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EXHIBIT 10.70
FORM OF AGREEMENT
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
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NOVEMBER 12, 1997
BUYER:
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REALTY INCOME CORPORATION, A MARYLAND CORPORATION
SELLER:
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MONRO MUFFLER BRAKE, INC., A NEW YORK CORPORATION
PROPERTY LOCATION:
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Monro Muffler/Brake #XXX
SPECIFIC ADDRESS 10 LOCATIONS AS FOLLOWS:
0000 Xxxxx Xxxx, Xxxxxxxx, XX
5021 Scatterfield, Anderson, IN
0000 Xxxxxxx Xxxx, Xxxxxx Xxxx, XX
0000 Xxxx Xxxxx Xxxx, Xxxxxxxxx, XX
0000 Xxxxxx Xxxxxx, Xxxxxxxxx, XX
0000 Xxxxxx Xxxxxx, Xxxxxxx, XX
1014 Coshocton, Mt. Xxxxxx, OH
000 Xxxxx Xxxxxx, Xxxxxxx, XX
0000 Xxxxxxxx Xx., Xxxxxxx, XX
0000 Xxxxx Xxxxxx, Xxxx, XX
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PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
TABLE OF CONTENTS
RECITALS ....................................................1
1. PURCHASE PRICE ........................................1
2. OPENING OF ESCROW .....................................1
3. TITLE TO PROPERTY .....................................2
4. CONDITIONS TO BUYER'S OBLIGATION TO PURCHASE ..........2
4.1 Approvals by Buyer ...............................2
4.2 Utilities ........................................4
4.3 Physical Characteristics of the Property .........4
4.4 Accuracy of Representations ......................4
4.5 No Hazardous Materials ...........................4
4.6 Foreign Investments ..............................4
4.7 Failure of Conditions ............................5
4.8 Lease ............................................5
5. CONDITIONS TO SELLER'S OBLIGATION TO SELL .............5
5.1 Performance by Buyer .............................5
5.2 Accuracy of Representations ......................5
5.3 Payment of Purchase Price ........................5
6. BUYER'S DELIVERIES TO ESCROW AGENT and seller .........6
6.1 Purchase Price ...................................6
6.2 Lease ............................................6
6.3 Failure to Deliver ...............................6
7. SELLER'S DELIVERIES TO ESCROW AGENT AND BUYER .........6
7.1 Deed .............................................6
7.2 Lease ............................................6
7.3 Documents Needed to Close ........................6
7.4 Failure to Deliver ...............................6
8. THE CLOSING ..........................................7
8.1 Date and Manner of Closing .......................7
8.2 Delay in Closing; Authority to Close .............7
9. PRORATION, COSTS AND EXPENSES .........................8
9.1 Prorations and Apportionments ....................8
9.2 Payment of Adjustments to Proration ..............8
9.3 Seller's Costs and Expenses ......................8
9.4 Buyer's Costs and Expenses .......................8
10. DISTRIBUTION OF FUNDS AND DOCUMENTS ...................9
10.1 Form of Distributions ............................9
10.2 Recorded Documents ...............................9
10.3 Non-Recorded Documents ...........................9
10.4 Cash Disbursements ...............................9
10.5 Copies of Documents ..............................9
11. RETURN OF DOCUMENTS AND FUNDS UPON TERMINATION ........9
11.1 Return of Seller's Documents .....................9
11.2 Return of Buyer's Documents .....................10
11.3 No Effect on Rights of Parties ..................10
11.4 Payment of Termination Fee ......................10
12. DEFAULT ..............................................10
12.1 Seller's Remedy .................................10
12.2 Buyer's Remedies ................................11
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13. REPRESENTATIONS AND WARRANTIES OF SELLER .............11
13.1 Authority of Seller .............................11
13.2 Condition of Property ...........................11
13.3 Use and Operation ...............................11
13.4 Land Use Regulation .............................12
13.5 Reports, Contracts and Other Documents ..........12
13.6 Absence of Fraud and Misleading Statements ......12
13.7 Litigation ......................................12
13.8 Other Contracts to Convey .......................12
13.9 Environmental Compliance/Hazardous Materials ....13
13.10 Property Tax Assessment .........................13
13.11 Agreements Affecting the Property ...............13
13.12 Use Permits and Other Approvals .................14
13.13 Confidentiality .................................14
13.14 Survival.. ......................................14
13.15 No Broker .......................................14
14. REPRESENTATIONS & WARRANTIES OF BUYER ................15
14.1 Authority of Buyer...............................15
14.2 Absence of Fraud and Misleading Statements ......15
14.3 Litigation ......................................15
14.4 Financial Condition .............................15
14.5 Survival ........................................15
14.6 No Broker .......................................15
15. COVENANTS ............................................16
15.1 Indemnification by Parties ......................16
15.2 Maintenance .....................................16
15.3 Other Agreements ................................17
16. LOSS BY FIRE OR OTHER CASUALTY; CONDEMNATION .........17
16.1 Damage or Destruction ...........................17
16.2 Condemnation ....................................17
17. POSSESSION ...........................................17
18. NOTICES ..............................................18
19. GENERAL PROVISIONS ...................................18
19.1 Manner of Taking Title ..........................18
19.2 Gender; Number ..................................19
19.3 Captions ........................................19
19.4 Exhibits ........................................19
19.5 Entire Agreement ................................19
19.6 Modification. ...................................19
19.7 Attorneys' Fees .................................19
19.8 Joint and Several Liability .....................19
19.9 Governing Law ...................................20
19.10 Severability ....................................20
19.11 Successors and Assigns ..........................20
19.12 Information Provided ............................20
19.13 Counterparts ....................................21
EXHIBIT "A" LEGAL DESCRIPTION
EXHIBIT "B" DEED (SAMPLE)
EXHIBIT "C" - DOCUMENTS NEEDED TO CLOSE CHECKLIST (SAMPLE)
EXHIBIT "D" - GUIDELINES FOR AS-BUILT SURVEYS
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PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
This Purchase Agreement and Escrow Instructions (the "Agreement"), dated
November 12, 1997 for reference purposes, is made by and between Monro Muffler
Brake, Inc., a New York corporation ("Seller"), and Realty Income Corporation, a
Maryland corporation ("Buyer"), and is made with reference to the recitals set
forth below, and constitutes (i) a contract of purchase and sale between the
parties and (ii) escrow instructions to Partners Title Company (the "Escrow
Agent").
