AGREEMENT OF SALE
THIS AGREEMENT OF SALE (the "Agreement") is dated as of the 28th day of
June, 2005 between SPIRIT FINANCE ACQUISITIONS , LLC, a Delaware limited
liability company, located at 00000 X. Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000-0000 (together with all successors and assigns, "Purchaser"), and
CAPTEC FRANCHISE CAPITAL PARTNERS XX XX, a Delaware limited partnership, located
at 24 Xxxxx Xxxxx Xxxxxx Drive, Lobby L, Fourth Floor, Ann Arbor, Michigan 48106
("Seller").
RECITALS
Seller is the owner of certain real property and improvements thereon
located at the address set forth in the Fundamental Sale Provisions below.
Purchaser desires to purchase, and Seller is willing to sell said property
upon the terms and conditions set out hereinafter.
NOW, THEREFORE, in consideration of the terms, covenants and conditions
set forth in this Agreement, Seller and Purchaser hereby agree as follows:
1. FUNDAMENTAL SALE PROVISIONS. Unless otherwise defined herein,
capitalized terms used in this Agreement shall have the meanings listed in the
following Fundamental Sale Provisions
Land: That certain real property commonly known as 0000-0000 X.
Xxxxxxxx Street, located in the City of Plainview, State of
Texas and more particularly described in Exhibit "A"
attached hereto.
Lease: That certain Lease, dated September 3, 1999, as amended,
("Real Estate Lease"), between Plainview Columbia, L.L.C.
(and subsequently assigned to Seller), as landlord, and
United Supermarkets, Inc., (and subsequently assigned to
United Supermarkets, Ltd.), as tenant ("Tenant") and
guaranteed by Pamplemousse, L.L.C. ("Guarantor") pursuant to
that certain Guaranty, dated September 30, 2001
("Guaranty").
Deposit: Initial deposit of $60,000.00 within three (3) days of the
Effective Date.
Subject State: The State of Texas.
Purchase Price: $6,000,000.00, payable as set forth in Section 3 below.
Title Company: LandAmerica Title Company, 00 Xxxxx XxXxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, XX 00000.
Inspection Period: Thirty (30) days from the Effective Date.
Closing: To occur within fifteen (15) days from the expiration of the
Inspection Period.
Broker: CB Xxxxxxx Xxxxx, Inc., a Delaware corporation, with an
address at 000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx,
XX 00000 Attention: Sterling Champ
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Effective Date: The date first written above.
2. AGREEMENT TO SELL AND CONVEY. Seller hereby agrees for itself to sell
and convey to Purchaser, and Purchaser hereby agrees to purchase from Seller,
subject to the terms and conditions hereinafter set forth, all of Seller's
right, title and interest in and to the Property , together with all of such
Seller's right, title and interest, if any, in and to:
(a) all buildings, structures, and improvements on the Land (the
"Improvements"; together with the Land, the "Project");
(b) all of the easements benefiting, and rights of access
appurtenant to, the Land;
(c) all and singular, the rights and appurtenances pertaining to the
Land, including any adjacent streets, roads, alleys, accesses, and
rights-of-way; and
All of the foregoing shall be hereinafter collectively referred to as the
"Property."
3. PURCHASE PRICE; DEPOSIT. The Purchase Price shall be payable as
follows:
(a) Deposit. Within three (3) days of the Effective Date , Purchaser
shall place the Deposit in escrow with the Title Company. The Deposit shall be
held in accordance with the terms of this Agreement and the laws of the Subject
State and applied to the Purchase Price at Closing (if the transaction is
consummated). The Deposit shall be held in a money market account reasonably
acceptable to Purchaser and Seller and all interest shall be paid to the party
entitled to the Deposit. Upon the expiration of the Inspection Period, assuming
Purchaser has not otherwise elected to terminate this Agreement, the Deposit
shall be deemed non-refundable (except in the event of Seller's failure to
consummate the transaction described herein as a result of Seller's default
hereunder); and
(b) Balance of Purchase Price. The balance of the Purchase Price
shall be paid, plus or minus closing adjustments, as the case may be, less the
Deposit, to Seller upon closing by wire transfer of immediately available U.S.
funds in accordance with wire transfer instructions to be provided by the Title
Company on or prior to the Closing in exchange for a deed in form required by
the jurisdiction in which the Property is located whereby Seller warrants
against all acts and/or omissions substantially in the form set forth as Exhibit
"B" attached hereto (the "Deed"), conveying title to Purchaser subject to the
Real Estate Lease, the lien for taxes that are not yet due and payable and such
other exceptions to title that are disclosed in the Title Commitment (defined
below) and to which Purchaser consents in writing or waives its objection
thereto pursuant to this Agreement.
