PURCHASE AGREEMENT
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THIS PURCHASE AGREEMENT is made as of October 28, 1999, by
and between (See Exhibit "A") ("Buyer"), whose address is 000
Xxxx Xxxxx Xxxxxx, Xxxxx 000 Xxxxxxx, Xxxxxxx 00000-0000 and
VICORP RESTAURANTS, INC., a Colorado corporation, whose address
is 000 Xxxx 00xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000.
PRELIMINARY STATEMENT
WHEREAS, (See Exhibit "A") ("Buyer") and Seller have entered
into that certain Commitment (the "Commitment") dated July 28,
1999 given by Buyer and accepted by Seller on July 30, 1999, as
amended on August 12, 1999, for the purchase, sale and leaseback
of certain properties; and
WHEREAS, Seller is the owner of that certain parcel of real
estate described on Exhibit "A" attached hereto (hereinafter referred
to as the "Property"), which Buyer desires to purchase and to lease
to Seller pursuant to the Commitment and that certain Lease Agreement
described therein (hereinafter referred to as the "Lease"), and Buyer
and Seller have entered into this Agreement for such purchase and as
a part of the obligations of Buyer and Seller under the Commitment.
AGREEMENT
In consideration of the mutual covenants and provisions of
this Agreement, Buyer and Seller agree as follows:
1. Commitment. In the event of a conflict between the terms of
this Purchase Agreement and the Commitment, the terms of the
Commitment shall prevail. In the event of any conflict between
the terms of the Commitment and the Lease, the Lease shall
prevail.
2. Definitions. The following terms shall have the following
meanings for all purposes of this Agreement.
"Buyer" means (See Exhibit "A"), and/or its affiliates.
"Closing Date" means the date specified in Section 5.
"Commitment" means that certain Commitment dated July
28, 1999, as amended, given by CNL and accepted by Seller on July
30, 1999.
"Escrow Agent" means First American Title Insurance Company.
"Lease" means the Lease Agreement in the form approved
pursuant to the terms of the Commitment Letter.
"Property" means the parcel of real estate described on
Exhibit "A" attached hereto, together with all buildings,
fixtures and other improvements now located thereon or to be
constructed thereon but specifically not including any items
described on Exhibit "B" attached hereto.
"Purchase Price" means the amount set forth in
Section 4 of this Agreement.
"Seller" means VICORP RESTAURANTS, INC., a Colorado
corporation.
"Title Company" means Lawyers Title Insurance
Corporation, First American Title Insurance Company, or another
national title insurance company acceptable to Buyer.
"Title Commitment" means the title insurance commitment
for the Property provided to Buyer from Title Company, in
accordance with the terms of the Commitment.
3. Purchase and Sale of the Property. On the terms and subject
to the conditions set forth in this Agreement, Seller shall sell
and Buyer shall purchase the Property, and Buyer and Seller shall
enter into a Lease by which Buyer shall lease to Property to
Seller.
4. Purchase Price. The Purchase Price for the Property shall
be (total purchase price all locations $29,390,906.00), plus
closing adjustments in accordance with the Commitment, which
shall be payable in cash or via wire transfer on the Closing
Date.
5. Closing Date. The Closing Date for this Agreement shall be
on or before thirty (30) days following the date of last
execution hereof by Buyer and Seller.
6. Condition of Title. Buyer shall be provided with the Title
Commitment from the Title Company in the form and at or prior to
the time required by the Commitment, together with copies of all
exceptions and requirements listed therein. Buyer shall be
satisfied with the condition of title to the Property, as
determined in its reasonable discretion.
7. Seller's Delivery of Certain Documents. As a condition to
Buyer's obligation to purchase the Property, Seller shall have
performed all obligations required of it pursuant to the terms of
the Commitment and Buyer shall have determined, in its reasonable
discretion, that the Property complies with the terms of the
Commitment.
8. Closing. On or before the Closing Date:
A. Seller's Closing Documents. With respect to each
Property, Seller shall deliver to Title Company or Buyer, as may
be appropriate:
(i) a Special Warranty Deed, duly executed by Seller,
free of all liens, encumbrances, restrictions,
encroachment and easements, except for any
exceptions permitted by Buyer;
(ii) an executed and acknowledged Lease;
(iii) an executed and acknowledged Memorandum of Lease;
(iv) written confirmation to Title Company directing it
to close this transaction; and
(v) such other documents and affidavits as Buyer or
the Title Company may reasonably require or as may
be required by the terms of the Commitment,
including without limitation, appropriate
corporate certificates of status and authorizing
resolutions for Seller.