RECITALS
A. Real Property. Seller owns certain real property together with all
improvements located on the property (the "Property"), the legal description of
which is attached hereto and made a part hereof as Exhibit "A," and is also
known as:
Monro Muffler/Brake - SPECIFIC ADDRESS
B. Purchase and Sale. Seller desires to sell and Buyer desires to purchase
all - Seller's right, title, and interest in and to the Property upon the terms
and conditions set forth below.
C. Leasehold Interest. Concurrently with the Closing (as defined in Section
8), Buyer, as landlord, shall lease the Property to Seller, as tenant, under a
lease dated November 12, 1997 (the "Lease").
1. PURCHASE PRICE
In consideration of the covenants contained in this Agreement, Seller shall
sell and Buyer shall purchase the Property for a total purchase price of
SPECIFIC PRICE FOR THE LOCATION ( 10 PROPERTIES TOTALLED $6,072,600) (the
"Purchase Price") which shall be delivered by Buyer to Escrow Agent on or before
the Closing in Cash (defined as (i) United States currency, (ii) cashier's or
certified check(s) currently dated, payable to Escrow Agent, and honored upon
presentation for payment, (iii) an amount credited by wire transfer into Escrow
Agent's bank account, or (iv) if monies are deposited with Escrow Agent within
twenty (20) days prior to the Closing, funds in such form as Escrow Agent in its
sole discretion requires).
2. OPENING OF ESCROW
Within five (5) business days following the execution of this Agreement,
Buyer and Seller shall open an escrow (the "Escrow") with Escrow Agent for the
Property and shall deposit with Escrow Agent fully executed counterparts of this
Agreement for use as escrow instructions. Buyer and Seller shall execute
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Escrow Agent's usual form of supplemental escrow instructions for transactions
of this type; provided, however, that such escrow instructions shall be for the
purpose of implementing this Agreement, shall incorporate this Agreement by
reference, and shall specifically provide that no provisions shall have the
effect of modifying this Agreement unless it is so expressly stated and
initialed on behalf of Buyer and Seller.
3. TITLE TO PROPERTY
At Closing Seller shall convey to Buyer fee simple title to the Property by
execution and delivery of a warranty deed in the form customarily used in
connection with commercial real property transactions in the state in which the
Property is located (the "Deed"). A form of the Deed is attached hereto as
Exhibit "B." At the Closing Buyer shall receive from Commonwealth Land Title
Insurance Company (the "Title Company") an ALTA Owner's Extended Policy of Title
Insurance (the "Title Policy") with liability in the full amount of the Purchase
Price insuring fee simple title to the Property in Buyer, subject only to
exceptions approved by Buyer as provided in Section 4.1, deleting all standard
printed exceptions (as deemed customary in the state in which the Property is
located), together with such endorsements as may be reasonably requested by
Buyer. Indemnification of the Title Company to induce it to insure any otherwise
non-permitted exception to title shall not be allowed except with the prior
written consent of Buyer after full disclosure to Buyer of the nature and
substance of such exception and indemnity. The Title Policy shall provide for
survey coverage and full coverage against mechanics' and materialmen's liens
arising out of the construction, repair, or alteration of any of improvements
located on the Property.
4. CONDITIONS TO BUYER'S OBLIGATION TO PURCHASE
Buyer's obligation to purchase the Property is expressly conditioned upon
each of the following:
4.1 Approvals by Buyer
Buyer's receipt and approval for the Property of the following prior to the
Closing:
4.1.1 ALTA Commitment for Policy of Title Insurance. As
soon as reasonably possible after execution of this
Agreement, Seller shall cause the issuance of an
ALTA Commitment for Policy of Title Insurance,
including complete legible copies of all
encumbrances and liens of record (the
"Commitment"), with respect to the Property to be
forwarded to Buyer for approval. If no written
disapproval of any items in the Commitment is
received from Buyer on or before thirty (30) days
after the later of delivery of the Commitment to
Buyer or delivery of the Certified As-Built Survey
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PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS EXHIBIT "D#
GUIDELINES FOE AS-BUILT SURVEYS
1. Label: The survey must be labeled as an ALTA/ACSM Land Title Survey.
2. Boundary Lines: Boundary lines as described in the current title
commitment.
3. Legal Description: Full legal description on the face of the survey
(including a metes and bounds description even if not a part of the legal
description used in the title commitment).
4. Title Commitment Exceptions: Location and size of all easements and other
plotable matters of record, marked with book and page to correspond with
the title commitment exceptions. If unplotable, statement indicating that
such exceptions, if any, affect the fee parcel (or appurtenant easement
parcel, as the case may be).
5. Easement Parcels: Easement parcel(s), if any, appurtenant to the fee
parcel, if the same is/are part of the legal description to be insured (to
the extent the same can be shown on the survey).
6. Encroachments: Statement identifying the existence and location of
encroachments, if any.
7. Improvements: Location of the building and surrounding improvements.
8. Square Footage: Square footage of the building and land.
9. Utilities: Location of utilities (wires, cables, manholes, drains, etc.).
10. Access Ways: Location of parking areas, curb cuts, and driveways.
11. Vicinity map: Vicinity map showing the subject site and surrounding area.
12. Flood Zone: FEMA flood information.
13. Certification: Certification to insuring title company and Realty Income
Corporation.
