Exhibit 10.2
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
between ADESA ATLANTA, LLC , a New Jersey limited liability
company (“ 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 Exhibit A-1
attached hereto (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 ”).
1.2. Ground Lease . Seller has advised
Buyer that Seller does not own fee simple title to Tracts 1 through
4 of the Land described on Exhibit A-1 attached hereto (the
“ Leased Fulton Land ”). The Leased Fulton Land
is owned by the Development Authority of Fulton County (“
DAFC ”) and leased to Seller pursuant to that certain
Lease Agreement, dated as of December 1, 2002 (“
Ground Lease ”), between the DAFC, as landlord, and
Seller, as tenant. DAFC has assigned its interest under the Ground
Lease to SunTrust Bank, as trustee (“ Trustee ”)
under a Trust Indenture dated as of December 1, 2002 (the
“ Indenture ”) between DAFC and the Trustee, as
security for the payment of principal, interest and any premium on
those certain Taxable Economic Development Revenue Bonds (ADESA
Atlanta, LLC Project) Series 2002 and any additional bonds issued
under the Indenture (collectively, the “ Bonds
”). As a part of the subject transaction, Seller shall assign
to Buyer Seller’s entire right, title, entitlement and
interest (beneficial or otherwise), if any, in, to and under the
Ground Lease, the Indenture and the Bonds (as each may amended
pursuant to Section 1.3 hereof).
1.3. Wetlands Parcel . Seller has
advised Buyer that Seller holds fee simple title to the 20.85 acre
parcel of Land described as Tract 5 on Exhibit A-1 attached
hereto (the “ Fee Parcel ”). The Fee Parcel was
inadvertently excluded from the Leased Fulton Land that was
previously transferred by Seller to the DAFC and leased to Seller
by the DAFC pursuant to the Ground Lease, and is therefore not a
leased parcel under the Ground Lease. Seller intends, on or prior
to the Closing Date, to convey the Fee Parcel to the DAFC and amend
the Ground Lease to subject the Fee Parcel to the Ground Lease.
Accordingly, Seller has requested that the DAFC accept a transfer
of the Fee Parcel and amend the Ground Lease to add the Fee Parcel
as leased parcel (the “ Ground Lease Amendment
”). It shall be a Condition Precedent to Buyer’s
obligations to close as set forth in this Agreement that, on or
prior to the Closing, title to the Fee Parcel be transferred to
DAFC and that the Ground Lease Amendment be executed and delivered
by the applicable parties, together with any applicable amendments
to any related documents, including the Indenture and/or the Bonds
as necessary (collectively, the “ Ground Lease Amendment
Condition Precedent ”).
2. PURCHASE PRICE . The total
purchase price to be paid to Seller by Buyer for the Property shall
be Seven Million Five Hundred Thirty-Four Four Hundred Eighty and
No/100 Dollars ($7,534,480.00) (the “ Purchase Price
”). Provided that all conditions precedent to Buyer’s
obligations to close as set forth in this Agreement (“
Conditions Precedent ”) have been satisfied and
fulfilled, or waived in writing by Buyer, 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 or
before September 30, 2008, or at such other time as the
parties may agree upon in writing (the “ Closing Date
”). The Closing shall be effective as of 12:01 A.M. on
the Closing Date. Notwithstanding the foregoing, the risk of loss
of all or any portion of the Property shall be borne by Seller up
to and including the actual time of the Closing and wire transfer
of the Purchase Price to Seller, and thereafter by Buyer, subject,
however, to the terms and conditions of Section 13
below.
4. PROPERTY INSPECTION .
4.1. Basic Property Inspection . At all
times prior to Closing, including times following the “
Review Period Expiration Date ” (which Review Period
Expiration Date is defined to be September 26, 2008), Buyer,
its agents and representatives shall be entitled to conduct a
“ Due Diligence Inspection ,” which includes the
rights to: (i) enter upon the Land and Improvements, on
reasonable notice to Seller during normal business hours, to
perform inspections and tests of the Land and the Improvements,
including, but not limited to, inspection, evaluation and testing
of the heating, ventilation and air-conditioning systems and all
components thereof (collectively, the “ HVAC System
”) and environmental studies and investigations of the Land
and the Improvements (including, without limitation, a so-called
“Phase I” study and, if required in the judgment of
Buyer’s environmental consultant, a so-called “Phase
II” study); (ii) examine and copy any and all books,
records, correspondence, financial data, and all other documents
and matters, public or private, maintained by Seller or its agents
(the “ Records ”), and relating to receipts and
expenditures pertaining to the ownership and operation of the
Property for the three most recent full calendar years and the
current calendar year; (iii) make investigations with regard
to zoning, environmental, building, code and other legal
requirements; and (iv) make or obtain market studies and real
estate tax analyses. Prior to Buyer or any of its agents or
representatives physically entering upon any portion of the Land or
Improvements to conduct any test, inspection, evaluation,
examination, study or investigation, Buyer shall cause to be
delivered to Seller evidence of commercial general liability
insurance for bodily injury and property damage in an amount not
less than $3,000,000 aggregate naming Seller as an additional
insured thereunder and otherwise in a form reasonably acceptable to
Seller. If, at any time prior to the Review Period Expiration Date,
Buyer, in its sole and absolute discretion, determines that the
results of any inspection, test or examination do not meet
Buyer’s criteria for the purchase, financing or operation of
the Property in the manner contemplated by
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Buyer, or if Buyer, in its sole and
absolute discretion, otherwise determines that the Property is
unsatisfactory to it, then Buyer may terminate this Agreement by
written notice to Seller, with a copy to First American Title
Insurance Company (“ Escrowee ”), given not
later than 5:00 P.M. (Chicago time) on the Review Period Expiration
Date, whereupon the provisions of Section 21.8
governing a permitted termination by Buyer of the entire Agreement
shall apply.
