AGREEMENT
OF
PURCHASE AND SALE
AGREEMENT OF PURCHASE AND SALE ("Agreement") made as of the 4th day of
December, 1997, by and between Burger King Limited Partnership III, a New York
limited partnership ("Seller"), and U.S. Restaurant Properties Operating L.P.
("Buyer").
W I T N E S S E T H :
1. Definitions. For purposes of this Agreement, the following terms have
the meanings indicated in this Section 1.
1.1 "Assignment and Assumption of Lease" means an Assignment and Assumption
of Lease in the form attached hereto as Exhibit A, with such modifications as
may be required to conform to local recording laws.
1.2 "Assignment and Assumption of Sublease" means an Assignment and
Assumption of Sublease in the form attached hereto as Exhibit B, with such
modifications as may be required to conform to local recording laws.
1.3 "Closing" means the accomplishment (or waiver by the party in whose
favor each such activity runs) of each and every one of the activities described
in Section 6 below.
1.4 "Closing Date" means the date on which the Closing occurs, as set forth
in Section 4 below.
1.5 "Contract Period" means the period commencing upon the execution by
both Buyer and Seller of this Agreement and ending upon the first to occur of
the Closing or the termination of this Agreement.
1.6 "Deed" means a bargain and sale deed with covenants against grantor's
acts, special warranty deed or the equivalent form of deed used in the
jurisdictions where the Owned Properties are located.
1.7 "Deposit" means the sum of Eight Hundred Thousand Dollars ($800,000)
delivered -------
by Buyer and deposited with the Escrow Agent within three (3) business days
after Buyer has received a fully executed duplicate original of this Agreement,
to be held in an interest bearing account subject to the terms of this
Agreement. The Deposit shall include all interest earned thereon.
1.8 "Due Diligence Period" has the meaning ascribed to such term in Section
2(b) below.
1.9 "Environmental Laws" means any federal, state or local ordinance,
statute, regulation or common law provision relating to human health and/or the
environment.
1.10 "Escrow Agent" means Lawyers Title Insurance Corporation.
1.11 "Franchisee" means a holder of the right to occupy a Property pursuant
to a Sublease thereof.
1.12 "Improvements" means any and all buildings, structures, parking lots,
walks, and walkways and all fixtures and equipment (including without limitation
all plumbing, electrical, heating, air conditioning and ventilating lines and
systems and boilers) and each and every other type of physical improvement
located at, on or affixed to a Property to the full extent such items constitute
or are or can or may be construed as realty under the laws of the applicable
jurisdiction.
1.13 "Lease" means a sublease agreement between Burger King Corporation, a
Florida corporation, as sublessor, and Seller, as sublessee, with respect to the
Leased Properties and all amendments and modifications thereof.
]
1.14 "Leased Properties" means, collectively, those certain tracts or
parcels of land in which Seller has a leasehold interest under the Leases, and
which comprise six (6) physical site locations designated as Stores # 4213,
4217, 4268, 4482, 4767 and 4808 on Schedule 1 hereto, together with Seller's
interests in all Improvements located thereon.
1.15 "Letter of Credit" has the meaning ascribed to such term in Section
6.1 hereof. ----------------
1.16 "Memphis Property" means those certain tracts or parcels of land which
comprise the parcels of land pertaining to the physical site location designated
as Store # 4709 located in the City of Memphis, Shelby County, Tennessee owned
in fee by Seller, including without limitation any land lying in the bed of any
street, road or avenue, open or proposed, in front of, within or adjoining or
adjacent to such land and Seller's interest in all Improvements located thereon.
1.17 "Owned Properties" means, collectively, those certain tracts or
parcels of land which individually or together with contiguous tracts so
described, comprise the separate parcels of land pertaining to the sixteen (16)
physical site locations designated as Stores # 4067, 4101, 4116, 4163, 4182,
4320, 4328, 4348, 4445, 4483, 4590, 4601, 4693, 4709, 4714 and 4839 on Schedule
1 hereto, which tracts or parcels of land are owned in fee by Seller, including
without limitation any land lying in the bed of any street, road or avenue, open
or proposed, in front of, within or adjoining or adjacent to such land and
Seller's interest in all Improvements located thereon; provided, however, that
in the event Seller exercises the Removal Option, the term "Owned Properties"
shall be deemed to not include the Memphis Property (Store # 4709).
1.18 "Permitted Exceptions" means such easements, encumbrances (other than
liens), restrictions, rights of way, if any, and other matters of record
provided they do not materially impair marketability of title or which are not
objected to by Buyer in the manner prescribed in Section 7 hereto.
1.19 "Properties" means, collectively, the Owned Properties and the Leased
Properties which are designated herein and on Schedule 1 hereto; provided,
however, that in the event Seller exercises the Removal Option, the term
"Properties" shall be deemed to not include the Memphis Property (Store # 4709).
1.20 "Purchase Price" means the sum of Sixteen Million Dollars
($16,000,000); -------------- provided, however, that in the event Seller
exercises the Removal Option, the term "Purchase Price" shall mean the sum of
Fifteen Million Seven Hundred Thousand Dollars ($15,700,000).
1.21 "Removal Option" means Seller's right to remove the Memphis Property
from the purchase and sales transaction contemplated by this Agreement, as set
forth in Section 2(c) below.
1.22 "Sublease" means, as to the Leased Properties those sub-subleases
between Seller, as sub-sublessor, and a Franchisee, as sub-sublessee, and, as to
the Owned Properties, those leases between Seller, as lessor, and a Franchisee,
as lessee, and all amendments and modifications thereof.
1.23 "Title Insurer" means Lawyers Title Insurance Corporation.
1.24 "Title Policy" means, as to each Property, a standard form owner's
policy of title insurance, dated the Closing Date, insuring Buyer as owner of
good and marketable fee title to the Owned Properties and the holder of a
subleasehold interest in the Leased Properties subject only to the Permitted
Exceptions.
1.25 "Title Report" means a certificate of title, title commitment or title
report issued by the Title Insurer to Buyer, which shall disclose Seller as
owner of fee simple interest in the Owned Properties and the holder of a
subleasehold interest in the Leased Properties and shall disclose, and shall
have attached to it, copies of all documents of record underlying all exceptions
to title and all encumbrances on and other matters of record affecting the
Properties.
2. Purchase and Sale. (a) Subject to and in accordance with all terms and
conditions and based upon all representations and warranties set forth in this
Agreement, on the Closing Date, Seller shall convey, transfer, assign, sell and
deliver to Buyer, and Buyer shall acquire, accept and purchase the Properties.
(b) From the date hereof until 5:00 p.m. Eastern Standard Time on December
9, 1997 (the "Due Diligence Period") Buyer shall have the right to satisfy
itself, in its sole discretion, as to all matters with respect to the
Properties. If, on or before the expiration of the Due Diligence Period, Buyer
gives notice to Seller and Escrow Agent (the "Cancellation Notice") that it does
not desire to purchase the Properties, the Deposit shall be returned to Buyer,
and neither party shall have any further liability or obligation under this
Agreement. If Buyer does not give the Cancellation Notice to Seller within the
Due Diligence Period, then Buyer shall no longer have the right to terminate
this Agreement pursuant to this Section 2(b).
(c) Seller shall have the right in its sole and absolute discretion to
elect to remove the Memphis Property from the purchase and sales transaction
contemplated by this Agreement by delivering written notice delivered to Buyer
in accordance with Section 17 below at any time on or before 5:00 p.m. on
December 9, 1997.