14. Zoning: Zoning designation, including description if possible.
15. No Loan: No reference made as to "Loan Purposes."
16. Signature: Surveyor's signature, seal, and date.
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(as defined in Section 4.1.2), the Commitment shall be deemed approved
by Buyer.
4.1.2 As-Built Survey. A survey of the Property (the
"As-Built Survey") prepared by a licensed surveyor
or civil engineer in sufficient detail to provide
for the Title Policy, certified to Buyer and the
Title Company, and conforming to the guidelines set
forth on Exhibit "D," attached hereto and
incorporated herein, without material boundary,
encroachment, or survey exceptions.
4.1.3 Phase I Environmental Site Assessment Report. As
soon as reasonably possible after execution of this
Agreement, Seller shall cause a Phase I
Environmental Site Assessment Report (the "Phase I")
to be prepared for the Property in accordance with
ASTM guidelines and certified to Buyer by an
environmental consultant approved by Buyer.
4.1.4 Plans and Specifications. As soon as reasonably
possible after the execution of this Agreement,
Seller shall submit complete plans and
specifications to Buyer, together with an itemized
cost breakdown for all improvements, including on-
and off-site improvements, from the contractor who
has performed or is in the process of performing
the construction of said improvements in accordance
with the plans and specifications.
4.1.5 Appraisal. AS soon as reasonably possible after
the execution of this Agreement, Buyer shall cause
a narrative appraisal (the "Appraisal") to be
prepared on a completed project basis, covering the
land, improvements, and the Lease by an independent
appraiser who is a member in good standing of a
recognized professional appraisal association, and
shall cause said Appraisal to be delivered to Buyer
on or before fifteen (15) days prior to the
Scheduled Closing Date (as defined in Section 8).
4.1.6 Certificate of Occupancy. If available Seller shall
cause a notice of completion and/or certificate of
occupancy or its equivalent certifying that
construction has been completed to be delivered to
Buyer.
4.1.7 Other Documents. All other documents listed on Exhibit
"C" entitled "Documents Needed to Close Checklist"
for the Property.
4.1.8 Statement of Matters Affecting Title. A statement
of (and, if available, copies of) any other matters
of any nature of which Seller has knowledge and
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which affect title to any part of the Property, whether or not of
record, whether or not visible or ascertainable by inspection of
the Property, and whether or not otherwise known to Buyer.
4.2 Utilities
Buyer's receipt and approval of evidence that all water, sewer, gas,
electric, telephone, and drainage facilities and all other utilities required by
law or by the normal use and operation of the Property are and at the time of
Closing will be installed to the property lines of the Property, are and at the
time of Closing will be connected and operating pursuant to valid permits, and
are and at the time of Closing will be adequate to service the Property and to
permit full compliance with all requirements of law and normal usage of the
Property.
4.3 Physical Characteristics of the Property
Buyer's review and approval, prior to the Closing, of the structural,
mechanical, electrical, and other physical characteristics of the Property.
4.4 Accuracy of Representations
All of Seller's representations and warranties contained in or made
pursuant to this Agreement shall have been true and correct when made and shall
be true and correct as of the Closing, and Seller shall have complied with all
of Seller's covenants and agreements contained in or made pursuant to this
Agreement.
4.5 NO Hazardous Materials
Buyer's satisfaction that there are no Hazardous Materials (as defined in
Section 13.9) on the Property.
4.6 Forelan Investments
Buyer's receipt of the affidavit, certification, or notice required by
Section 1445 of the Internal Revenue Code of 1954, as amended and the
Regulations pursuant thereto, in a form sufficient to relieve Buyer of any
potential transferee withholding liability under such Section. If Seller fails
to deliver such affidavit, certification, or notice to Buyer prior to or at the
Closing, or Buyer has knowledge or receives notice of the falsity of such
document, then the transactions shall be completed at the Closing, but Buyer
shall withhold ten percent (10%) of the "amount realized" (as set forth in the
Regulations) by Seller and transmit it to the Internal Xxxxxxx Xxxxxxx Xxxxxx,
Xxxxxxxxxxxx, XX 00000, all in accordance with Section 1445 and the Regulations
pursuant thereto.
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4.7 Failure of Conditions
4.7.1 The foregoing conditions contained in this Section 4 are
intended solely for the benefit of Buyer. If any of the foregoing
conditions are not satisfied or approved by Buyer, Buyer shall
have the right at its sole election either (i) to waive the
condition in question and proceed with the purchase of the
Property pursuant to all of the other terms of this Agreement,
reserving all of its other rights and remedies available to it
under this Agreement or otherwise at law or in equity by reason
of such failure of condition or (ii) to terminate this Agreement.
4.7.2 By written agreement, the Closing may be extended for a
reasonable time if required to allow the conditions contained in
this Section 4 to be satisfied, subject to Buyer's further rights
to terminate this Agreement upon the expiration of the period of
any extension if all such conditions have not then been
satisfied.
4.8 Lease
Execution by Buyer and Seller of the Lease for the Property.
5. CONDITIONS TO SELLER'S OBLIGATION TO SELL
Seller's obligation to sell is expressly conditioned upon each of the
following:
5.1 Performance by Buyer
Timely performance of each obligation, covenant, and delivery required of
Buyer.
5.2 Accuracy of Representations
Ail of Buyer's representations and warranties contained in or made pursuant
to this Agreement shall have been true and correct when made and shall be true
and correct at the Closing, and Buyer shall have complied with all of Buyer's
covenants and agreements contained in or made pursuant to this Agreement.
5.3 Payment of Purchase Price
Payment of the Purchase Price at the Closing in the manner provided in this
Agreement.