B. Buyer.
(i) Deposit of Funds. Buyer shall deposit the
Purchase Price in escrow with Title Company,
together with any other amounts required to be
paid by Buyer pursuant to the terms of this
Agreement.
(ii) Buyer's Closing Documents. Buyer shall deliver to
Title Company or Seller, as may be appropriate:
(a) an executed and acknowledged Lease;
(b) an executed and acknowledged Memorandum of Lease;
(c) written instructions to Title Company
directing it to close this transaction; and
(d) such other documents as Seller or the Title
Company may reasonably require or as may be
required by the terms of the Commitment.
All closing documents shall be dated as of the Closing Date.
9. Costs and Expenses. Seller and Buyer agree to pay their
respective costs as specified in the Commitment, including
without limitation, title insurance premiums and fees, survey
costs, recording fees, stamp taxes and transfer fees. Taxes,
assessments and other charges shall not be prorated as of the
Closing Date but shall be borne by Seller, as Lessee, under the
Lease.
10. Escrow Agent. Seller and Buyer hereby employ Title Company
to act as escrow agent in connection with this transaction upon
the following terms and conditions:
A. Seller and Buyer will deliver to Title Company all
documents, pay to Title Company all sums and do or cause to be
done all other things necessary or required by this Agreement, in
the reasonable judgment of Title Company, to enable it to comply
herewith and to enable any title insurance policy provided for
herein to be issued.
B. Title Company is authorized to pay from any funds held
by it for Buyer's or Seller's respective credit all amounts
necessary to procure the delivery of such documents and to pay,
on their behalf, all charges and obligations payable by them
respectively. Seller and Buyer will each pay all charges payable
by them to Title Company.
C. Buyer and Seller will indemnify and save harmless Title
Company against all costs, damages, attorney's fees, expenses and
liabilities, which it may incur or sustain in connection with
these instructions or the escrow or any court action arising
therefrom and will pay the same upon demand.
D. Payment of any funds into escrow on or prior to the
Closing Date shall be made by wire transfer. Disbursement of any
funds from the closing for the benefit of Seller shall be made as
directed by Seller. Title Company shall be under no obligation
to disburse any funds represented by check or draft, and no check
or draft shall be payment to Title Company in compliance with any
of the requirements hereof, until it is advised by the bank in
which deposited that such check or draft has been honored.
E. Title Company is authorized to act upon any statement
furnished by the holder or payee, or a collection agent for the
holder or payee, of any lien on or charge or assessment in
connection with a Property, concerning the amount of such charge
or assessment or the amount secured by such lien without
liability or responsibility for the accuracy of such statement.
F. The employment of Title Company, as escrow agent, shall
not affect any rights of subrogation under the terms of any title
insurance policy issued pursuant to the provisions thereof.
11. Conditions of Closing for Buyer. The obligations of Buyer
are subject to the fulfillment or waiver of each of the following
conditions set forth below:
A. Closing Documents. At or prior to the Closing Date,
Seller shall have executed and delivered Seller's closing
documents in accordance with Paragraph 8 of this Agreement.
B. Compliance with Commitment. At the Closing Date,
Seller shall be in compliance with its obligations under the
Commitment.
12. Conditions of Closing for Seller. The obligations of Seller
are subject to the fulfillment or waiver of each of the following
conditions set forth below:
A. Closing Documents. At or prior to the Closing Date,
Buyer shall have executed and delivered Buyer's closing documents
in accordance with Paragraph 8 of this Agreement.
B. Compliance with Commitment. At the Closing Date, Buyer
shall be in compliance with its obligations under the Commitment.
13. Representations and Warranties of Buyer. Buyer represents
and warrants to Seller as follows:
A. Buyer is duly organized, validly existing and in good
standing under the laws of its state of its registration and
qualified to do business in the jurisdiction in which the
Property is located. All necessary action has been taken to
authorize the execution, delivery and performance of this
Agreement and of the other documents, instruments and agreements
provided for herein.
B. The person or persons who have executed this Agreement
on behalf of Buyer are duly authorized to do so.