4. DUE DILIGENCE ITEMS. Within five (5) days of the Effective Date, and at
its sole cost and expense, Seller shall furnish to Purchaser the following items
(collectively, the "Due Diligence Items"):
(a) a copy of the owners policy of title insurance issued to the
Seller upon its acquisition of the Property. As soon as possible following the
Effective Date, Purchaser will order a preliminary commitment for an owner's
policy of title insurance on the Property (the "Title Commitment"), which shall
(i) be issued by Title Company in favor of Purchaser, (ii) be dated after the
Effective Date, (iii) show the state and quality of title to the Property
together with all liens, encumbrances and other charges and items affecting the
Property; and (iv) be accompanied by legible copies of all documents referenced
in the Title Commitment. A copy of the Title Commitment shall be provided to
Seller when received;
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(b) a copy of the existing ALTA as-built surveys of the Land, if
any, in Seller's possession ;
(c) a copy of the existing "Phase I" environmental assessments of
the Property, if any, in Seller's possession;
(d) a complete copy of the Real Estate Lease, as amended, along with
any guaranties thereof, including without limitation, the Guaranty;
(e) the completed and executed Questionnaire attached as Exhibit H;
and
(f) Tenant's financial statements, if any currently in Seller's
possession.
Purchaser shall have the right, prior to the expiration of the
Inspection Period, to cause the survey to be updated and/or recertified to
Purchaser (as updated and recertified, the "Survey"), initially at its sole cost
and expense. Seller agrees to reimburse Purchaser for one-half of the cost of
said update and/or recertification at Closing, or if Closing does not occur as a
result of Seller's default. In no event shall Seller be responsible for any
costs associated with revisions to the Survey or modifications of the form
provided which may be required by any lender or any other third party.
If Seller does not have possession or control of, or fails to
deliver the Phase I environmental assessment, or if such environmental report is
delivered and Purchaser, in its sole discretion requires an update thereof,
Purchaser shall order a current complete Phase I environmental investigation
report for the Property, and, if deemed necessary by Purchaser, in its sole
discretion, Purchaser may order a Phase II environmental report with respect to
the Property (each, an "Environmental Report"), from one or more environmental
inspection companies selected by Purchaser, detailing and analyzing certain
aspects of the Property. The costs of the Environmental Reports shall be split
50/50 between Seller and Purchaser.
Purchaser, in its sole discretion, may order a current site
inspection and valuation of the Property from a party selected by Purchaser (a
"Valuation"). The costs of the Valuation shall be split 50/50 between Seller and
Purchaser.
Purchaser shall promptly deliver to Seller written acknowledgement
of Purchaser's receipt of each Due Diligence Item. Within seven (7) business
days after the Effective Date , Purchaser shall notify Seller in writing in the
event that Purchaser has not yet received any Due Diligence Item (which notice
shall specify any Due Diligence Item not yet received); otherwise, Purchaser
shall be deemed to have received all of the Due Diligence Items.
Purchaser acknowledges and agrees that except for such items which
are in the public records, the Due Diligence Items are proprietary and
confidential in nature and have been or will be made available to Purchaser
solely to assist Purchaser in determining the feasibility of purchasing the
Property. Purchaser agrees not to disclose the Due Diligence Items or any of the
provisions, terms or conditions thereof to any party outside of Purchaser's
organization, prior to Closing, except: (i) to Purchaser's accountants,
attorneys, lenders, prospective lenders, investors, prospective investors and/or
underwriters (collectively, the "Permitted Outside Parties") in connection with
the transaction contemplated by this Agreement, or (ii) as may be required by
law. In permitting Purchaser and the Permitted Outside Parties to review the Due
Diligence Items to assist Purchaser, Seller has not waived any privilege or
claim of confidentiality with respect thereto and no third party benefits of any
kind, either expressed or implied, have been offered, intended or created by
Seller and any such claims are expressly rejected by Seller and waived by
Purchaser.
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Purchaser shall return to Seller all of the Due Diligence Items and
any and all copies Purchaser has made of the Due Diligence Items at such time as
this Agreement is terminated for any reason other than Seller's default. In the
event this Agreement is terminated as a result of Seller's default, Purchaser
shall return all the Due Diligence Items and any and all copies Purchaser has
made of the Due Diligence Items, except for copies of such Due Diligence Items
that are directly related to or evidence such Seller default. Purchaser's
obligations under this Section 4 shall survive the termination of this
Agreement.
Purchaser acknowledges that most of the Due Diligence Items were
prepared by third parties other than Seller and in most instances, were prepared
prior to Seller's ownership of the Property. Purchaser further acknowledges and
agrees that except as specifically set forth herein: (i) neither Seller nor any
of its partners, agents, employees or contractors have made any warranty or
representation regarding the truth, accuracy or completeness of the Due
Diligence Items or the sources thereof and Purchaser has not relied on the truth
or completeness of the Due Diligence Items, and (ii) Seller has not undertaken
any independent investigation as to the truth, accuracy and completeness of the
Due Diligence Items and is providing the Due Diligence Items or making the Due
Diligence Items available to Purchaser solely as an accommodation to Purchaser.