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6. BUYER'S DELIVERIES TO ESCROW AGENT AND SELLER
6.1 Purchase Price
Buyer shall deliver in Cash to Escrow Agent the Purchase Price as set forth
in Section 1, less adjustments pursuant to Section 9. Escrow Agent shall deposit
the Purchase Price in an interest bearing account, the interest upon which shall
accrue to the benefit of Buyer.
6.2 Lease
On or before the Closing, Buyer shall deliver to Escrow Agent the
Memorandum of Lease for the Property executed and acknowledged by Seller and
Buyer, which Memorandum of Lease shall be filed for record by Escrow Agent upon
the close of Escrow. On the Closing, Buyer shall deliver to Seller the Lease for
the Property executed by Buyer and Seller.
6.3 Failure to Deliver
The failure of Buyer to make any required delivery within the specified
time shall constitute a material breach by Buyer.
7. SELLER'S DELIVERIES TO ESCROW AGENT AND BUYER
7.1 Deed
On or before the Closing, Seller shall deliver to Escrow Agent the Deed
for the Property executed and acknowledged by Seller.
7.2 Lease
Before the Closing, Seller shall deliver to Buyer the Lease for the
Property executed by Seller. In addition, before the Closing, Seller shall
deliver to Buyer the Memorandum of Lease for the Property executed and
acknowledged by Seller.
7.3 Documents Needed to Close
On or before the Closing, Seller shall deliver to Buyer each and every
document described in Section 4, subject to Buyer's right to waive delivery.
7.4 Failure to Deliver
The failure of Seller to make any required delivery within the specified
time shall constitute a material breach by Seller.
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8. THE CLOSING
8.1 Date and Manner of Closing
Escrow Agent shall close the Escrow (the "Closing") on a date mutually
agreeable to Buyer and Seller but which is in no event later than sixty (60)
days following the date upon which this Agreement is last executed by Buyer or
Seller (the "Scheduled Closing Date"), provided that all of the conditions to
Buyer's obligation to purchase have been either satisfied Or waived. The Escrow
shall be deemed closed when (i) Title Company is irrevocably committed to
issuing the Title Policy and (ii) Escrow Agent delivers the funds and documents
for the Property as set forth in Section t0. Distribution of funds and documents
shall occur WHEN AND ONLY WHEN each of the following conditions has been
satisfied:
8.1.1 All documents required to be delivered to Buyer and Escrow Agent
pursuant to this Agreement have been delivered or delivery of
such document(s) has been waived.
8.1.2 The Title Company is prepared to issue the Title Policy for the
Property.
8.1.3 All funds for the Property required to be delivered to Seller and
Escrow Agent pursuant to this Agreement have been delivered.
8.2 Delay in Closing: Authority to Close
If Escrow Agent cannot close the Escrow on or before the Scheduled Closing
Date, it will nevertheless close when all conditions have been satisfied or
waived, notwithstanding that one or more of such conditions was not timely
performed, unless after the Scheduled Closing Date and prior to the close of the
delayed Escrow, Escrow Agent receives a written notice to terminate the Escrow
and this Agreement from a party who, at the time such notice is delivered, is
not in default. Neither (i) the exercise of the right of termination, (ii) delay
in the exercise of the right of termination, nor (iii) the return of monies and
documents, shall affect the right of the party giving notice of termination to
pursue legal or equitable remedies for the other party's breach of this
Agreement. Nor shall (i) the giving of such notice, (ii) the failure to object
to termination of the Escrow, or (iii) the return of monies and documents affect
the right of the other party to pursue legal or equitable remedies for the
breach of the party who gives notice.
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9. PRORATION, COSTS AND EXPENSES
9.1 Prorations and Apportionments
Contemporaneously with the Closing, Seller intends to lease the Property
from Buyer. Therefore, the parties do not anticipate the need to prorate
revenues or expenses. However, in the event an item of expense or revenue must
be prorated, it shall be prorated and apportioned as of 12:01 a.m. on the date
of the Closing so that Seller shall bear all expenses with respect to the
Property and shall have the benefit of all income with respect to the Property
through and including the period preceding the date of the Closing. Any taxes or
other amounts which cannot be ascertained with certainty as of the Closing shall
be prorated on the basis of the parties' reasonable estimates of such amount(s)
and shall be the subject of a final proration thirty (30) days after the Closing
or as soon thereafter as the precise amounts can be ascertained.
9.2 Payment of Adjustments to Proration
Either party owing the other party a sum of money based on adjustments made
to prorations after the Closing shall promptly pay that sum to the other party,
together with interest thereon at the rate of twelve percent (12%) per annum to
the date of payment if payment is not made within ten (10) days after mutual
agreement of the amount due.
9.3 Seller's Costs and Expenses
Seller shall pay for: (i) the As Built Survey, (ii} the Phase I, (iii)
one-half (1/2) the cost of procuring the Title Policy, {iv) one-half (1/2) the
cost of any documentary or other transfer taxes applicable to the sale, (v)
one-half (1/2) of the costs and charges of the Escrow, including, without
limitation, Escrow Agent's fee, and (vi) Seller's own attorneys' fees.
9.4 Buyer's Costs and Expenses
Buyer shall pay for: (i) the Appraisal; (ii) brokerage commission in the
amount of one percent (1%) of the Purchase Price to Horn Capital Realty, 0000
Xxx Xxxxxxx, Xxxxx 000, Xxxxxx, XX 00000; (000) 000-0000; (iii) one-half (1/2)
the cost of procuring the Title Policy, (iv) one-half (1/2) the cost of any
documentary or other transfer taxes applicable to the sale, (v) one-half (1/2)
of the costs and charges of the Escrow, including, without limitation, Escrow
Agent's fee, and (vi) Buyer's own attorneys' fees.
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10. DISTRIBUTION OF FUNDS AND DOCUMENTS
10.1 Form of Distributions
All disbursements by Escrow Agent shall be made by checks of Escrow Agent
or by wire transfers to the account of, and as directed by, the receiving party.
