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EXHIBIT 10.8
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement"), made as of this 26th day of
December, 2000, between M. XXXXXX XXXXXXXXXX ("Grumbacher"), with an address at
0000 X. Xxxxxx Xxxxxx, Xxxx, Xxxxxxxxxxxx 00000, and MBM LAND ASSOCIATES LIMITED
PARTNERSHIP ("MBM"), a Pennsylvania limited partnership, with an address at c/o
Wolf, Block, Xxxxxx & Xxxxx-Xxxxx, 0000 Xxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000 (Grumbacher and MBM being jointly referred to herein as "Seller") and THE
BON-TON DEPARTMENT STORES, INC., a Pennsylvania corporation ("Buyer"), with an
address at 0000 X. Xxxxxx Xxxxxx, Xxxx, Xxxxxxxxxxxx 00000.
BACKGROUND
A. The York Galleria Premises
1. MBM owns the parcel of land more particularly described in
Exhibit A hereto, together with all easements, rights and privileges appurtenant
thereto (the "York Galleria Premises").
2. The York Galleria Premises are subject to the terms and
conditions of that certain Operating Agreement dated October 19, 1989, as
amended, presently among MBM, Buyer and York Galleria Limited Partnership (the
"Operating Agreement").
3. MBM, as landlord, and Buyer, as tenant, are parties to that
certain Agreement of Lease dated October 19, 1989, as amended, with respect to
the York Galleria Premises (the "York Galleria Premises Lease").
B. The York Distribution Center Premises
1. MBM owns the parcel of land more particularly described in
Exhibit B hereto, together with all easements, rights and privileges appurtenant
thereto ("Lot 1").
2. MBM, as landlord, and Buyer, as tenant, are parties to that
certain Agreement of Lease dated March 9, 1989, as amended, with respect to Lot
1 (the "Lot 1 Lease").
3. Grumbacher owns the parcel of land more particularly
described in Exhibit C hereto, together with all easements, rights and
privileges appurtenant thereto ("Lot 2").
4. Grumbacher, as landlord, and Buyer, as tenant, are parties
to that certain lease dated July 1, 1987, as amended, with respect to Lot 2 (the
"Lot 2 Lease").
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5. MBM owns a 5.54% interest in, and Grumbacher owns the
remaining 94.46% interest in, the parcel of land more particularly described in
Exhibit D hereto, together with all easements, rights and privileges appurtenant
thereto ("Lot 3").
6. MBM and Grumbacher, as landlord, and Buyer, as tenant, are
parties to that certain lease dated January 1, 1991, as amended, with respect to
Lot 3 (the "Lot 3 Lease").
7. Xxx 0, Xxx 0 and Lot 3 are sometimes hereinafter referred
to, in the aggregate, as the "York Distribution Center Premises".
C. Improvements. Seller acknowledges that all improvements upon the
Property (as hereinafter defined) are owned by Buyer.
D. Sale of Property. Seller is prepared to sell, transfer and convey
the York Galleria Premises and the York Distribution Center Premises to Buyer,
and Buyer is prepared to purchase and accept the same from Seller, all for the
purchase price and on the other terms and conditions hereinafter set forth.
TERMS AND CONDITIONS
In consideration of the mutual covenants and agreements herein
contained, and intending to be legally bound hereby, the parties hereto agree:
1. Sale and Purchase. Seller hereby agrees to sell, transfer and convey
each of the York Galleria Premises and the York Distribution Center Premises
(together, referred to as the "Property") to Buyer, and Buyer hereby agrees to
purchase and accept the Property from Seller, in each case for the Purchase
Price and on and subject to the other terms and conditions set forth in this
Agreement.
2. Purchase Price. The aggregate purchase price for the Property (the
"Purchase Price") shall be Two Million Five Hundred Thousand Dollars
($2,500,000.00), which, subject to the terms and conditions hereinafter set
forth, shall be paid to Seller by Buyer at Closing by wire transfer of
immediately available federal funds, in all cases payable to or transferred to
the order or account of Seller or such other person as Seller may designate in
writing. The Purchase Price is allocated as follows:
York Galleria Premises $ 572,504.83
Lot 1 $ 342,957.73
Lot 2 $ 748,453.82
Lot 3 $ 836,083.61
$ 2,500,000
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3. Representations and Warranties of Seller. Grumbacher and/or MBM
represent and warrant to Buyer as follows:
3.1 Authority. MBM has taken all partnership action necessary
to approve and effect the transactions contemplated hereby and authorize
execution of this Agreement by the individual who is executing it; and no
consents of any third party to such partnership actions are required. MBM is a
duly formed and validly existing limited partnership of the State of
Pennsylvania, in good standing.
