Exhibit 10.7
PURCHASE AGREEMENT
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AGREEMENT made as of the 31st day of July, 1996, by and between XXXXXX
FAMILY PARTNERSHIP, LTD., a Pennsylvania limited partnership (hereinafter called
"Seller"), and XXXXXX XXXXX CORP., a New York corporation, (hereinafter called
"Buyer").
The parties hereto, for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged and intending to be legally
bound hereby, agree as follows:
1. Sale. Seller shall sell, assign, transfer and deliver to Buyer
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and Buyer shall purchase, acquire and take from Seller all of the "Included
Assets" (as such quoted term is hereinafter defined) for the "Purchase Price"
(as such quoted term is hereinafter defined) to be paid at the times and in the
manner specified, and in accordance with the terms and conditions of this
Agreement.
2. Included Assets. The "Included Assets" shall mean and shall
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consist of all of Seller's right, title and interest in the following:
(a) All of Seller's right, title and interest as tenant in and under
those certain lease agreements more particularly described on Exhibit "A"
attached hereto ("Lease Agreements"), together with all the leasehold
improvements (the "Improvements") located on each of the demised premises which
form part of the leaseholds and which are owned by Seller ("Leaseholds"), and
together with all of Seller's right, title and interest, if any, in and to any
leasehold improvements
located on the demised premises which form part of the Leasehold and are not
owned by Seller.
(b) Those certain parcels of land described in Exhibit "B-1" through
"B-4" attached hereto, constituting all of the Seller's interest in real estate
owned as of the date hereof, together with any and all buildings, structures and
improvements thereon, any and all rights and privileges pertaining thereto or to
any of such buildings, structures and improvements and, to the extent
constituting real property, all fixtures, machinery, installations, equipment
and other property attached thereto (the "Real Property").
(c) All of the plants, improvements, furnishings, trade fixtures,
machinery, equipment, tools, spare parts, supplies, and other personal property
owned by Seller, if any, and now installed in, attached to or situated in or
upon the Leaseholds or the Real Property and used in conjunction with such
Leaseholds or Real Property and the operation of the document storage warehouses
which are operated on the Leaseholds and Real Property ("Included Personal
Property").
(d) All of Seller's interest as a general or limited partner in any
lessor of the Leaseholds (the "Partnership Interests") described on Exhibit "C"
hereto.
(e) All of Seller's title to, interest in and rights under and to (i)
leases of personal property, if any, (the "Personal Property Leases"), (ii)
refunds and proceeds and, to the extent assignable, other rights under insurance
policies held
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by the Seller, if any; (iii) purchase orders, contracts and all other contracts,
commitments and agreements of Seller entered into in the ordinary course of
business prior to Closing, if any (the "Executory Contracts"), and (iv) licenses
and permits, if any.
(f) All documents and records of Seller relating to the Included
Assets.
3. Purchase Price. The Purchase Price for all of the Included
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Assets, which Buyer hereby agrees to pay to Seller is nine million, three-
hundred forty one thousand, eighty-nine dollars ($9,341,089.00) which is
allocated $5,752,000 to the Real Property, $2,764,223, to the Leaseholds, and
$824,866.00 to the Partnerships, and shall be paid by bank treasurer's or
cashier's check of a member bank of the Federal Reserve System or by wire
transfer to the order of Seller at Closing.
4. Closing. (a) Closing shall be made on July 31, 1996 at the
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offices of Cozen and X'Xxxxxx, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX. 00000 at
9:30 a.m. or at such other time and place as Seller and Buyer may agree. All of
the exhibits and schedules to this Agreement shall be attached hereto and
executed at Closing by the Buyer and Seller.
(b) Notwithstanding any other provision of this Agreement, Closing
hereunder is conditioned upon and shall occur substantially simultaneously with
the closing of a private placement offering of certain notes by the Buyer and
the refinancing of certain credit facilities by the Buyer.
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5. Transaction at Closing.