10.2 Recorded Documents
Escrow Agent shall cause the County Recorder of the County in which the
Property is located to mail the Deed (and any other documents which are required
by this Agreement to be, or by general usage are, recorded) after recordation,
to the grantee, beneficiaries, or person (i) acquiring rights under the
documents or (ii) for whose benefit the documents were acquired.
10.3 Non-Recorded Documents
Escrow Agent shall, at the Closing, deliver by United States mail (or shall
hold for personal pickup, if requested), each non-recorded document received by
Escrow Agent to the payee or person (i) acquiring rights under the document or
(ii) for whose benefit the documents were acquired.
10.4 Cash Disbursements
At the Closing, Escrow Agent shall hold for personal pickup or shall
arrange for wire transfer (i) to Seller, or order, the cash plus any proration
or other credits to which Seller shall be entitled for the Property and less any
appropriate proration or other charges and (ii) to Buyer, or order, any excess
funds previously delivered to Escrow Agent by Buyer.
10.5 Copies of Documents
Following the Closing, Escrow Agent shall deliver to Buyer and to Seller a
copy of the Deed (conformed to show recording data) and each other recorded
document for the Property.
11. RETURN OF DOCUMENTS AND FUNDS UPON TERMINATION
11.1 Return of Seller's Documents
In the event the Escrow is terminated for any reason (other than the
default of Seller), Buyer shall, within fifteen (15) calendar days following the
termination, deliver to Seller all documents and materials, if any, relating to
the Property previously delivered to Buyer by Seller. Escrow Agent shall deliver
all documents and materials relating to the Property previously deposited by
Seller and then in Escrow Agent's possession to Seller.
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11.2 Return of Buyer's Documents
In the event the Escrow is terminated for any reason (other than the
default of Buyer), Seller shall, within fifteen (15) calendar days following
termination, deliver to Buyer all funds and documents, if any, relating to the
Property, previously delivered to Seller by Buyer. Escrow Agent shall deliver
all documents, materials, and funds relating to the Property previously
deposited by Buyer and then in Escrow Agent's possession to Buyer. .-
11.3 No Effect on Rights of Parties
The return of documents and monies as set forth above shall not affect the
right of either party to seek the legal or equitable remedies that the party may
have with respect to the enforcement of this Agreement.
11.4 Payment of Termination Fee
Escrow Agent may condition its deliveries upon payment of a termination fee
by the party requesting delivery. Notwithstanding the foregoing, any termination
fee shall be paid (or reimbursed) by the defaulting party, or paid equally if
neither party is then in default.
12. DEFAULT
12.1 Seller's Remedy
If Buyer fails to complete the acquisition of the Property by reason of any
default by Buyer, Seller shall be released from any further obligations and
shall be entitled to the following:
INSOFAR AS IT WOULD BE EXTREMELY IMPRACTICABLE AND DIFFICULT TO
ESTIMATE THE DAMAGE AND HARM WHICH SELLER WOULD SUFFER IN THE EVENT
BUYER DEFAULTS AND FAILS TO COMPLETE THE SALE OR ACQUISITION OF
THE PROPERTY, AND INSOFAR AS A REASONABLE ESTIMATE OF THE TOTAL NET
DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT OF BUYER'S DEFAULT AND
FAILURE TO DULY COMPLETE THE SALE OR ACQUISITION OF THE PROPERTY IS THE
SUM OF TEN THOUSAND DOLLARS ($10,000), SELLER SHALL BE ENTITLED TO THE
SUM OF TEN THOUSAND DOLLARS ($10,000) AS AND FOR SELLER'S SOLE REMEDY
FOR DAMAGES ARISING FROM BUYER'S FAILURE TO COMPLETE THE SALE OR
ACQUISITION OF THE PROPERTY IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT. BY PLACING THEIR INITIALS BELOW,
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THE PARTIES ARE CONFIRMING THE ACCURACY OF THE STATEMENTS SET FORTH
ABOVE.
BUYER-Initials SELLER-Initials
12.2 Buyer's Remedies
In the event that the transaction fails to close on account of Seller's
fault or Seller's breach of this Agreement, Buyer shall be entitled to such
remedies for breach of contract as may be available under applicable law,
including, without limitation, the remedy of specific performance.
13. REPRESENTATIONS AND WARRANTIES OF SELLER
The following representations and warranties by Seller are now and shall,
at the Closing, be true and correct. If during the period between the execution
of this Agreement and the Closing, Seller learns of or has a reason to believe
that any of the following representations and warranties may cease to be true,
Seller covenants to give notice thereof to Buyer immediately.
13.1 Authority of Seller
Seller is a New York corporation duly organized and validly existing and in
good standing under the laws of the State of New York and has the authority to
own and convey the Property. This Agreement and all documents executed by Seller
which are to be delivered to Buyer are, or at the time of the Closing will be,
duly authorized, executed, and delivered by Seller and do not, and at the time
of the Closing will not, violate any provisions of any agreement or judicial
order to which Seller is a party or to which Seller or the Property are subject.
13.2 Condition of Property
There are now, and at the Closing there will be, no material physical or
mechanical defects of the Property, including, without limitation, the plumbing,
heating, air conditioning, ventilating; emergency safety systems, and electrical
systems, and all such items are in good operating condition and repair and in
compliance with all applicable governmental laws, ordinances, regulations, and
requirements, including, but not limited to, the Americans with Disabilities
Act. In addition, there are no existing leases on the Property, other than N/A.
13.3 Use and Operation
The use and operation of the Property now is, and at the time of Closing
will be, in full compliance with applicable building codes, safety, fire,
environmental, zoning, and land use
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laws, and other applicable local, state, and federal laws, ordinances,
regulations, and requirements. Seller knows of no facts nor has Seller failed to
disclose to Buyer any fact which would prevent Buyer from using and operating
the Property after the Closing in the manner in which the Property has been
used, leased, and operated prior to the date of this Agreement.