5. CONDITIONS TO PURCHASER'S OBLIGATIONS.
(a) During, but in no event later than the expiration of, the
Inspection Period, Purchaser may from time to time give Seller written notice
indicating whether any of the Due Diligence Items, the condition of the
Property, any Environmental Report, the Valuation, any matter disclosed by the
Survey, or title to the Property is unsatisfactory and specifying any matters
disclosed therein that are not satisfactory or to which Purchaser otherwise
objects (each, an "Objection Notice"). In the event Seller fails to receive an
Objection Notice on or before the expiration of the Inspection Period, Purchaser
shall be deemed to have accepted the condition of the Property as disclosed
therein. Notwithstanding anything herein to the contrary, Purchaser shall
provide written notice to Seller of any objections to the state and quality of
title to the Property as evidenced by the Title Commitment or Survey within
seven (7) business days following Purchaser's receipt of both the Title
Commitment and the Survey, failing which Purchaser shall be deemed to have
accepted the state and quality of title as shown in the Title Commitment and the
Survey. Purchaser shall be responsible for any cancellation fee payable to the
Title Company resulting from Purchaser's failure to close, and Seller shall be
responsible for any cancellation fee payable to the Title Company resulting from
Seller's default under this Agreement.
(b) In the event that either (i) Purchaser delivers any Objection
Notice relating to the status and quality of title, or (ii) Purchaser discovers
and informs Seller in writing of or Seller informs Purchaser of any change in
the status of title to the Property occurring after the date that Purchaser has
approved the state and quality of title as evidenced by the Title Commitment
and/or Survey and/or resulting in an encumbrance thereon in addition to the Real
Estate Lease and the Permitted Exceptions (as hereinafter defined) (each a
"Title Defect"), Seller may promptly undertake to cure the items specified in
the Objection Notice or eliminate any such Title Defect to the reasonable
satisfaction of Purchaser and/or, to the extent possible, cause the Title
Company to insure over any of such items or Title Defect to the satisfaction of
Purchaser with Seller responsible for any additional premium charged by the
Title Company and, accordingly, modify the Title Commitment. In the event Seller
elects not to effect such cure or is either unable to do so or have the Title
Company so insure over Purchaser's objections within five (5) days after receipt
by Seller of the Objection Notice or notice of any Title Defect, Purchaser may,
at its option, (A) waive any of its objections to the condition of the Property
described in the Due Diligence Items and set forth in the Objection Notice or
relating to the Title Defect, without any adjustment in the Purchase Price, or
(B) terminate this Agreement, in either event by giving prompt written notice
thereof to Seller. In the event Purchaser elects to terminate this Agreement,
the Deposit
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shall be returned to Purchaser and neither Seller nor Purchaser shall have any
further obligations under this Agreement, except as expressly set forth herein.
Notwithstanding any provision contained herein, Purchaser shall have the right
to terminate this Agreement on or prior to the expiration of the Inspection
Period, without further liability by the parties except as expressly set forth
herein, by written notice to Seller if, based upon the Due Diligence Items, the
condition of the Property, the Environmental Report, the Valuation, and
inspections conducted by Purchaser, Property is unacceptable to Purchaser in
Purchaser's sole discretion.
(c) Upon expiration or waiver of the Inspection Period set forth
above, but no later than three (3) days prior to the Closing Date, Seller will
use commercially reasonable efforts to obtain from Tenant (i) an estoppel
certificate dated no earlier than fifteen (15) days prior to Closing in the form
contemplated by the Real Estate Lease, if any, or if not required thereunder, in
the form attached hereto and incorporated herein as Exhibit F (the "Tenant
Estoppel Certificate'); (ii) certificates in form and substance satisfactory to
Purchaser, evidencing that the insurance coverage, limits and policies to be
carried by Tenant under and pursuant to the terms of the Real Estate Lease are
in effect ("Proof of Insurance") and (iii) and a subordination, non-disturbance
and attornment agreement dated no earlier than fifteen (15) days prior to
Closing in the form contemplated by the Real Estate Lease, if any, or if not
required thereunder, in the form attached hereto and incorporated herein as
Exhibit G (the "SNDA"). Notwithstanding anything contained herein to the
contrary, in the event Seller is unable or fails to provide the Tenant Estoppel
Certificate and/or the SNDA (or Tenant alleges that there are outstanding
material events of default under the Real Estate Lease that cannot be resolved
to Purchaser's reasonable satisfaction by the Closing Date) or the Proof of
Insurance, then in that event, Purchaser's sole remedy shall be to terminate
this Agreement and receive the prompt return of its Deposit, including any
accrued interest. Seller shall be under no obligation to update such estoppel
certificate and/or SNDA received from Tenant.
6. PERMITTED EXCEPTIONS. Seller shall convey the Property to Purchaser
subject to any easements, liens, exceptions, and other encumbrances noted in the
Title Commitment and approved by Purchaser in its sole discretion in connection
with this Agreement (the "Permitted Exceptions"), and subject to the Real Estate
Lease. Purchaser, at its expense, may require that the Title Company agree to
delete all standard preprinted exceptions. Seller's sole obligation with respect
to the deletion of the standard preprinted exceptions shall be to provide to the
Title Company at Closing a customary owners affidavit.
7. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to Purchaser as to the following matters, each of which is true and
correct as of the Effective Date and each of which shall be true and correct as
of the date of Closing. As used in this Section, the phrase "to Seller's
knowledge" means Seller's actual knowledge, without duty of inquiry.
(a) Seller is duly formed, validly existing and in good standing in
the appropriate State and has obtained all necessary consents and approvals
required by its formation documents for the execution of this Agreement and the
performance of its obligations arising hereunder. The person who has executed
this Agreement on behalf of Seller has been duly authorized to do so.
