Exhibit 10.1


 


PURCHASE AND SALE AGREEMENT


 


This Purchase
and Sale Agreement is made as of this 24th day of May, 2006 (this “Agreement”),
by and between ALTRIA CORPORATE SERVICES,
INC. (f/k/a PHILIP MORRIS MANAGEMENT CORP.), 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 owns the Property (as defined in Paragraph 1 below); 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 Real
Property 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 in that certain real estate commonly
known as 50 New Commerce Boulevard and certain vacant land across the street
therefrom, 200 Stewart Road, and a 50’ wide parcel containing approximately
61,795.66 square feet known as the UGI/Sugarnotch parcel, all of which real
estate is located in Wilkes Barre, Pennsylvania 18762 and legally described on Exhibit
A, attached hereto and incorporated herein by reference; together with all improvements
thereon; all systems, equipment, facilities, fixtures, and conduits to provide
fire protection, security, heat, exhaust, ventilation, air conditioning,
electrical power, light, plumbing, refrigeration, gas, sewer and water thereto
(including all replacements or additions thereto between the date hereof and
the Closing Date); all privi­leges, rights, easements, hereditaments, and appur­tenances
belonging or appertaining thereto; and all right, title and interest of Seller in
and to all streets, alleys, passages and other rights-of-way included therein
or adjacent thereto (“Real Property”);


 


(b)           The
personal property listed on Exhibit B (“Personal Property”); and


 


(c)           Such
other personal property located on the Real Property on the date of Closing (“Other
Personal Property”), but excluding the personal property listed on Exhibit C.


 


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2.             Purchase
Price and Other Payments.


 


(a)           The
total purchase price for the Property shall be Nine Million Three Hundred
Thousand Dollars ($9,300,000.00) (the “Purchase Price”) and shall be allocated
as follows:


 


(i)            The
purchase price for the Real Property shall be Eight Million Dollars ($8,000,000.00),
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 and Other Personal Property shall be One
Million Three Hundred Thousand Dollars ($1,300,000.00), 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)            Real
estate taxes 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)           Utility
charges and deposits and all other items of accrued or prepaid income and
expenses customarily prorated on the transfer of properties similar to the Real
Property in the county in which the Real Property is located shall be prorated
on an accrual basis as of the Closing Date on the basis of the most recent
ascertainable amounts of or other reliable information in respect to each such
item of income and expense, and the net credit shall be paid, as applicable, by
Buyer in cash or by Seller as a credit against the Purchase Price payable on
the Closing Date .


 


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 have been conducted, 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, 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.  The condition of the Property on and as of
Closing shall be substantially the same as that on the dates of Buyer’s
inspections.  Buyer has not and 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


 


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damage to the
Property or from personal injuries to or death of any third person arising from
Buyer’s acts or omissions.


 


(b)           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; Survey.


 


(a)           Seller
has heretofore provided Buyer with commitment number 1170566BACPAO (the “Title
Commitment”) from First American Insurance Company (through E.W. Bilbow Abstract
Company, a division thereof) (the “Title Company”) to issue an owner’s policy
of title insurance covering the Real Property in the amount of the Purchase
Price allocated to the Real Property, showing Seller as owner of the Real
Property in fee simple.  Buyer hereby
agrees to take title to the Real Property subject to the exceptions listed in
the Title Commitment.


 


(b)           Seller
has heretofore provided Buyer with a survey dated April 18, 2006 (“Survey”) of
the Real Property prepared by Clough, Harbour & Associates LLP in
accordance with ALTA/ACSM standards (2005), including Table A items 1, 2, 3, 4,
6, ,7, 8, 9, 10, 11(a), 16 and 17.  Buyer
hereby approves the Survey and agrees to take title to the Real Property
subject to the matters shown on the Survey.


 


5.             Conveyance.


 


(a)           Upon
Buyer’s payment of the Purchase Price, Seller shall convey the Property to
Buyer at Closing by special warranty deed and bill of sale, as applicable, 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, taxes levied in the year of Closing, title exceptions and survey
matters permitted pursuant to Section 4 above, provided none of the foregoing
prohibit the current use of the Property, and all title and survey matters
concerning the 50’ wide parcel containing approximately 61,795.66 square feet
known as the UGI/Sugarnotch parcel (“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”):


 


(1)           Deed. 
Special Warranty Deed conveying to Buyer all of the Real Property, 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.