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(a) Possession of the Included Assets shall be given by Seller to
Buyer at closing by:
(i) execution by Seller and delivery to Buyer of the assignment of
the Leaseholds ("Assignment, Assumption and Indemnification Agreement") in the
form of Exhibit "D" attached hereto;
(ii) except as provided in Section 6(b) below, delivery by Seller to
Buyer of the consent of those lessors under the Lease Agreements whose consent
is necessary or required to the Assignment, Assumption and Indemnification
Agreement substantially in the form of Exhibit "E" attached hereto;
(iii) delivery by Seller to Buyer of a copy of the notices delivered
to those lessors to whom notice of the Assignment is required under the Lease
Agreements substantially in the form of Exhibit "F" attached hereto;
(iv) if, and only if, required by any lender of Buyer, delivery by
Seller to Buyer of a statement from such lessors under the Lease Agreements
specifically designated by Buyer acknowledging the subsistence of the Lease
Agreements, the termination date of the present term, that Seller is not in
default, and the date to which all rent and all other charges have been paid in
the form of Exhibit "G" attached hereto;
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(v) execution by Seller and delivery to Buyer of those Deeds for the
Real Property in the form of Exhibits "H-1" through "H-4" attached hereto;
(vi) delivery by Seller to Buyer of such consents, assignments of
Partnership Interests, amendments to partnership agreements, and amendments to
certificates of limited partnership, all of which will have been executed by
Seller and all other general and, if necessary, limited partners of the lessors
of the Leaseholds, as may be necessary or required in order to transfer and
assign Seller's Partnership Interests in the lessors of any Leasehold to Buyer;
(vii) termination of all of the subleases between Seller as sublessor
and Buyer as sublessee for the Leaseholds in the form attached hereto as Exhibit
"I", and termination of all of the leases between Seller as lessor and Buyer as
lessee for the Real Property in the form attached hereto as Exhibit "J".
(viii) execution by Seller and delivery to Buyer of a Xxxx of Sale and
Assignment and Assumption Agreement for Included Personal Property, Executory
Contracts, rights under insurance policies, and licenses and permits, if any, in
the form of Exhibit "K" attached hereto; and
(ix) execution by Seller and delivery to Buyer of such other deeds,
bills of sale, and other instruments of assignment as the Buyer may reasonably
request and as may be
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necessary to vest Seller's title to all of the Included Assets in the Buyer.
(b) At Closing Buyer shall agree in writing to assume all of the
obligations of Seller under the terms of the Lease Agreements in the form of the
Assignment, Assumption, and Indemnification Agreement (Exhibit "D") and to
indemnify, defend and save Seller harmless from all claims, liabilities, costs
and expenses which may be asserted against Seller or which Seller may incur or
suffer after settlement arising out of or with respect to the Leaseholds, Lease
Agreements, the Real Property, or the Included Personal Property or any other of
the Included Assets and pertaining to periods of time or events both before and
after settlement, all in the form of Exhibit "D" (Lease Agreements) or Exhibit
"L" (Real Property) attached hereto.
(c) At Closing Buyer shall deliver the Purchase Price to Seller in the
manner described in Section 3.
(d) At Closing, Seller shall deliver to Buyer such satisfactions
and/or releases of mortgages and security interests from the various lenders
holding liens and/or encumbrances on any of the Real Property, Leaseholds,
Included Personal Property and any other Included Assets, such that Buyer will
receive title to the Included Assets free and clear of any liens and
encumbrances.
(e) At Closing all of the "Apportionments" described in Section 10
shall be made, and the Seller and Buyer
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will enter into a closing statement reflecting all such Apportionments.
(f) At Closing Buyer shall execute such amendments to partnership
agreements, amendments to certificates of limited partnership, assumption
agreements and any other documents necessary to acquire Seller's Partnership
Interests in any of the lessors of any Leasehold.
