PURCHASE AND SALE AGREEMENT
EXHIBIT 99
THIS AGREEMENT is made by and between Captec Franchise Capital Partners L.P., I.V.
(“Seller”), and DRM, Inc., an Iowa Corporation or Assignee (“Purchaser”) as of the Effective Date
(as defined in the last paragraph of this Agreement).
1. Recitals. Seller owns approximately 55,970 square feet of real property and improvements
commonly known as Arby’s Restaurant #6991, 000 Xxxx 00xx Xxxxxx Xxxxx Xxxxxx, Xxxx
00000 and more particularly described on Exhibit A attached hereto (the “Property”). Purchaser
desires to purchase the Property from Seller on the terms and conditions hereinafter set forth, in
consideration of the covenants contained herein and other good and valuable consideration.
2. Sale of Property. Seller hereby agrees to sell, transfer and assign to Purchaser, and
Purchaser hereby agrees to purchase from Seller, on the terms and conditions hereinafter set forth,
the Property, including all fixtures, easements, rights-of-way, licenses, permits, consents,
hereditaments, air, mineral and water rights, contract rights, development rights, solar rights,
warranties and all other appurtenant privileges and tenements. Notwithstanding the foregoing, the
Property shall not include any existing trade fixtures, personal property or equipment.
3. Xxxxxxx Money; Purchase Price.
(a) Within three (3) days after the date this Agreement is fully executed and delivered
by Purchaser and Seller (the “Effective Date”), Purchaser shall deposit with
(the “Title Company”) to the attention of
, an
xxxxxxx deposit of Ten Thousand and No/100 Dollars ($10,000.00)
(the “Xxxxxxx Money”) in an interest bearing account and to be applied to the Purchase Price
at closing or otherwise disbursed as provided for in this Agreement; and The Title Company
shall retain possession of the Xxxxxxx Money in an interest-bearing account until delivery
is permitted or required under the terms of this Agreement.
(b) The purchase price to be paid by Purchaser to Seller for the Property (the
“Purchase Price”) shall be One Million One Hundred Forty-Five Thousand Seven Hundred Eighty
Three Dollars and Seventy Eight Cents ($1,145,783.78) ALL CASH (including the Xxxxxxx
Money), subject to closing adjustments pursuant to this Agreement. The Purchase Price shall
be payable in good funds at closing. Purchaser will pay to Seller Seventeen Thousand Six
Hundred Sixty-Four Dollars ($17,664.00) in addition to the Purchase Price, at Closing
(“Bonus Price”).
4. Closing.
(a) Closing of the sale and purchase contemplated herein shall occur on or before
9/30/05, (the “Closing Date”). In the event the Seller and Purchaser agree to extend the
Closing Date beyond 09/30/05, any additional rent paid by Purchaser after
09/30/05 under the Lease between Purchaser and Seller with respect to the Property shall be
credited against the Bonus Price. However, in no event shall the Bonus Price be less than
Zero Dollars ($0.00), and in no event shall the Closing Date be extended beyond 12/15/05.
(b) The closing shall take place at the offices of the Title Company, or at such other
place as Seller and Purchaser may agree, and possession of the Property shall be delivered
to Purchaser at the conclusion of the closing, free and clear of all tenancies and rights of
possession. Purchaser shall pay for 100% of the costs associated with the closing.
(c) At closing, Seller shall execute and deliver the following documents, any of which
may be waived by Purchaser at Purchaser’s option:
(1) a Special Warranty Deed in recordable form satisfactory to Purchaser and to
the Title Company (the “Deed”) pursuant to which Seller shall transfer and assign to
Purchaser its fee simple estate in the Property, subject to no liens, exceptions or
encumbrances and the Permitted Exceptions;
(2) DRM, Inc. Lease Termination Agreement with Seller;
(3) such additional documents as may be necessary, or as Purchaser may
reasonably request, to vest in Purchaser the estate in the Property being
transferred and consummate the transaction contemplated hereby, all in form
reasonably acceptable to both parties; and
(4) an affidavit of Seller that Seller is not a “foreign person” as defined in
the Internal Revenue Code.
(d) At closing, Seller shall execute and deliver the Lease Termination Agreement. The
Purchaser shall pay the Purchase Price in a form appropriate to permit the Title Company to
immediately disburse the net Purchase Price to Seller, and shall execute and deliver such
customary documents as Seller or the Title Company may reasonably request to consummate the
transaction contemplated hereby.
5. Closing Pro-rations. There shall be no closing pro-rations.
6. Seller’s Representations. Seller hereby represents that the following statements are as of
the Effective Date (and will be as of the Closing Date) true and correct.