4.2. Indemnification . Buyer hereby
covenants and agrees that it shall cause all studies,
investigations and inspections performed at the Property pursuant
to this Section 4 to be performed in a manner that does
not unreasonably disturb or disrupt the business operations at the
Land or Improvements. In the event that, as a result of
Buyer’s Due Diligence Inspection, any damage occurs to the
Property or Improvements, then Buyer shall promptly repair such
damage at Buyer’s sole cost and expense. Buyer hereby
indemnifies, protects, defends and holds Seller harmless from and
against any and all losses, damages, claims, causes of action,
judgments, damages, costs and expenses, including, but not limited
to, reasonable fees of attorneys (collectively, “
Losses ”) that Seller actually suffers or incurs as a
direct result of (i) a breach of Buyer’s agreements set
forth in this Section 4 in connection with the Due
Diligence Inspection or (ii) physical damage to the Property
or bodily injury caused by any act of Buyer or its agents,
employees or contractors in connection with the right of inspection
granted under this Section 4 . The terms of this
Section 4.2 shall survive the termination of this
Agreement for one (1) year.
5. TITLE AND SURVEY MATTERS
.
5.1. Conveyance of Title to Land . At
Closing, Seller shall assign to Buyer Seller’s entire right,
title, entitlements and interest in, to and under the Ground Lease
(as such Ground Lease shall be amended pursuant to
Section 1.3 hereto) (“ Ground Lease
Assignment ”). The Ground Lease Assignment shall be in
the form attached hereto as Exhibit J . Buyer shall, at
Seller’s sole cost, obtain a commitment with respect to the
Property (the “ Title Commitment ”) issued by
First American Title Insurance Company, through its National Title
Services in Chicago, Illinois (the “ Title Company
”), for a leasehold title insurance policy (the “
Title Policy ”), ALTA Policy Form 2006, if available
(if not available, then Form B-1992), in the full amount of the
portion of the Purchase Price. It shall be a Condition Precedent to
Buyer’s obligation to proceed to Closing that, at Closing,
the Title Company shall issue a pro forma or “mark-up”
of the Title Policy to Buyer insuring Buyer as the owner of the
leasehold interest in the Property for the full amount of the
Purchase Price, which Title Policy shall provide full
“extended form” coverage and all of the following
endorsements: (i) an ALTA 3.1 zoning endorsement (with
parking); (ii) a survey endorsement; (iii) a tax parcel
endorsement; (iv) an owner’s comprehensive endorsement;
and (v) an access endorsement (collectively, “
Endorsements ”), if and to the extent that such
Endorsements are available in the applicable jurisdiction and
approved for issuance by the Title Company.
5.2. Survey . Buyer shall, at
Seller’s sole cost, order an as-built survey of the Land and
Improvements of the Property (the “ Survey ”),
prepared by a surveyor duly registered in the state of Georgia, and
certified by said surveyor as having been prepared in accordance
with the most currently available minimum detail and classification
requirements of the land survey standards of the American Land
Title Association. Should the Survey indicate the presence of any
encroachments by or upon the Property, or other matters that do or
could adversely affect the value or marketability of title to the
Property, or other matters that do or could
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adversely affect Buyer’s use,
operation or financing of such parcel of Land, such matters shall
be considered Defects (as defined in Section 5.3 ), and
the cure provisions set forth in Section 5.3 shall
apply.
5.3. Defects and Cure . If the Title
Commitment, the Survey or any update to either of the foregoing,
(“ Title Evidence ”) discloses unpermitted
claims, liens, exceptions or conditions (the “ Defects
”), said Defects shall be cured and removed by Seller from
the Title Evidence prior to Closing in accordance with this
Section 5.3 .