14. Representation and Warranties of Seller. Seller represents
and warrants to Buyer as follows:
A. Seller is a corporation duly organized, validly
existing and in good standing under the laws of its state of
formation and qualified to do business in the jurisdiction in
which the Property is located. All necessary corporate action
has been taken to authorize the execution, delivery and
performance of this Agreement and of the other documents,
instruments and agreements provided for herein.
B. The person or persons who have executed this Agreement
on behalf of Seller are duly authorized to do so.
C. The Property and the existing use thereof and the
condition thereof will not violate any applicable deed
restrictions, zoning or subdivision regulations, urban
redevelopment plans, local, state or federal environmental law or
regulation or any building or fire code applicable to the
Property.
D. There is no pending or, to Seller's knowledge,
threatened litigation or other proceeding affecting the title to
or the use or operation of the Property.
E. Seller is not a "foreign person" within the meaning of
Section 1445(f)(3) of the Internal Revenue Code of 1986, as
amended, and Seller shall certify its taxpayer identification
number at Closing.
F. To the best of Seller's knowledge, there are no
federal, state, county or municipal plans to restrict or change
access from any highway or road to the Property.
G. The Property is a separate parcel for real estate tax
assessment purposes.
H. To the best of Seller's knowledge, all of the
information furnished to Buyer pursuant to the terms of the
Commitment regarding the Property is true, complete and correct.
All of the representations, warranties and agreements of
Seller set forth herein and elsewhere in this Agreement shall be
true upon the execution of this Agreement and shall be reaffirmed
and repeated in writing at and as of the Closing Date, but not
subsequent to the Closing Date, and shall survive the Closing
Date.
15. Assignment. Buyer may assign in whole or in part its rights
under this Agreement without Seller's prior written consent to an
affiliate of Buyer, but Buyer agrees to give Seller notice
thereof prior to Closing.
16. Miscellaneous Provisions.
A. Notices. All notices, consents, approvals, or other
instruments required or permitted to be given by either party
shall be in writing and shall be deemed to have been properly
given if sent by registered or certified mail, return receipt
requested, Federal Express, Airborne, Xxxxx, DHL, Express Mail,
or by other recognized overnight courier service, postage and
other charges prepaid, to the parties at the addresses set forth
in the first Paragraph hereof or to such other address as either
party may give notice pursuant to this section from time to time.
All notices shall be deemed received when delivered to the
address specified.
B. Risk of Loss. Seller shall assume the risk of loss,
damage or destruction of the Property or any part thereof prior
to the Closing Date. Following the Closing Date, risk of loss
shall be determined as provided in the Lease.
C. Condemnation. In the event of a taking of any part or
all of the Property prior to closing, Buyer at its option shall
have the right to either (i) receive the proceeds of any
condemnation award and proceed to close with respect to the
Property or (ii) terminate this Agreement.
D. Real Estate Commission. Buyer and Seller shall not be
obligated to pay any commission or finder's fee to any broker,
real estate broker or agent in connection with this transaction.
To the extent Seller or Buyer has engaged the services of any
such broker, real estate broker or agent, Seller or Buyer, as the
case may be, hereby indemnify and agree to hold the other
harmless from and against any and all costs, expense, loss, and
damage, including but not limited to attorney's fees and court
costs, arising or resulting directly or indirectly out of any
claim by any broker, real estate broker or agent in connection
with this transaction.
E. Amendment and Waiver. Upon execution by the parties,
this Agreement may not be altered or amended. Waiver of any
matter by either party shall not be deemed a waiver of the same
or any other matter on any future occasion.
F. Other Documents. Each of the parties agrees to sign
such other and further documents as may be appropriate to carry
out the intentions expressed in this Agreement.
G. Attorney's Fees. In the event of any judicial or other
adversarial proceeding between the parties concerning this
Agreement, the prevailing party shall be entitled to recover its
reasonable attorneys' fees in addition to any other relief to
which it may be entitled.
H. Entire Agreement. This Agreement, together with the
Commitment and any other instruments or agreements referred to
herein constitute the entire agreement between the parties with
respect to the Property.
I. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original.
[Signatures on Next Page]
IN WITNESS WHEREOF, Seller and Buyer have entered into this
Agreement as of the date shown hereinabove.