(b) Seller has received no written notice from any governmental
agency alleging a violation of any statute, ordinance, regulation or code with
respect to the Property (including, without limitation, with respect to the
environmental condition of the Property) which violation has not been cured.
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(c) There are no pending nor, to Seller's knowledge, threatened
matters of litigation, administrative action or examination, claim or demand
relating to the Property or Seller's interest in the Property.
(d) There is no pending nor, to Seller's knowledge, contemplated or
threatened eminent domain, condemnation or other governmental taking or
proceeding relating to the Property or any part thereof.
(e) Seller is not a foreign person or entity under the Foreign
Investment in Real Property Tax Act of 1980, as amended, and no taxes or
withholding under such act shall be assessed against or imposed upon Purchaser
in connection with the transaction contemplated by this Agreement.
(f) Upon execution by Seller, this Agreement and the other
transaction documents shall constitute the legal, valid and binding obligations
of Seller, enforceable against Seller in accordance with their respective terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, arrangement, moratorium or other similar laws relating to or
affecting the rights of creditors generally or by general equitable principles.
(g) Except as may be disclosed in the Due Diligence Items, neither
the Seller or the Property is subject to any commitment obligation or agreement,
including without limitation, any right of first refusal, option to purchase or
lease granted to a third party, which could or would prevent Seller from
completing the sale of the Property under this Agreement, or which would bind
Purchaser subsequent to the consummation of the transaction contemplated herein.
(h) None of Seller or any affiliate, and to Seller's knowledge, none
of Tenant, is currently identified on the OFAC List (defined below), and
is not a person with whom a citizen of the United States is prohibited
from engaging in transactions by any trade embargo, economic sanction or
other prohibition of United States law, regulation or executive order of
the President of the United States. For purposes hereof, "OFAC List" means
the list of specially designated nationals and blocked Persons subject to
financial sanctions that is maintained by the U.S. Treasury Department,
Office of Foreign Assets Control and any other similar list maintained by
the U.S. Treasury Department, Office of Foreign Assets Control pursuant to
any Legal Requirements, including, without limitation, trade embargo,
economic sanctions, or other prohibitions imposed by Executive Order of
the President of the United States. The OFAC List currently is accessible
through the internet website xxx.xxxxx.xxx/xxxx/x00xxx.xxx.
(i) The Real Estate Lease is in full force and effect and no default
by Seller has occurred and is continuing under the Real Estate Lease.
(j) Tenant has in place and in force all insurance with the
coverages and in the amounts required under the Real Estate Lease.
(k) Intentionally omitted
(l) There is no contemplated, pending or threatened Insolvency Event
or similar proceedings, whether voluntary or involuntary, affecting
Seller, or to Seller's knowledge, its general partner or affiliates. For
purposes of this Agreement, "Insolvency Event" means (i) Seller's, its
general partner's, or any affiliate's of the foregoing (i) failure to
generally pay its debts as such debts become due; (ii) admitting in
writing its inability to pay its debts generally; or (iii) making a
general assignment for the benefit of
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creditors; (b) any proceeding being instituted by or against any such
entity (i) seeking to adjudicate it a bankrupt or insolvent; (ii) seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency, or reorganization or relief of
debtors; or (iii) seeking the entry of an order for relief or the
appointment of a receiver, trustee, or other similar official for it or
for any substantial part of its property, and in the case of any such
proceeding instituted against any such entity, either such proceeding
shall remain undismissed for a period of 120 days or any of the actions
sought in such proceeding shall occur; or (c) except for Seller which has
obtained the approval of its limited partners to liquidate and dissolve
Seller, any such entity taking any corporate or other formal action to
authorize any of the actions set forth above in this definition.
Purchaser acknowledges and agrees that the warranties and
representations set forth above shall survive the Closing for a period of twelve
(12) months. If, prior to Closing, Purchaser receives written notice from Seller
or from any other source that any material representation or warranty of Seller
is untrue and cannot be remedied or Purchaser becomes aware that any material
representation or warranty of Seller is untrue and cannot be remedied, Purchaser
shall, as Purchaser's sole and exclusive remedy, be entitled to terminate this
Agreement by written notice delivered to Seller on or before the Closing, in
which event the Deposit shall be refunded to Purchaser, and except for the terms
and provisions of this Agreement that specifically survive the termination of
this Agreement, the parties shall have no further obligations hereunder. If
Purchaser is so advised and Purchaser fails to terminate this Agreement within
such period, Purchaser shall be deemed to have waived the breach of such
representation or warranty and shall have no further rights or remedies as a
result of the breach of such representation or warranty. Seller does not, by
this Agreement, represent or warrant that there will be no changes in any of the
matters referred to in Seller's representations or warranties after the Closing
Date through the acts and/or omissions of persons other than Seller, and shall
have no liability or responsibility in the event that any representation or
warranty becomes false or misleading as a result of any change in circumstances
after the Closing Date. In the event Purchaser becomes aware within the twelve
(12) month period after Closing that any material representation or warranty of
Seller herein or in the closing documents is untrue, Purchaser shall provide
written notice thereof to Seller of such assertion. In the event Seller fails to
receive written notice from Purchaser within the 368 days following Closing of a
breach of any material representation or warranty made by Seller herein then, in
that event Purchaser shall be deemed to have waived any right to assert any
claim against Seller relating to such alleged breach, all such claims being
expressly waived by Purchaser unless timely made.
