completing Settlement subject to any such defect in title, failure of area,
zoning classification or violation that may exist, without abatement of the
Purchase Price, or of terminating this Agreement, in which latter event all
executed original copies of this Agreement in Buyer's possession shall be
returned to Seller, all deposit monies paid on account hereof shall be refunded
to Buyer, and Seller shall reimburse Buyer for the reasonable costs expended by
Buyer for a title search, whereupon this Agreement shall become null and void
and neither party shall have any further liability hereunder.
12. Personality.
This sale specifically includes all electric, heating, air-conditioning (if
any), ventilating and plumbing systems and fixtures owned by Seller and attached
to and appurtenant to the Property.
13. Condition of Property.
Except as provided by addendum to this Agreement, Buyer, or Buyer's duly
authorized representative, has inspected the Property, its value, its condition,
including, but not limited to the presence of asbestos, hazardous materials and
underground storage tanks, and its suitability for Buyer's intended use thereof,
and the same has been purchased as a result of such inspection, and not on
reliance upon any representations made by Seller, or any selling agent or other
representative of Seller, and agrees that Seller shall not be liable or
responsible for any agreement, condition or representation not specifically set
forth in writing herein relating to or affecting the physical condition of the
Property.
14. Possession.
Possession of the Property shall be given to Buyer at the time of Settlement by
the execution and delivery of the Special Warranty Deed. Formal tender of the
Deed and purchase money is hereby waived.
15. Recording.
This Agreement shall not be recorded in any public office. Any attempt by Buyer
to record this Agreement shall be of no force and effect and shall constitute a
default of Buyer hereunder.
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16. Contingencies.
If any contingency to this Agreement has not been eliminated within the time
limits and pursuant to the provisions of this Agreement or waived, this
Agreement shall be deemed null and void, all monies deposited hereunder shall be
returned to Buyer and the Settlement canceled.
17. Interpretation.
This Agreement shall be governed by the laws of the Commonwealth of
Pennsylvania.
18. Binding Effect.
This Agreement shall be binding upon Buyer and Seller and their respective
heirs, successors and assigns.
19. Agent(s).
It is expressly understood and agreed between the parties that the named Agent,
Broker, and any Subagent, and their salespeople, employees, officers and or
partners, are Agent(s) for the Seller, not the Buyer, however, the Agent(s) may
perform services for the Buyer in connection with the financing, insurance and
document preparation.
20. Time of the Essence.
Time is of the essence in the performance of all the terms, covenants,
conditions and obligations of this Agreement.
21. Assignment.
Neither this Agreement nor any interest therein is assignable by Buyer without
Seller's prior written consent.
22. Entire Agreement.
This Agreement represents the entire agreement between Buyer and Seller and
supersedes all prior oral and written proposals, communications and agreements
regarding the Property. Neither Buyer, Seller nor Broker shall be bound by any
understanding, agreement, promise, representation or stipulation, whether oral
or written, expressed or implied, not specified in this Agreement.
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23. Notices.
Any notices required or permitted hereunder shall be deemed delivered if
addressed to the parties or Broker at the addresses herein following and such
notices were deposited in the United States mail with first class postage
prepaid.
24. Time Limit.
If this Agreement is not accepted by Seller on or before November 21, 1997, the
offer contained herein shall be null and void and any check delivered hereunder
to Broker shall be returned to Buyer.
25. Foreign Investment In Real Property Tax Act.
The Foreign Investment in Real Property Tax Act (FIRPTA), IRC 1445, requires
that every purchaser of U. S. real property must, unless an exemption applies,
deduct and withhold from Seller's proceeds ten percent (10%) of the gross sale
price. The primary exemptions which might be applicable are: (a) Seller provides
Purchaser with an affidavit under penalty of perjury, that Seller is not a
"foreign person", as defined in FIRPTA, or (b) Seller provides Purchaser with a
"qualifying statement", as defined in FIRPTA, issued by the Internal Revenue
Service. 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.
26. Real Estate 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 upon 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 telephone
number is (000) 000-0000.
27. Addendum.
Any addendum attached hereto and signed or initialed by Buyer, Seller and Broker
shall be deemed a part hereof.