(d) In the event Buyer terminates that certain Agreement of Purchase and
Sale (the "BKLP I Purchase and Sale Agreement") between Burger King Limited
Partnership I and Buyer pursuant to Section 2(b) thereof, Seller shall have the
right to terminate this Agreement upon delivery of written notice to Buyer
within five (5) days of the date on which Buyer has terminated the BKLP I
Purchase and Sale Agreement. Upon such termination the Deposit shall be returned
to Buyer, and neither party shall have any further liability or obligation under
this Agreement.
3. Purchase Price; Payment Thereof. The Purchase Price is subject to
prorations and adjustments as described in Section 9, further subject to
adjustment in the case of a removal of a Property as provided in Sections 7 and
13. The Purchase Price is payable by Buyer to Seller at the Closing by wire or
other mutually agreeable transfer of immediately available funds.
4. Closing Date. The Closing Date shall be on a date selected by Buyer upon
three (3) days written notice to Seller but not later than the later of (i) five
(5) days following the last day of the Due Diligence Period or (ii) the first
business day following the date that the contingency set forth in Section 6.3 is
removed. The Closing shall take place by mail in escrow at 11:00 a.m. on the
Closing Date at the offices of the Title Insurer.
5. Escrow Agent. The Deposit shall be deposited by Escrow
Agent in an interest bearing escrow account and the proceeds held and disbursed
in accordance with the terms of this Agreement. Unless the Deposit is returned
to Buyer pursuant to Section 2(b), upon Closing, Escrow Agent shall deliver the
Deposit to Seller and the Deposit shall be credited against the Purchase Price.
In all other cases, if either party makes a demand upon Escrow Agent for
delivery of the Deposit, Escrow Agent shall give written notice to the other
party of such demand. If a notice of objection to the proposed payment is not
received from the other party within seven (7) business days after the giving of
notice by Escrow Agent, time being of the essence, Escrow Agent is hereby
authorized to deliver the Deposit to the party who made the demand. If Escrow
Agent receives a notice of objection within said period or if for any other
reason Escrow Agent in good faith elects not to deliver the Deposit, then Escrow
Agent shall continue to hold the Deposit and thereafter pay it to the party
entitled when Escrow Agent receives (a) a notice from the objecting party
withdrawing the objection, or (b) a notice signed by both parties directing
disposition of the Deposit or (c) a judgment or order of a court of competent
jurisdiction directing disposition of the Deposit. Buyer and Seller hereby
jointly and severally agree that Escrow Agent shall incur no liability
whatsoever in connection with its good faith performance under this Agreement,
and Buyer and Seller hereby jointly and severally release and waive any claims
they may have against Escrow Agent which may result from its performance in good
faith of its functions under this Agreement. Escrow Agent shall be liable only
for loss or damage caused directly by its acts of negligence while performing
under this Agreement. Buyer and Seller further agree to indemnify against, hold
harmless, release and waive any claims they may have against Escrow Agent as a
result of a reasonable delay in any wire transfer made pursuant to this
Agreement, and/or any errors in wiring instructions given to Escrow Agent. The
signing of this Agreement by Escrow Agent is only to evidence Escrow Agent's
acceptance of the terms and conditions of this paragraph.
6. Conditions Precedent.
6.1 The obligation of Seller to sell the Properties on the Closing Date
shall be subject to the satisfaction, of the following conditions (any of which
may be waived by Seller): (a) the representations and warranties of Buyer set
forth in Section 11 were true and correct in all material respects when made and
are true and correct in all material respects on the Closing Date, (b) Buyer
delivers to Seller each of the items required to be delivered by Buyer and takes
all of the actions required to be taken by Buyer under Section 8 prior to or on
the Closing Date, (c) Buyer shall have performed, observed and complied with all
covenants, agreements and conditions required by this Agreement to be performed,
observed and complied with on its part prior to or as of the Closing Date and
shall not otherwise be in default under this Agreement, (d) the provisions of
Section 6.3 shall have been satisfied, (e) Buyer and Burger King Corporation
shall execute and deliver a Lease Support Agreement (the "Lease Support
Agreement") substantially in the form attached hereto as Exhibit G and Buyer at
its sole cost and expense shall deliver an irrevocable letter of credit (the
"Letter of Credit") to Burger King Corporation on the Closing Date as required
under the Lease Support Agreement; and (f) no default by Buyer under the BKLP I
Purchase and Sale Agreement shall have occurred and be continuing.
6.2 The obligation of Buyer to purchase the Properties on the Closing Date
shall be subject to the satisfaction of the following conditions (any of which
may be waived by Buyer): (a) the representations and warranties of Seller set
forth in Section 10 were true and correct in all material respects when made and
are true and correct in all material respects on the Closing Date, (b) Seller
delivers to Buyer each of the items required to be delivered by Seller and takes
all of the actions required to be taken by Seller under Section 8 prior to or on
the Closing Date, and (c) Seller shall have performed, observed and complied
with all covenants, agreements and conditions required by this Agreement to be
performed, observed and complied with on its part prior to or as of the Closing
Date.
6.3 The parties' respective obligations hereunder are further subject to
the right of Seller's limited partners pursuant to Seller's agreement of limited
partnership to vote to disapprove the sale of the Properties. In connection
therewith, Seller has determined to convene a meeting of its limited partners
for the purpose of considering the disapproval of the sale of the Properties,
has completed the preparation of a preliminary proxy statement concerning the
transactions contemplated herein, has filed such preliminary proxy statement
with the Securities and Exchange Commission ("SEC") and has mailed such proxy
statement to its limited partners. Seller shall convene a meeting of limited
partners on the date and for the purposes specified in such proxy statement. If
a majority of Sellers' limited partners do not vote to disapprove of the sale of
the Properties, the parties will proceed to Closing, assuming all other
conditions are satisfied or waived. If a majority of Seller's limited partners
vote to disapprove of the proposed sale, Seller shall have the right to
terminate this Agreement by written notice to Buyer, the Deposit shall be
returned to Buyer and thereafter neither party shall have any obligation to the
other under this Agreement. If for any reason the meeting of Seller's limited
partners is delayed, postponed or adjourned to a date subsequent to six months
following the mutual execution of this Agreement, then Buyer, in its sole
discretion, may terminate this Agreement by written notice to the Seller, the
Deposit shall be returned to Buyer and thereafter neither party shall have any
obligation to the other under this Agreement.
7. Title Exceptions. Buyer acknowledges that Seller has
delivered a Title Report from the Title Insurer for each of the Properties
together with a survey of each of the Properties to Buyer. Buyer shall have
until the last day of the Due Diligence Period to object to any exception to
title appearing in the Title Report or survey which materially impairs
marketability of title by delivering written notice to the Seller (for each
Property an "Objection" and collectively "Objections"). If Buyer fails to object
as prescribed in this section then the Buyer acknowledges and agrees that such
exception shall be a Permitted Exception and Buyer shall be obligated to proceed
with the Closing and take title to the Properties, subject to such exceptions to
title without a reduction of the Purchase Price.
