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
required by the Title Company to record the deed and issue the Title Policy
required by this Agreement.


 


(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, Improvements and Other Personal Property free and clear of all claims
under or through the Seller.


 


(8)                                  Lease Amendment.  Lease Amendment in the form required by Section 3(b) of
this Agreement, together with an executed copy of the Lease.


 


(9)                                  Title Insurance.  Title Policy required by this Agreement,
together with the following endorsements (or the substantial, local equivalent
of such endorsements) relating to the Real Property, to the extent that such
endorsements are customarily available in Wisconsin (altogether, the “Endorsements”):  a “gap” endorsement; an access endorsement;
and an ALTA 9 (owner’s) restrictions, encroachments, and minerals endorsement.


 


(c)                                  Buyer’s
Closing Deliveries.  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) and 2(b)(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 (with endorsements) required by this Agreement.


 


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(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.


 


(d)                                 Joint Closing Deliveries.  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 Wisconsin
to transfer the Real Property or record any deed.


 


(3)                                  Lease Assignment.  Lease Assignment for the Real Property and
Improvements in the form set forth in this Agreement


 


(4)                                  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
Milwaukee, Wisconsin, on or before December 16, 2005 (“Closing Date”), or
at such other time or location as the parties may agree in writing.  Occupancy and use of the Real 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.  Seller shall pay the cost of the Title Policy
required under this Agreement.  Buyer
shall pay the cost of the endorsements to 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).


 


(c)                                  Transfer Tax.  With respect to 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 (in each instance, a “Transfer Tax”), the parties agree that Seller shall pay any
Transfer Tax owing with respect to transfer of title in any Real Property.  Buyer shall pay any sales or use taxes
applicable to the Personal Property and Other Personal Property.


 


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(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 Policies in the form required by this
Agreement.  Buyer shall pay recording
fees owing to record the deed.


 


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


 


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


 


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 the 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 estate except for
proposals or master plans of Milwaukee County, Wisconsin; or (3) official
written order requiring repair, alteration or correction of any existing
condition on the Real Property or Improvements;


 


(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, except for the approval of the Milwaukee
County Board and the Wisconsin Department of Natural Resources as set forth
herein; and


 


(f)                                    Other
than as specifically set forth in Section 7.1 (d), 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;


 


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(b)                                 This
Agreement constitutes a valid and legally binding obligation enforceable
against the 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 $50,000, Seller shall be
obligated to repair or replace the same to equal or better condition than prior
to the damage.  If such damage shall
exceed $50,000, 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 and No/100 ($300,000) United States Dollars (USD Three Hundred
Thousand),  (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 and No/100 United States
Dollars (USD $300,000), 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 and
No/100 United States Dollars (USD $300,000).


 


10.                                 Signatures;
Notice.  Buyer and Seller agree to
accept and hold binding all facsimile signatures for executing and amending
this Agreement and for giving notices called for in this Agreement.  All notices given under this Agreement shall
be transmitted by facsimile to the respective addresses and facsimile numbers
given below:


 


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(a)                                  Seller:

Altria Corporate Services, Inc.

180 Airport Road-Hanger D2

White Plains, New York, NY  10604

Attn:  James R. West

Fax:  914-288-3070


 


with copy to:


 


Anne M. O’Sullivan, Esq.

Altria Corporate Services, Inc.

120 Park Avenue

New York, NY  10017

Fax:  914-272-0825


 


(b)                                 Seller:


 


Kraft Foods
Global, Inc.

Three Lakes Drive

Northfield, IL  60093

Attn:  Director, Corporate Real Estate

Fax:  847-646-8900


 


with copy to:


 


Sharon S.
Zuiker, Esq.

Kraft Foods Global, Inc.

Three Lakes Drive

Northfield, IL  60093

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 Sections 12 and 14 in 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.                                 Allocation
of Responsibility under Lease. 
Seller shall indemnify and hold harmless Buyer, its officers, directors,
employees, agents and representatives from and against all claims, damages,
losses and expenses (direct and indirect), including charges of attorneys and 


 


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court
and arbitration costs, arising out of or resulting from the Lease which arose
on or prior to the Closing Date.


 


Buyer shall indemnify and hold harmless
Seller, its officers, directors, employees, agents and representatives from and
against all claims, damages, losses and expenses (direct and indirect),
including charges of attorney and court and arbitration costs, arising out of
or resulting from the Lease arising after the Closing Date.


 


15.                                 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.


 


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


 


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
such delivery.


 


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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.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bruce
  Windedahl

  	
   

  
	
   

  	
  Name: Bruce
  Windedahl

  
	
   

  	
  Title: Sr.
  Director

  
	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

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

  PHILIP MORRIS MANAGEMENT

  CORPORATION)

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ George
  Saling

  	
   

  
	
   

  	
  Name: George
  Saling

  
	
   

  	
  Title: Vice
  President, Aviation + Travel Services

  
	
   

  	
   

  
					



 


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