(a) Seller is the lawful owner of the Property and has all the requisite power and
authority to execute this Agreement and all other documents referred to herein.
(b) Seller has not received any written notice of (and has no actual knowledge of) any
current fire, zoning, health, environmental, building code violations or any current
violations of any law with respect to the Property or any restrictions which will
adversely affect use of the Property for DRM, Inc. There is no pending, nor to Seller’s knowledge,
any threatened condemnation or similar proceeding affecting the Property, nor has Seller any
knowledge that any such action is presently contemplated.
(c) There is no action, suit or proceeding pending, or to the Seller’s actual knowledge
threatened, against (or otherwise affecting) Seller or the Property in any court of law or
equity, or before any governmental authority.
(d) To the Seller’s actual knowledge (except as may be disclosed in any environmental
report provided by Seller to Purchaser), the Property has not been used for disposal,
storage, treatment, processing or other handling of waste contamination, PCBs or other toxic
or hazardous substances under any applicable law.
Purchaser understands and acknowledges that Purchaser is relying upon the results of its own
investigations concerning the physical condition of the Property (including the presence or absence
on or under the Property of expansive soils and hazardous or toxic materials), the zoning and all
other attributes of the Property, and that if it proceeds to closing it is acquiring the Property
in an “as is” condition without representation or warranty by Seller of any kind except for items
(a), (b), (c) and (d) above, which representations and warranties shall expire three months after
the Closing. All other warranties, including any implied by law, are hereby expressly disclaimed
by Seller.
7. Condemnation; Casualty.
(a) In the event that, prior to the Closing Date, all of the Property is taken or
appropriated by any public or quasi-public authority under the power of eminent domain, or
such an eminent domain action is threatened by any public entity, this Agreement shall
automatically terminate, and the Xxxxxxx Money shall be returned to Purchaser. In the
event of a partial taking of the Property or the threatened partial taking of the Property,
Purchaser may elect to either (i) terminate this Agreement, in which case the Xxxxxxx Money
shall be returned to Purchaser and neither party shall have any further obligations to the
other hereunder, or (ii) proceed to purchase the Property, in which event Seller shall
assign, transfer and set over to Purchaser any awards that may be made for such taking and
at the closing Seller shall convey to Purchaser such portion of the Property as shall not
have been so taken, for the entire Purchase Price.
(b) In the event that any improvements to the Property are damaged or destroyed by fire
or other casualty prior to the closing, Purchaser may, at its election exercised by notice
in writing delivered to Seller, either (i) terminate this Agreement, in which case the
Xxxxxxx Money shall be returned to Purchaser and neither party shall have any further
obligations to the other hereunder, or (ii) proceed to purchase the Property in its
condition at closing, in which event at the closing Seller shall deliver to Purchaser (or
shall assign, transfer and set over to Purchaser) the proceeds of any insurance covering the
casualty.
8. Remedies. In the event Seller has complied with all the terms and conditions of this
Agreement and Purchaser fails to perform its obligations hereunder, Seller shall have the right to
retain the Xxxxxxx Money as liquidated damages, for its sole and exclusive remedy and Seller and
Purchaser further agree that the Option to Purchase contained in the Lease between Seller and
Purchaser with respect to the Property shall automatically terminate and be of no further force or
effect. If Purchaser has complied with all the terms and conditions of this Agreement and Seller
fails to perform its obligations hereunder, Purchaser may terminate this Agreement by written
notice to Seller and the Title Company, in which event the Xxxxxxx Money shall be returned to
Purchaser and neither party shall have any further obligation to the other hereunder, or Purchaser
may treat this Agreement as being in full force and effect, in which event Purchaser shall have the
right to an action for specific performance.
9. Brokers. Purchaser and Seller hereby acknowledge and affirm that there are no brokers or
agents involved in this transaction. Each party hereby agrees to indemnify the other party against
and hold it harmless from all costs, expenses and liabilities incurred in connection with any claim
by any other real estate broker or any other person who claims to be entitled to any compensation
in connection with this transaction based upon an agreement with the indemnifying party.
10. Miscellaneous Provisions.
(a) In the event any party hereto fails to perform any of its obligations under this
Agreement, or a dispute arises concerning the meaning or interpretation of any provision of
this Agreement, the defaulting party or the party not prevailing in such dispute, as the
case may be, shall pay for any and all costs and expenses incurred by the other party in
enforcing or establishing its rights hereunder, including court costs and reasonable
attorney fees.