3.2 No Rights in Others. Seller has not granted any tenancy or
other interest or right of occupancy in or with respect to all or any portion of
the Property, except as provided in this Agreement.
3.3 Contracts. There are no construction, management, leasing,
service, equipment, supply, maintenance or concession agreements (oral or
written, formal or informal) entered by Seller with respect to or affecting all
or any portion of the Property.
3.4 Litigation. To the actual current knowledge of Seller, and
except as may be known by Buyer, there is no action, suit or proceeding pending
against or affecting all or any portion of the Property or relating to or
arising out of the ownership of all or any portion of the Property, or this
Agreement or the transactions contemplated hereby, in any court or before or by
any federal, state, county or municipal department, commission, board, bureau or
agency or other governmental instrumentality, whether or not covered by
insurance, including but not limited to proceedings for or involving
condemnation, eminent domain, alleged building code or zoning violations,
personal injuries or property damage. There is no insolvency or bankruptcy
proceeding pending or, to the knowledge of Seller, contemplated involving Seller
as debtor.
3.5 "FIRPTA". Seller is not a "foreign person" as defined in
Section 1445(f)(3) of the Internal Revenue Code.
4. Representations and Warranties of Buyer. Buyer represents and
warrants to Seller as follows:
4.1 Authority. Buyer has taken all corporate and other action
necessary to approve and effect the transactions contemplated hereby and
authorize execution of this Agreement by the individuals who are executing it.
Buyer is a duly formed and validly existing corporation of the State of
Pennsylvania, in good standing.
4.2 Brokers. Buyer has dealt with no real estate broker in
connection with the sale and purchase transactions reflected in this Agreement.
5. Conditions Precedent to Buyer's Obligations. All of Buyer's
obligations hereunder (including, without limitation, its obligation to purchase
and accept the Property from Seller) are expressly conditioned on the
satisfaction at or before the time of Closing hereunder or at or before such
earlier time as may be expressly stated below, of each of the following
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conditions (any one or more of which may be waived in writing in whole or in
part by Buyer, at Buyer's option);
5.1 Accuracy of Representations. All of the covenants,
representations and warranties of Seller contained in this Agreement shall have
been true and correct when made, and shall be true and correct on the date of
Closing with the same effect as if made on and as of such date.
5.2 Performance. Seller shall have performed, observed and
complied with all covenants, agreements and conditions required by this
Agreement to be performed, observed and complied with on its part prior to or as
of Closing hereunder.
5.3 Documents and Deliveries. All instruments and documents
required on Seller's part to be delivered pursuant to the provisions of this
Agreement, all as set forth in Section 8.2 hereof, shall be delivered to Buyer
and shall be in form and substance consistent with the requirements herein and
otherwise reasonably satisfactory to Buyer and Seller and their respective
counsel.
5.4 Title. Title to the Property shall be good and marketable
and insurable as such by any reputable title insurance company (the "Title
Insurer"), including, to the extent applicable, insurance of easements
appurtenant, and, with respect to Xxx 0, Xxx 0 and Lot 3, as single contiguous
parcels, at standard basic rates for ordinary risks, free and clear of all
mortgages, liens, claims, judgments, encumbrances, ground rents, leases,
tenancies, rights of occupancy, licenses, security interests, covenants,
conditions, restrictions, rights of way, easements, encroachments and any other
matters affecting title, except only the items set forth on Exhibit "E" attached
hereto (the "Permitted Exceptions"). Buyer shall pay all costs and premiums to
purchase any title insurance policy and all endorsements.
6. Conditions Precedent to Seller's Obligations. All of Seller's
obligations hereunder (including, without limitation, its obligation to sell and
convey the Property to Buyer) are expressly conditioned on the satisfaction at
or before the time of Closing hereunder or at or before such earlier time
expressly stated below, of each of the following conditions (any one or more of
which may be waived in writing in whole or in part by Seller, at Seller's
option):
6.1 Accuracy of Representations. All of the representations
and warranties of Buyer contained in this Agreement shall have been true and
correct when made, and shall be true and correct on the date of Closing with the
same effect as if made on and as of such date.
