AGREEMENT
FOR THE SALE OF REAL ESTATE
THIS AGREEMENT is dated and effective as of this 10th day of May, 2006, by and
between the parties identified in paragraph 1 below.
1. PARTIES:
TD Banknorth, N.A., as successor in interest to Xxxxxx United Bank,
successor in interest to Dime Savings Bank (also known as Dime Savings Bank
of Xxxxxxx County), or its assignee
0000 XxxXxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
hereinafter called Seller, and
First National Bank of Xxxxxxx County
0 Xxxxx Xxxx Xxxxxx
Xxxx Xxxxxxx, XX 00000
hereinafter called Buyer.
2. PROPERTY: Seller hereby agrees to sell and convey to Buyer, and Buyer hereby
agrees to purchase from Seller, all that certain lot or piece of ground with
buildings, improvements and fixtures (other than trade fixtures) thereon erected
("Property"), located at 1 and 0 Xxxxx Xxxx Xxxxxx, situate in Borough of West
Xxxxxxx, Xxxxxxx County, Pennsylvania, also known as UPI Nos. 1-9-120 and
1-9-121, consisting of +/- .1732 acres.
3. PURCHASE PRICE: Three Million Eight Hundred Thousand Dollars ($3,800,000.00)
("Purchase Price"), which shall be paid to the Seller by the Buyer as follows:
(A) Amount due at signing of Agreement $40,000.00
(B) Balance in Cash or certified check or
title company check at time of Settlement: $3,760,000.00
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TOTAL $3,800,000.00
4. MORTGAGE CONTINGENCY: None.
5. DEPOSIT: The Forty Thousand Dollars ($40,000.00) referred to in paragraph
3(A) ("Initial Deposit") shall be delivered, within three (3) business days
after the Effective Date of the Agreement, as defined below, to Escrowee, as
defined below, for deposit in an account bearing interest at the prevailing rate
of interest. The Initial Deposit, together with any interest (referred to as
"Deposit"), shall be credited to the Purchase Price at the time of Settlement,
as defined below in Paragraph 7. If this Agreement is terminated by Buyer in
accordance with Paragraph 7(B), Paragraph 9(B), Paragraph 15(B), or Paragraph
20(B) hereof, or terminated by Seller pursuant to Paragraph 29(G), the Deposit
together with any interest shall be refunded to Buyer. If this Agreement is
terminated for any other reason, including a default by Buyer, the Deposit
together with any interest shall be delivered to Seller as Seller's property.
6. ENTRY PRIOR TO SETTLEMENT; DUE DILIGENCE:
(A) The Seller grants the Buyer, its agents, contractors, consultants and
inspectors the right to enter upon the Property at any time prior to
Settlement, as defined below in Paragraph 7, upon twenty-four (24)
hours advance notice, for the purposes of conducting any inspections,
examinations and studies that are reasonably required by Buyer. Buyer
shall not disturb the Seller's use or operation of the Property, and
shall restore any part of the Property disturbed in connection with
such inspections as near to its original condition as possible if
Buyer does not purchase the Property.
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(B) Prior to commencing any entry onto the Property, the Buyer, and its
agents and representatives, as the case may be, shall provide to
Seller a certificate of insurance covering the acts of such parties
while on the Property and any damage to persons or property caused by
any of their acts on or about the Property. Such certificate or
certificates shall be subject to the Seller's reasonable approval, and
among other things, shall certify that Buyer has been added as an
additional insured to all liability policies required hereby. In
consideration of Seller granting such access, Buyer hereby agrees to
indemnify, defend and hold Seller, and Seller's officers, directors,
agents and employees, harmless from, for and against any and all
claims actions, costs and damages arising or resulting in whole or in
part from the actions of Buyer or its agents and representatives on or
about the Property. The provisions of this Paragraph 6(B) shall
survive Settlement and delivery of the deed to the Property or the
earlier termination of this Agreement.
7. SETTLEMENT:
(A) The delivery of the deed by Seller, payment of the Purchase Price by
Buyer, and completion of the parties' respective obligations hereunder
("Settlement") shall occur on the date that is one hundred eighty
(180) days after Seller's written notice to Buyer that Seller is
prepared to complete Settlement (the "Settlement Notice"), provided,
however, that the Settlement Notice shall be provided no later than
September 15, 2006.
