Exhibit 10.1
PURCHASE AND SALE
AGREEMENT
THIS PURCHASE AND SALE
AGREEMENT (this “
Agreement ”) is made and entered into this 4 day of
September, 2008 (“ Effective Date ”), by and
among those entities listed on Schedule 1 attached hereto,
each of which is also a signatory to this Agreement (collectively,
“ Seller ”), and FIRST INDUSTRIAL
ACQUISITIONS, INC. , a Maryland corporation (“
Buyer ”).
1. SALE . Seller agrees to sell and
convey to Buyer, and Buyer agrees to purchase from Seller, on the
terms and conditions set forth in this Agreement, the Property (as
hereinafter defined).
1.1. Property . For purposes of this
Agreement, the term “ Property ” shall mean
those certain parcels of land described on Exhibits A-1
through A-7 attached hereto (collectively and individually,
as the case may be, the “ Land ”), together with
all rights, easements and interests appurtenant thereto, including,
but not limited to, any streets or other public ways adjacent to
the Land and any water or mineral rights owned by, or leased to,
Seller. Notwithstanding anything to the contrary contained herein,
it is expressly understood and agreed by the parties hereto that
the term “ Property ” does not include any
improvements located on the Land, including, but not limited to,
those certain buildings constructed on the Land and utilized by
Seller for the operation of its business operations (individually
or collectively, as the case may be, the “ Building
”), or any other structures, systems, and utilities
associated with, and utilized by Seller in, the ownership and
operation of the Building (all such improvements being collectively
referred to as the “ Improvements ”).
2. PURCHASE PRICE . The total purchase price
to be paid to Seller by Buyer for the Property shall be Seventy
Four Million Three Hundred Eighty Thousand Five Hundred Twenty and
No/100 Dollars ($74,380,520.00) (the “ Purchase Price
”). The Purchase Price shall be allocated among the parcels
constituting the Land in accordance with Schedule 2 attached
hereto. The Purchase Price shall be paid to Seller at Closing, plus
or minus prorations and other adjustments hereunder, by federal
wire transfer of immediately available funds.
3. CLOSING . The purchase and sale
contemplated herein shall be consummated at a closing (“
Closing ”) to take place by mail through an escrow
with the Title Company (as hereinafter defined) on the basis of a
“New York-style” closing. The Closing shall occur on
the Effective Date (the “ Closing Date ”). The
Closing shall be effective as of 12:01 A.M. on the Closing
Date.
4. TITLE
4.1. Conveyance of Title to Land . At
Closing, Seller agrees to deliver to Buyer a Special Warranty Deed,
or in the case of Land located in California, a Grant Deed
(individually and collectively, the “ Deed ”),
in recordable form, conveying the Land to Buyer or Buyer’s
assignee or designee, free and clear of all liens, claims and
encumbrances except for the Permitted Exceptions (as hereinafter
defined). For purposes of this Agreement, the term, “
Permitted Exceptions ,” shall mean both (i) all
liens, claims, encumbrances, restrictions, covenants, conditions,
matters or exceptions to title of record as of the Closing Date or
arising under applicable law; and (ii) and any matters that an
accurate survey or physical inspection of the Land and Improvements
would reveal.
5. SELLER’S REPRESENTATIONS AND
WARRANTIES . Seller represents and warrants to Buyer that
the following matters are true as of the Effective Date and shall
be true as of the Closing Date:
5.1. Seller’s Representations
.
5.1.1. Cellular Tower Leases . To
Seller’s knowledge, there are no cellular tower leases to
which Seller is a party and that encumber all or any portion of the
Land and Improvements except the OM Cellular Lease (as defined
below).
5.1.2. Contracts . There are no contracts
of any kind relating to the management or leasing of the Property,
except this Agreement and those “ Contracts ”
listed on Schedule 5.1.2 . Seller has not received any
written notice alleging that it has failed to timely perform all of
the obligations required to be performed by it where such failure
remains continuing, nor alleging that Seller is otherwise in
default, which default remains continuing, under any of such
Contracts. Buyer shall not assume any of the Contracts.
