Exhibit 10.1
PURCHASE AND SALE
AGREEMENT
This Purchase and Sale Agreement is
made as of this 15th day of December, 2005 (this
“Agreement”), by and between ALTRIA CORPORATE
SERVICES, INC. (f/k/a PHILIP MORRIS MANAGEMENT CORPORATION) , a
New York corporation (“Seller”) and KRAFT FOODS
GLOBAL, INC. (“Buyer”), a Delaware
corporation.
W I T N E S S E T H
WHEREAS, Seller and Milwaukee
County, Wisconsin are parties to certain Lease Agreement, dated
July 14, 1980, Airport Agreement No. HP-695, as amended
by Amendment No. 1 to Airport Lease Agreement No. HP-695
as of December 31, 1995 and Amendment No. 2 to Airport
Lease Agreement No. HP-695 as of December 16, 2005 (the
“Lease”) with respect to certain property located at
General Mitchell International Airport (“Airport”);
and
WHEREAS, Seller desires to sell and
transfer to Buyer, and Buyer desires to purchase and accept from
Seller, all of Seller’s rights, title and interests in the
Lease and certain other property described herein on the terms and
conditions hereinafter set forth,
NOW, THEREFORE, in consideration of
the foregoing premises and of the mutual covenants, representations
and warranties herein set forth, the parties hereto hereby covenant
and agree as follows:
1.
Purchase and Sale
. Seller hereby agrees to
sell, assign, convey, transfer and deliver and Buyer hereby agrees
to purchase, accept and receive the following property
(collectively, the “Property”):
(a)
All of Seller’s right, title
and interest as lessee under the Lease for property located at 530
East College Avenue, Milwaukee, Wisconsin, and described on
Exhibit A (the “Real Property”);
(b)
All fixtures or real property
improvements owned by Seller and located on the Real Property, as
described on Exhibit A (the
“Improvements”);
(c)
The personal property listed on
Exhibit B (“Personal Property”);
and
(d)
Such other personal property located
on the Real Property on the date of Closing (“Other Personal
Property”), but excluding aircraft spare parts,
telecommunications equipment, and information technology
systems.
2.
Purchase Price and Other
Payments .
(a)
The total purchase price for the
Property shall be Three Million Two Hundred Ninety-Eight Thousand
Two Hundred Thirty-Seven Dollars ($3,298,237) (the “Purchase
Price”) and shall be allocated as follows:
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(i)
The purchase price for the Real
Property, Improvements and the Other Personal Property shall be
Three Million Dollars ($3,000,000), payable by wire transfer, at
the consummation of the transactions contemplated in Section 1
hereof (the “Closing”).
(ii)
The purchase price for the Personal
Property shall be Two Hundred Ninety-Eight Thousand Two Hundred
Thirty-Seven Dollars ($298,237), payable by wire transfer, at the
consummation of transactions contemplated in Section 1
hereof.
(b)
Other payments shall be made to
Buyer or Seller, as the case may be as follows:
(i)
Net real estate taxes (if any),
under the Lease shall be prorated as of the date of closing, with
all such items through the date of closing accruing to
Seller. Taxes shall be prorated based on the most current
available bill. Special assessments, if any, for work
actually commenced or levied prior to the date of Closing shall be
paid by Seller. All other special assessments or other
charges shall be paid by Buyer.
(ii)
On the Closing Date, Seller shall
receive a payment from the Buyer for the average blended cost of
all fuel located on the Real Property. The determination of
the exact amount shall be made on the Closing Date and the payment
shall be made at Closing.
3.
Buyer’s Conditions
Precedent .
