Exhibit 10.8
PURCHASE AND SALE AGREEMENT
000 XXXXXXXXX'X XXXXXXXX, XXXXXXXX, XXXXXXXXXXXX AND
0000 XXXXXXXXX XXXX, XXXXXX XXXX, XXXXXXXXXXXX
THIS AGREEMENT IS MADE AND EFFECTIVE AS OF THE 31st day of July, 1996
by and between XXXXXX REAL ESTATE COMPANY, a Pennsylvania general partnership
("Seller") and XXXXXX XXXXX CORP., a New York corporation ("Buyer").
RECITALS
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A. Seller is the installment sale purchaser and equitable owner of
real property, building and improvements more particularly described on Exhibit
"A" attached hereto, commonly known as at 000 Xxxxxxxxx'x Xxxxxxxx, Xxxxxxxx,
Xxxxxxxxxxxx ("Xxxxxxxxx'x Crossing Premises") pursuant to an Agreement of Sale
dated March 12, 1980 ("Installment Sale Agreement") with the Delaware County
Industrial Development Authority ("DCIDA"), a Memorandum of which is dated March
12, 1980, and recorded with the Delaware County Recorder of Deeds in Deed Book
2734, page 811. Buyer is the lessee, and Seller is the lessor, of the
Xxxxxxxxx'x Crossing Premises pursuant to a Lease Agreement dated March 5, 1980,
and an Amendment to Lease Agreement dated February 27, 1995 ("Xxxxxxxxx'x
Crossing Lease Agreement"). Buyer desires to purchase from Seller, and Seller
desires to sell and assign to Buyer all of Seller's right, title and interest in
and to the Seller's right to acquire the Xxxxxxxxx'x Crossing Premises pursuant
to the Installment Sale Agreement, and to
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contemporaneously terminate the Xxxxxxxxx'x Crossing Lease Agreement.
B. Seller is the owner of real property, building and improvements
more particularly described on Exhibit "B" attached hereto), commonly known as
0000 Xxxxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxxxxxx ("Xxxxxx Hill Premises"). Buyer
is the lessee, and Seller is the lessor, of the Xxxxxx Xxxx Premises pursuant to
a Lease Agreement dated April 10, 1984 and a Lease Modification Agreement dated
October 25, 1993 ("Xxxxxx Hill Lease Agreement"). Buyer desires to purchase and
Seller desires to sell and assign to Buyer all of its right, title and interest
in and to the Xxxxxx Xxxx Premises and to contemporaneously terminate the Xxxxxx
Hill Lease Agreement.
C. The Xxxxxxxxx'x Crossing Premises and the Xxxxxx Hill Premises are
sometimes together defined as the "Real Property".
NOW THEREFORE, for and in consideration of the covenants contained
herein, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Agreement of Purchase and Sale. Seller agrees to assign and sell
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as applicable, and Buyer agrees to purchase, all of Seller's rights, title and
interest in and to the Xxxxxxxxx'x Crossing Premises under the Installment Sale
Agreement, and the Xxxxxx Hill Premises, together with any and all buildings,
structures and improvements thereon, any and all rights and privileges
pertaining thereto or to any of such
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buildings, structures and improvements and, to the extent constituting real
property, all fixtures, machinery, installations, equipment and other property
attached thereto and all licenses, permits, documents and records pertaining
thereto.
2. Purchase Price. The Purchase Price for the Real Property,
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which Buyer hereby agrees to pay to Seller is Four Million One hundred Thousand
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Dollars ($4,100,00.00) for the Xxxxxx Xxxx premises and One Million Four Hundred
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Thousand Dollars ($1,400,000.00) for the Xxxxxxxxx'x Crossing Premises, and
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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.
3. Closing. Closing shall occur on July 31, 1996, at the offices of
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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.
4. Transaction at Closing.
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(a) Possession of the Xxxxxxxxx'x Crossing Premises and Xxxxxx
Xxxx Premises shall be given by Seller to Buyer at Closing by:
i) assignment by Seller to Buyer of Seller's right under
the Installment Sale Agreement to take title to the Xxxxxxxxx'x Crossing
Premises in the form attached hereto as Exhibit "C", Seller's notice to DCIDA of
such assignment,
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Seller's prepayment of the unpaid balance due under the Installment Sale
Agreement and cancellation of the Note and satisfaction of the mortgage and
other security and delivery of the deed from DCIDA to Buyer to the Xxxxxxxxx'x
Crossing Premises.
ii) execution by Seller and delivery to Buyer of a general
or special warranty deed for the Xxxxxx Hill Premises as Buyer may elect;
iii) termination of all of the Lease Agreements between
Seller as lessor and Buyer as lessee for the Real Property in the form attached
hereto as Exhibit "D".
iv) execution by Seller and delivery to Buyer of a Xxxx of
Sale and Assignment and Assumption Agreement for the personal property and
executory contracts, if any, rights under insurance policies, and licenses and
permits, if any, in the form of Exhibit "E" attached hereto;
v) satisfaction of the liens, other than the Permitted
Title Exceptions described in Section 9(a), encumbering any of the Real
Property; and
vi) execution by Seller and delivery to Buyer of such other
deeds, bills of sale, assignment of rights under insurance policies, and other
instruments of assignment as the Buyer may reasonably request and as may be
necessary to vest in the Buyer Seller's title to all of the Real Property.
(b) At Closing Buyer shall agree to indemnify, defend and save
Seller harmless from all claims, liabilities,
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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 Real
Property pertaining to periods of time or events before or after settlement.
(c) At Closing Buyer shall deliver the Purchase Price to Seller in
the manner described in Section 2.
(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, such that Buyer
will receive title to the Real Property free and clear of any liens and
encumbrances other than the Permitted Title Exceptions (as defined in Section
9(a) below).