 


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(3)           Title-related Documents.  Such affidavits of Seller or other documents
as may be reasonably required by the Title Company to record the deed and issue
the Title Policy (as defined in subsection (8) below).


 


(4)           Certificate.  A certificate signed by an authorized agent
of Seller and dated as of the Closing Date reaffirming the truth, correctness,
and completeness of all of Seller’s representations and warranties under this
Agreement.


 


(5)           Files and Records.  Copies of files related to the Property in
Seller’s possession and located at the Real Property on the Closing Date.


 


(6)           Resolutions.  Corporate resolutions (or a secretary’s
certificate) of Seller in such form as may be reasonably satisfactory to the
Title Company to evidence Seller’s authority to transfer the Property.


 


(7)           Bill of Sale.  A bill of sale conveying all Personal
Property and Other Personal Property free and clear of all claims under or
through Seller.


 


(8)           Title Policy.  A title policy conforming to the provisions
of the Title Commitment, together with the following endorsements (or the
substantial, local equivalent of such endorsements) to the extent that such
endorsements are customarily available in Pennsylvania (collectively, the “Title
Policy”):  a “gap” endorsement; an access
endorsement; an ALTA 9 (owner’s) restrictions, encroachments, minerals
endorsement; and a zoning 3.1 (including parking) endorsement.


 


(c)           At
Closing, Buyer will execute and deliver to Seller, or cause to be executed and
delivered to Seller, all of the following (collectively, “Buyer’s Closing
Documents”):


 


(1)           Purchase Price.  The Purchase Price,
plus or minus prorations and other adjustments described in Sections 2(b)(i) -
(ii), if any, by wire transfer of immediately available funds.


 


(2)           Title Documents.  Such affidavits of
Buyer or other documents as may be reasonably required by the Title Company in
order to record the deed and issue the Title Policy.


 


(3)           Certificate.  A certificate signed by an authorized agent
of Buyer and dated as of the Closing Date reaffirming the truth, correctness,
and completeness of all Buyer’s representations and warranties under this
Agreement.


 


(4)           Resolutions.  Corporate resolutions or a secretary’s
certificate of Buyer in such form as may be reasonably satisfactory to the
Title Company to evidence Buyer’s authority to carry out the transfer that is
the subject of this Agreement.


 


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(d)           At
Closing, Seller and Buyer shall jointly execute and deliver the following:


 


(1)           Closing Statement.  A closing and proration statement, prepared
by Seller and reasonably acceptable to Buyer.


 


(2)           Real Estate Transfer Returns.  Properly completed copies of any real estate
transfer return, gains tax form, or other documentation required in Pennsylvania
to transfer the Real Property or record any deed (if any).


 


(3)           Miscellaneous.  Such other documents,
instruments, and affidavits as shall be reasonably necessary to consummate the
transaction contemplated by this Agreement (including, without limitation, a
written assignment conveying to Buyer all of Seller’s right, title, and
interest in and to any contract or license concerning the Property that may
freely be transferred without the consent or approval of any third party).


 


6.             Closing.  This transaction is to be closed at the
offices of the Title Company in Kingston, Pennsylvania, on May 24, 2006 (“Closing
Date”), or at such other time or location as the parties may agree in
writing.  Occupancy and use of the
Property shall be given to Buyer at Closing or at such other time and subject
to such terms and conditions as the parties may agree in writing.


 


Closing costs shall
be allocated as follows:


 


(a)           Title Insurance.  Buyer shall pay the
cost of the Title Policy.


 


(b)           Closing Fee.  Seller and Buyer will
each pay one-half of any reasonable and customary closing fee charged by the
Title Company (including, without limitation, any reasonable and customary fee
for an escrow), if any.


 


(c)           Transfer and Sales Tax.  Seller
and Buyer shall each pay one-half of any real estate transfer fee, transfer
tax, or other fee charged by any pertinent governmental authority as an
incident to transfer of title in the Real Property.  Seller shall pay all sales taxes, if any,
charged by any pertinent governmental authority as an incident to transfer of
title to the Personal Property and Other Personal Property.