(g) At Closing Buyer will assume and agree to perform in writing all
of Seller's obligations required to be performed or pertaining to periods of
time subsequent to Closing under the Xxxx of Sale and Assignment and Assumption
Agreement (Exhibit "K").
6. Consent of Lessors.
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(a) Seller shall use its reasonable efforts to obtain and deliver to
Buyer the consent of the lessors under the Lease Agreements where necessary and
required under any of the Lease Agreements as required under Subsections
5(a)(ii). The Buyer shall cooperate as may be requested by Seller in obtaining
such consents, and shall provide all financial and other information as may
reasonably be requested by Seller and its lessors. The consents shall be
subject to such conditions as the lessors may impose, provided that such
conditions are not substantially in addition to those undertaken by the Buyer
under the Lease Agreement.
(b) In the event that Seller fails to obtain the consent of any lessor
under any of the Lease Agreements, this
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Agreement shall not terminate but instead Buyer shall purchase all the Included
Assets other than those Leaseholds for which consent has not been obtained. For
any Leasehold for which consent has not been obtained, Buyer may in its sole
discretion:
(i) elect not to purchase such Leasehold, in which event the
Purchase Price shall be reduced or adjusted by the agreed appraised value of
such Leasehold and the sublease for such Leasehold between Seller as sublessor
and Buyer as sublessee shall not be terminated but shall remain in full force
and effect;
(ii) purchase the Leasehold, notwithstanding the failure to obtain
the lessor's consent, in which event no reduction or adjustment shall be made to
the Purchase Price, or
(iii) require the Seller to exercise under the Lease Agreement any
option to purchase the Leasehold property, if any such option has been granted
in the Lease Agreement and is exercisable at the time of Closing, or to exercise
under the Limited Partnership Agreement any option to purchase the balance of
the Partnership Interests in the lessor, if any such option has been granted in
the Limited Partnership Agreement and is exercisable at the time of Closing, in
which event the Purchase Price will be increased by the cost of such
acquisition.
7. Seller's Representations and Warranties. Seller hereby represents
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and warrants that:
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(a) Seller is a limited partnership duly organized and validly
existing in good standing under the laws of the Commonwealth of Pennsylvania.
Seller has delivered to Buyer a copy of its limited partnership agreement and
all amendments thereto, and its Certificate of Limited Partnership and all
amendments thereto.
(b) Seller has full power and authority to own and hold the Included
Assets, to carry on its business, and to own and operate its properties, as such
business is now conducted and such properties are now owned, leased or operated,
to make, execute, deliver, and perform this Agreement which has been duly
authorized and approved by all required action of the general and limited
partners and to carry out all actions required of Seller pursuant to the terms
of this Agreement.
(c) This Agreement and the documents to be executed on behalf of
Seller hereunder when executed and delivered will constitute valid and legally
binding obligations of Seller and are enforceable in accordance with their
terms, except to the extent enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and similar laws relating to or affecting
the enforcement of creditors' rights.
(d) Seller's execution of this Agreement and the documents herein
required and the consummation of the transactions herein contemplated will not
violate any contract, lease, sublease, mortgage, note, security agreement or
other agreement to which Seller is a party or by which it is bound nor
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violate any order or decree of any court or administrative body to which it may
be subject.
(e) Seller is the tenant under all of the Lease Agreements, Seller
has not received notice from any lessor of any Lease Agreement of a default
under any of the Lease Agreements which default has not been cured as of the
date hereof, and Seller has no knowledge of any condition which exists or event
which has occurred which, with the giving of notice or lapse of time or both,
would constitute a default under any of the Lease Agreements except insofar as
Seller's agreement to enter into the Assignment of Leases with Buyer may be
deemed to be a violation of any covenant not to assign or sublet without the
lessor's consent contained in any of the Lease Agreements.
(f) The copies of the Lease Agreements described in Exhibit "A", and
related documents which have been heretofore delivered to Buyer by Seller, are
true and correct copies of such Lease Agreements and documents, and include all
amendments, if any, to the date hereof.