(B) In the event Seller has not provided Buyer with the Settlement Notice
on or before September 15, 2006, then Buyer shall have the right to
terminate this Agreement at any time after such date and prior to
receipt of the Settlement Notice.
(C) Settlement shall occur at the law office of XxxXxxxx Xxxxxx, Ltd., 00
Xxxx Xxxxx Xxxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx.
8. NOTICES & ASSESSMENTS:
(A) Seller shall promptly apply for a certification from West Xxxxxxx
Borough with regard to any uncorrected violations of the Borough's
zoning, building, safety and fire ordinances. Upon receipt of such
certification, Seller shall deliver a true and complete copy to Buyer.
(B) Seller will be responsible for any special assessments imposed by
governmental taxing authorities for public improvements completed on
or before Settlement.
9. TITLE & COSTS:
(A) The Property shall be conveyed free and clear of all liens,
encumbrances, and easements, EXCEPTING HOWEVER, the Permitted
Encumbrances (as hereinafter defined); otherwise title to the above
described Property shall be good and marketable and such as will be
insured by a reputable Title Insurance Company at the regular rates.
Buyer shall order a commitment to insure title ("Commitment") for the
Premises within ten (10) days after the Effective Date, and shall send
the Seller a copy of the Commitment within ten (10) days following
Seller's receipt of the Commitment (and in any event within thirty
(30) days following the Effective Date), with copies of all
exceptions, together with a list of all title objections and
exceptions disclosed in the Commitment which are not acceptable to
Buyer (which may include any matter shown on any survey of the
Premises obtained by Buyer). All title exceptions shown on the
Commitment and survey and not identified as unacceptable by Buyer
shall be deemed accepted by Buyer as a title exception and are herein
referred to as the "Permitted Encumbrances." Additionally, if within
the aforesaid time period Buyer fails to deliver a copy of the
Commitment to Seller, together with copies of all exceptions and a
list of any title exceptions (including any survey exceptions)
objected to by Buyer, all such exceptions shall be deemed Permitted
Encumbrances. Seller shall have ten (10) days following receipt of the
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Commitment and any survey identifying any unacceptable title
exceptions from Buyer to notify Buyer of Seller's unwillingness or
inability to deliver title subject only to the Permitted Encumbrances,
in which event Buyer shall have the option, by notice to Seller within
ten (10) days after receipt of Seller's notification, to either accept
such title to the Premises as Seller can provide (other than monetary
liens of an ascertainable amount, which shall be paid at Closing by
the Seller) or to terminate this Agreement and have the Deposit and
any interest thereon returned to Buyer. Failure by Buyer to notify
Seller of objectionable title or survey exceptions within the
aforesaid time period or, within ten (10) days following notice by
Seller of Seller's unwillingness or inability to remove, satisfy or
otherwise discharge any title or survey exception, shall constitute a
waiver by Buyer of the objection to the title or survey exception (but
shall not be deemed a waiver of any rights that Buyer may have, with
respect to any third parties, to seek to remove, satisfy, or discharge
such title or survey exception after Settlement). Failure by Seller to
notify Buyer of Seller's inability or unwillingness to deliver title
subject only to the Permitted Encumbrances within such period shall
constitute Seller's agreement to deliver title at Settlement subject
only to the Permitted Encumbrances.
(B) In the event the Seller is unable to convey title in accordance with
paragraph 9(A), Buyer shall have the option of (1) taking such title
as Seller is able to convey to Buyer without an abatement of Purchase
Price, or (2) terminating this Agreement. In the latter event Seller
shall reimburse the Buyer for any costs incurred by the Buyer for
those items specified in paragraph 9(C) items (1), (2), and (3), and
in paragraph 9(D); neither party shall have any further liability or
obligation to the other; and this Agreement shall become NULL AND
VOID.
(C) The Buyer will pay for the following:
(1) The premium for mechanics lien insurance and/or title searches,
or fees for cancellation of same, if any.
(2) The premiums for flood insurance and/or fire insurance with
extended coverage, insurance binder charges or cancellation fee,
if any.