(e) At Closing all of the "Apportionments" described in Section 8
shall be made, and the Seller and Buyer will enter into a closing statement
reflecting all such Apportionments.
(f) At Closing, Seller shall sign and deliver a certification in
compliance with the Foreign Interest in Real Property Transfer Act.
5. Seller's Representations and Warranties. Seller hereby repre-
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sents and warrants that:
(a) Seller is a general partnership formed under the laws of the
Commonwealth of Pennsylvania. Seller has delivered to Buyer a copy of its
partnership agreement and all amendments thereto.
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(b) Seller has full power and authority to own and hold the Real
Property, 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 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 violate
any order or decree of any court or administrative body to which it may be
subject, and has full right to sell, convey, transfer, assign and deliver its
interests thereunder, in fee simple, without any restrictions whatsoever.
(e) Seller is the lawful owner of the Xxxxxx Hill Premises, in fee
simple, and has full right to sell, convey,
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transfer assign and deliver the Xxxxxx Xxxx Premises, without any restrictions
whatsoever.
(f) Seller is the equitable owner of the Xxxxxxxxx'x Crossing
Premises pursuant to the Installment Sale Agreement and has full right to assign
and deliver its interest thereunder, without any restrictions whatsoever.
(g) 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 Exceptions on the Real Property described in Section 9(a)
below, each of the Xxxxxx Xxxx Premises and Xxxxxxxxx'x Crossing Premises 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 Real Property.
6. Exclusion of Warranties Not Expressed and Limitation of Seller's
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Liability. Buyer has been a lessee of Seller in all of the Real Property. As a
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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:
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(a) Buyer has been in possession of and has made a physical
examination of the Real Property and hereby accepts same in "as is" condition.
(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 Real
Property, 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 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's liability for any representation or breach of
warranty shall be limited to actual damages sustained
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by Buyer and shall not include loss of profits, loss of bargain, or
consequential or other special damages.
7. 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.
(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
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violate any order or decree of any court or administrative body to which it may
be subject.
8. Apportionments.
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(a) All 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, and
all real estate taxes shall be apportioned as of the date of Closing according
to the tax years as provided in the Lease Agreements, if any such taxes or other
items are the responsibility of Seller.
(b) All real estate transfer taxes shall be divided equally
between Seller and Buyer.
(c) All rent under any Personal Property Leases, any personal
property taxes, and any expense items otherwise prepaid by Seller on any Real
Property shall be apportioned and paid or adjusted between Seller and Buyer as
of the date of closing.
9. 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 the Permitted Title Exceptions, defined as the following:
i) all taxes and assessments not yet due and payable;
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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 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 and marketable, and insurable title to any
particular parcel which
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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.
10. 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 Real Property or any other
Real Property, or notifying Seller of any violation in connection with the Real
Property or other Real Property. 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 Real Property or other Real Property and shall indemnify, defend,
exonerate and hold Seller harmless therefrom.
11. Tender. With respect to the Real Property, formal tender of an
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executed deed and purchase money is hereby waived.
12. Risk of Loss; Insurance. Seller shall maintain or shall cause
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Buyer in its capacity as lessee of any Real Property to maintain adequate
insurance of the kinds, covering such risks,
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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 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 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.
13. 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 Real Property 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) Seller shall have obtained all necessary consents of any third
party;
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(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
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.
(g) The contemporaneous closing of an Agreement of Sale between
Buyer and Xxxxxx Family Partnership, Ltd. of even date herewith.
14. 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;
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(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.
15. 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.
16. Brokers. Seller and Buyer represent and warrant to each other
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that neither has dealt with any broker, finder or 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.
17. 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
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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 Real Property. 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.
18. 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 similar guaranteed overnight carrier, or mailed
by United States registered or certified mail, return receipt requested, postage
prepaid, addressed:
(a) If to Seller:
Xxxxxx Real Estate Company
000 Xxxx Xxxxxx
Xxxx xx Xxxxxxx, XX 00000
(b) If to Buyer:
Xxxxxx Xxxxx Corp.
000 Xxxx Xxxxxx
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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.
19. 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 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
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Agreement shall extend to and bind all inure to the benefit of the successors
and assigns of Seller and of Buyer.
20. Whole Agreement - Alteration or Amendment. The whole agreement
-----------------------------------------
between the parties relative to the sale of the Real Property 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.
21. 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 of the Real Property to
Buyer. Seller and Buyer shall also execute and deliver to the 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.
22. Governing Law. This Agreement and the rights and obligations of
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the parties with respect thereto shall be construed in accordance with the laws
of the Commonwealth of Pennsylvania applicable to contracts made and to be
performed
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therein, without giving effect to the principles of conflict of laws.
23. No-Set-Off. All payments due under this Agreement, or any other
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document or instrument executed by Buyer pursuant to this Agreement shall be
made without right of set-off or deduction for any reason whatsoever.
24. Severability. No provision of this Agreement which may be deemed
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unenforceable shall in any way invalidate any other provision hereof, all of
which shall remain in full force and effect.
25. 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.
26. Counterparts. This Agreement may be executed in multiple
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
27. Waiver of Conflict of Interests. Each of Seller and Buyer has
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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
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there may be some difference of interest between Seller and Buyer, they do not
believe the interests to be material, 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 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
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Agreement the day and year first above written.
WITNESS: XXXXXX REAL ESTATE COMPANY, Seller
BY: /s/ Xxx X. Xxxxxx, Xx.
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XXX X. XXXXXX, XX.
By: /s/ J. Xxxxx Xxxxxx
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J. XXXXX XXXXXX, Partner
Its Duly Authorized
General Partners
ATTEST: XXXXXX XXXXX CORP.
BY: /s/ J. Xxxxx Xxxxxx
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President Buyer
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