13.4 Land Use Regulation
There are no condemnation, environmental, zoning, or other land use
regulation proceedings instituted which could detrimentally affect the use or
operation of the Property or the value of the Property, nor has Seller received
notice of any special assessment proceedings affecting the Property.
13.5 Reports, Contracts and Other Documents
Contracts or documents delivered to Buyer pursuant to this Agreement are,
and at the time of Closing will be, true and correct copies, are and at the time
of Closing will be in full force and effect, and contain no inaccuracies or
misstatements of fact. All documents which are required by this Agreement to be
delivered to Buyer have been or will be delivered to Buyer.
13.6 Absence of Fraud and Misleading Statements
No representation, warranty, or statement of Seller in this Agreement or in
any document, certificate, or schedule furnished or to be furnished to Buyer
pursuant thereto, contains or will contain any untrue statement of a material
fact or omits or will omit to state a material fact necessary to make the
statements or facts not misleading. All representations, warranties, or
statements of Seller are based upon current, accurate, and complete information
as of the time of their making and there has been no subsequent material change
in the information.
13.7 Litigation
There is no litigation, pending or threatened, against Seller or any basis
therefor that arises out of the ownership of the Property, or that might
detrimentally affect the use or operation of the Property for its intended
purpose or the value of the Property, or adversely affect the ability of Seller
to perform its obligations under this Agreement.
13.8 Other Contracts to Convey
Seller has not committed nor obligated itself in any manner whatsoever to
sell the Property to any party other than Buyer. Seller has not hypothecated or
assigned any rents or income from the Property in any manner.
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13.9 Environmental Compliance/Hazardous Materials
The Property is not, and as of the Closing will not be, in violation of any
federal, state, or local law, ordinance, or regulation relating to industrial
hygiene or to the environmental conditions on, under, or about the Property
including, but not limited to, soil and groundwater conditions. There are no
Hazardous Materials (as defined below) present on the Property, other than As
disclosed in that certain phase one environmental site assessment dated December
12, 1997 which is/are used in compliance with all applicable laws, ordinances,
and regulations. Seller further warrants and represents that during the time in
which Seller owned the Property, neither Seller nor, to the best of Seller's
knowledge, any third party has used, generated, manufactured, produced, stored,
or disposed of on, under, or about the Property or transported to or from the
Property any Hazardous Materials in violation of applicable laws, ordinances,
and regulations. Seller has not received notification of any proceeding or
inquiry by any governmental authority with respect to the presence of Hazardous
Materials on the Property or the migration of Hazardous Materials from or to the
Property. There are no storage tanks located in or under the Property. The term
"Hazardous Material" means, but is not limited to, any substance, material, or
waste which is toxic, ignitable, reactive, or corrosive; which is or can be
injurious to the health, safety, or welfare of the public or environment, and
which is or becomes regulated by any local or state governmental authority or
the United States Government. The term "Hazardous Material" includes, without
limitation, any material or substance which is (i) defined as a "hazardous
waste," "extremely hazardous waste," "restricted hazardous waste," "hazardous
substance," "pollutant or contaminant," or "hazardous material," by any local or
state law, (ii) oil and petroleum products and their byproducts, (iii) asbestos
or asbestos-containing materials, (iv) designated as a "hazardous substance"
pursuant to the Federal Water Pollution Control Act, (v) defined as a "hazardous
waste" pursuant to the Federal Resource Conservation and Recovery Act, or (vi)
defined as a "hazardous substance" pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act. Seller has disclosed to Buyer in
writing all information in Seller's possession or control which relates to the
environmental condition of the Property.
13.10 Property Tax Assessment
Notwithstanding any other provision of this Agreement to the contrary, if
Buyer shall become liable after the Closing for payment of any property taxes
assessed against the Property for any period of time prior to the Closing,
Seller shall immediately pay to Buyer on demand an amount equal to such tax
assessment.
13.11 Agreements Affecting the Property
At the Closing there will be no leases, easements, encumbrances, or other
agreements affecting the Property except as
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shown in the Commitment for the Property or as otherwise disclosed to Buyer by
Seller in writing and approved by Buyer.
13.12 Use Permits and Other Approvals
Seller has obtained all licenses, permits, approvals, easements, and rights
of way required from all governmental authorities having jurisdiction over the
Property or from private parties for the normal use and operation of the
Property and to ensure free and unimpeded vehicular and pedestrian ingress to
and egress from the Property as required to permit the normal intended usage of
the Property. Seller has materially complied with all licenses and permits and
has not received any notice that any licenses or permits will not be renewed
upon expiration, or of any material conditions which will be imposed in order to
receive any renewal.
13.13 Confidentiality
Seller shall hold as confidential all information concerning Buyer and this
transaction. Seller shall not release any such information to third parties
without Buyer's prior written consent, except pursuant to a court order
requiring such release or as otherwise may be required by law. Buyer shall hold
as confidential all information concerning Seller and this transaction. Buyer
shall not release any such information to third parties without Seller's prior
written consent, except pursuant to a court order requiring such release or as
otherwise may be required by law. Notwithstanding the foregoing, subsequent to
the Closing, either party publicly may announce (provided such announcement is
factually accurate): (i) Seller sold and Buyer purchased the Property; (ii) the
Property is subject to the Lease; (iii) the industry of Tenant; (iv) the total
number of properties Seller sold to Buyer and Buyer purchased from Seller,
including, without limitation, the Property; and (v) the total value of the
transaction, i.e., the Purchase Price.
13.14 Survival
The representations and warranties of Seller contained herein shall survive
the Closing.