(g) The Seller is the lawful owner of the Real Property, in fee
simple, and has good and valid title to all other Included Assets, and has full
right to sell, convey, transfer assign and deliver the Real Property and all
other Included Assets, without any restrictions whatsoever.
(h) Except for mortgage and other liens, which secure indebtedness for
borrowed money, and which will be discharged at or prior to Closing, except for
permitted title
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exceptions on the Real Property described in Section 11(a) below, except for the
restrictions on assignment set forth in certain of the Lease Agreements
described in Section 5(a)(ii), and any liens, security interests and
encumbrances which may arise against Seller in favor of a lessor under a Lease
Agreement, all of the Included Assets are free and clear of any security
interests, liens, claims, charges, options, mortgages, debts, leases,
conditional sales agreements, title retention agreements, encumbrances of any
kind, or restrictions against the transfer or assignment thereof the
("Encumbrances") and there are no filings in any jurisdiction under the Uniform
Commercial Code or with the registry of deeds showing Seller as debtor, which
create or perfect, or purport to create or perfect any Encumbrances in or on any
of the Included Assets.
8. Exclusion of Warranties Not Expressed and Limitation of Seller's
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Liability. Buyer has been a sublessee of Seller in all of the Leaseholds, and a
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lessee of Seller in all of the Real Property. As a result, except for the
warranties expressly set forth in this Agreement, Seller makes no warranties,
express or implied, to Buyer, and Buyer expressly warrants, represents and
acknowledges that:
(a) Buyer has been in possession of and has made a physical
examination of the Leaseholds, the Real Property, the Included Personal
Property, and all of the other Included Assets, and hereby accepts same in "as
is" condition.
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(b) Neither Seller nor any agent on Seller's behalf has made, and
Seller does not herein make any warranty or representation either express or
implied as to the condition, environmental status or repair of the Leaseholds,
Real Property, Included Personal Property, or other Included Assets, and Buyer
is relying solely upon Buyer's own examination and investigation as to such
condition.
(c) Seller makes no representative or warranty either express or
implied as to any applicable building, zoning, environmental, health or safety
statute or regulation including the Occupational Safety and Health Act of 1970
or any other rule, law, statute or ordinance whatsoever.
(d) Buyer is not relying upon, and Seller has not made and does not
herein make any representation or warranty as to the income or expenses with
respect to the specific operation of the Leaseholds or Real Property as a
document storage warehouse, and in particular Buyer acknowledges that Seller has
not made and shall not be deemed to have made any express or implied
representation or warranty as to the gross receipts or profits heretofore
earned, whether by Seller or any other person, and with respect to all such
matters Buyer is relying solely on its own investigation.
(e) Seller makes no representation or warranty that the transactions
contemplated by this Agreement are within or outside of the purview of the any
Bulk Sales Statute, in effect in any state where any Included Assets are
located, and
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Buyer hereby releases Seller from all claims which Buyer has or may have against
Seller for failure to comply with the provisions thereof.
(f) Seller's liability for any representation or breach of warranty
shall be limited to actual damages sustained by Buyer and shall not include loss
of profits, loss of bargain, or consequential or other special damages.
9. Representations and Warranties of Buyer. In addition to Buyer's
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warranties and representations contained in other portions of this Agreement,
Buyer hereby represents and warrants that:
(a) Buyer is a corporation duly organized and validly existing in good
standing under the laws of the State of New York.
(b) Buyer has full power and right to make, execute, deliver, and
perform this Agreement which has been duly authorized and approved by all
required action of its board of directors and shareholders and to carry out all
actions required of Buyer pursuant to this Agreement.
(c) This Agreement and the documents to be executed on behalf of Buyer
hereunder constitute valid and legally binding obligations of Buyer and are
enforceable in accordance with their terms, except to the extent enforceability
may be limited to bankruptcy, insolvency, reorganization, moratorium and similar
laws relating to or affecting enforcement of creditor's rights.