 


(d)           Recording Costs.  Seller shall pay the recording fees owing to
record any documents, other than the deed, necessary to secure issuance of the
Title Policy.  Buyer shall pay recording
fees owing to record the deed.


 


(e)           Attorney’s Fees.  Each party shall pay
its own attorneys fees.


 


(f)            Survey. 
Buyer shall pay the cost of the Survey.


 


(g)           Other Costs.  All other costs shall
be allocated in accordance with the customs prevailing in similar transactions
in Pennsylvania.


 


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7.             Representations
and Warranties.


 


7.1           Seller
hereby represents and warrants as of the date hereof:


 


(a)           Seller
has the corporate power and authority to execute and deliver this Agreement and
as of Closing will have the corporate power and authority to perform its
obligations hereunder and to consummate the transactions contemplated hereby;


 


(b)           This
Agreement constitutes a valid and legally binding obligation enforceable
against Seller in accordance with the terms hereof, except as may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium or other similar
laws from time to time in effect affecting creditors’ rights generally, or
equitable principles of general application;


 


(c)           Seller
is not obligated in any manner to pay any finder’s fee or brokerage or similar
commission in respect to the transactions contemplated by this Agreement and
has taken no action that would obligate Buyer to pay any such fee or
commission;


 


(d)           Seller
has no notice or knowledge of any:  (1) planned
or commenced public improvements which may result in special assessments;
(2) planned public improvements which would materially affect the Real
Property; or (3) official written order requiring repair, alteration or
correction of any existing condition on the Real Property;


 


(e)           To
the best of Seller’s knowledge, no consent, approval or authorization of, or
declaration or filing with, any governmental authority is required for valid
execution and delivery of this Agreement and the consummation of the transactions
contemplated hereby; and


 


(f)            The
Property will be sold “AS IS” with no warranties or representations by Seller,
whether express or implied.


 


7.2           Buyer
hereby represents and warrants as follows:


 


(a)           Buyer
has the corporate power and authority to execute and deliver this Agreement and
as of Closing will have the corporate power and authority to perform its
obligations hereunder and to consummate the transactions contemplated hereby;


 


(b)           This
Agreement constitutes a valid and legally binding obligation enforceable
against Buyer in accordance with the terms hereof, except as may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium or other similar
laws from time to time in effect affecting creditors’ rights generally, or
equitable principles of general application;


 


(c)           Buyer
is not obligated in any manner to pay any finder’s fee or brokerage or similar
commission in respect to the transactions contemplated by this Agreement and
has taken no action that would obligate Seller to pay any such fee or
commission.


 


8.             Damage.  Prior to the Closing, if any part of the
Property is damaged in an amount of not more than One Million Dollars ($1,000,000.00),
Seller shall be obligated to repair


 


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or replace the
same to equal or better condition than prior to the damage.  If such damage shall exceed One Million
Dollars ($1,000,000.00), Seller shall within five (5) business days inform
Buyer in writing of the extent that insurance proceeds will be available with
respect to the damage.  Within five (5)
days after receipt of such notice from Seller regarding the availability of
insurance proceeds, Buyer, at its sole option, may cancel this Agreement by
written notice to Seller.  If Buyer elects
not to terminate this Agreement, Seller shall not be required to repair the
Property, but Buyer shall be entitled to receive all insurance proceeds
relating to the damage.


 


9.             Default.


 


(a)           If
Buyer defaults in its obligation to consummate this Agreement, Seller shall be
entitled, at Seller’s sole election, (i) to terminate this Agreement and assert
a claim for Seller’s costs, expenses, and other damages in connection with this
Agreement, which claim shall not exceed the sum of Three Hundred Thousand Dollars
($300,000.00),  (ii) close the
transaction contemplated by this Agreement without waiving any claim of
default, and thereafter assert a claim for Seller’s costs, expenses, and other
damages in connection with Buyer’s default under this Agreement, which claim
shall not exceed the sum of Three Hundred Thousand Dollars ($300,000.00), or
(iii) pursue any other remedy available to Seller at law or in equity
(including, without limitation, an action for Seller’s damages and an action
for specific performance), either as an alternative to the remedies set forth
in this Section 9(a) or in conjunction therewith.