8. COVENANTS OF SELLER.
(a) From and after the Effective Date and until the date of Closing,
Seller shall (i) keep (or cause to be kept) the Property fully insured in
accordance with prudent and customary practice and as required by the Real
Estate Lease; (ii) keep the Property free and clear of all liens (including, but
not limited to, mechanics' liens) resulting from Seller's own direct acts and/or
omissions; (iii) not alienate, encumber or transfer the Property or any part
thereof in favor of or to any other person or entity unless required by law; and
(iv) not amend the Real Estate Lease without the prior written consent of
Purchaser, which consent shall not be unreasonably withheld, conditioned or
delayed.
(b) From and after the Effective Date and until the date of Closing,
Seller shall promptly give Purchaser written notice of any change in the status
of title to the Property , which either changes the nature of any Permitted
Encumbrance or represents an additional encumbrance on the Property. In the
event of any change in the state or quality of title to the Property following
the date Purchaser has approved same pursuant to the terms hereof then, in that
event, Purchaser shall have the
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right to object to said new encumbrance (hereinafter an "Intervening Exception")
in accordance with the provisions of Paragraph 5(b). In the event Purchaser
fails to object to the Intervening Exception within five (5) days following its
receipt of written notice of the creation of same, Purchaser's rights to object
thereto shall cease and Purchaser shall be deemed to have accepted said
Intervening Exception for purposes of this Agreement.
9. ESCROW OPENING AND CLOSING. An escrow (the "Escrow") shall be opened
with Title Company by delivering a fully executed copy of this Agreement to
Title Company at the address specified in Section 1 no later than three (3)
business days following the Effective Date. Seller and Purchaser shall
consummate the transaction contemplated by this Agreement at Closing through the
Escrow with the Title Company and pursuant to escrow instructions acceptable to
the Title Company, Seller and Purchaser. On the date of Closing, provided all
the conditions precedent to closing have been satisfied or waived, the Title
Company shall promptly undertake the following: (i) disburse all funds deposited
with the Title Company, (ii) cause the deed and any other documents that the
parties have mutually designated to be recorded in the official records of the
county in which the Property is located, (iii) issue the title policy to the
Purchaser, (iv) deliver to Purchaser fully executed originals of Seller's
closing documents, (v) deliver to Seller fully executed originals of Purchaser's
closing documents, and (vi) deliver the Tenant Notice (as defined below) to the
tenant by certified mail, return receipt requested, and deliver the receipt to
Seller. The attorneys for Seller and Purchaser are authorized to execute such
letter of escrow instructions, any amendments thereto and all directions or
communications thereunder.
10. SELLER'S OBLIGATIONS AT THE CLOSING. At the Closing, Seller shall
execute and deliver, as appropriate, to the Title Company in escrow:
(a) the Deed conveying the Property in the form attached hereto as
Exhibit B;
(b) such documents as are customary and reasonably necessary to
cause the Title Company to furnish or commit to furnish to Purchaser an owner's
policy of title insurance pursuant to the Title Commitment (the "Title Policy")
for the Property, together with such endorsements as the Title Company has
agreed to issue in writing at Purchaser's cost (provided, however, that the cost
of any endorsement obtained by Seller to cure a Title Defect shall be paid by
Seller as provided in Section 5(b) hereof) (the "Endorsements") insuring
Purchaser's fee simple title in the Property subject to the Permitted
Exceptions;
(c) a closing statement itemizing the Purchase Price and all
adjustments thereto as provided herein;
(d) assignments of all of that Seller's right, title and interest in
and to the Real Estate Lease in substantially the form attached hereto as
Exhibit "C" (the "Assignment"), together with such consents to and notices of
such assignment as may be required under the Real Estate Lease;
(e) a Non-Foreign Persons Affidavit in the form attached hereto as
Exhibit "D";
(f) an original of the Tenant Estoppel Certificate ;
(g) a "Notice to Tenant" substantially in the form attached hereto
as Exhibit "E"; and
(h) such other documents or instruments as may be required under
this Agreement, or as otherwise required in Purchaser's or the Title Company's
reasonable opinion to effectuate the Closing.
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11. PURCHASER'S OBLIGATIONS AT CLOSING. Subject to the terms, conditions,
and provisions hereof, and contemporaneously with the performance by Seller of
its obligations under Section 10 above, Purchaser shall execute and deliver, as
appropriate, to the Title Company in escrow:
(a) the Purchase Price as adjusted in accordance with this
Agreement;
(b) a closing statement itemizing the Purchase Price and all
adjustments thereto as provided herein;
(c) the Assignments for the purpose of assuming the obligations of
Seller under the Real Estate Lease; and
(d) such other documents or instruments as may be required under
this Agreement or as otherwise required in Seller's or the Title Company's
reasonable opinion to effectuate the Closing.