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(d) The Buyer's execution of this Agreement, and the documents herein
required and the consummation of the transactions herein contemplated will not
violate any contract lease, sublease, mortgage, note, security agreement, or
other agreement to which Buyer is a party or by which it is bound nor violate
any order or decree of any court or administrative body to which it may be
subject.
10. Apportionments.
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(a) All rent payable with respect to the Lease Agreements and all
other items payable as additional rent or otherwise under the terms of the Lease
Agreements (including sales tax) shall be apportioned pro rata between Buyer and
Seller on a per diem basis as of the date of Closing. If any real estate taxes
have been the responsibility of Seller, such taxes shall be apportioned as of
the date of Closing according to the tax years as provided in the Lease
Agreement. Seller shall obtain, as close to Settlement as possible, readings of
all electric, water and gas meters within the Leasehold and shall pay to the
public utility companies all charges for usage prior to the date of Closing, if
such is the responsibility of Seller. All sums payable by Buyer or Seller shall
be paid at the Closing.
(b) With respect to the Real Property, all real estate taxes, water
and sewer rent (if any), and utilities shall be calculated as levied and pro-
rated between Seller and Buyer as of the date of Closing. All real estate
transfer taxes shall be divided equally between Seller and Buyer for the Real
Property in
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Pennsylvania, and will be paid by the Buyer or Seller in accordance with the
customary practice for each of the other jurisdictions in which they are
located.
(c) All rent under any Personal Property Leases, any personal property
taxes, and any expense items otherwise prepaid by Seller on any Included Assets
shall be apportioned and paid or adjusted between Seller and Buyer as of the
date of closing.
11. Title to Real Property
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(a) The Real Property is to be conveyed at Closing to Buyer either by
General Warranty Deed or Special Warranty Deed, as selected by Buyer, subject
to:
(i) all taxes and assessments not yet due and payable;
(ii) all facts which would be disclosed by an accurate survey of
the Real Property;
(iii) municipal, county and state ordinances, statutes, rules
and regulations, zoning, planning, subdivision and environmental regulations and
ordinances;
(iv) rights, public and private, together with flooding and
drainage rights, if any in and to all streams, rivers or water courses,
crossing, bounding or affecting the Real Property; and
(v) all other restrictions, easements and matters of record or
easements visible on the ground; otherwise title to the Real Property will be
good and marketable and such
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as will be insured by any reputable title insurance company at its regular
rates.
(b) Seller will not affirmatively create a defect in title subsequent
to the date of this Agreement. If a defect is created Buyer may waive same or
require Seller to remove the defect prior to closing.
(c) With respect to any or all parcels of Real Property, Buyer may
elect to secure at Buyer's expense a title insurance commitment from a reputable
title company, pursuant to which the title company shall agree to issue to Buyer
at Buyer's expense, an owner's title insurance policy on the now current ALTA
standard form policy, subject to conditions in the commitment. In the event the
Seller is unable to give good, marketable and insurable title to any particular
parcel which comprises the Real Property, Buyer shall have the option of taking
such title as Seller can give without abatement of the Purchase Price, or of not
purchasing the particular Real Property with the defect in title.
12. Municipal Notices. Seller represents and warrants that as of the
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date hereof, Seller has received no written notice which heretofore has not been
complied with, from any municipal or other governmental authority, requiring or
calling attention to the need for any work, repairs, construction or
installations on, about or in connection with the Leaseholds, Real Property or
any other Included Assets, or notifying Seller of any violation in connection
with the Leaseholds, Real Property or other
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Included Assets. In the event that any such notice is hereafter received by
either Seller or Buyer, the recipient shall promptly deliver a copy of such
notice to the other party hereto. Buyer shall, at Buyer's expense, promptly
comply with the requirements of any and all such notices hereafter issued,
including but not limited to the payment of any fines, interest or penalties
which result from Buyer's violations relating to its use and operation of the
Leasehold, Real Property or other Included Assets and shall indemnify, defend,
exonerate and hold Seller harmless therefrom.