13.15 NO Broker
Seller warrants that except for brokerage commission due Horn Capital
Realty, which commission is payable by Buyer pursuant to Section 9.4, there are
no brokerage commissions payable as a result of the Closing herein. Seller shall
indemnify and hold harmless Buyer from any claims, costs, damages, or liability
based on any statement, representations, or agreement by Seller with respect to
the payment of any brokerage commissions or finders' fees.
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14. REPRESENTATIONS & WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
14.1 Authority of Buyer
Buyer is a corporation duly organized and validly existing under the laws
of the State of Maryland. This Agreement and all documents executed by Buyer
which are to be delivered to Seller at the Closing are, or at the time of
Closing will be duly authorized, executed, and delivered by Buyer, and are, or
at the Closing will be, legal, valid, and binding obligations of Buyer, and do
not, and at the time of Closing will not, violate any provisions of any
agreement or judicial order to which Buyer is a party or to which it is subject.
14.2 Absence of Fraud and Misleading Statements
No representation, warranty, or statement of Buyer in this Agreement or in
any document, certificate, or schedule furnished or to be furnished to Seller
pursuant thereto contains or will contain any untrue statement of a material
fact or omits or will omit to state a material fact necessary to make the
statements or facts not misleading. Ail representations, warranties, or
statements of Buyer are based upon current, accurate, and complete information
as of the time of their making and there has been no subsequent material change
in the information.
14.3 Litigation
There is no litigation pending or, to Buyer's knowledge, threatened,
against Buyer or any basis therefor before any court or administrative agency
which might adversely affect the ability of Buyer to perform its obligations
under this Agreement.
14.4 Financial Condition
Buyer has adequate financial resources to make timely payment of all sums
due from Buyer hereunder and to perform all of its obligations hereunder.
14.5 Survival
The representations and warranties of Buyer contained herein shall survive
the Closing.
14.6 No Broker
Buyer warrants that except for brokerage commission due Horn Capital
Realty, which commission is payable by Buyer pursuant to Section 9.4, there are
no brokerage commissions payable as a result of the Closing herein. Buyer shall
indemnify and hold harmless Seller from any claims, costs, damages, or liability
based on any statement, representations, or agreement by Buyer
20
with respect to the payment of any brokerage commissions or finders' fees.
15. COVENANTS
Matters as to which Escrow Agent need not be concerned, Seller and Buyer
covenant and agree with one another as follows:
15.1 Indemnification by Parties
Each party shall indemnify the other party and hold the
other party harmless from and against any and all claims, demands, liabilities,
liens, costs, expenses, penalties, damages, and losses, including, without
limitation, reasonable attorneys' fees and costs, suffered as a direct or
indirect result of:
15.1.1 Any misrepresentation, breach of warranty, or breach of
covenant made pursuant to this Agreement or in any document,
certificate, or exhibit given or delivered pursuant to or in
connection with this Agreement; and
15.1.2 Any and all obligations, liabilities, claims, liens, or
encumbrances, whether direct, contingent, or consequential and
no matter how arising or accruing, which are in any way
related to or arising from any act, conduct, omission,
contract, or commitment of a party (or any of its agents or
employees) at any time or times before the Closing, including
indemnification by Seller of Buyer, without limitation, of (i)
all foreseeable and all unforeseeable consequential damages,
directly or indirectly arising out of the use, generation,
storage, or disposal of Hazardous Materials by Seller and (ii)
the cost of any required or necessary repair, cleanup,
remediation, removal, or detoxification and the preparation of
any closure or other required plans, or actions, whether such
action is required or necessary prior to or following transfer
of title to the Property, to the full extent that such action
is attributable, directly or indirectly, to the presence, use,
generation, storage, release, threatened release, treatment,
or disposal of Hazardous Materials by title to Buyer. The
provisions of this Section shall survive the execution and
delivery of this Agreement, the delivery of the Deed, and
transfer of title.
15.2 Maintenance
Closing, Seller shall, at Seller's sole cost and expense, maintain
21
the Property in good order, condition, and repair, reasonable wear and tear
excepted, and shall operate the Property in the same manner as before the making
of this Agreement as though Seller were retaining the Property.
15.3 Other Agreements
Seller shall not enter into or terminate any contracts or agreements
pertaining to the Property without in each case obtaining Buyer's prior written
consent thereto.
16. LOSS BY FIRE OR OTHER CASUALTY; CONDEMNATION
16.1 Damage or Destruction
In the event that any of the improvements on the Property are damaged or
destroyed by fire or other casualty prior to the Closing, then Seller may
terminate this Agreement or may offer to restore and repair such damage.
Termination shall be by written notice to Buyer within five (5) days after the
occurrence of the damage or destruction. Buyer shall have no obligation to
accept Seller's offer to restore and repair such damage if such restoration and
repair would cause the Scheduled Closing Date to be extended. Seller shall pay
escrow and related costs, if any, that exist as a result of terminating this
Agreement under this Section.
16.2 Condemnation
In the event that prior to the Closing a governmental entity shall commence
any eminent domain proceeding to take any portion of the Property, Buyer shall
have the option to make either of the following elections:
16.2.1 Terminate this Agreement by written notice to Seller within
five (5} days of its receiving notice of such action of
condemnation; or
16.2.2 Proceed with the transaction in which case the Purchase Price
shall not be reduced and Buyer shall be entitled to the net award
paid to Seller or Seller's mortgagee for the taking, if any, and
Seller shall assign and transfer to Buyer all right, title, and
interest in and to any awards.
17. POSSESSION
Possession of the Property shall be delivered to Buyer at the Closing.