28. Toxic Contamination.
A. Seller certifies that he/she has no knowledge of any adverse soil or
underground conditions of the Property. Seller and the Property are in
compliance with all requirements of law in connection with the disposal and
storage of waste. To the best of Seller's knowledge, there has been no emission
or discharge of any effluent, contaminants, pollution, sewage or other material
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at or near the Property nor have any polluting, toxic or hazardous substances
been used, generated, treated, stored, released, discharged or disposed of on or
near the Property by the Seller or by others, at any time. No notification of
release of "a hazardous substance" or "hazardous waste' as such terms are
defined in and pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601 et seq., ("CERCLA"), The
Resource Conservation and Recovery Act, 44 U.S.C. Section 6901 et seq. or the
Federal Clean Water Act, 33 U.S.C. Section 1251 et seq, or any state or local
environmental law, regulations or ordinance has been served upon Seller as to
the Property, and the Property is not listed or formally proposed for listing in
the National Priority List promulgated pursuant to CERCLA or on any state list
of hazardous substance sites requiring investigation or clean-up. No
PCB-contaminated, friable asbestos or formaldehyde-based insulation items are
present at the Property.
B. The parties hereto indemnify and hold Agent harmless (including payment of
Agent's reasonable attorney's fees) from and against any and all claims, suits
or causes of action whatsoever arising out of the contamination of, or presence
at, the Property by or of any substance, material or element referred to in this
disclosure 17 caused by or attributable to Buyer, it's agents, representatives
or employees.
29. Compliance.
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 the 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.
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Fox Commercial Real Estate Services, Inc. Buyer: The First National Bank of
Licensed Real Estate Broker West Xxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxx 000, Xxxxxx, XX 00000
By: /s/Xxxxx X. Xxxx, Xx. By: /s/Xxxxxxx X. Xxxxx
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Title: Vice President Title: Chairman of the Board / President
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By: /s/Xxxx X. Xxxxxxxx
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Title: Senior Vice President
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Address: 0 Xxxxx Xxxx Xxxxxx
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Xxxx Xxxxxxx, XX 00000
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ACCEPTED AND APPROVED:
Date: 12-1-97
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Seller: Xxxxxx X. Xxxxxxx, Xx.
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By: /s/Xxxxxx X. Xxxxxxx, Xx.
---------------------------------
Title:
---------------------------------
By: /s/Xxxxx X. Xxxxxxx
---------------------------------
Title:
---------------------------------
Address:
---------------------------------
FOX COMMERCIAL REAL ESTATE SERVICES, INC. is executing this Agreement only for
the purpose of acknowledging receipt and acceptance of the amount as provided in
Section 2 (a) hereof, and agreeing to the provisions of Sections 3 and 7 hereof.
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ADDENDUM TO AGREEMENT OF SALE
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Fox Commercial Real Estate Services, Inc.
Licensed Real Estate Broker
This is an Addendum to the Agreement of Sale ("Agreement") dated
between First National Bank of West Xxxxxxx
as Buyer, and Xxxxxx X. Xxxxxxx, Xx. & Xxxxx X. Xxxxxxx, h/w
as Seller, concerning the property known as 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxx Xxxxxxx, XX 00000
as more specifically described in the Agreement.
The term "Agreement of Sale" shall be deemed to include a Deposit Receipt,
Xxxxxxx Money Contract, or any similar document.
1. Contingency Period: Buyer shall have a period of thirty (30) days
following the execution date (the "Due Diligence Period") within which
to perform certain activities with respect to the property including
without limitation, surveying, topographical studies, soil tests,
engineering, environmental and other tests, preliminary land planning,
review of the zoning classification and other requirements of
applicable laws, statutes and ordinance of the land, determining the
availability of utilities, communications with the applicable
governmental and quasi-governmental authorities in connection with
Buyer's reconstruction of building(s) for office and office related use
(the "Proposed Improvements"). All investigations and inquiries by
Buyer and the results thereof shall not affect or limit the
representations and warranties of Seller contained in this agreement or
waive or limit Buyer's right with respect to such representations and
warranties. If, within the Due Diligence Period, Buyer, in its sole and
absolute discretion, is unsatisfied with the results of such inquiries
and investigations, Buyer shall have the absolute right to so notify
Seller and to terminate this agreement, without further liability or
either party, in which case the deposit previously paid by Buyer plus
all interest accrued thereon shall be refunded to Buyer and Buyer shall
deliver to Seller, at no cost to Seller, all surveys, plans, sketches,
tests and the like (the "Development Data") in connection with the land
which material shall be delivered without representation or warranty as
to their accuracy, veracity or fitness for a particular purpose. During
the Due Diligence Period, however, the parties shall otherwise be fully
bound in accordance with the provisions hereof.
2. Environmental Matters, To the best of Seller's knowledge:
(i) the land is not now, and never has been, used as a landfill,
disposal site or for generating, producing, processing, refining,
handling, transferring, transporting, treating, storing, or disposing
of "toxic wastes", "hazardous wastes", "petroleum" or "hazardous
substances", as such terms are defined In all now and hereafter
existing statutes, laws, ordinances, codes, regulations, rules,
rulings, orders, decrees, directives, policies and requirements by any
federal, state or local governmental authority regulating, relating to,
or imposing liability or standards of conduct concerning public health
and safety or the environment, nor has any toxic waste, hazardous
wastes, petroleum or hazardous substances been released from or onto
the land or any adjoining property.