13. Tender. With respect to the Real Property, formal tender of an
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executed deed and purchase money is hereby waived.
14. Risk of Loss; Insurance. Seller shall maintain or shall cause
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Buyer in its capacity as lessee of any Real Property, or sublessee of any
Leasehold, to maintain adequate insurance of the kinds, covering such risks, and
in such amounts and with such deductibles and exclusions as are consistent with
prudent business practice and prior experience. Subject to the rights of any
lessor as provided in any Lease Agreement and any mortgagee of any of the Real
Property, Seller and Buyer shall cooperate to use the proceeds of any such
insurance to repair or replace any Leasehold building and Improvements, or any
building and improvements on any Real Property as expeditiously as is possible
consistent with prudent business practices. The occurrence of any casualty will
not excuse performance under this Agreement.
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15. Conditions Precedent to Buyer's Obligation. The obligation of
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the Buyer to consummate the Closing shall be subject to the satisfaction at or
prior to Closing of each of the following conditions:
(a) The representations and warranties of the Seller pursuant to this
Agreement shall be true and correct as of the Closing with the same effect as
though made or given at Closing;
(b) Seller shall have performed and complied with all of its
obligations under this Agreement to be performed or complied with at or prior to
Closing;
(c) The Included Assets shall not have been, and shall not be
threatened to be, adversely affected in any way as a result of fire, disaster or
accident except for losses fully covered by Seller's insurance;
(d) Except as provided in Section 6(b) of this Agreement, Seller shall
have obtained all necessary consents of lessors under the Lease Agreements and
any other third party whose consent is required in order for the transactions
under this Agreement at no expense to Buyer in form and substance satisfactory
to the Buyer;
(e) No restraining order or injunction shall prevent any of the
transactions contemplated by this Agreement, and no action, suit or proceeding
shall be pending before any court, administrative body or arbitration panel
which seeks to restrain or enjoin or seeks damages or other relief in connection
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with this Agreement or consummation of the transactions contemplated hereby;
(f) All proceedings in connection with the transactions contemplated
by this Agreement and all certificates and documents delivered to the Buyer in
connection with the transactions contemplated by this Agreement shall be
satisfactory in all respects to Buyer, and Buyer shall have received the
originals or certified or other copies of all such records and documents as
Buyer may reasonably request.
16. Conditions Precedent to Seller's Obligation. The obligation of
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the Seller to consummate the Closing shall be subject to the satisfaction at or
prior to Closing of each of the following conditions:
(a) The representations and warranties of the Buyer pursuant to this
Agreement shall be true and correct as of Closing with the same effect as though
made or given at Closing;
(b) Buyer shall have performed and complied with all of its
obligations under this Agreement that are to be performed or complied with on or
prior to Closing;
(c) All proceedings in connection with the transactions contemplated
by this Agreement and all certificates and documents delivered to the Seller in
connection with the transactions contemplated by this Agreement shall be
satisfactory in all respects to Buyer, and Buyer shall have received the
originals or certified or other copies of all such records and documents as
Buyer may reasonably request.
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17. Enforcement. Seller and Buyer shall have the right at all times
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to enforce the provisions of this Agreement in strict accordance with the terms
thereof, notwithstanding any conduct or custom on the part of the Seller or
Buyer in refraining from doing so at any time or times. The failure of Seller or
Buyer at any time or times to enforce its rights under such provisions strictly
in accordance with the same, shall not be construed as having created a custom
in any way or manner contrary to the specific provisions of this Agreement or as
having in any way or manner modified or waived the same. All rights and remedies
of the Seller and Buyer, which include the right for injunctive or other
equitable relief, are cumulative and concurrent and the exercise of one right or
remedy shall not be deemed a waiver or release of any other right or remedy.