6.2 Performance. Buyer shall have performed, observed and
complied with all covenants, agreements and conditions required by this
Agreement to be performed, observed and complied with on its part prior to or as
of Closing hereunder.
6.3 Documents and Deliveries. All instruments and documents
required on Buyer's part to be delivered pursuant to this Agreement, all as set
forth in Section 8.3 hereof,
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shall be delivered to Seller and shall be in form and substance consistent with
the requirements herein and otherwise reasonably satisfactory to Seller and
Buyer and their respective counsel.
7. Failure of Conditions. In the event Seller shall not be able to
convey title to the Property on the date of Closing in accordance with the
provisions of this Agreement or if all of the conditions precedent set forth in
Section 5 hereof have not been satisfied in full at or prior to Closing, then
Buyer shall have the option, as Buyer's sole and exclusive rights and remedies,
exercisable by written notice to Seller at or prior to the Closing, of (1)
accepting at Closing such title as Seller is able to convey and/or waiving any
unsatisfied condition precedent, with no deduction from or adjustment of the
Purchase Price except for adjustment equal to the amount of any monetary lien or
monetary judgment of a fixed and liquidated amount together with interest
thereon, (provided that Buyer satisfies such lien or judgment) if any, or (2)
declining to proceed to Closing; and in the latter event all obligations,
liabilities and rights of the parties under this Agreement shall terminate.
8. Closing; Deliveries.
8.1 The Closing under this Agreement (the "Closing") with
respect to the York Gallery Premises and Xxx 0 xxx Xxx 0 xxxxx xx held at 10:00
a.m. on December 27, 2000 at the offices of Xxxx Xxxxx LLP, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, unless another time, date or place is agreed to in writing
by both Seller and Buyer. Closing under this Agreement with respect to Lot 3
shall be held at 10:00 a.m. on January 5, 2001 at the offices of Buyer, 0000
Xxxx Xxxxxx Xxxxxx, Xxxx, Xxxxxxxxxxxx, unless another time, date or place is
agreed to in writing by both Seller and Buyer.
8.2 At Closing, Grumbacher and/or MBM shall deliver to Buyer
the following (all in form and substance reasonably satisfactory to Buyer and
Seller and Buyer's and Seller's counsel):
8.2.1 A special warranty deed, duly executed and
acknowledged by MBM and/or Grumbacher, and in proper form for recording,
conveying fee simple title to Buyer, as hereinafter noted:
Parcel Grantor
York Galleria Premises MBM
Xxx 0 XXX
Xxx 0 Xxxxxxxxxx
Xxx 0 XXX and Grumbacher
8.2.2 Such customary Seller affidavits as the Title
Insurer shall reasonably require in order to issue, without extra charge,
policies of title insurance.
8.2.3 The Foreign Investors Real Property Tax Act
Certification and Affidavit in the form attached hereto as Exhibit F.
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8.2.4 All other instruments and documents elsewhere
specified in this Agreement.
8.3 At Closing, Buyer shall deliver to Seller the following
(all in form and substance reasonably satisfactory to Buyer and Seller and
Buyer's and Seller's counsel):
8.3.1 A wire transfer in the amount and manner
required under Section 2 hereof.
8.3.2 Any other instruments and documents elsewhere
specified in this Agreement.
9. Liabilities; Lease Terminations.
9.1 Liabilities and obligations of the Property accruing after
the date of Closing and not arising by the action or inaction of Seller or due
to the inaccuracy of Seller's warranties and representations made in this
Agreement shall be the responsibility of Buyer or the Property, as the case may
be.
9.2 Effective upon Closing, the term of each of The York
Galleria Premises Lease, the Lot 1 Lease, the Lot 2 Lease and the Lot 3 Lease
shall end with the same full force and effect as if the date of Closing were set
forth therein as the last day of the term thereof, and there shall be a
pro-ration of all rentals paid thereunder to the effect that rentals shall be
due from Buyer for the period ending on the day preceding the Closing Date. Any
rentals paid by Buyer applicable to a period subsequent to the day preceding the
Closing Date shall be refunded to Buyer and any such refund may be deducted by
Buyer from the Purchase Price.
10. Expenses. Each party will pay all its own expenses incurred in
connection with this Agreement and the transactions contemplated hereby,
including, without limitation, (i) all costs and expenses stated herein to be
borne by a party, and (ii) all of their respective accounting, legal and
appraisal fees. Buyer, in addition to its other expenses, shall pay for (a) all
recording charges incident to the recording of the deeds for the Property, and
(b) all title insurance premiums. All realty transfer taxes, if any, shall be
paid one-half by Buyer and one-half by Seller.