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18. NOTICES
Ail notices, requests, or demands herein provided to be given or made, or
which may be given or made by either party to the other, shall be given or made
only in writing and shall be deemed to have been duly given: (1) when delivered
personally at the address set forth below, or to any agent of the party to whom
notice is being given, or (ii) on the date delivered when sent via Overnight
Mail, properly addressed and postage prepaid, or (iii) on the date sent via
facsimile transmission, or (iv) seventy-two (72) hours after the time the same
is deposited in the United States mail, properly addressed and first class
postage prepaid, return receipt requested. The proper address to which notices,
requests, or demands may be given or made by either party shall be the address
set forth at the end of this Section or to such other address or to such other
person as any party shall designate. Such address may be changed by written
notice given to the other party in accordance to this Section.
If to Buyer:
Realty Income Corporation
Attn: Legal Department
000 Xxxx Xxxxx Xxxxxx Xxxxxxxxx, XX 00000-0000 {760) 741-2111
(000) 000-0000 (Fax number)
If to Seller:
Xxxxxx X. Xxxxxxxxxxx
Monro Muffler Brake, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000-0000
(000) 000-0000
(000) 000-0000 (Fax number)
If to Escrow:
X.X. Xxxxxxxxx
Partners Title Company
000 Xxxx Xxxxxx, Xxxxx 0000X
Xxxxxxx, XX 00000-0000
(000) 000-0000
(000) 000-0000 (Fax number)
19. GENERAL PROVISIONS
19.1 Manner of Taking Title
Buyer shall have the right to take title to the Property at the Closing in
a name other than Buyer's name.
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19.2 Gender - Number
The use of (i) the neuter gender includes the masculine and feminine and
(ii) the singular number includes the plural whenever the context requires.
19.3 Captions
Captions in this Agreement are inserted for the convenience of reference
only and do not define, describe, or limit the scope or the intent of this
Agreement or any of its terms.
19.4 Exhibits
All attached exhibits are a part of this Agreement and are incorporated in
full by this reference.
19.5 Entire Agreement
This Agreement contains the entire agreement between the parties relating
to the transactions contemplated hereby and all prior or contemporaneous
agreements, understandings, representations, and statements, oral or written,
are merged into this Agreement.
19.6 Modification
No modification, waiver, amendment, discharge, or change of this Agreement
shall be valid unless it is in writing and signed by the party against which the
enforcement of the modification, waiver, amendment, discharge, or change is or
may be sought.
19.7 Attorneys' Fees
Should any party employ an attorney for the purpose of enforcing or
construing this Agreement, or any judgment based on this Agreement, in any legal
proceeding whatsoever, including insolvency, bankruptcy, arbitration,
declaratory relief, or other litigation, the prevailing party shall be entitled
to receive from the other party or parties, reimbursement for all attorneys'
fees and all costs, including, but not limited to, service of process, filing
fees, court and court reporter costs, investigative costs, expert witness fees,
and the cost of any bonds, whether taxable or not, and that such reimbursement
shall be included in any judgment or final order issued in that proceeding.
19.8 Joint and Several Liability
If any party consists of more than one person or entity, the liability of
each such person or entity signing this Agreement shall be joint and several.
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19.9 Governing Law
This Agreement shall be construed and enforced in accordance with the laws
of the state in which the Property is located.
19.10 Severability
In the event any term, covenant, condition, or provision of this Agreement
is held to be invalid, void, or otherwise unenforceable by any court of
competent jurisdiction, the fact that such term, covenant, condition, or
provision is invalid, void, or otherwise unenforceable shall in no way affect
the validity or enforceability of any other term, covenant, condition, or
provision of this Agreement.
19.11 Successors and Assigns
All terms of this Agreement shall be binding upon, inure to the benefit of,
and be enforceable by the parties and their respective legal representatives,
successors, and assigns.
19.12 Information Provided
Seller warrants and represents that all information Seller has provided to
Buyer is accurate and correct and Seller acknowledges that Buyer has relied upon
such information in entering into this Agreement.
Buyer warrants and represents that all information Buyer has provided to
Seller is accurate and correct and Buyer acknowledges that Seller has relied
upon such information in entering into this Agreement.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
25
19. 13 Counterparts SELLER: Xxxxxxxxx X'Xxxxx
(signature)
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original. counterparts shall together constitute but one
agreement.
Monro Muffler
Brake, Inc., a New
BUYER: Xxxxxxx X. Xxxxxxx (signature) York corporation
Realty Income Corporation,
a Maryland corporation
- Senior Vice President,
Date: Dec 18, 1997 DEC 18, 1997 Portfolio Acquisitions
ESCROW AGENT: XX Xxxxxxxxx
Partners Title Company
Date: 12/19/97
26
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS EXHIBIT "A"
LEGAL DESCRIPTION OF REAL PROPERTY
LOCATION: Monro Muffler/Brake #xxx
SPECIFIC ADDRESS
(To be taken from the Commitment for Policy of Title Insurance.)
27
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
EXHIBIT "B" SAMPLE DEED
28
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS EXHIBIT "C"
DOCUMENTS NEEDED TO CLOSE CHECKLIST
LOCATION: Monro Muffler/Brake #xxx
SPECIFIC ADDRESS
ITEM RECEIVED
1. Aerial Photograph
2. Certified Boundary Survey (if Available)
3. Area/Location Map
4. Area Demographics
5. Acceptable Commitment Of Title Insurance
6. Copy Of The Deed
7. Zoning Permits And Regulations
8. Insurance Certificates
9. Copy Of Tax Xxxx
10. Corporate Resolution Or Partnership Agreement
11. Standard Parcel Map Or Subdivision Plat
12. Site Plan
13. Soils Report
14. Phase 1 Environmental Site Assessment Report & Reliance Letter
15. Land Purchase Escrow Closing Statement
16. Project Pro Forma\Operating Profit & Loss Statement
17. Construction Contract (Including itemized Breakdown)
18. Plans and Specifications
19. Verification of Built-to Plans
20. Certified As-Built Survey (ALTA) Showing Land and Building
21. MAI Leased Fee Appraisal (Including Land Valuation)
22. Completion Notice/Certificate of Occupancy (If Available)