(3) Appraisal fees and charges paid in advance to mortgagee, if any.
(4) Buyer's normal Settlement costs and accruals.
(D) Any survey(s) shall be secured and paid for by the Buyer.
(E) Subsequent to the date of its execution of this Agreement, Seller
shall not create or suffer to exist any manner of lien or encumbrance
upon or affecting title to the Property that is not existing as of the
date of Seller's signing of this Agreement (except as may be required
by law) that would not be satisfied at Settlement.
10. FIXTURES, TREES, SHRUBBERY, ETC: Seller hereby warrants that it will deliver
good title to all of the property described in this paragraph and to any other
fixtures or items of personalty specifically scheduled and to be included in
this sale:
(A) If there are buildings on the Property, all existing plumbing, heating
and lighting fixtures (including chandeliers) and systems appurtenant
thereto and forming a part thereof, and other permanent fixtures, as
well as all ranges, laundry tubs, TV antennas, masts and rotor
systems, together with wall to wall carpeting, screens, storm sash
and/or doors, shades, awnings, venetian blinds, couplings for
automatic washers and dryers, etc., radiator covers, cornices, kitchen
cabinets, drapery rods, drapery rod hardware, curtain rods, and
curtain rod hardware are included in the sale and Purchase Price. Any
remaining heating and/or cooking fuels stored on the Property at time
of Settlement are also included under this Agreement.
(B) All trees, shrubbery, plantings, now in or on the Property, if any,
unless specifically excepted in this Agreement, are included in the
sale and Purchase Price. None of the above mentioned items shall be
removed by the Seller from the Property after the date of this
Agreement, provided, however, nothing in this Agreement shall prohibit
Seller from removing Seller's personal property and trade fixtures
prior to Settlement.
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11. ENVIRONMENTAL: Intentionally Omitted.
12. ESCROWEE:
(A) The Escrowee is Seller's attorneys, Stradley, Ronon, Xxxxxxx & Xxxxx,
LLP. If a dispute arises between Seller and Buyer, Buyer shall not
assert or allege that Escrowee has a conflict of interest respecting
its obligations under this Agreement, and Escrowee shall be permitted
to represent Seller as Seller's attorney in connection with any such
dispute.
(B) Notwithstanding anything to the contrary contained herein, except as
to payment of the Deposit to Seller or Title Company at Closing (in
which case Escrowee shall release the Deposit to Seller or Title
Company without the need for further instructions from the parties),
Escrowee shall not release the Deposit unless and until Escrowee has
received the joint written direction therefor from Buyer and Seller,
or Escrowee has been ordered to make distribution by a court of
competent jurisdiction. Escrowee, and its officers, directors,
partners and employees are acting as agents only, and will in no case
be held liable either jointly or severally to either party for the
performance or nonperformance of any term or covenant of this
Agreement or for damages for the performance or nonperformance hereof,
nor shall Escrowee be required or obligated to determine any questions
of fact or law. The only responsibility of Escrowee shall be for the
safekeeping of the Deposit.
13. POSSESSION AND TENDER:
(A) Possession of the Property is to be delivered by a no-warranty deed
(the "Deed"), together with keys and physical possession to a vacant
building (if any) broom clean, free of debris at Settlement.
(B) Seller shall provide and turn over to Buyer any plans or
specifications for the Property that are in Seller's possession.
(C) Seller shall execute and deliver (1) a certificate executed by the
assistant corporate secretary of Seller evidencing the authority of
the officer executing the Deed, and (2) either (i) a "non-foreign
affidavit" meeting the requirements of Section 1445(b)(5) of the
Internal Revenue Code of 1986, as amended (the "Code"), or (ii) if
Seller is a "foreign person" under applicable Code regulations, the
appropriate IRS Form W-8 or other certificate required to permit Buyer
to comply with applicable withholding requirements.
(D) Seller will not enter into any new lease, written extension of
existing leases, if any, or additional leases for the Property or any
building on the Property without prior written consent of Buyer.
(E) Formal tender of an executed deed is hereby waived.
14. TAXES:
(A) Payment of transfer taxes will be the responsibility of the Buyer.