5.1.3. Environmental Matters . Seller
hereby represents to Buyer that the following matters are true as
of the Closing Date, except to the extent expressly and
specifically contradicted by any environmental studies or
investigations of the Land or the Improvements commissioned or
otherwise obtained by Buyer or provided by Seller (including,
without limitation, so-called “Phase I” studies and
“Phase II” studies):
5.1.3.1. To Seller’s knowledge, the Property has
been operated during Seller’s period of ownership in material
compliance with all applicable Environmental Laws and Environmental
Permits.
5.1.3.2. To Seller’s knowledge, there have been no
past (which remain unremedied or unresolved), and Seller has not
received any written notice of any pending or threatened:
(a) claims, complaints, or notices seeking to hold Seller
liable with respect to any material violation or alleged material
violation of any applicable Environmental Law or Environmental
Permit or with respect to any corrective or remedial action for or
cleanup of any portion of the Property, and (b) claims,
complaints or notices regarding any actual, potential or alleged
material liability or obligation under or material violation of any
applicable Environmental Law or Environmental Permit by Seller or
any of its affiliates with respect to any portion of the
Property.
5.1.3.3. Seller has not received any written notice
alleging liability related to Releases of Hazardous Materials at,
on, under, near, in or about any portion of the Property which
remain unremedied or unresolved.
5.1.3.4. To Seller’s knowledge, no conditions exist
at, on, in or under any portion of the Land that does or will, with
the passage of time, constitute a Hazardous Condition or would
reasonably be expected to give rise to any material claim,
liability or obligation under any applicable Environmental Law or
Environmental Permit against Seller.
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5.1.3.5. To Seller’s knowledge, none of Seller or
any other person or entity for which Seller is or may be held
responsible has transported, disposed of or treated, or arranged
for the transportation, disposal or treatment of, any Hazardous
Material from any portion of the Property except in material
compliance with applicable Environmental Laws.
5.1.3.6. All Containers located at any portion of the
Property are in material compliance with all applicable
Environmental Laws. Seller has not removed, closed or abandoned any
Containers at the Property, except in material compliance with all
applicable Environmental Laws, nor to Seller’s knowledge, has
any other party done so during Seller’s ownership of the
Property except in material compliance with all applicable
Environmental Laws.
5.1.3.7. Seller has not received any written notice
alleging or advising of liability related to the existence of any
PCBs or friable or damaged asbestos at any portion of the Property.
Seller has not removed (or required or requested the removal of)
any PCBs or damaged or friable asbestos from any portion of the
Property except in material compliance with applicable
Environmental Laws. To Seller’s knowledge, there does not
currently exist any PCBs or damaged or friable asbestos at the
Property.
Unless the context otherwise
requires, the capitalized terms used in this
Section 5.1.3 shall have the meanings respectively
ascribed to them in Exhibit B .
5.1.4. Compliance with Laws and Codes .
Seller has not received any written notice advising or alleging
that, and Seller has no knowledge that, the entirety of the
Property and the Improvements, and the use and operation thereof,
are not in compliance with all applicable municipal and other
governmental laws, ordinances, rules, regulations, codes (including
Environmental Laws), licenses, permits and authorizations
(collectively, “ Laws ”). To Seller’s
knowledge, there are presently and validly in effect all licenses,
permits and other authorizations necessary for the use, occupancy
and operation of the Property as it is presently being
operated.
5.1.5. Litigation . Except as set forth
on Schedule 5.1.5 , there are no pending, or, to
Seller’s knowledge, threatened, judicial, municipal or
administrative proceedings affecting the Property, or in which
Seller is or will be a party by reason of Seller’s ownership
or operation of the Property or any portion thereof, including,
without limitation, proceedings for or involving collections,
condemnation, eminent domain, alleged building code or
environmental or zoning violations, or personal injuries or
property damage alleged to have occurred on the Property or by
reason of the condition, use of, or operations on, the Property
that individually or in the aggregate would reasonably be expected
to have a material adverse effect on the Property or on
Seller’s ability to consummate the transactions contemplated
by this Agreement. No attachments, execution proceedings,
assignments for the benefit of creditors, insolvency, bankruptcy or
reorganization proceedings are pending, or, to Seller’s
knowledge, threatened, against Seller.