11. Tender. Formal tender of an executed deed and purchase money is
hereby waived; but nothing herein shall be deemed a waiver of the obligation of
Seller to execute, acknowledge and deliver the deeds or other instruments
referred to in Section 8 or the concurrent obligation of Buyer to pay the
Purchase Price at Closing as provided in Section 2.
12. Notices. All notices and other communications hereunder shall be in
writing (whether or not a writing is expressly required hereby), and shall be
deemed to have been given (i) if hand delivered or sent by an express mail
service or by courier, then if and when delivered
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to and received by the respective parties at the below addressees (or at such
other address as a party may hereafter designate for itself by notice to the
other party as required hereby), or (ii) if mailed, then on the next business
day following the date on which such communication is deposited in the United
States mails, by first class certified mail, return receipt requested, postage
prepaid, and addressed to the respective parties at the below addresses (or at
such other address as a party may hereafter designate for itself by notice to
the other party as required hereby):
If to Grumbacher:
M. Xxxxxx Xxxxxxxxxx
c/o Wolf Block Xxxxxx & Xxxxx-Xxxxx
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
If to MBM:
MBM Land Associates Limited Partnership
c/o Wolf Block Xxxxxx & Xxxxx-Xxxxx
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
If to Buyer:
The Bon-Ton Department Stores, Inc.
0000 X. Xxxxxx Xxxxxx
P. O. Xxx 0000
Xxxx, XX 00000
Attention: Senior Vice President
Real Estate, Legal and Governmental Affairs
13. Miscellaneous.
13.1 Governing Law; Parties in Interest. This Agreement shall
be governed by the law of the Commonwealth of Pennsylvania, and shall bind and
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors, assigns and personal representatives.
13.2 Computation of Time. In computing any period of time
pursuant to this Agreement, the day of the act or event from which the
designated period of time begins to run
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will not be included. The last day of the period so computed will be included,
unless it is a Saturday, Sunday or legal holiday in Pennsylvania, in which event
the period runs until the end of the next day which is not a Saturday, Sunday or
such legal holiday.
13.3 Time of the Essence. All times, wherever specified
herein, for the performance by Seller or Buyer of their respective obligations
hereunder, are of the essence of this Agreement.
13.4 Headings. The headings preceding the text of the
paragraphs and subparagraphs hereof are inserted solely for convenience of
reference and shall not constitute a part of this Agreement, nor shall they
affect its meaning, construction or effect.
13.5 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13.6 Exhibits. All Exhibits which are referred to herein and
which are attached hereto are expressly made and constitute a part of this
Agreement.
13.7 Entire Agreement; Amendments. This Agreement and the
Exhibits hereto set forth all of the promises, covenants, agreements, conditions
and undertaking between the parties hereto with respect to the subject matter
hereof, and supersede all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as contained herein. This Agreement may not be changed orally but only by
an agreement in writing, duly executed by or on behalf of the party or parties
against whom enforcement of any waiver, change, modification, consent or
discharge is sought. The parties hereto shall not record this Agreement.
13.8 As is. The Property is being purchased by Buyer in its
"as is" and "where is" condition and Buyer has not relied upon any agreement,
understanding, representation or warranty with respect to the Property by or on
behalf of Seller, and Seller has not made any agreement, representation or
warranty with respect to the Property except as expressly set forth in this
Agreement.
13.9 Survival. The representations and warranties of Seller
and Buyer set forth in this Agreement shall survive closing only for a period of
one-year; and thereafter, only to the extent that written notice of a breach
thereof shall have been given by one party to the other. Except as set forth in
the preceding sentence, the covenants, agreements, and obligations of the
parties set forth in this Agreement shall not survive Closing.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
/s/ M. Xxxxxx Xxxxxxxxxx
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M. Xxxxxx Xxxxxxxxxx
MBM Land Associates Limited Partnership
By: TG/MBM Land Corp.,
Its general partner
By: /s/ M. Xxxxxx Xxxxxxxxxx
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M. Xxxxxx Xxxxxxxxxx, President
THE BON-TON DEPARTMENT STORES, INC.
By: /s/ H. Xxxxxxx Xxxxx
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H. Xxxxxxx Xxxxx, Senior Vice President