(ii) the land contains no friable asbestos, asbestos-containing
materials, PCB's PCB containing materials, or urea formaldehyde;
(iii) no underground or above ground storage tanks are located on the
land.
(iv) the land, and any operations thereon, are in compliance with all
applicable federal, state and local environmental statutes, ordinances,
regulations and rules;
(v) there are no conditions on or under the land which require removal,
remediation or corrective action under any applicable federal, state or
local environmental statutes, regulations, ordinances or rules; and
(vi) there are no pending investigations, actions or proceedings
concerning the land for violations of, or which may require removal,
remediation or corrective action under, or for any lien, claim or
charge under any applicable federal, state or local environmental
statutes, regulations, ordinances or rules.
3. Access for Tests: Between the date of this agreement and the
closing, Buyer or its agents, employees or contractors may enter upon
the land for the purpose of making all surveys, plans, soil,
environmental, water, and other tests, inspections and studies as Buyer
may reasonably desire. In such connection, Buyer shall have free
access, for inspection and copying, to all existing surveys, plans,
studies, reports and other relevant information concerning the property
which are in Seller's possession. If Buyer shall cause damage to the
property as a result of the exercise of the foregoing rights, Buyer
shall forthwith restore the affected portion of the land to
substantially its condition immediately prior to the occurrence of such
damage; and Buyer shall indemnify, defend and hold harmless Seller from
and against any loss or liability (including without limitation claims
or injury to persons or damage to property) arising from the negligent
acts or omissions of Buyer, its agents, employees or contractors in the
exercise of Buyer's rights under this paragraph. Buyer shall furnish
Seller with, proof that all of the inspections to be conducted upon the
property by Buyer or its agents shall be protected by liability
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insurance policy naming Seller as an additional insured thereunder and
having a single limit of not less than One Million Dollars
($1,000,000.00), which policy shall be in form and issued by an
insurance company licensed to do business in the Commonwealth of
Pennsylvania. The provision of this paragraph shall survive closing as
well as any earlier termination of this agreement and shall be deemed a
surviving obligation.
4. Tax Free Exchange: Seller reserves the right to elect to sell the
property and purchase a replacement property ("Replacement Property")
as part of a tax deferred exchange under Section 1031 of the United
States Internal Revenue Code ("Code"), by assigning its rights under
this agreement to a qualified intermediary (the "Seller's
Intermediary"), pursuant to the Code pursuant to a deferred exchange
agreement between Seller and Seller's Intermediary ("Seller's Exchange
Agreement"). In the event that Seller makes such elections, Buyer
understands, acknowledges and agrees that Seller's Intermediary shall
sell the property to the Buyer pursuant to the terms of this agreement
and the Seller's Exchange Agreement and acquire the Replacement
Property and that such arrangement shall in no event permit Buyer to
withdraw from or fail to perform any of its obligations under this
agreement of sale. Buyer shall cooperate with Seller and Seller's
Intermediary to complete the sale of the property and the acquisition
of the Replacement Property. Nothing herein contained shall require
Buyer to take title to the Seller's Replacement Property or to execute
any agreement by which Buyer shall assume any obligations with regard
to Seller's exchange. Seller shall indemnify and hold the Buyer
harmless from any liability, cost or expense incurred by Buyer's
compliance with the terms of this paragraph, including Buyer's
reasonable legal fees.
5. Seller to assign leases from Sonobond and Trend to the First National
Bank of West Xxxxxxx at settlement. Said leases to commence March 2,
1998 and expire September 30, 1998. Leases to be submitted to Buyer
during the due diligence period for approval and acceptance. Both
leases to be triple net, plus utilities and janitorial.
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In the event of any conflict between the terms of this Addendum and the
Agreement, the terms of this Addendum shall prevail.
Seller: XXXXXX X. XXXXXXX, XX. Buyer: FIRST NATIONAL BANK OF WEST
& XXXXX X. XXXXXXX XXXXXXX
By: /s/Xxxxxx X. Xxxxxxx By: /s/Xxxxxxx X. Xxxxx
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/s/Xxxxx X. Xxxxxxx
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Title: Title: Chairman of the Board / President
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Address: Address: 0 Xxxxx Xxxx Xxxxxx
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Xxxx Xxxxxxx, XX 00000
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Date: 12-1-97 Date: Nov. 26, 1997
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