(B) Taxes and lienable assessments will be apportioned pro-rata on a per
diem basis as of the date of Settlement. Rents, water and sewer rents,
lienable municipal services, interest on mortgage assumptions,
condominium fees and homeowner association fees, if any, will be
apportioned pro-rata at time of Settlement.
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15. MAINTENANCE AND RISK OF LOSS:
(A) Seller shall maintain the Property until Settlement, including all
items mentioned in paragraph 10 herein and any personal property
specifically scheduled herein, in its present condition, normal wear
and tear excepted. Additionally, all items mentioned in paragraph 10
and all personal property must be in its present condition, normal
wear and tear excepted, at time of Settlement, and if not, then
either: (i) Seller shall repair or replace such items; or (ii) the
cost to repair or replace each such item shall be deducted from the
Purchase Price as set forth in paragraph 3.
(B) Seller shall bear risk of loss from fire or other casualties until
time of Settlement. In the event of damage to the Property or to any
buildings or structures on the Property or to any personal property
included in this sale by fire or other causality which is not repaired
or replaced prior to Settlement, Buyer shall have the option of (1)
terminating this Agreement and receiving the Deposit together with any
interest earned thereon, or (2) accepting the Property in its then
present condition together with a credit against the Purchase Price in
an amount equal to any insurance proceeds which have been paid to
Seller and an assignment of the rights to any further insurance and/or
recovery to which Seller is or may be entitled. Buyer's right to
terminate this Agreement must be exercised, if at all, within ten (10)
days following the date notice of the casualty is received by Buyer.
If Buyer does not notify Seller of Buyer's election to terminate
within the aforesaid period, Buyer shall waive its right to terminate
and shall be deemed to have elected to proceed to Settlement in
accordance with Clause (2) above.
16. BROKERAGE: Seller and Buyer each represent to the other that they have not
dealt with any Broker in connection with the sale of this real estate
except Xxxxxxx Cross Partners ("Broker"). Buyer shall be responsible for
paying any real estate brokerage sales commissions that are payable to the
Broker, pursuant to a separate agreement with Broker. Buyer and Seller each
agree to indemnify and hold the other harmless from any damages, including
attorneys fees, which may arise as a result of a breach of the
representations and warranties set forth in this paragraph.
17. RECORDING: This Agreement shall not be recorded in any office or place of
public record.
18. RESTRICTIVE COVENANT: Buyer agrees that for a period of one hundred twenty
(120) days after Settlement (the "Restricted Period"), Buyer shall not
operate a Retail Bank on the Property. For the purposes of this paragraph
the term "Retail Bank" means a bank location which offers any (i) walk-in
teller service; (ii) walk in service to accept personal loan applications;
(iii) consumer or retail banking services; or (iii) an ATM. Nothing herein
shall prohibit Buyer from performing bank administrative activities, or
providing wealth management services or support activities for Buyer's
internet banking services, on the Property at any time. During the
Restricted Period Buyer shall not display any signage or engage in other
advertising regarding Buyer's future use of the Property as a Retail Bank.
This covenant shall survive Settlement and the delivery of the Deed.
19. ASSIGNMENT: This Agreement shall be binding upon, and inure to the benefit
of, the parties hereto, and their respective successors, and assigns,
provided, however, Buyer shall not have the right to assign this Agreement
without the prior written consent of Seller, which consent shall be solely
within the discretion of Seller to grant or withhold, except that Buyer
shall have the right to assign this Agreement to an entity that is owned
and controlled by Buyer or under common ownership and control with Buyer,
provided further, however, any such assignment by Buyer shall not release
Buyer from its obligations hereunder. Prior to Settlement, Seller shall
have the right to transfer and convey the Property to TD Banknorth
Charitable Foundation or another affiliate of Seller, provided that such
transfer shall be subject to Buyer's rights under this Agreement and shall
not delay Settlement.
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20. DEFAULT/TIME OF THE ESSENCE: The said time for Settlement and all other
times referred to for the performance of any of the obligations of this
Agreement are hereby agreed to be of the essence of this Agreement.