18. Time Made of the Essence. Time, whenever specified herein for
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performance by Seller or Buyer of any of their respective obligations hereunder,
is hereby made and declared to be of the essence of this Agreement.
19. Survival of Representatives and Warranties. The representations
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and warranties of the Seller and Buyer respectively made in this Agreement, or
otherwise made in connection with the transactions contemplated hereby, shall
survive Closing and consummation of the transactions contemplated hereby.
20. Brokers. Seller and Buyer represent and warrant to each other
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that neither has dealt with any broker, finder or
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other intermediary with respect to this transaction. Seller and Buyer hereby
agree to indemnify, defend and hold each other harmless from all claims of any
and all brokers, finders or those asserting to have acted in similar capacity on
behalf of the other party.
21. Agreement Not To Be Recorded. Neither this Agreement, nor any
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memorandum thereof, nor any assignment thereof (if permitted) shall be filed of
record in any office or place of public record, and if Buyer shall fail to
comply with the terms hereby by recording or attempting to record the same, it
shall not operate to bind or cloud the title to any of the Included Assets.
Seller shall, nevertheless, have the right forthwith to institute appropriate
legal proceedings to have the same removed from record. If Buyer or any agent or
other person acting for Buyer should cause or permit this Agreement, a
memorandum thereof, or assignment thereof, or a copy thereof, to be filed in an
office or place of public record, Seller may, at its option and in addition to
Seller's other rights and remedies, treat such act as a default of this
Agreement on the part of Buyer. However, the filing of this Agreement or any
memorandum thereof, or any assignment thereof, or of copies of the same, in any
suit or other legal proceeding in which such documents are relevant or material
shall not be deemed to be a violation of this paragraph.
22. Notices. All notices, demands or other communications which are
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required or are permitted to be given hereunder shall be in writing and shall be
delivered by Federal Express or
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similar guaranteed overnight carrier, or mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed:
(a) If to Seller:
Xxxxxx Family Partnership, Ltd.
000 Xxxx Xxxxxx
Xxxx xx Xxxxxxx, XX 00000
(b) If to Buyer:
Xxxxxx Xxxxx Corp.
000 Xxxx Xxxxxx
Xxxx xx Xxxxxxx, XX 00000
or to such other address as either party shall designate by notice in accordance
with the provisions of this paragraph. The same shall be deemed given upon three
(3) days after the earlier of the date of mailing or upon the receipt thereof by
the addressee, as evidenced by the certified mail return receipt postmark, or
upon delivery if delivered by Federal Express, or similar carrier.
23. Assignability, Successors and Assigns. Neither this Agreement
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nor any of Seller's or Buyer's rights hereunder may be assigned, either
voluntarily or by operation of law by Seller or Buyer without the prior written
consent of the other party hereto, which consent the other party may withhold in
its absolute and sole discretion and regardless of whether such refusal would
violate any undertaking of good faith or reasonableness which might be implied
in transactions of this type. Notwithstanding any assignment of this Agreement
or of any
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of Buyer's rights hereunder, Buyer shall continue to be fully obligated for the
performance of all of Buyer's obligations hereunder and under the other
documents executed pursuant hereto, and upon request and prior to the effective
date of any such assignment, shall deliver an assumption in form approved by
Seller's counsel of all of Buyer's obligations executed by the authorized
assignee, together with such further security therefore as Seller may require.
Subject as provided above, this Agreement shall extend to and bind all inure to
the benefit of the successors and assigns of Seller and of Buyer.
24. Whole Agreement - Alteration or Amendment. The whole agreement
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between the parties relative to the sale of the Included Assets is contained
herein and other documents and instruments to be executed and delivered pursuant
to the terms hereof, and the parties are not bound by any agreements,
understandings, conditions, warranties or representations otherwise than as are
expressly set forth and stipulated herein. No change, alteration, amendment,
modification or waiver of any of the terms or provisions hereof shall be valid
unless the same be in writing and signed by the parties.