5.1.6. Re-Zoning . Seller is not a party
to, nor to Seller’s knowledge does there exist, any
threatened proceeding for the rezoning of the Property or any
portion thereof, or the taking of any other action by governmental
authorities that would have a material adverse impact on the value
of the Property or use thereof.
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5.1.7. Authority . The execution and
delivery of this Agreement by Seller, and the performance of its
obligations under this Agreement by Seller, have been duly
authorized by Seller, and this Agreement is binding on Seller and
enforceable against Seller in accordance with its terms. To
Seller’s knowledge, no consent of any creditor, investor,
judicial or administrative body, governmental authority, or other
governmental body or agency, or other party to such execution,
delivery and performance by Seller is required. Neither the
execution of this Agreement nor the consummation of the
transactions contemplated hereby will (i) result in a breach
of, default under, or acceleration of, any agreement to which
Seller is a party or by which Seller or, to Seller’s
knowledge, the Property are bound; or (ii), to Seller’s
knowledge, violate any restriction, court order or other legal
obligation to which Seller and/or the Property is
subject.
5.1.8. Real Estate Taxes . Seller has not
received written notice of any proposed increase in the assessed
valuation of the Property. There is not now pending any proceeding
or application for a reduction in the real estate tax assessment of
the Property. There are no outstanding written agreements with
attorneys or consultants with respect to the real estate taxes
payable with respect to the Property that will be binding on Buyer
or the Property after the Closing. Other than the amounts disclosed
by tax bills with respect to the Property and Improvements, to
Seller’s knowledge, no special assessments of any kind
(special, bond or otherwise) are or have been levied against the
Property, or any portion thereof, that are outstanding or
unpaid.
5.1.9. Lease Matters . Except as is
disclosed by the title commitment obtained by Buyer for the
Property or as set forth on Schedule 5.1.2 , Seller is not a
party to any agreement granting to any third party a possessory
interest in all or any portion of the Land, whether a lease, a
license or otherwise.
5.1.10. United States Person . Seller is a
“United States Person” within the meaning of
Section 1445(f)(3) of the Internal Revenue Code of 1986, as
amended, and shall execute and deliver an “Entity
Transferor” certification at Closing.
5.1.11. Condemnation . Seller has not
received any written notice advising it of any pending or
threatened condemnation or other governmental taking proceedings
affecting all or any part of the Property.
5.1.12. Private Restrictions . To
Seller’s knowledge, there is no outstanding violation of or
failure to timely comply with any or all of the requirements of any
private restrictions (a) encumbering all or some portion of
the Land and (b) evidenced by a written document recorded
against all or some portion of the Land (whether a deed; covenants,
conditions and restrictions; or otherwise).
5.1.13. Utilities . Seller has not
received any written notice advising or alleging of the existence
of any fact or condition that would or could result in the
termination or impairment of the furnishing of service to the
Property of water, sewer, gas, electric, telephone, drainage or
other such utility services.
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5.1.14. Zoning . Seller has not received
any written notice alleging that any or all of the Land violates
any applicable Law with respect to zoning and zoning-related
matters (“ Zoning Laws ”). To Seller’s
knowledge, all of the Land and the Improvements thereon (including,
but not limited to, parking areas) are in compliance with
applicable Zoning Laws.
As used in this
Section 5.1 , references to the “knowledge”
of Seller means the actual knowledge of each and all of Eric
Loughmiller, Warren Byrd and Kevin Neal.
5.2. Limitations . The representations
and warranties of Seller to Buyer contained in
Section 5.1 hereof (the “ Seller
Representations ”) shall survive the Closing Date and the
delivery of the Deed for a period of one (1) year. No claim
for a breach of any Seller Representation shall be actionable or
payable unless (a) the breach in question results from, or is
based on, a condition, state of facts or other matter which was not
actually known by Buyer prior to Closing, and (b) written
notice containing a description of the specific nature of such
breach shall have been delivered by Buyer to Seller prior to the
expiration of said one (1) year survival period, an