(A) Should the Buyer fail to make any additional payments as specified in
paragraph 3, or violate or fail to fulfill and perform any other terms
or conditions of this Agreement, Buyer shall have a period of ten (10)
business days within which to cure the non-payment, violation or
failure (the "Cure Period") upon written notice from Seller; provided,
however, that if Buyer does not cure within the Cure Period, then, and
in such event, Seller's sole remedy shall be entitled to receive the
Deposit and any interest accrued thereon, which sum shall be retained
by Seller as liquidated damages, which the parties agree is a fair and
reasonable measure of the damages that the Seller will incur as a
result of Buyer's default, and is not intended to be a penalty. In
this event, Seller and Buyer shall each be released from further
liability or obligation to the other and this Agreement shall be NULL
AND VOID.
(B) Should the Seller violate or fail to perform any terms or conditions
of this Agreement, and such failure continues for ten (10) business
days following written notice thereof by Buyer to Seller then in such
case, Buyer shall be entitled to (i) terminate this Agreement, and
receive the Deposit, together with interest accrued thereon, and in
which event, Seller and Buyer shall each be released from further
liability or obligation to the other and this Agreement shall be NULL
AND VOID; or (ii) the right to specific performance.
21. RIGHTS IN THE EVENT OF CONDEMNATION: In the event of the taking of all or
any material part of the Property by eminent domain proceedings, or the
commencement of any such proceedings, Buyer shall have the right, at
Buyer's election, (1) to purchase the Property pursuant to the terms of the
Agreement with a reduction in the Purchase Price equal to any awards or
other proceeds actually received by the Seller with respect to such taking
and, in such event, at Settlement, Seller shall assign to Buyer all
remaining rights of Seller in and to any awards or other proceeds payable
by reason of such taking and not actually received by Seller, or (2) to
terminate this Agreement, in which event Buyer shall be repaid the Deposit,
together with any interest. In the latter event, neither Seller nor Buyer
shall have any further liability or obligation and this Agreement shall
become NULL AND VOID. Seller shall notify Buyer of eminent domain
proceedings promptly after Seller learns of any such proceedings. Buyer's
right to terminate this Agreement must be exercised, if at all, within ten
(10) days following the date notice of such proceedings is received by
Buyer. If Buyer does not notify Seller of Buyer's election to terminate
within the aforesaid period, Buyer shall waive its right to terminate and
shall be deemed to have elected to proceed to Settlement in accordance with
Clause (2) above.
22. CONDITION OF PROPERTY: The Buyer agrees to purchase the Property in its
present condition unless otherwise specified herein.
23. INTEGRATION: This Agreement contains the whole Agreement between the Seller
and the Buyer and there are no other terms, obligations, covenants,
representations, statements or conditions, oral or otherwise of any kind
whatsoever concerning this sale.
24. AMENDMENT: This Agreement shall not be altered, amended, changed or
modified except in writing executed by the parties.
25. NOTICES: All notices, requests and other communications under this
Agreement shall be in writing and shall be addressed as follows:
If intended for Seller:
TD Banknorth, N.A.
Facilities Management Services
c/o CB Xxxxxxx Xxxxx/Xxxxxx Property Management
Xxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
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with a copy to:
TD Banknorth, N.A.
Two Portland Square
XX Xxx 0000
Xxxxxxxx, XX 00000
Attn: Banknorth Legal
and a copy to:
Xxxxxxxxxxx X. Xxxxxxxx, Esq.
Stradley, Ronon, Xxxxxxx & Xxxxx, LLP
00 Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
If intended for Buyer:
First National Bank of Xxxxxxx County
0 Xxxxx Xxxx Xxxxxx
Xxxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx, V.P. of Real Estate
With a copy to:
Xxxxx X. XxXxxxxx, Esquire
XxxXxxxx Xxxxxx, Ltd.
00 Xxxx Xxxxx Xxxxxx
P.O. Box 660
West Chester, PA 19381-0660
or at such other address of which Seller or Buyer shall have given notice
as herein provided. Notices by the parties may be given on their behalf by
their respective counsel. All such notices shall be given by hand delivery,
or sent by overnight delivery service or by certified mail, return receipt
requested, or by telecopier if a hard copy is sent on the same day by one
of the other permitted means. Such notices shall deemed to have been given
on the date received, if hand delivered or telecopied, or the next business
day following deposit of the notice with an overnight delivery service, or
three days after mailing, if sent by certified mail.