(a) Upon receipt of such Objection, Seller shall have
the right, but not the obligation, to seek to eliminate, cure or
correct such exceptions to title. If such exceptions to title in
Seller's sole and exclusive judgment can be cured or corrected and if
Seller notifies Buyer not later than 5:00 p.m. (New York time) within
ten (10) days after receipt of all Objections to the Property(ies) to
seek to cure or correct same, then (x) Seller shall have the right to
adjourn the Closing for such Property(ies) for such period, not to
exceed ninety (90) days as shall, in Seller's discretion reasonably
exercised, be required in order to cure such
exceptions to title and Buyer shall be obligated to purchase on the Closing
Date all Properties not objected to as provided above and the Purchase Price
shall be reduced by the consideration attributable to the affected Property(ies)
as shown on Schedule 1; (y) Seller shall give Buyer written notice upon the
correction of an Objection for each Property and Buyer shall purchase such
Property, according to the terms hereof, on a mutually agreeable closing date
within ten (10) days of such notice; and (z) if such exceptions to title can
only be satisfied by the payment of money, Seller shall be entitled to apply a
portion of the Purchase Price payable on such Closing Date for such
Property(ies) in order to cure or correct same. If Seller, having elected to
attempt to cure such exceptions to title, fails so to do within such ninety (90)
day period, Buyer shall have no further obligation to purchase and Seller shall
have no further obligation to sell the Properties subject to such uncured
exceptions to title unless Buyer forthwith elects to purchase such Properties
subject to the unrectified matters with no reduction in the Purchase Price. If
Seller fails to notify Buyer of its election to seek to cure such exceptions to
title, Seller shall be deemed to have elected NOT to seek to cure same.
(b) If Seller elects not to cure all Objections to
title on any Property encumbered by same, Buyer may, at its election,
(x) proceed with the Closing and take title to all of the Properties
subject to such exceptions to title without a reduction of the Purchase
Price, or (y) terminate this Agreement by written notice to Seller, in
which case the Deposit shall be returned to Buyer and thereafter
neither party shall have any obligation to the other under this
Agreement, provided, however, that Buyer shall provide such written
notice of termination to Seller no later than the close of business ten
(10) days after receipt of Seller's notice electing not to cure title
exceptions (the "Title Notice Day"). If Buyer fails to provide such
notice by 5:00 p.m. (New York time) on the Title Notice Day, Buyer
shall be obligated to purchase all the Properties as provided herein,
subject to the Permitted Exceptions as well as the title exceptions
that Seller elected not to cure.
To be effective, each notice delivered by Buyer to Seller hereunder must be sent
by facsimile transmission to the FAX numbers set forth in Section 17 with an
original hard copy thereof sent in accordance with the requirements of Section
17. Any dispute as to whether or not a notice regarding removal of a Property
from the Agreement has been given in a timely manner shall be resolved by
reference to the date and time stamped on the first page of the facsimile copy
of such notice by the facsimile unit receiving same.
8. Closing Deliveries. At the Closing, the following actions
shall be taken, all of which will be deemed taken simultaneously and no one of
which will be deemed completed until all have been completed:
(a) The Purchase Price shall be paid to Seller in
accordance with Section 3.
(b) The Deeds for each Owned Property shall be
executed and delivered to Buyer.
(c) Buyer and Seller shall execute and deliver an
Assignment and Assumption of Lease for each Leased Property.
(d) Buyer and Seller shall execute and deliver an
Assignment and Assumption of Sublease for each Sublease encumbering the
Properties.
(e) An affidavit of the Seller under FIRPTA shall be
delivered to Buyer.
(f) Seller shall deliver to Buyer the original
counterparts or true copies of the Leases assigned by Seller to Buyer
and assumed by Buyer pursuant to the Assignment and Assumption of
Leases delivered under clause (c) above (or copies thereof certified to
be true and correct by Seller) and the original counterparts or true
copies of the Subleases assigned by Seller to Buyer and assumed by
Buyer pursuant to the Assignment and Assumption of Subleases delivered
under clause (d) above (or copies thereof certified to be true and
correct by Seller).
(g) Seller shall use commercially reasonable efforts
to deliver to Buyer estoppel certificates from the Franchisees, in the
form attached hereto as Exhibit C on or before the last day of the Due
Diligence Period, and if Seller, after using reasonable efforts, is
unable to obtain such estoppel certificates from the Franchisees by the
Closing Date, the balance of the estoppel certificates, if any, may be
delivered by Seller, in the form attached hereto as Exhibit D
("Seller's Franchisee Estoppel Certificate").
(h) Seller shall use commercially reasonable efforts
to deliver to Buyer estoppel certificates from Burger King, in the form
attached hereto as Exhibit E on or before the last day of the Due
Diligence Period, and if Seller after using reasonable efforts, is
unable to obtain such estoppel certificates from Burger King by the
Closing Date, the balance of the estoppel certificates, if any, may be
delivered by Seller, in the form attached as Exhibit F (the "Seller's
Burger King Estoppel Certificate").
(i) Seller shall deliver the originals (if any, and
to the extent in Seller's possession) of all agreements, plans,
drawings, surveys, technical descriptions, warranties and licenses or
permits affecting the Properties.
(j) Any and all documents, affidavits and agreements
reasonably required by the Title Insurer to enable it to issue the
Title Policies shall be delivered by Buyer and Seller, respectively.
(k) Buyer and Burger King Corporation shall execute
and deliver the Lease Support Agreement and Buyer shall deliver the
Letter of Credit to Burger King Corporation.
If additional estoppel certificates are received by Seller from Burger King or
any Franchisee after the last day of the Due Diligence Period and up to sixty
(60) days after the Closing, such estoppel certificates shall be deemed to
replace the Seller's Franchisee Estoppel Certificate or the Seller's Burger King
Estoppel Certificate, as applicable, with respect to the Sublease or Lease for
which an estoppel has been received. Buyer agrees to cooperate and assist
Seller, at no expense to Buyer, in obtaining such estoppel certificates
subsequent to the last day of the Due Diligence Period.
9. Adjustments and Prorations; Closing Expenses.
9.1 Adjustments and Prorations. The basic or fixed rents and charges
payable under the Subleases and rents and charges actually received by Seller
for the month in which the Closing occurs, which rents and charges may include
but are not limited to basic or fixed rents, shall be apportioned between Buyer
and Seller as of 11:59 p.m. of the day next preceding the Closing Date (it being
understood and agreed that Buyer and Seller shall endeavor to compute all
closing adjustments at least five (5) business days prior to the Closing Date).
The percentage rents shall be pro-rated as of the Closing Date
in the following manner: the total amount of percentage rent payable for the
fiscal year in which the Closing occurs ("Fiscal Year 1997") for each Property
shall be computed for each Property based on an estimate of the sales for the
entire Fiscal Year 1997 which shall be determined by the prior year sales
multiplied by the percentage of increase or decrease in sales for the period
commencing with the beginning of Fiscal Year 1997 through and including the last
day of the month prior to the Closing Date over the comparable period for 1996.
The resulting percentage rental obligation for Fiscal Year 1997 shall then be
apportioned equally to each day during Fiscal Year 1997, with the amount
accruing prior to the Closing Date being referred to as the "Pre-Closing
Portion". Seller shall be credited with 1997 percentage rents in the amount of
the excess, if any, of (i) the Pre-Closing Portion reduced by (ii) percentage
rent payments actually received by Seller for Fiscal Year 1997 prior to the
Closing Date. If clause (ii) above exceeds (i) above, Seller shall be debited
with such excess on the Closing Date.
Seller represents and warrants that the respective Franchisees
of the Properties have the obligation for paying all real estate taxes and
assessments and all charges for utility services.
9.2 Closing Expenses. The premium for the Title Policies, all costs for the
Title Report, all escrow charges, all transfer charges and taxes, and all fees
and other costs for recording the Deeds and other conveyancing documents shall
be paid by Buyer. Seller shall pay fees for the surveys prepared by
International Land Services Inc. and any expenses incurred in connection with
Seller complying with Section 6.3. All other expenses of Closing shall be paid
by Buyer, other than Seller's legal expenses.