 


(b)           If
Seller defaults in its obligation to consummate this Agreement, Buyer shall be
entitled, as its sole remedy, to assert a claim for Buyer’s costs, expenses,
and other damages in connection with this Agreement, which claim shall not
exceed the sum of Three Hundred Thousand Dollars ($300,000.00).


 


10.           Notice.  All notices given under this Agreement shall
be transmitted by reputable overnight courier or facsimile to the respective
addresses and facsimile numbers given below:


 


(a)                                  To Seller:


Altria Corporate Services, Inc.

120 Park Avenue

New York, NY  10017

Attn:  Sam Nickols

Fax:  917-663-5474


 


with copy to:                         Altria
Corporate Services, Inc.


120 Park Avenue


New York, NY  10017


Attn:  Anne M. O’Sullivan, Esq.

Fax:  914-272-0825


 


(b)                                 To
Buyer:


Kraft Foods
Global, Inc.

Three Lakes Drive

Northfield, IL  60093


 


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Attn:  Director, Corporate Real Estate

Fax:  847-646-8900


 


with copy to:                                                                          Kraft
Foods Global, Inc.

Three Lakes Drive

Northfield, IL  60093


Attn: Sharon
S. Zuiker, Esq.

Fax:  847-646-4431


 


11.           Access
to Property.  Seller shall afford to
the officers, employees and authorized representatives of Buyer reasonable
access during normal business hours to the Property to the extent Buyer shall
deem necessary or desirable.


 


12.           Survival
of Obligations.  The representations
and warranties contained in Section 7 of this Agreement shall survive the
execution and delivery of this Agreement and the Closing for a term of one (1)
year, shall not be merged into the deed, and shall be deemed to have been
relied upon by the parties hereto.


 


13.           Termination.  In the event that any of the conditions
precedent to Buyer’s obligations hereunder are not met by the date established
in Section 6 for Closing and are not waived by Buyer at or prior to Closing,
Buyer may, at its option and in addition to any other rights it may have,
terminate this Agreement by giving written notice of termination to
Seller.  Nothing contained herein shall
be deemed to require Buyer to terminate this Agreement in the event that a
condition precedent to its obligations hereunder is not met, but, rather, Buyer
may, at its sole discretion, waive such condition precedent and proceed with
the Closing.


 


14.           Entire
Agreement; Headings; Counterparts. 
This Agreement and the agreements and other documents referred to herein
and the exhibits hereto constitute the entire agreement and understanding of
the parties hereto with respect to the subject matter hereof and supersedes all
prior negotiations and understandings, whether written or oral, of the parties
hereto with respect to the subject matter hereof.  The headings in this Agreement are for the
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.  This Agreement may be executed
and delivered by the parties hereto in one or more counterparts, each of which
shall be an original but all of which together shall constitute one instrument.


 


15.           Intentionally
Omitted.


 


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16.           Applicable
Law.  This agreement shall be
governed and construed in accordance with the laws of Pennsylvania.


 


17.           Facsimile
Signatures.  Buyer and Seller agree
that signatures on documents delivered by facsimile transmission shall be
binding on all parties, and respectively agree to provide an originally signed
copy of any document delivered by facsimile within five (5) days after request
therefor.


 


IN WITNESS
WHEREOF, the parties hereto have caused this Purchase and Sale Agreement to be
executed as of the date first above written.


 


	
   

  	
  BUYER:

  
	
   

  	
   

  
	
   

  	
  KRAFT FOODS GLOBAL, INC., a Delaware

  corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce L.
  Windedahl

  	
   

  
	
   

  	
  Name: Bruce
  L. Windedahl

  
	
   

  	
  Title: Senior
  Director Facilities Management &

  Real Estate

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  ALTRIA CORPORATE SERVICES, INC. (f/k/a

  PHILIP MORRIS MANAGEMENT CORP.), a

  New York corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Samuel
  L. Nickols

  	
   

  
	
   

  	
  Name: Samuel
  L. Nickols

  
	
   

  	
  Title:
  Senior Director Facilities & Security

  
						



 


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