Purchaser's obligation to close shall be specifically contingent upon the
Title Company furnishing to Purchaser an owner's policy of title insurance,
including Endorsements, in the amount of the Purchase Price subject to the
Permitted Exceptions (the "Title Policy") and the Tenant executing and
delivering to Purchaser the Tenant Estoppel Certificate and SNDA. Purchaser
specifically acknowledges that Seller's failure to deliver the foregoing items
shall not constitute a default by Seller hereunder nor expose Seller to damages
but, in such circumstances, Purchaser shall nonetheless be able to terminate
this Agreement and receive the immediate return of its Deposit, in which event
the parties shall have no further liabilities hereunder except as otherwise
expressly stated herein.
12. CLOSING COSTS. At the Closing, Seller shall pay (a) the cost of
preparation of the Deed for its Property, (b) one-half the premiums and fees
related to the Title Policy for the Property, including the Endorsement premiums
or charges related to Seller's cure of any Title Defect as provided in Section
5(b) hereof, but excluding the Endorsement premiums or charges for extended
coverage endorsements, (c) one-half of any escrow charges; (d) one-half of any
costs of updating and recertifying the surveys for the Property, (e) one-half of
any costs for the Environmental Reports; (f) one-half the costs for the
Valuation; and (g) one-half of any real estate transfer taxes and fees payable
upon recordation of the Deed . At the Closing, Purchaser shall pay (a) one-half
the premiums and fees related to the Title Policy for the Property; (b) one-half
of any escrow charges, (c) one-half of all costs associated with the
recertification of the Survey, (d) one-half of any costs for the Environmental
Reports; (e) one-half the costs for the Valuation; and (f) all other costs and
expenses of the Closing including, but not limited to, all Endorsement charges
(except as provided above), and one-half all real estate transfer taxes and fees
payable upon recordation of the Deed. Each party shall pay its own legal fees.
13. PRORATIONS.
(a) Taxes. Purchaser acknowledges that the Real Estate Lease
obligates the Tenant to pay the taxes directly to the taxing authority.
Accordingly, the parties shall not prorate taxes between Purchaser and Seller,
it being acknowledged that Tenant shall be responsible for same. In no event
shall Seller be responsible for the payment of any real estate taxes and/or
assessments applicable during its period of ownership in the event the Tenant
has defaulted in the prompt payment of same.
(b) Rent. Rents actually paid for the month in which the Closing
occurs shall be prorated between Seller and Purchaser as of the close of
business on the date of Closing, with Purchaser receiving a credit for amounts
attributable to time periods following such date. To the extent either party
hereto receives rent after Closing to which the other has a claim, such party
shall remit same to the party entitled thereto within ten (10) days of receipt.
To the extent any rent arrearages exist under the Real
-9-
Estate Lease, Seller retains the right to seek monetary damages from Tenant for
any such arrearages in rent.
14. POSSESSION. Subject to the Real Estate Lease, Seller shall deliver
exclusive possession of the Property to Purchaser at Closing.
15. INSPECTION. From and after the Effective Date and until the expiration
of the Inspection Period, Seller agrees that Purchaser and its agents and
representatives shall, subject to arranging all onsite visits with Seller and/or
Seller's Broker, be entitled to enter upon the Property for inspection, soil
tests, examination, land-use planning and for any due diligence investigation
relating to Purchaser's proposed ownership of the Property. As to any such
investigation, Purchaser shall restore the Property to the same condition as
existed prior to any such investigation, and shall: (i) not perform any invasive
tests without Seller's prior consent but shall be able to perform a Phase I on
the Property without Seller's consent; (ii) not interfere with the possessory
rights of any Tenant; (iii) promptly pay when due all costs and expenses
associated within Purchaser's inspection and not permit any liens to arise or
attach to any Property; and (iv) prior to Closing, not disclose or reveal any
information obtained during the Inspection Period with respect to the Property,
except as provided in Section 4 above or as may be required by law. Purchaser
shall indemnify and hold harmless Seller from and against, and to reimburse
Seller with respect to any and all claims, demands, causes of action, loss,
damage, liabilities, costs and expenses (including reasonable attorneys' fees
and disbursements) asserted against or incurred by Seller by reason of or
arising out of any such on-site investigation, it being acknowledged that all
such obligations shall survive the termination of this Agreement.
16. ACKNOWLEDGEMENT. Purchaser understands and acknowledges that Seller
has not made and does not make any representation or warranties whatsoever, oral
or written, express or implied, to Purchaser with respect to the condition,
state of repair or operability of the Property (including but not limited to
environmental protection, pollution or land use laws, rules, regulations, orders
or requirements, including the existence in, on, or under the Property of any
hazardous materials or substances, soil or sub-soil conditions, all improvements
thereon, the structural portions thereof, and the personal property, mechanical,
plumbing, electrical, sewer, sanitary disposal, heating, ventilating and air
conditioning systems and other building service equipment therein), with respect
to the suitability or fitness for the Purchaser's intended use or purpose or
with respect to the appreciation or income potential of the Property, the zoning
of the Property, the platting of the Property, the availability or adequacy of
utilities to the Property, access to the Property, requirements in connection
with any development of the Property or any other matter whatsoever. Purchaser
further hereby acknowledges and agrees that Purchaser has investigated or will
investigate all matters of concern to Purchaser with respect to the Property and
that Purchaser is not relying and hereby expressly waives any reliance on any
representation or warranty, oral or written, express or implied, of Seller with
respect to such matters. Purchaser agrees to purchase the Property and all
improvements thereon and mechanical systems therein delivered to Purchaser, as
is, where is, with all faults. Notwithstanding any provision of this Agreement
to the contrary, Purchaser hereby releases Seller from any liability, claims,
damages, expenses of any kind or nature, or any other claim resulting from the
presence, removal or other remediation of hazardous materials or substances in,
on, under or about the Property or which has migrated from adjacent lands onto
the Property or from the Property to adjacent land. Purchaser has fully reviewed
the disclaimers and waivers set forth herein with its counsel and understands
the significance and effect thereof. The provisions of this Section 16 shall
survive the closing.