26. EXECUTION; EFFECTIVE DATE: The Effective Date of this Agreement shall be
the date on which Buyer receives a fully executed original or facsimile of
the Agreement (the "Effective Date"), which date is intended to be inserted
at the top of the first page hereof. This Agreement may be signed in
counterpart(s). Facsimile signatures shall be binding on the parties.
27. LEGAL ADVICE: Seller and Buyer each acknowledge and agree that they have
had the right to consult with counsel prior to the execution of this
Agreement and that they have consulted with counsel or knowingly waived the
right to do so.
28. "AS-IS" CONDITION OF THE PROPERTY: BUYER UNDERSTANDS AND AGREES THAT,
EXCEPT AS SET FORTH IN THIS AGREEMENT, SELLER IS NOT MAKING AND
SPECIFICALLY DISCLAIMS ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR
CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT
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NOT LIMITED TO, WARRANTIES OR REPRESENTATIONS AS TO MATTERS OF TITLE (OTHER
THAN THE WARRANTY OF TITLE SET FORTH IN THE DEED TO BE DELIVERED AT
CLOSING), ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITIONS,
SOIL CONDITIONS, WETLANDS DESIGNATION, AVAILABILITY OF ACCESS, INGRESS OR
EGRESS, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL
APPROVALS, GOVERNMENTAL REGULATIONS OR ANY OTHER MATTER OR THING RELATING
TO OR AFFECTING THE PROPERTY, INCLUDING, WITHOUT LIMITATION THE VALUE,
CONDITION, MERCHANTABILITY, MARKETABILITY, PROFITABILITY, SUITABILITY OR
FITNESS FOR A PARTICULAR USE OR PURPOSE OF THE PROPERTY, AND THE MANNER,
QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY. EXCEPT AS TO
WRITTEN INFORMATION SUPPLIED BY SELLER PURSUANT TO THIS AGREEMENT OR AS
OTHERWISE REPRESENTED OR WARRANTED BY SELLER IN THIS AGREEMENT, BUYER HAS
NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY
REPRESENTATION OR WARRANTY OF SELLER OR ANY AGENT OF SELLER, AND IS RELYING
SOLELY ON ITS OWN EXPERTISE AND THAT OF ITS CONSULTANTS IN PURCHASING THE
PROPERTY. BUYER REPRESENTS THAT IT WILL CONDUCT SUCH INSPECTIONS AND
INVESTIGATIONS OF THE PROPERTY AS BUYER DEEMS NECESSARY, INCLUDING BUT NOT
LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AND SHALL
RELY UPON SAME. SELLER ACKNOWLEDGES AND AGREE THAT UPON CLOSING, SELLER
SHALL SELL AND CONVEY TO BUYER AND BUYER SHALL ACCEPT THE PROPERTY "AS IS,
WHERE IS," WITH ALL FAULTS EXCEPT AS OTHERWISE PROVIDED FOR IN THIS
AGREEMENT. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL
AGREEMENTS, WARRANTIES OR REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE
PROPERTY BY SELLER, ANY AGENT OF SELLER OR ANY THIRD PARTY. THE TERMS AND
CONDITIONS OF THIS PARAGRAPH EXPRESSLY SHALL SURVIVE THE CLOSING AND SHALL
NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS. SELLER IS NOT
LIABLE OR BOUND IN ANY MANNER BY ANY ORAL STATEMENTS, REPRESENTATIONS, OR
INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKER,
AGENT, EMPLOYEE, SERVANT, CONSULTANT, OR OTHERWISE.
29. SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS: Seller represents and
warrants to Buyer that:
(A) To the best of Seller's knowledge, Seller has not entered into any
agreement with, or granted any right or option to, any person or
entity, to purchase the Property with priority over Buyer's rights
under this Agreement.
(B) To the best of Seller's knowledge, there are no leases in effect as of
the date of this Agreement.
(C) Seller has the full authority to execute, deliver and perform this
Agreement and all Agreements and documents referred to in this
Agreement.
(D) Except for Seller, at Closing no person or entity shall be in
possession of the Property.
(E) Seller is not aware of any facts that prohibit Seller from closing the
transaction in accordance with the terms of this Agreement.