5.3.1. Mandatory Cure Items . On or prior
to Closing, Seller shall be unconditionally obligated to cure or
remove the following Defects (the “ Liquidated Defects
”), whether described in the Title Commitment, or first
arising or first disclosed by the Title Company (or otherwise) to
Buyer after the date of the Title Commitment, and whether or not
raised in a Title Objection Notice (defined below): (a) liens
securing a mortgage, deed of trust or trust deed evidencing an
indebtedness of Seller (except the Indenture); (b) judgment
liens against any or all of Seller or its shareholders, partners or
members, as the case may be, and the officers, directors,
employees, agents or duly authorized managing agent of any or all
of Seller or its shareholders, partners or members, as the case may
be (collectively “ Seller Parties ”);
(c) tax liens; (d) broker’s liens based on the
written agreement of Seller or any Seller Parties; and (e) any
mechanics liens that are based upon a written agreement between
either (x) the claimant (a “ Contract Claimant
”) and any or all of Seller and the Seller Parties, or
(y) the Contract Claimant and any other contractor, supplier
or materialman with which any or all of Seller and the Seller
Parties has a written agreement. Notwithstanding anything to the
contrary set forth herein, if, prior to Closing, Seller fails to so
cure or remove (or insure over, in a form and substance reasonably
acceptable to Buyer) all Liquidated Defects, then Buyer may either
(1) terminate this Agreement by written notice to Seller, in
which event the provisions of Section 21.8 governing a
permitted termination by Buyer of the entire Agreement shall apply;
or (2) proceed to close with title to the Property as it then
is, with the right to deduct from the Purchase Price a sum equal to
the aggregate amount necessary to cure or remove (by endorsement or
otherwise, as reasonably determined by Buyer, acting in good faith)
the Liquidated Defects.
5.3.2. Other Defects . Buyer may deliver
one or more notices (each a “ Title Objection Notice
”) to Seller specifying any lien, claim, encumbrance,
restriction, covenant, condition, exception to title or other
matter disclosed by the Title Evidence that is not a Liquidated
Defect (“ Other Defects ”): (a) that is
evidenced by the Title Evidence, except that Buyer may not raise
objection to any or all of the Ground Lease, the Indenture or the
Bonds, or (b) that first arises, or is first disclosed to
Buyer, subsequent to the delivery of the applicable item of Title
Evidence to Buyer, and that renders title unacceptable to Buyer.
Seller shall be obligated to advise Buyer in writing (“
Seller’s Cure Notice ”) within three
(3) business days after Buyer delivers any Title Objection
Notice, which (if any) of the Other Defects specified in the
applicable of Title Objection Notice Seller is willing to cure (the
“ Seller’s Cure Items ”). If Seller
delivers a Seller’s Cure Notice, and identifies any
Seller’s Cure Items, Seller shall be unconditionally
obligated to cure or remove the Seller’s Cure Items prior to
the Closing. In the event that Seller fails to timely deliver a
Seller’s Cure Notice, or in the event that Seller’s
Cure Notice (specifying Seller’s Cure Items) does not include
each and every Other Defect specified
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in each Title Objection Notice, then
Buyer may either (A) elect to terminate this Agreement by
written notice to Seller, in which event the provisions of
Section 21.8 governing a permitted termination by Buyer
of the entire Agreement shall apply, or (B) proceed to close,
accepting title to the Property subject to those Other Defects not
included in Seller’s Cure Notice. 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
(other than Liquidated Defects) that are set forth in the Title
Evidence, but not objected to by Buyer in a Title Objection Notice;
and (ii) any Other Defects that Seller elects, or is deemed to
have elected, not to cure, but despite which, pursuant to
(B) above, Buyer nevertheless elects to close.
6. 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:
6.1. Seller’s
Representations .
6.1.1. 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.
6.1.2.
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 6.1.2 . 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.
6.1.3. Environmental
Matters . Seller
hereby represents to Buyer that the following matters are true as
of the Effective Date and shall be 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):
6.1.3.1. To Seller’s knowledge, the Property has
been operated during Seller’s period of ownership (and/or, in
the case of the Leased Fulton Land, use pursuant to the Ground
Lease) in material compliance with all applicable Environmental
Laws and Environmental Permits.
6.1.3.2. 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.
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6.1.3.3. 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.
6.1.3.4. 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.
6.1.3.5. 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.
6.1.3.6. 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.
6.1.3.7. 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 6.1.3 shall have the meanings respectively
ascribed to them in Exhibit B .
6.1.4. 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.
6.1.5. Litigation . Except as set forth
on Schedule 6.1.5 , 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
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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.
6.1.6.
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.
6.1.7. 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.
6.1.8. 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, and Seller
agrees that it will not, without the prior written consent of Buyer
(which consent will not be unreasonably withheld or delayed),
institute prior to the Closing Date, 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
Prop