25. Further Assurances. From time to time, at the request of the
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Buyer and without further consideration, the Seller shall execute and deliver
such other instruments of conveyance and transfer and take such other actions as
the Buyer may require more effectively to convey any other Included Assets to
Buyer. Seller and Buyer shall also execute and deliver to the
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other party such other instruments as may reasonably be required in connection
with the performance of this Agreement and each shall take such further actions
to convey out the transactions contemplated by this Agreement.
26. Governing Law. This Agreement and the rights and obligations of
-------------
the parties with respect thereto shall be construed in accordance with the laws
of the state of Pennsylvania applicable to contracts made and to be performed
therein, without giving effect to the principles of conflict of laws.
27. Cross-Default. A default by Seller or Buyer under this Agreement
-------------
or any other document or instrument executed by Seller or Buyer pursuant to this
Agreement, shall be a default under all of the aforesaid.
28. No-Set-Off. All payments due under this Agreement, or any other
----------
document or instrument executed by Buyer pursuant to this Agreement shall be
made without right of set-off or deduction for any reason whatsoever.
29. Severability. No provision of this Agreement which may be deemed
------------
unenforceable shall in any way invalidate any other provision hereof, all of
which shall remain in full force and effect.
30. Captions and Headings. The captions or headings of the
---------------------
paragraphs hereof are for convenience only and shall not control or affect the
meaning or construction of any of the terms or provisions of this Agreement.
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31. Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
32. Waiver of Conflict of Interests. Each of Seller and Buyer has
-------------------------------
requested and is utilizing the professional legal services of Cozen and X'Xxxxxx
in connection with this Agreement and Closing. Cozen and X'Xxxxxx has
previously acted as counsel for each of Seller and Buyer. Each of Seller and
Buyer have discussed with each other and Cozen and X'Xxxxxx that Seller and
Buyer are substantially aligned in interest as to method and manner in which
this transaction has been structured, that while there may be some difference of
interest between Seller and Buyer, they do not believe the interests to be
material, that each of the general and limited partners in Seller are also
shareholders in Buyer, and they believe this transaction as structured to be
advantageous to all of them in their capacities as individuals and entities.
Seller and Buyer acknowledge that Cozen and X'Xxxxxx has fully explained to each
of them that they each have conflicting rights with respect to each other, that
they can and should consider retaining separate legal representation because of
the resulting conflict of interest, that not every possible conflict between
Seller and Buyer can ever be anticipated. Nevertheless both Seller and Buyer
have determined individually and jointly to use the professional services of
Cozen and X'Xxxxxx, and with such full disclosure and
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knowledge, Seller and Buyer hereby consent to joint representation and waive any
conflict of interest and waive all rights that either of them has to seek
separate counsel from the one being used by the other.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
WITNESS: XXXXXX FAMILY PARTNERSHIP, LTD.
BY: /s/ J. Xxxxx Xxxxxx
-------------------------- -------------------------------
General Partner Seller
LIMITED PARTNERS:
/s/ Xxxxxxx Xxx
-------------------------- --------------------------------
Xxxxxxx Xxx
/s/ Xxx X. Xxxxxx, Xx.
-------------------------- --------------------------------
Xxx X. Xxxxxx, Xx.
/s/ Xxxxxxx Xxxxxx
-------------------------- --------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxxxxxxx X. Xxxxxxx
-------------------------- --------------------------------
Xxxxxxxxx X. Xxxxxxx
[SIGNATURES CONTINUED ON NEXT PAGE]
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[SIGNATURES FROM PRIOR PAGE]
/s/ Xxxx X. Xxxxxx
-------------------------- --------------------------------
Xxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxx
-------------------------- --------------------------------
Xxxxxxx X. Xxxxx
ATTEST: XXXXXX XXXXX CORP.
BY: /s/ J. Xxxxx Xxxxxx
-------------------------- --------------------------------
President Buyer
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