(b) Any notice or election required or permitted to be given or served by any party
hereto upon any other shall be given in writing, and shall be effective for all purposes if
hand delivered or sent by United States mail, postage prepaid, or by prepaid expedited
courier service, with proof of delivery or refused delivery, addressed to the respective
parties as set forth below. A notice sent by United States mail shall be deemed given upon
actual delivery, upon the first refused delivery or on the third day after deposit,
whichever is earlier. A notice delivered by hand or by expedited courier service shall be
deemed to have been given upon actual delivery or upon the first refused delivery on a
business day. Any party may change its address for notice purposes by notice to the other
party or parties as provided herein.
If to Purchaser:
|
Xxxx Xxxxxxx | |
| DRM, Inc. | ||
| 0000 X. 000xx Xxx | ||
| Xxxxx, XX 00000 | ||
| Fax: (000) 000-0000 | ||
| xxxxxxxx@xxxxxxxx.xxx |
With copy to:
|
Xxxx Xxxxxxxxxx | |
| Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP | ||
| 0000 Xxxxx Xxxxxx, Xxxxx 0000 | ||
| Xxxxx, XX 00000-0000 | ||
| Fax: (000) 000-0000 | ||
| xxxxxxxxxxx@Xxxxxxxxxxxxxxxx.xxx | ||
If to Seller:
|
Captec Franchise Capital Partners L.P., I.V. | |
| 24 Xxxxx Xxxxx Xxxxxx Drive | ||
| Lobby L, 4th Floor, X.X. Xxx 000 | ||
| Xxx Xxxxx, Xxxxxxxx 00000-0000 | ||
| Fax: (000) 000-0000 | ||
| Attn: Xxxxx Xxxxxxxx |
(c) Unless otherwise provided herein, all representations and covenants contained in
this Agreement shall survive the closing whether or not such an intent is specifically
expressed.
(d) This Agreement shall be governed by and construed in accordance with the laws of
the State of Iowa in all respects.
(e) Purchaser may, upon written notice of assignment delivered to Seller, assign its
rights under this Agreement to any person or entity which also assumes its obligations
hereunder. This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns.
(f) Time is of the essence of this Agreement. If the date or deadline on which any
event is to occur under the provisions of this Agreement falls on a Saturday, a Sunday or an
a legal holiday, such event shall occur or be scheduled to occur on the next succeeding
business day.
(g) This Agreement embodies the entire agreement between the parties and supersedes all
prior understandings regarding the subject matter hereof. This Agreement may only be
amended or supplemented by an instrument in writing signed by the party against whom
enforcement is sought.
(h) If any provision of this Agreement is held to be illegal, invalid or unenforceable
under present of future laws, such provision shall be fully severable; this Agreement shall
be construed and enforced as if the illegal, invalid or unenforceable provision had not been
included herein, and the remaining provisions of this Agreement shall remain in full force
and effect.
(i) Either party shall, if requested by the other party, cooperate to affect an
exchange of the Property pursuant to the provisions of Section 1031 of the Internal Revenue
Code, as amended, at no cost or liability to the non-requesting party and without
modification of any of the substantive provisions of this Agreement.
(j) This Agreement may be executed in counterparts, each of which shall be deemed to be
an original, but all of which shall constitute one and the same document. In addition,
facsimile signatures shall be treated as original signatures.
[This space left blank intentionally. Signatures appear on next page.]
IN WITNESS WHEREOF, Seller and Purchaser have executed this Agreement in counterparts (which
may include electronic facsimiles) signed by either or both of the parties, but which together
shall constitute a single agreement effective for all purposes on the date that both parties have
signed at least one counterpart and delivered at least one signed counterpart to the other party
(the “Effective Date”). If this Agreement is not so signed and delivered by both parties on or
before August 31, 2005, Purchaser’s offer to purchase the Property on the terms and conditions
contained herein shall be deemed withdrawn and of no further effect.
SELLER:
Captec Franchise Capital Partners L.P., I.V.
By: GP4 Asset Acquisition, LLC
Its: General Partner
Its: General Partner
By: /s/ Xxxx X. Xxxxxx
Print Name: Xxxx X. Xxxxxx
Its: Vice President
Print Name: Xxxx X. Xxxxxx
Its: Vice President
Date of Seller’s signature:
August 25, 2005
PURCHASER:
DRM, Inc., an Iowa Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
Print Name: Xxxxxxx X. Xxxxxxx
Its: President & CEO
Print Name: Xxxxxxx X. Xxxxxxx
Its: President & CEO
Date of Purchaser’s signature:
August 25, 2005