Signed, sealed and delivered "SELLER"
in the presence of:
VICORP RESTAURANTS, INC., a
Colorado corporation
By: /s/Xxxxxxx X. Xxxxxxxxxxxx
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Name: /s/ Xxxxxxx Xxxxxxxx, Xx. Name: Xxxxxxx X. Xxxxxxxxxxxx
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Xxxxxxx Xxxxxxxx, Xx. As Its: President
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Name: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
STATE OF COLORADO
COUNTY OF DENVER
The foregoing instrument was acknowledged before me this
25th day of October, 1999, by Xxxxxxx X. Xxxxxxxxxxxx, as
President of VICORP RESTAURANTS, INC., a Colorado corporation, on
behalf of the corporation.
/s/ Xxxx X. Xxxxxxxxxxx
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(NOTARY SEAL) Notary Public, State of Colorado
Printed Name:Xxxx X. Xxxxxxxxxxx
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Notary Commission No. n/a
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My Commission Expires: 8/25/2002
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"BUYER"
CNL APF PARTNERS, LP, a
Delaware limited partnership
BY: CNL APF GP Corp., a
Delaware corporation, as general partner
By:/s/ Xxxx X. Xxxxxx
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Name: /s/ Xxxx X. Xxxxxx Xxxx X. Xxxxxx, as President
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Xxxx X. Xxxxxx
Name: /s/ Xxxxxxxxx X. Xxxxxx
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Xxxxxxxxx X. Xxxxxx
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this
25 day of October, 1999, by Xxxx X. Xxxxxx, as President of CNL
APF GP CORP., a Delaware corporation, as General Partner of CNL
APF PARTNERS, LP, a Delaware limited partnership, on behalf of
the limited partnership.
/s/ Xxx Xxxxxxx
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(NOTARY SEAL) Notary Public, State of Florida
Printed Name:
Notary Commission No.
My Commission Expires:
Attachments:
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Exhibit "A" - Property Description
Exhibit "B" - Building, Fixtures and Other Improvements
"BUYER"
CNL-BB CORP., a Florida corporation
By:/s/ Xxxxxx X. Xxxxxx
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Name: /s/ Xxxx X. Xxxxxx Xxxxxx X. Xxxxxx, as President
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Xxxx X. Xxxxxx
Name: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
STATE OF FLORIDA
COUNTY OF ___________
The foregoing instrument was acknowledged before me this
_____ day of October, 1999, by Xxxxxx X. Xxxxxx, as President of
CNL-BB CORP., a Florida corporation, on behalf of the corporation.
/s/ Xxxxxxxxx X. Xxxxxx
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(NOTARY SEAL) Notary Public, State of Florida
Printed Name:
Notary Commission No.
My Commission Expires:
Attachments:
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Exhibit "A" - Property Description
Exhibit "B" - Building, Fixtures and Other Improvements
EXHIBIT "A"
Property Description
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Buyer Buyer
---------------- ----------------
CNL APF Partners, L.P. CNL-BB Corp.
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0000 Xxxx 000xx Xxxxxx 0000 Xxx Xxxxx Xxxx
Xxxxx, XX 00000 Xxxxxxx Xxxxx, XX 00000
0000 Xxxx 00xx Xxxxxx 00000 Xxxxx Xxxxxxx
Xxxxxxx, XX 00000 Xxxxxxxx, XX 00000
0000 Xxxxxxxxxx Xxxxx Xxxxxxxxx 000 Xxxxx XxXxxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000 XxXxxxxx, XX 00000
000 Xxxxxxxx Xxxx 0000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
0000 Xxxxx Xxxx 0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxx, XX 00000
0000 Xxxxxxx Xxxx Xxxxx 000 Xxxx Xxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
0000 - 000xx Xxxxxx 000 Xxxxxx Xxxxxxxxx
Xxxxx Xxxxxxx, XX 00000 Xxxxxxxx, XX 00000
0000 Xxxx Xxxx Xxxxxx
Xx. Xxxxxxx, XX 00000
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxxxxxxxx, XX 00000
0000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
00000 Xxxxxxxxx Xxxxxxxx
Xxxx Xxxxxx, XX 00000
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
0000 "X" Xxxxxx
Xxxxx, XX 00000
EXHIBIT "B"
Property Not Purchased by Buyer
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All furniture, trade fixtures, equipment, and other personal
property, together with replacements thereof from time to time
added to the Premises, regardless of the methods in which the
trade fixtures and personalty are affixed to the Premises. For
the purposes hereon, trade fixtures and equipment shall include
all restaurant equipment but shall not include flooring, interior
or exterior walls, doors and windows, plumbing, gas, electrical,
heating, air conditioning, ventilating, lighting, communication,
and other utility systems.