17. FURTHER ASSURANCES. Seller and Purchaser agree to perform such other
acts, and to execute, acknowledge, and/or deliver subsequent to the Closing such
other instruments, documents and other materials as Seller or Purchaser may
reasonably request in order to effectuate the consummation of the transaction
contemplated herein and to vest title to the Property in Purchaser.
-10-
18. DEFAULT BY SELLER. In the event that Seller should fail to consummate
the transaction contemplated by this Agreement for any reason, excepting
Purchaser's default or the failure of any of the conditions to Seller's
obligations hereunder to be satisfied or waived, Purchaser may terminate this
Agreement by giving prompt written notice thereof to Seller and the Deposit,
including all accrued interest, shall be immediately returned to Purchaser, or
specifically enforce this Agreement, and in either event, Purchaser may recover
all of its actual out-of-pocket third party expenses, which amount shall not
exceed $60,000, incurred in connection with Seller's default; provided, however,
that in the event that such failure of Seller was beyond Seller's reasonable
control, Purchaser's sole remedy shall be to so terminate this Agreement;
provided, further, in the event Purchaser elects to specifically enforce this
Agreement it must institute such action within thirty (30) days following
Seller's default, failing which Purchaser shall be deemed to have waived the
right to pursue specific performance.
19. DEFAULT BY PURCHASER. Except as otherwise provided in this Agreement,
in the event Purchaser should fail to consummate the transaction contemplated
herein for any reason, except default by Seller or the failure of any of the
conditions to Purchaser's obligations hereunder to be satisfied or waived,
Seller may retain the Deposit and terminate this Agreement by giving prompt
written notice thereof to Purchaser, as its sole remedy.
20. ATTORNEY'S FEES. Should either Seller or Purchaser employ an attorney
or attorneys to enforce any of the provisions hereof or to protect its interest
in any matter arising under this Agreement or to recover damages for the breach
of this Agreement as permitted herein, the losing party in any final judgment
agrees to pay the prevailing party all reasonable costs, charges, and expenses,
including reasonable attorney's fees, expended or incurred by it in connection
therewith.
21. BROKERAGE COMMISSIONS. Each party represents to the other that no
brokers, other than Broker, have been involved in this transaction.. In the
event that this transaction is consummated and Closing occurs, Seller shall pay
Broker a real estate commission as set forth in a separate written agreement
between Seller and Broker. Seller and Purchaser agree that if any claims for
brokerage commissions are ever made against Seller or Purchaser in connection
with this transaction, all claims shall be handled and paid by the party whose
actions or alleged commitments form the basis of such claim. Seller agrees to
indemnify and hold Purchaser harmless from any loss, liability, damage, cost, or
expense (including, without limitation, reasonable attorney's fees) paid or
incurred by Purchaser by reason of any claim to any broker's, finder's, or other
fee in connection with this transaction by any party claiming by, through, or
under Seller. Except as provided in the foregoing sentence, Purchaser agrees to
indemnify and hold Seller harmless from any loss, liability, damage, cost or
expense (including, without limitation, reasonable attorney's fees) paid or
incurred by Seller by reason of any claim to any broker's, finder's, or other
fee in connection with this transaction by any party claiming by, through, or
under Purchaser. The obligations of Seller and Purchaser in this Section 21shall
survive the Closing.
22. RISK OF LOSS. All risk of loss or damage to the Property prior to
Closing, including, without limitation, loss by fire, windstorm, or other
casualty, shall rest with Seller. If, prior to the Closing, the Property is
damaged as a result of fire or other casualty, Seller shall give Purchaser
written notice thereof and Purchaser shall have the option, exercisable by
written notice to Seller within ten (10) days upon receipt of such notice from
Seller, to either:
(a) accept title to the Property without any reduction of the
Purchase Price, in which event, at the Closing and subject to the rights of
Tenant, Seller shall assign to Purchaser any insurance proceeds payable to
Seller or its successors or assigns by reason of such damage or casualty, and
pay over to Purchaser any monies theretofore received by Seller in connection
with such fire or other casualty; or
-11-
(b) terminate this Agreement, in which event neither Seller nor
Purchaser shall have any further obligations under this Agreement and the
Purchaser shall receive the prompt return of the Deposit.
In the event Purchaser shall fail to exercise either such option within such ten
(10) day period, Purchaser shall be deemed to have elected the option set forth
in the foregoing clause (b).