10. Representations and Warranties of Seller. Seller hereby
represents and warrants to Buyer as follows, it being expressly understood and
agreed that all such representations and warranties are to be true and correct
at the date of this Agreement, except as otherwise provided, and as of the
Closing, but such representations and warranties shall not survive the Closing:
(a) Seller has the full right, power and authority to
enter into this Agreement and at the date hereof but not as of the
Closing subject to the right of its limited partners as discussed in
Section 6.3, to cause the sales, transfers and assignments contemplated
herein; and each of the persons signing this Agreement on behalf of
Seller is authorized to do so;
(b) To the actual knowledge of Seller, (i) the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereunder on the part of the Seller does not
violate any applicable law, ordinance, statute, rule, regulation,
order, decree or judgment to which Seller may be subject, and (ii) no
action by any federal, state or municipal or other governmental
department, commission, board, bureau or instrumentality is necessary
to make this Agreement a valid instrument binding upon Seller in
accordance with its terms; and
(c) To the actual knowledge of Seller, there are no
pending or contemplated condemnation, eminent domain or similar
proceedings with respect to all or any portion of the Properties,
except as provided in Section 13.
(d) Except for the information contained in the
documents listed in Schedule 2 attached hereto, Seller has no actual
knowledge as to the environmental conditions of the Properties.
(e) Seller has no contracts of any kind, such as for
waste disposal, termite protection, cleaning services, management
services or paper supplies which will survive the Closing.
(f) Seller has delivered to Buyer the monthly sales
reports for the months January through October 1997 or true copies
thereof which were delivered to Buyer from Burger King Corporation.
Seller expressly does not represent or warrant the accuracy or
completeness of the information contained in such sales reports.
(g) From and after the date hereof until the Closing
or earlier termination of this Agreement, Seller shall not sell, assign
or create any right, title or interest whatsoever in or to any Property
or create any liens, encumbrance or charge thereon without promptly
discharging same.
(h) From and after the date hereof until the Closing
or earlier termination of this Agreement, Seller shall conduct its
activities as landlord of the Properties reasonably consistent with its
past practices.
If Buyer discovers prior to Closing, that any representation
or warranty made in this Agreement, in Seller's Estoppel Certificate(s), if any,
or in Seller's Burger King Estoppel Certificate(s), if any, is untrue in any
material respect, then Buyer shall have the right, as its sole and exclusive
remedy, either to (i) terminate this Agreement by notice given to Seller prior
to the Closing Date, receive a return of the Deposit and thereafter neither
party shall have any obligation to the other under this Agreement, or (ii) elect
to purchase the Properties subject to such untrue representation or warranty
without any reduction in the Purchase Price.
11. Representations and Warranties of Buyer. Buyer hereby
represents and warrants to Seller as follows, such representations and
warranties to be true and correct at the date of this Agreement and as of the
Closing, but such representations and warranties shall not survive the Closing:
(a) Buyer is a limited partnership duly organized and in good standing
under the laws of the State of Delaware;
(b) Buyer has the full right, power and authority to
enter into and fully perform its obligations under this Agreement, and
each of the persons signing this Agreement on behalf of Buyer is
authorized to do so; and
(c) To the actual knowledge of Buyer, (i) the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereunder on the part of Buyer does not
violate any applicable law, ordinance, statute, rule, regulation,
order, decree or judgment to which Buyer may be subject, and (ii) no
action by any federal, state or municipal or other governmental
department, commission, board, bureau or instrumentality is necessary
to make this Agreement a valid instrument binding upon Buyer in
accordance with its terms.
If Seller discovers prior to Closing, that any representation
or warranty made in this Agreement is untrue in any material respect, then
Seller shall have the right to terminate this Agreement by notice given to Buyer
prior to the Closing Date.
12. Damage or Destruction. In the event that a casualty or
other loss occurs to any Property prior to the Closing Date which (i) renders
such Property inoperable as a restaurant for a period reasonably estimated by
Seller to exceed four (4) months, or (ii) with respect to which there is
insufficient insurance coverage and/or tenant contributions to restore such
Property to its condition prior to such casualty, Buyer may, in its sole
discretion (a) elect to purchase all of the Properties without reduction of the
Purchase Price; or (b) terminate this Agreement by written notice to Seller and
receive a return of the Deposit.
13. Eminent Domain. In the event of any threatened, commenced
or consummated proceedings in eminent domain respecting a Property or
substantially all of a Property, Buyer may, at its option, by notice to Seller
given ten (10) days after Buyer is notified of such actual or possible
proceedings, elect to remove the affected Property from this Agreement and the
Purchase Price shall be reduced by the consideration attributable to the
affected Property as shown on Schedule 1, or if Buyer fails to elect or if such
eminent domain proceedings are for less than substantially all of a Property,
then Buyer shall be obligated to purchase the Property as provided herein and
Seller shall, at the Closing, assign to Buyer its entire right, title and
interest in and to any condemnation award.
14. Environmental Inquiries.
Buyer acknowledges that Seller, at Seller's expense, has
caused Environmental Consulting & Technology, Inc. ("ECT") to conduct
Transaction Screen Assessments consistent with ASTM Standard E 1528-93 (each, a
"Transaction Screen") of the Properties, and that Seller herewith has furnished
to Buyer such information as more particularly described on Schedule 2 hereto.
15. Property "As Is". Seller does not warrant, either
expressly or impliedly, the condition or fitness of the Properties, including
without limitation the environmental fitness and condition of the Properties.
Buyer acknowledges that it has made such inspections and investigations of the
Properties as it has deemed necessary including, without limitation, the
physical and environmental features of the Properties and that Buyer will
acquire the Properties "AS IS, WHERE IS" in their current state, including
without limitation their current physical and environmental condition, subject
to normal wear and tear between the effective date of this Agreement and the
Closing. It is expressly understood and agreed that the willingness of Buyer to
purchase the Properties on an "AS IS, WHERE IS" basis in accordance herewith is
a material inducement to Seller's agreement to sell the Properties to Buyer.
Buyer hereby waives any and all claims which it may now or hereafter have
against Seller arising out of or in connection with Environmental Laws,
including without limitation any such claims under the federal Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section
9601-9659 ("CERCLA"), and any claims under state common law, relating to the
emission, discharge or release of any hazardous substance, as that term is
defined under CERCLA at 42 U.S.C. Section 9601(14), or petroleum product or
other pollutant or contaminant.
16. Brokerage. Each party represents and warrants to the other
that it has neither engaged nor employed any broker or finder in connection with
the transactions contemplated by this Agreement, except that Seller, at Seller's
expense, has retained Xxxxx Xxxx Xxxxxxx USA, Inc. and each party hereby
indemnifies and agrees to hold the other harmless from and against any loss,
cost, damage or expense (including reasonable attorneys' fees) by reason of the
incorrectness of such representation and warranty. This provision shall survive
the Closing.
17. Notices. All notices, demands, requests, consents,
approvals or other communications ("Notices") required or permitted to be given
hereunder or which are given with respect to this Agreement shall be in writing
and shall (except as herein expressly provided to the contrary) be delivered
personally or sent by either registered or certified mail, return receipt
requested, postage prepaid, by Federal Express or another nationally recognized
air courier service, or by telephonic facsimile transmission, addressed as
follows:
TO SELLER:
Burger King Limited Partnership, III
3 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
FAX: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: C. Xxxxxx Xxxx, Jr., Esq.
FAX: (000) 000-0000
TO BUYER:
U.S. Restaurant Properties Operating L.P.
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxxx
FAX: (000) 000-0000
With a copy to:
Middleberg, Xxxxxx & Gianna
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
FAX: (000) 000-0000
or such other address as such party shall have specified most recently by like
Notice. Notices mailed as provided herein shall be deemed given on the third
business day following the date so mailed, on the business day received from a
nationally recognized air courier service or on the business day received by
facsimile transmission.
18. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute but one and the same instrument.
19. Governing Law. This Agreement shall be governed by,
interpreted under, and construed and enforced in accordance with, the laws of
the State of New York.
20. Jurisdiction. The parties hereto irrevocably and
unconditionally submit themselves to the general jurisdiction of the courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and the appellate courts thereof, in any legal
action or proceeding arising under this Agreement or in any way related hereto.
21. Entire Agreement. This Agreement is not to be recorded and
may not be changed, modified or terminated except by written instrument executed
by the parties hereto. This Agreement (including the Exhibits attached hereto)
contain the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior understandings, if any, with respect
thereto. This Agreement may not be modified, changed or supplemented, nor may
any obligations hereunder be waived, except by written instrument signed by the
party to be charged or by its agent duly authorized in writing or as otherwise
expressly permitted herein. The parties do not intend to confer any benefit
hereunder on any person, firm or corporation other than the parties hereto. This
provision shall survive the Closing.
22. Attorneys' Fees. Should either party institute any action
or proceeding to enforce this Agreement or any provision hereof, or for damages
by reason of any alleged default under or breach of this Agreement or of any
provision hereof, or for a declaration of rights hereunder, the prevailing party
in any such action or proceeding shall be entitled to receive from the other
party all costs and expenses, including reasonable attorneys' fees, incurred by
the prevailing party in connection with such action or proceeding at trial and
any appellate levels.
23. Non-Waiver of Rights. No failure or delay of either party
in the exercise of any right given to such party hereunder shall constitute a
waiver thereof unless the time specified herein for exercise of such right has
expired, nor shall any single or partial exercise of any right preclude other or
further exercise thereof or of any other right. The waiver of any breach
hereunder shall not be deemed to be a waiver of any other or any subsequent
breach hereof.
24. Rules of Construction. This Agreement shall be construed
without regard to any presumption or other rule requiring construction against
the party causing this Agreement to be drafted.
25. Titles and Headings. Titles and headings of Sections of
this Agreement are for convenience of reference only and shall not affect the
construction of any provision of this Agreement.
26. Exhibits. Each of the Exhibits and Schedules referred to
herein and attached hereto is an integral part of this Agreement and are
incorporated herein by this reference.
27. Pronouns; Joint and Several Liability. All pronouns and
any variation thereof shall be deemed to refer to the masculine, feminine or
neuter, singular or plural, as the identity of the parties may require. If the
Buyer consists of two or more parties, the liability of such parties shall be
joint and several.
28. Further Assurances. Seller and Buyer each agree to do such
further acts and things and to execute and deliver such additional agreements
and instruments as the other may reasonably require to consummate, evidence or
confirm the sale or any other agreement contained herein in the manner
contemplated hereby.
29. No Assignment. Buyer shall have no right to assign this
Agreement or its rights hereunder, without the express written consent of
Seller. The transfer of a controlling interest in the shares of Buyer shall be
deemed an assignment for purposes of this Agreement; provided, however, that
Buyer shall be permitted to assign its rights to purchase one or more Properties
to a wholly-owned subsidiary of Buyer provided Buyer (i) indemnifies Seller,
Xxxxxx Brothers, Inc. and any of their affiliates, subsidiaries, directors,
officers, shareholders or partners from any and all costs and/or liabilities
incurred in connection with any claims, settlements, fines, investigations,
remediation activities or other charges relating to any environmental conditions
now or hereafter existing on such Property in a form satisfactory to Seller, and
(ii) notifies Seller of the name of the assignee on or before the last day of
the Due Diligence Period.
30. Damages. In the event this Agreement is terminated due to
either party's default in the performance of its obligations hereunder or due to
Buyer's default under the BKLP I Purchase and Sale Agreement, then if Seller is
the defaulting party Buyer shall be entitled to pursue any and all remedies
available at law or in equity, including but not limited to specific performance
or to terminate this Agreement and receive a refund of the Deposit. In the event
Buyer is the defaulting party, then the parties have agreed that the Deposit
shall be retained by Seller as agreed upon liquidated damages it being
acknowledged that Seller's damages from Buyer's default might be impossible to
ascertain and that the Deposit constitutes a fair and reasonable amount for
Seller's damages and is not a penalty. Thereafter neither party shall have any
responsibility or obligation to the other under or pursuant to this Agreement.
Initial:
--------------- -----------------
Seller Buyer
31. TIME OF ESSENCE. TIME IS OF THE ESSENCE OF EACH AND EVERY
TERM, CONDITION AND PARTICULAR OF THIS AGREEMENT.
IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement as of the day and year first above written.
SELLER: BUYER:
BURGER KING LIMITED PARTNERSHIP III, U.S. RESTAURANT PROPERTIES
a New York limited partnership OPERATING L.P.
By: USRP MANAGING, INC.
By: BK III RESTAURANTS INC.
By:
------------------------------
General Partner Name:
Title:
By:
---------------------------
Name: Xxxxxxx Xxxxx
Title: President
ESCROW AGENT:
LAWYERS TITLE INSURANCE CORPORATION
By:
----------------------------
Name:
Title:
BURGER KING LIMITED PARTNERSHIP III
SCHEDULE 1
STORE LOCATION SALES PRICE
----- -------- --------------
4217 Montgomery, AL $ 534,500
4163 Covina, CA 828,700
0000 Xxx Xxxxxxxxxx, XX 160,000
4268 Federal Heights, CO 305,200
4101 Largo, FL 867,500
4182 Atlanta, GA 875,000
4693 Columbus, IN 1,370,400
4590 Gary, IN 963,000
0000 Xxxxxxxx Xxxx, XX 190,000
4116 Moundsview, MN 640,000
0000 Xxxxxx, XX 1,125,000
0000 Xxxxxxxxxxx, XX 479,000
4767 Fayetteville, NC 537,100
4601 Wilson, NC 758,300
0000 Xxxxx Xxxxxxx, XX 967,500
0000 Xxxxxxxxxxx, XX 680,000
4320 Gallatin, TN 963,000
4709 Memphis, TN 300,000
4839 Nashville, TN 490,000
4483 Shelbyville, TN 1,114,200
0000 Xxxxxxxx, XX 886,000
0000 Xxxxxxx Xxxxxxx, XX 965,600
---------------
$16,000,000.00
SCHEDULE 2
1. Updated Transaction Screen Reports for Burger King Limited Partnership
III Sites prepared by Environmental Consulting & Technology, Inc. dated
October 1997.
2. Transaction Screen Reports for Burger King Limited Partnership III
Sites prepared by Environmental Consulting & Technology, Inc. dated
December, 1994.
EXHIBIT A
ASSIGNMENT AND ASSUMPTION OF LEASE
FOR AND IN CONSIDERATION of the sum of Ten Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned, Burger King Limited Partnership III, a
New York limited partnership ("Assignor"), does hereby sell, assign, convey,
transfer, set over and deliver to [ ], a [ ] ("Assignee"), the entire interest
of Assignor, as lessee, in and to the lease of real property more particularly
described in Exhibit A attached hereto and incorporated by reference herein,
between Burger King Corporation, as lessor, and Burger King Limited Partnership
III, as tenant, dated lease_date, a Memorandum of which was filed on ___________
__, 19__ and recorded at Book _____, Page _____ in the _________ County Registry
of Deeds (the "Lease").