Buyer’s obligation to pay the purchase price set forth in
Section 1 and to conclude the purchase transaction as set
forth herein is subject to the fulfillment, of each of the
following conditions:
(a)
One or more inspections of the
Property to be conducted by December 10, 2005, including
without limitation the auditing, sampling and testing for the
presence of any hazardous or solid waste or any other condition
adversely affecting the environment (including air, water, or
soil), conducted by or on behalf of Buyer, at Buyer’s
expense, at reasonable times upon reasonable notice to Seller and
for the purpose of Buyer determining, in its sole judgment, whether
the Property, including without limitation its fire protection and
other systems, has any defects or conditions of any nature that, if
not corrected, repaired, replaced or repaired, would shorten or
adversely affect the value, utility, or useful life of the Property
to Buyer (“Defect”). Buyer shall not cause any
unreasonable interference with the conduct of Seller’s
business on the Property, and Buyer shall repair all damage to the
Property caused by Buyer, or its contractors or agents. Buyer
shall indemnify and hold Seller harmless from any claim, loss,
cost, damage or expense arising from damage to the Property or from
personal injuries to or death of any third person. Seller, or
its agent, may accompany Buyer or Buyer’s agent during such
inspections. This condition precedent for inspections shall
be considered waived unless Buyer, by December 10, 2005,
notifies Seller, in writing, of those Defects. Seller may
notify Buyer in writing within five (5) business days of
receipt of Buyer’s notice of Defect of its election to cure
such identified Defects prior to Closing, in which case this
Agreement shall continue and Seller shall promptly undertake
efforts for such cure. If Seller fails to provide such notice
within the time stated or if Buyer notifies Seller in writing
within five (5) business days of Seller’s notice that
Seller’s efforts to cure or the time needed for Seller to
cure are unsatisfactory in Buyer’s sole judgment, then Buyer
may terminate its obligation to close hereunder.
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(b)
Seller’s delivery to Buyer, at
or prior to Closing, written confirmation that the Milwaukee,
Wisconsin County Board approved the Assignment of Lease Airport
Agreement No. HP-695 (“Assignment”) from Seller to
Buyer with modifications described in the Amendment No. 3 to
Airport Lease Agreement No. HR-695 (“Amendment”)
attached as Exhibit C-1. Said approval shall be deemed
satisfied if an assignment substantially in the form of
Exhibit C-2 is delivered, the Milwaukee County Board approves
a resolution authorizing amendments to the Lease as required by
this subparagraph, and the Milwaukee County Director of Public
Works (or his designee) executes such Assignment and
Amendment.
(c)
The representations and warranties
made by Seller contained or referenced in this Agreement shall be
true and correct in all material respects on the date hereof and on
and as of the Closing as though made at that time.
4.
Title Evidence
. At least five
(5) business days prior to Closing, Seller shall provide Buyer
with a commitment from Ticor Title Insurance Company (the
“Title Company”) to issue a leasehold policy of title
insurance (with extended coverage, if available) on Buyer’s
interest in the Lease, in the amount of the purchase price for the
Real Property and Improvements showing lessee’s interest in
the Lease in Buyer, as of a date no more than ten (10) days
before such title commitment is provided Buyer, to be in the
condition called for in this Agreement and further subject only to
such liens as will be paid out of the proceeds at Closing.
Buyer shall notify Seller of any valid objections to title in
writing at least three (3) business days prior to
Closing. Seller shall have a reasonable time, not to exceed
thirty (30) days, to remove the objections and Closing shall be
extended as necessary for this purpose. If Seller is
unwilling or unable to remove such objections, Buyer shall
thereupon have the option to terminate this Agreement or waive such
objections and proceed to close this transaction. Buyer
recognizes that the Real Property and Improvements are part of the
Milwaukee County Airport.
5.
Conveyance
.
(a)
Upon Buyer’s payment of the
Purchase Price, Seller shall convey the Property to Buyer at
Closing by assignment of lease, bill of sale and a special warranty
deed, as appropriate, free and clear of all mortgages, liens,
pledges, security interests and encumbrances, except municipal and
zoning ordinances, recorded easements for public utilities serving
the Real Property, recorded building and use restrictions and
covenants, any deed restriction affecting the Real Property
required by the Wisconsin Department of Natural Resources, taxes
levied in the year of Closing, matters listed (in accordance with
Section 4 above) on the Preliminary Title Commitment of Ticor
Title Insurance Company dated March 31, 2005, attached as
Exhibit D, and any encumbrances accepted by Buyer pursuant to
Section 4 hereof, provided none of the foregoing prohibit the
current use of the Property (“Permitted
Encumbrances”). Seller shall further complete and
execute all documents necessary to record this
conveyance.
(b)
At Closing, Seller shall execute and
deliver to Buyer, or cause to be executed and delivered to Buyer,
all of the following (collectively, “Seller’s Closing
Documents”):
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(1)
Deed . Special Warranty Deed conveying to
Buyer all of the Real Property and Improvements, free and clear of
all encumbrances claimed by, through or under Seller, except only
the Permitted Encumbrances.
(2)
FIRPTA Affidavit
. An affidavit of non-foreign
status properly containing such information as is required by IRC
Section 1445(b)(2) and its regulations.
(3)
Title-related
Documents . Such
affidavits of Seller or other documents as may be reasonably
requi