(F) To the best of Seller's knowledge, the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby
will not result in any breach of the terms or conditions of, or
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constitute a default under, any instrument or obligation to which
Seller is or may become a party or by which Seller may be bound or
affected or violate any order, writ, injunction or decree of any court
in any litigation to which Seller is a party, or violate any law. The
persons executing this Agreement on behalf of Seller are duly
authorized to bind Seller.
(G) Seller has entered into a Lease (the "New Branch Lease") with
Xxxxxxx-Xxxxxxx Limited Partnership ("New Landlord") for the
construction of a New Bank Branch ("New Bank Branch") located at 000
Xxxx Xxxxxx Xxxxxx, in the borough of West Chester, Pennsylvania.
Seller shall use commercially reasonable efforts to enforce the terms
of the New Branch Lease against the Landlord thereunder and to cause
Landlord to construct the New Branch Bank in accordance with the terms
of the Lease. In the event the Lease is terminated for any reason
whatsoever on or before September 15, 2006, Seller shall have the
right to terminate this Agreement upon notice to Buyer of such
termination. Seller's right to terminate the Agreement pursuant to
this Paragraph (G) shall be void and of no further effect unless
Seller has notified Buyer of such termination on or before September
15, 2006.
(H) To the best of Seller's actual knowledge, the heating, ventilation and
air conditioning system and the elevator serving the Property are in
operating condition.
None of the aforesaid representations and warranties shall survive
Settlement.
30. BUYER'S REPRESENTATIONS AND WARRANTIES: The Buyer warrants and represents
to Seller that:
(A) Buyer has lawful power and authority to purchase the Property as
contemplated and has taken all requisite action to authorize the
execution and delivery of this Agreement and all transactions required
of Buyer hereunder.
(B) Buyer is not aware of any facts that prohibit Buyer from closing this
Agreement in accordance with the terms hereof.
(C) To the best of Buyer's knowledge, the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby
will not result in any breach of the terms or conditions of, or
constitute a default under, any instrument or obligation to or by
which Buyer may be bound or affected, or violate any order, writ,
injunction or decree of any court in any litigation to which Buyer is
a party, or violate any law. The persons executing this Agreement on
behalf of Buyer are duly authorized to bind Buyer herein.
(D) Buyer will not directly or indirectly contest, object to, challenge,
or cause the delay of any approval for the relocation of the Dime
Bank/Xxxxxx United Bank branch operated on the Property to another
location within the Borough of West Xxxxxxx or surrounding area.
None of the aforesaid representations and warranties shall survive
Settlement.
31. REGULATORY APPROVAL:
(A) The obligation of Buyer to purchase and pay for the Property is
subjected to the satisfaction (or waiver by Buyer) of the following
condition in the time frame set forth below:
(1) Buyer receiving approval by the Office of Comptroller of Currency
("OCC") on or before September 15, 2006 for its proposed operations of
a New Branch and office located on the Property.
(B) The obligation of Seller to sell the Property is subjected to the
satisfaction (or waiver by Seller) of the following condition in the
time frame set forth below:
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(1) Seller receiving OCC approval for its relocation to its New Branch
Bank on or before September 15, 2006.
(C) Each of the Buyer and Seller shall diligently pursue their respective
OCC approvals and shall use their best efforts to obtain such approval
within the time frame set forth above.
32. IRC SECTION 1031: Buyer and Seller agree to reasonably cooperate with each
other, without cost or expense to the other, if either of them uses this
Property as part of a Section 1031 Exchange.
33. BUSINESS DAY: If any period, event or condition expires on a day which is
not a business day, such period, event or condition shall expire on the
next succeeding business day. "Business Day" shall mean any day other than
Saturday, Sunday, or any Federal and State legal holiday.
APPROVAL BY BUYER: APPROVAL BY SELLER:
FIRST NATIONAL BANK OF TD BANKNORTH, N.A.
CHESTER COUNTY
By:/s/ Xxxxx Xxxxx By:/s/ Xxxxxxx X. Xxxxxx
--------------------- ---------------------
Xxxxx Xxxxx Xxxxxxx X. Xxxxxx
President Senior Vice President
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