Assignee hereby assumes and agrees to perform all the terms,
covenants and conditions of the Lease required to be performed by the lessee
thereunder from and after the date hereof. Assignee hereby indemnifies and holds
Assignor harmless from and against any and all loss, cost, damage, expense
(including reasonable attorney's fees), liability, claims or causes of action
existing in favor of or asserted by the lessor under the Lease arising out of or
relating to Assignee's failure to perform any of its obligations as lessee under
the Lease on or after the date hereof.
Assignor hereby indemnifies and holds Assignee harmless from
and against any and all loss, cost, damage, expense (including reasonable
attorney's fees), liability, claims or causes of action existing in favor of or
asserted by the lessor under the Lease arising out of or relating to Assignor's
failure to perform any of its obligations as lessee under the Lease prior to the
date hereof.
This Assignment shall be binding upon and shall inure to the
benefit of Assignor and Assignee and their respective successors and assigns.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment and Assumption of Lease this _________ day of ____ 1997.
ASSIGNOR:
Burger King Limited Partnership III,
a New York limited partnership
By: BK III Restaurants Inc.,
a New York corporation, general partner
By:
--------------------------------------------
Name:
Title:
ASSIGNEE:
[ ]
By: [ ]
By:
--------------------------------------------
Name:
Title:
EXHIBIT B
ASSIGNMENT AND ASSUMPTION OF SUBLEASE
FOR AND IN CONSIDERATION of the sum of Ten Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned, Burger King Limited Partnership III, a
New York limited partnership ("Assignor"), does hereby sell, assign, convey,
transfer, set over and deliver to U.S Restaurant Properties Operating L.P., a [
] ("Assignee"), the entire interest of Assignor in and to the sublease of real
property more particularly described in Exhibit A attached hereto and
incorporated by reference herein, between Burger King Limited Partnership III,
as lessor, and lessee, as lessee, dated lease_date, a Memorandum of which was
filed on file_date, and recorded at book, page, in the county County Registry of
Deeds (the "Sublease").
Assignee hereby assumes and agrees to perform all the terms,
covenants and conditions of the Sublease required to be performed by the lessor
thereunder from and after the date hereof, including, without limitation, the
obligation to repay in accordance with the terms of the Sublease to the lessee
thereunder any and all security deposits and prepaid rental deposits to the
extent, but only to the extent of the amount of cash delivered by Assignor to
Assignee with respect to such security deposits and prepaid rental deposits and
only to the extent that any such amount shall hereafter become refundable to the
lessee under the Sublease.
Assignee hereby indemnifies and holds Assignor harmless from
and against any and all loss, cost, damage, expense (including reasonable
attorney's fees), liability, claims or causes of action existing in favor of or
asserted by the lessee under the Sublease arising out of or relating to
Assignee's failure to perform any of its obligations as lessor under the
Sublease on or after the date hereof. Assignor hereby indemnifies and holds
Assignee harmless from and against any and all loss, cost, damage, expense
(including reasonable attorney's fees), liability, claims or causes of action
existing in favor of or asserted by the lessee under the Sublease arising out of
or relating to Assignor's failure to perform any of its obligations as lessor
under the Sublease prior to the date hereof.
This Assignment shall be binding upon and shall inure to the
benefit of Assignor and Assignee and their respective successors and assigns.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment and Assumption of Sublease this _________ day of December 1997.
ASSIGNOR:
BURGER KING LIMITED PARTNERSHIP III,
a New York limited partnership
By: BK III Restaurants Inc.,
a New York corporation, general partner
By:
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: President
ASSIGNEE:
U.S. RESTAURANT PROPERTIES OPERATING L.P.
By:
-----------------------------------
Name:
Title:
EXHIBIT C
[FRANCHISEE ESTOPPEL]
_______________, 1997
[ ]
Re: (a) Sublease or Lease dated ___________, between Burger King Limited
Partnership III ("Landlord") and
______________________________________________________________, as tenant
("Franchisee"), covering the real property commonly known as __________
_________________________ (the "Property"), as amended or modified by the
following: _________________________________________________________________
(the "Lease"). (b) Franchise Agreement dated ___________, between Burger King
Corporation ("Burger King"), as franchisor, and Franchisee with respect to the
operation of a "Burger King" restaurant at the Property, as amended or modified
by the following: _______________
_________________________________________________(the "Franchise Agreement").
Dear Ladies and Gentlemen:
The undersigned has been advised that you or another person or
entity are about to purchase the interest of Burger King Limited Partnership III
in the Property. In connection with such acquisition, the undersigned hereby
represents and certifies to you that:
A. Lease
1. The Lease constitutes the entire agreement between Landlord and
Franchisee pertaining to the Property, and the undersigned has not assigned,
amended, sublet or otherwise transferred its interest in the Lease.
2. The commencement and termination dates of the current term of the Lease
are __________________________________ and _______________________,
respectively. Franchisee has the following options or rights to renew the term:
____________________
------------------------------------------------------------------------------.
3. All rent payable by Franchisee under the Lease has been paid through
__________________, 1997.
4. The Lease is in full force and effect; there are no outstanding notices
of default or breach under the Lease served either by Landlord or Franchisee,
nor, to Franchisee's actual knowledge, has there been any occurrence or omission
which, with the giving of notice or passage of time or both, would give rise to
a default by either party under the Lease.
5. There have been no security or other deposits made by Franchisee to
Landlord and there have been no pre-payments of rent, nor will Franchisee
pre-pay rent or other amounts in connection with the Lease. No concessions,
rebates, allowances, or other concessions for free or reduced rent in the future
have been granted, other than as set forth in the Lease.
6. Franchisee has not currently (i) made a general assignment for the
benefit of creditors; (ii) filed any voluntary petition in bankruptcy or
suffered the filing of an involuntary petition by its creditors; (iii) suffered
the appointment of a receiver to take possession all or substantially all of its
assets; (iv) suffered the attachment or other judicial seizure of all or
substantially all of its assets; (v) admitted in writing its inability to pay
its debts as they come due; or (iv) made an offer of settlement, extension or
composition of its creditors generally.
B. Franchise Agreement
1. The Franchise Agreement constitutes the entire agreement
between Burger King Corporation and Franchisee pertaining to the operation of a
"Burger King" restaurant at the Property.
2. The term of the Franchise Agreement is 20 years.
3. The Franchise Agreement is in full force and effect; there
are no
outstanding notices of default or breach under the Franchise Agreement served
either by Burger King Corporation or Franchisee, nor, to Franchisee's actual
knowledge, has there been any occurrence or omission which, with the giving of
notice or passage of time or both, would give rise to a default by either party
under the Franchise Agreement.
Franchisee hereby acknowledges and agrees that you and any
such other purchasing person or entity shall be entitled to rely upon the
foregoing provisions of this letter in consummating the above-referenced
transaction.
Very truly yours,
If Franchisee is a corporation, insert --------------------------------
corporation's name and sign here
By:
-----------------------------
Name:
Title:
If Franchisee is an individual, sign --------------------------------
here: Name:
EXHIBIT D
[BKLP III ESTOPPEL]
_________________, 1997
[ ]
Re: (a) Sublease dated __________ between Burger King Corporation ("Burger
King") and Burger King Limited Partnership III ("BKLP-III"), covering the real
property commonly known as ____________________________________________________
(the "Property"), as amended or modified by the following:
____________________________________________________
_______________________________________ (the "Sublease"); and (b) Lease dated
__________ between BKLP-III, as landlord, and _______________________
________________, as subtenant ("Franchisee"), as amended or modified by the
following: ______________________________________________________ (the
"Operating Lease").
Dear Ladies and Gentlemen:
In connection with your purchase of BKLP-III's interest in the
Property, the undersigned hereby represents and certifies to you and to any
other purchasing person or entity that:
A. Sublease
1. The Sublease constitutes the entire agreement between
Burger King and BKLP-III pertaining to the demising of the Property, and
BKLP-III has not amended, assigned or transferred its interest in the Sublease.
