AGREEMENT OF SALE
Exhibit
10.4
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1.
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Parties: This
Agreement of Sale is made on this 21st day of May, 2008 by and
between XXXXXX XXXXX LIMITED PARTNERSHIP, a Pennsylvania Limited
Partnership (“Seller”) having a mailing address of 0000 Xxxxx 000 Xxxxxx
Xxxx, XX 00000 and Xxxxxx and Xxxxxxx Xxxxxxx (“Buyer”) having a mailing
address of 000 Xxxxxxxxx Xx. Xxxxxxxxxxxx, XX 00000, or their
assigns.
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2.
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Covenant to
Sell: WITNESSETH THAT: Seller and Buyer
intending to be legally bound hereby covenant and agree as
follows: Seller shall, on the date hereinafter specified, by
deed of general warranty, grant and convey unto Buyer in fee simple, good
and marketable title, clear of all liens and encumbrances, except as
hereinafter set forth, the
following:
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3.
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Description: All
that certain parcel of property described in Schedule A attached
hereto.
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4.
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Title Reference:
Reserved.
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5.
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Items Included in
Sale: The conveyance will be made together with all the
buildings, improvements, easements, rights-of-way, licenses, agreements
and appurtenances whatsoever thereunto appertaining and hereafter erected
thereon responsibility for which shall be assumed by Buyer. This contract
does not include property rented for
X-XXXX.
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0.
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Consideration: Buyer
will purchase the Property and pay therefore the sum of One Million Two
Hundred Fifty Thousand Dollars ($1,250,000.00) (“Purchase Price”), payable
in cash or certified funds upon
closing.
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7.
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Seller’s Representation &
Warranties: Seller hereby represents and warrants to
Buyer as to the following matters that such representations and warranties
are to be deemed continuously made during the term of this Agreement and
shall survive the closing and transfer of
title:
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MECHANICS’
LIENS: No unpaid improvements, alterations or repairs that
might form the basis of mechanics’ liens have been made to the Property, nor has
Seller signed or agreed to any contract for such work or services, nor has
Seller been notified of any money owed for such work or services;
8. Seller’s
Expenses: Seller shall be responsible for all closing
costs.
9. Buyer’s
Expenses: Buyer shall not be responsible for any closing
costs.
10. Default: In
the event of default:
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(A)
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By
Buyer: Seller shall, as Seller’s sole remedy, receive from
Buyer any out of pocket expenses seller incurred for the proposed sale as
liquidated damages in which event this Agreement shall become null and
void, and both parties shall thereupon be released of all further
liability hereunder. It is hereby agreed that Seller’s incurred
expenses constitute a reasonable liquidation thereof and not a
penalty.
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(B)
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By
Seller: Buyer shall, as Buyer’s sole remedy, receive from Seller any out
of pocket expenses Buyer incurred for the proposed sale as liquidated
damages in which event this Agreement shall become null and void and both
parties shall thereupon be released of all further liability
hereunder. It is hereby agreed that Buyer’s incurred expenses
constitute a reasonable liquidation thereof and not a
penalty.
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11. Title Insurance and
Survey: Seller shall order a title insurance commitment from
Land America Title or a title insurance company approved by Buyer. At the
closing, Buyer shall be furnished with an owner’s policy of title insurance in
the full amount of the purchase price, subject only to such exceptions and
limitations approved by Buyer. Seller shall pay the cost of such title insurance
policy and any search or escrow fees in connection therewith.
12. Examination of
Title: Buyer shall within (5) days of receipt of the title
commitment, notify Seller of any defects in title to which Buyer raises any
objections and objections to any exceptions or limitations set forth in the
title commitment. Seller shall use reasonable efforts to cure such
defects within five (5) days of receipt of such notice. If Seller has
not cured such defects within such five (5) day period, Buyer, at its sole
option, may terminate this Agreement by delivering written notice to Seller, or
may elect to waive in writing any such title defects.
13. Inspections: Buyer,
through its employees, agents, contractors or consultants, shall be permitted to
enter the Property and to inspect the same and to conduct certain testing
thereon for the purpose of performing engineering, soil, feasibility,
environmental or similar studies. Buyer shall not interfere with Seller’s
operations during such inspections and testings. Buyer shall return the Property
to its original condition after any testing.
14. No
Broker: Seller represents and warrants to Buyer that no person
or entity is entitles to a brokerage fee or commission arising out of the sale
of the Property. Seller shall indemnify and hold Buyer harmless from any and all
claims for any such fees or commissions including, without limitation, costs and
attorney’s fees.
15. Notice: Except
as otherwise provided herein, any notices between the parties hereto shall be in
writing and may be served in the manner provided by law for the service of
process in equity or mailed by certified or registered mail to either party at
the respective addresses above set forth. If mailed, shall such
notice shall be effective upon the second business day after the posted
date.
16. Entire
Contract: This Agreement constitutes the entire contract
between the parties hereto and there are no other understandings, oral or
written, relating to the subject matter hereof. This Agreement may
not be changed, modified or amended, in whole or in part, except in writing,
signed by all parties.
17. Miscellaneous: Wherever
used in this Agreement, the singular shall include the plural, the plural the
singular, and the use of any gender shall be applicable to all
genders.
18. Headings Not
Controlling: Headings used in this Agreement are for reference
purposes only and shall not be deemed a part of this Agreement.
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19. Severability: If
any particular term, covenant or provision of this Agreement shall be determined
to be invalid and unenforceable, the same shall not affect the remaining
provisions of this Agreement which shall nevertheless remain in full force and
effect.
20. Execution: No legal or
equitable rights or obligations shall commence unless and until this Agreement
is executed by all of the parties hereto and an executed copy is actually
delivered to each of the parties.
21. Binding
Effect: This Agreement and all of its terms and conditions
shall extend to and be binding upon the parties hereto and upon their respective
heirs, executors, administrators, successors and assigns.
[SIGNATURES
TO FOLLOW ON NEXT PAGE]
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WITNESS the due execution as of this
16
day of June ,
20 09 .
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WITNESS:
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SELLER:
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XXXXXX
XXXXX LIMITED PARTNERSHIP
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By:
Xxxxx Xxx Co., General Partner
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/s/ Xxxxx X. Xxxxx
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/ s/ Xxxxxxxx Xxxxx
Xxxxxxx
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Print
name: Xxxxxxxx Xxxxx Magerko
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Manager
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WITNESS:
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BUYER:
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/s/ Xxxxxxx X.
Xxxxxxxx
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By:
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/s/ Xxxxxx X.
Xxxxxxx
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Print
name: Xxxxxx Xxxxxxx
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WITNESS:
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BUYER:
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/s/ Xxxxxxx X.
Xxxxxxxx
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By:
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/s/ Xxxxxxx Xxxxxxx
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Print
name: Xxxxxxx
Xxxxxxx
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SCHEDULE
A
SUBJECT
PROPERTY