2. The commencement and termination dates of the current term
of the Sublease are ___________________________ and ___________________________,
respectively. BKLP-III has the following options or rights to renew the term:
______________________
------------------------------------------------------------------------------.
3. All rent payable by BKLP-III under the Sublease has been
paid through _______________, 1997.
4. The Sublease is in full force and effect; there are no
outstanding notices of default or breach under the Sublease served either by
Burger King or BKLP-III thereunder, nor, to Burger King's actual knowledge, has
there been any occurrence or omission which, with the giving of notice or
passage of time or both, would give rise to a default by either party under the
Sublease.
5. There have been no security or other deposits made by
Franchisee to BKLP-III and there have been no pre-payments of rent, nor will
Franchisee pre-pay rent or other amounts in connection with the Lease. No
concessions, rebates, allowances, or other concessions for free or reduced rent
in the future have been granted, other than as set forth in the Lease.
B. Operating Lease
1. The Operating Lease constitutes the entire agreement
between BKLP-III and Franchisee pertaining to the Property, and BKLP-III has not
assigned or transferred its interest in the Operating Lease.
2. The commencement and termination dates of the current term
of the Operating Lease are _________________________ and
__________________________ respectively. Franchisee has the following options or
rights to renew the term: _____________________________________
------------------------------------------------------------------------------.
3. All minimum rent and additional rent payable by Franchisee
under the Operating Lease has been paid through _______________, 1997. All
percentage rent payable by Franchisee has been paid through __________________,
199_.
4. The Operating Lease is in full force and effect; there are
no outstanding notices of default or breach under the Operating Lease served
either by BKLP-III or Franchisee, nor, to BKLP-III's actual knowledge, has there
been any occurrence or omission which, with the giving of notice or passage of
time or both, would give rise to a default by either party under the Operating
Lease.
5. There have been no security or other deposits and there
have been no pre-payments of rent, nor will Franchisee pre-pay rent or
other-amounts in connection with the Lease. No concessions, rebates, allowances,
or other concessions for free or reduced rent in the future have been granted,
other than as set forth in the Lease.
The representations and certifications made hereunder shall
not survive the date upon which you or such other purchasing person or entity
purchase BKLP-III's interest in the Property. BKLP-III hereby acknowledges that
you and any such other purchasing person or entity shall be entitled to rely
upon the foregoing provisions of this letter in consummating the
above-referenced transaction.
Very truly yours,
BURGER KING LIMITED PARTNERSHIP III,
By: BK III Restaurants Inc., general partner
By:
------------------------------
Name:
Title:
EXHIBIT E
ESTOPPEL CERTIFICATE
PURCHASE AND SALE
This Certificate is made as of __________________, by BURGER KING
CORPORATION ("Lessor").
1. The Leases. The term "Leases," as used herein, shall mean those certain
subleases, together with any amendments thereto, concerning the properties as
more particularly described in Exhibit A attached hereto and by this reference
incorporated herein, between Lessor and Burger King Limited Partnership III (the
"Tenant").
2. The Properties. The term "Properties," as used herein, shall mean those
certain real properties as legally described in the Leases.
3. The Sale. The term "Buyer," as used herein, shall mean U.S. Restaurant
Properties Operating, L.P., its successors and assigns. Buyer proposes to
purchase Tenant's interest in the Leases from Tenant.
4. Purpose. In connection with the above-mentioned transactions, Buyer has
requested certain assurances and representations from Lessor, and Tenant has
agreed to provide for an estoppel certificate from Lessor concerning the Leases.
In consideration of the terms and provisions hereinafter contained and
other good and valuable consideration received, the receipt and sufficiency of
which are hereby acknowledged, Lessor certifies and agrees as follows:
(_) Lessor is the sublessor and Tenant is the subtenant under the Leases.
(_) The terms of the Leases commenced and rent commenced to accrue under
the Leases on the dates described on Exhibit B. Tenant has the options or rights
to renew the terms of the Leases as described in Exhibit B.
(_) The Leases are in full force and effect, and Lessor has no knowledge of
(i) any present defaults of either party under the Leases; nor (ii) any present
condition or state of facts which by notice or the passage of time, or both,
would constitute a default by either party under the Leases.
(_) The sale of the Leased Premises to the Buyer will not violate any term
or conditions of the Leases, and after such sale the Leases will continue in
full force and effect.
Lessor acknowledges Buyer will rely upon the matters set forth herein
in acquiring the Tenant's interest in the Leases. This Certificate shall inure
to the benefit of, and may be relied upon by, Buyer, its successors and assigns.
LESSOR:
------------------------------
By:
---------------------------
Its:
--------------------------
Address:
----------------------
EXHIBIT A
Leases
(a) Agreement of Sublease dated July 10, 1984 between Burger King
Corporation, as lessor, and Burger King Limited Partnership III, as
lessee, for real property located in Albuquerque, New Mexico and
commonly known as Burger King store #4213.
(b) Agreement of Sublease dated July 16, 1984 between Burger King
Corporation, as lessor, and Burger King Limited Partnership III, as
lessee, for real property located in Montgomery, Alabama and commonly
known as Burger King store #4217.
(c) Agreement of Sublease dated August 31, 1984 between Burger King
Corporation, as lessor, and Burger King Limited Partnership III, as
lessee, for real property located in Federal Heights, Colorado and
commonly known as Burger King store #4268.
(d) Agreement of Sublease dated February 20, 1985 between Burger King
Corporation, as lessor, and Burger King Limited Partnership III, as
lessee, for real property located in Brooklyn Park, Maryland, and
commonly known as Burger King store #4482.
(e) Agreement of Sublease dated August 26, 1985 between Burger King
Corporation, as lessor, and Burger King Limited Partnership III, as
lessee, for real property located in Fayetteville, North Carolina and
commonly known as Burger King store #4767.
(f) Agreement of Sublease dated October 1, 1985 between Burger King
Corporation, as lessor, and Burger King Limited Partnership III, as
lessee, for real property located in San Bernardino, California and
commonly known as Burger King store #4808.
EXHIBIT B
Lease Provisions
1. Albuquerque Lease:
Commencement Date: October 26, 1984
Options or Rights
to Renew: Lessee has 2 successive 5-year (or approximately
5-year) options to renew, as follows: one term
of 5 years commencing upon the expiration of the
original ten year term; one term of approximately
5 years commencing upon the expiration date of
the first extension term and expiring upon the
expiration of the original term of the Lease as
described in the Lease; and then 4 terms of 5
years each coincident with the extension terms
of the Lease as described in the Lease.
2. Montgomery Lease:
Commencement Date: September 23, 1984
Options or Rights
to Renew: Lessee has 2 successive 5-year (or approximately
5-year) options to renew, as follows: one term
of 5 years commencing upon the expiration of the
original ten year term; one term of approximately
5 years commencing upon the expiration date of
the first extension term and expiring upon the
expiration of the original term of the Lease as
described in the Lease; and then 4 terms of 5
years each coincident with the extension terms
of the Lease as described in the Lease.
3. Federal Heights Lease:
Commencement Date: December 7, 1984
Options or Rights
to Renew: Lessee has 2 successive 5-year (or approximately
5-year) options to renew, as follows: one term
of 5 years commencing upon the expiration of the
original ten year term; one term of approximately
5 years commencing upon the expiration date of
the first extension term and expiring upon the
expiration of the original term of the over Lease
as described in the Lease; and then 3 terms, with
the third extension of term terminates and ending
December 31, 2022; coincident with the extension
terms of the Lease.
4. Brooklyn Park Lease:
Commencement Date:
Options or Rights
to Renew:
5. Fayetteville Lease:
Commencement Date: November 8, 1985
Options or Rights
to Renew: Lessee has 2 successive 5-year (or approximately
5-year) options to renew, as follows: one term
of 5 years commencing upon the expiration of the
original ten year term; one term of approximately
5 years commencing upon the expiration date of
the first extension term and expiring upon the
expiration of the original term of the Lease as
described in the Lease; and then 4 terms of 5
years each coincident with the extension terms
of the Lease as described in the Lease.
6. San Bernardino Lease:
Commencement Date: December 11, 1985
Options or Rights
to Renew: Lessee has 2 successive 5-year (or approximately
5-year) options to renew, as follows: one term
of 5 years commencing upon the expiration of the
original ten year term; one term of approximately
5 years commencing upon the expiration date of
the first extension term and expiring upon the
expiration of the original term of the Lease as
described in the Lease; and then 4 terms of 5
years each coincident with the extension terms
of the Lease as described in the Lease.
EXHIBIT F
ESTOPPEL CERTIFICATE
PURCHASE AND SALE
This Certificate is made as of __________________, by BURGER KING
LIMITED PARTNERSHIP III (the "Tenant").
1. The Leases. The term "Leases," as used herein, shall mean those certain
subleases, together with any amendments thereto, concerning the properties as
more particularly described in Exhibit A attached hereto and by this reference
incorporated herein, between Burger King Corporation ("Lessor") and Tenant.
2. The Properties. The term "Properties," as used herein, shall mean those
certain real properties as legally described in the Leases.
3. The Sale. The term "Buyer," as used herein, shall mean U.S. Restaurant
Properties Operating, L.P., its successors and assigns. Buyer proposes to
purchase Tenant's interest in the Leases from Tenant.
4. Purpose. In connection with the above-mentioned transactions, Buyer has
requested certain assurances and representations from Tenant and Tenant has
agreed to deliver this estoppel certificate.
In consideration of the terms and provisions hereinafter contained and
other good and valuable consideration received, the receipt and sufficiency of
which are hereby acknowledged, Tenant certifies and agrees as follows:
(a) Lessor is the sublessor and Tenant is the subtenant under the Leases.
(b) The terms of the Leases commenced and rent commenced to accrue under
the Leases on the dates described on Exhibit B. Tenant has the options or rights
to renew the terms of the Leases as described in Exhibit B.
(c) The Leases are in full force and effect, and Tenant has no knowledge of
(i) any present defaults of either party under the Leases; nor (ii) any present
condition or state of facts which by notice or the passage of time, or both,
would constitute a default by either party under the Leases.
(d) The sale of the Leased Premises to the Buyer will not violate any term
or conditions of the Leases, and after such sale the Leases will continue in
full force and effect.
The representations and certifications made hereunder shall
not survive the date upon which you or such other purchasing person or entity
purchase Tenant's interest in the Property. Tenant hereby acknowledges that you
and any such other purchasing person or entity shall be entitled to rely upon
the foregoing provisions of this letter in consummating the above-referenced
transaction.
TENANT:
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By:
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Its:
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Address:
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EXHIBIT A
Leases
1. Agreement of Sublease dated July 10, 1984 between Burger King
Corporation, as lessor, and Burger King Limited Partnership III, as
lessee, for real property located in Albuquerque, New Mexico and
commonly known as Burger King store #4213.
2. Agreement of Sublease dated July 16, 1984 between Burger King
Corporation, as lessor, and Burger King Limited Partnership III, as
lessee, for real property located in Montgomery, Alabama and commonly
known as Burger King store #4217.
3. Agreement of Sublease dated August 31, 1984 between Burger King
Corporation, as lessor, and Burger King Limited Partnership III, as
lessee, for real property located in Federal Heights, Colorado and
commonly known as Burger King store #4268.
4. Agreement of Sublease dated February 20, 1985 between Burger King
Corporation, as lessor, and Burger King Limited Partnership III, as
lessee, for real property located in Brooklyn Park, Maryland, and
commonly known as Burger King store #4482.
5. Agreement of Sublease dated August 26, 1985 between Burger King
Corporation, as lessor, and Burger King Limited Partnership III, as
lessee, for real property located in Fayetteville, North Carolina and
commonly known as Burger King store #4767.
6. Agreement of Sublease dated October 1, 1985 between Burger King
Corporation, as lessor, and Burger King Limited Partnership III, as
lessee, for real property located in San Bernardino, California and
commonly known as Burger King store #4808.
EXHIBIT B
Lease Provisions
1. Albuquerque Lease:
Commencement Date: October 26, 1984
Options or Rights
to Renew: Lessee has 2 successive 5-year (or approximately
5-year) options to renew, as follows: one term
of 5 years commencing upon the expiration of the
original ten year term; one term of approximately
5 years commencing upon the expiration date of
the first extension term and expiring upon the
expiration of the original term of the Lease as
described in the Lease; and then 4 terms of 5
years each coincident with the extension terms
of the Lease as described in the Lease.
2. Montgomery Lease:
Commencement Date: September 23, 1984
Options or Rights
to Renew: Lessee has 2 successive 5-year (or approximately
5-year) options to renew, as follows: one term
of 5 years commencing upon the expiration of the
original ten year term; one term of approximately
5 years commencing upon the expiration date of
the first extension term and expiring upon the
expiration of the original term of the Lease as
described in the Lease; and then 4 terms of 5
years each coincident with the extension terms
of the Lease as described in the Lease.
3. Federal Heights Lease:
Commencement Date: December 7, 1984
Options or Rights
to Renew: Lessee has 2 successive 5-year (or approximately
5-year) options to renew, as follows: one term
of 5 years commencing upon the expiration of the
original ten year term; one term of approximately
5 years commencing upon the expiration date of
the first extension term and expiring upon the
expiration of the original term of the over Lease
as described in the Lease; and then 3 terms,
with the third extension of term terminates and
ending December 31, 2022; coincident with the
extension terms of the Lease.
4. Brooklyn Park Lease:
Commencement Date: June 11, 1985
Options or Rights
to Renew: Lessee has 2 successive 5-year (or approximately
5-year) options to renew, as follows: one term
of 5 years commencing upon the expiration of the
original ten year term; one term of approximately
5 years commencing upon the expiration date of
the first extension term and expiring upon the
expiration of the original term of the over
Lease as described in the Lease; and then 4
terms of 5 years each coincident with the
extension terms of the Lease as described in the
Lease.
5. Fayetteville Lease:
Commencement Date: November 8, 1985
Options or Rights
to Renew: Lessee has 2 successive 5-year (or approximately
5-year) options to renew, as follows: one term
of 5 years commencing upon the expiration of the
original ten year term; one term of approximately
5 years commencing upon the expiration date of
the first extension term and expiring upon the
expiration of the original term of the Lease as
described in the Lease; and then 4 terms of 5
years each coincident with the extension terms
of the Lease as described in the Lease.
6. San Bernardino Lease:
Commencement Date: December 11, 1985
Options or Rights
to Renew: Lessee has 2 successive 5-year (or approximately
5-year) options to renew, as follows: one term
of 5 years commencing upon the expiration of the
original ten year term; one term of approximately
5 years commencing upon the expiration date of
the first extension term and expiring upon the
expiration of the original term of the Lease as
described in the Lease; and then 4 terms of 5
years each coincident with the extension terms
of the Lease as described in the Lease.
EXHIBIT G
[attach Lease Support Agreement]