23. ASSIGNABILITY. Except as set forth in Section 31 and except with
respect to an assignment to an affiliate of Purchaser, Purchaser shall not
assign its rights hereunder without the consent of Seller, which consent shall
not be unreasonably withheld, but in no event shall Purchaser be released of its
obligations hereunder prior to the date of such assignment
24. NOTICES. Any notice to be given or to be served upon either party
hereto in connection with this Agreement must be in writing and shall be given
by certified or registered mail (return receipt requested), by overnight express
delivery or facsimile (followed by hard copy by either of the two preceding
methods of delivery) and shall be deemed to have been given upon receipt. Such
notice shall be given to the other party hereto at the addresses set forth on
the signature page of this Agreement and be deemed delivered upon delivery or on
the date when the receiving party first refuses to accept such delivery. Either
party may at any time, by giving five (5) days written notice to the other,
designate any other address in substitution of any of the foregoing addresses to
which such notice shall be given and other parties to whom copies of all notices
hereunder shall be sent.
25. BINDING EFFECT. This Agreement shall be binding upon and shall inure
to the benefit of the Seller and Purchaser and their respective successors and
assigns.
26. ENTIRE AGREEMENT. This Agreement represents the entire agreement
between Seller and Purchaser with respect to the subject matter hereof, and all
prior agreements between Seller and Purchaser with respect to such subject
matter shall have no further force or effect, including, without limitation, any
proposal letters.
27. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the Subject State, without giving effect to any
state's conflict of laws principals.
28. MODIFICATION. This Agreement may only be modified or otherwise amended
by a written instrument executed by duly authorized representatives of Seller
and Purchaser.
29. TIME OF ESSENCE. Time is of the essence of this Agreement. In the
event this Agreement is not accepted by Seller on or before five (5) business
days after Seller's receipt of an fully executed copy hereof from Purchaser, and
a copy thereof delivered to Purchaser, then this Agreement shall be null and
void, and all offers set forth herein shall be deemed withdrawn.
30. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original, and all of which
together shall constitute one and the same instrument.
31. 1031 EXCHANGE. In the event, prior to Closing, Purchaser shall desire
to structure this transaction as a part of a tax deferred exchange, pursuant to
Section 1031 of the Internal Revenue Code, Purchaser may assign its rights, but
not its obligations, to a Qualified Intermediary under Treasury Regulation
1.103(k)-(1)(9)(4) and Seller, as an accommodation to Purchaser, shall enter
into and execute any such amendatory documentation as Purchaser may reasonably
request; provided, however, that Seller shall not incur any additional cost,
expense, risk or potential liability whatsoever on the account thereof. Seller
shall have no liability to Purchaser whatsoever in the event the subject
transaction is found, held or
-12-
adjudicated not to qualify as or as a part of a tax deferred exchange pursuant
to Section 1031 of the Internal Revenue Code.
32. CONDEMNATION. In the event that notice of any action, suit or
proceeding shall be given prior to the Closing date for the purpose of
condemning any part of the Property, then Purchaser shall have the right to
terminate its obligations hereunder within fifteen (15) days after receiving
notice of such condemnation proceeding whereupon the Deposit shall be paid to
Purchaser, and the parties shall be relieved of any further liabilities
hereunder, except as otherwise expressly provided herein. Upon such termination,
the proceeds resulting from such condemnation shall be paid to Seller. In the
event Purchaser shall not elect to terminate its obligations hereunder, the
proceeds of such condemnation shall be assigned and belong to Purchaser.
33. WAIVER OF JURY TRIAL AND CERTAIN DAMAGES. THE PARTIES HERETO SHALL
AND THEY HEREBY DO INTENTIONALLY WAIVE ANY AND ALL RIGHTS TO A TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER
OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATTERS WHATSOEVER
ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT AND/OR
ANY CLAIM OR INJURY OR DAMAGE RELATED THERETO. EACH PARTY FURTHER
WAIVES THE RIGHT IT MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL,
SPECIAL AND INDIRECT DAMAGES FROM THE OTHER PARTY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY ONE PARTY AGAINST THE OTHER OR
ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT AND/OR ANY DOCUMENT CONTEMPLATED
HEREIN OR RELATED HERETO.
[Signature page to follow]
-13-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Sale, effective as of the date written above.
PURCHASER: SELLER:
SPIRIT FINANCE ACQUISITIONS, LLC, CAPTEC FRANCHISE CAPITAL
a Delaware limited liability company PARTNERS X.X. XX
By /s/ Xxxx Xxxxxxx By: GP4 Asset Acquisition, LLC
----------------------------- Its: General Partner
Print Name: Xxxx Xxxxxxx
Its: Senior Vice President By: /s/ Xxxx X. Xxxxxx
---------------------------------
Print Name: Xxxx X. Xxxxxx
Its: Vice President
Send Notices To:
Spirit Finance Acquisitions, LLC Send Notices To:
00000 X. Xxxxxxxxxx Xxxx, Xxxxx 000 Xxxx X. Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000 Senior Vice President
Attention: Chief Financial Officer Captec Financial Group, Inc.
Telephone: (000) 000-0000 24 Xxxxx Xxxxx Xxxxxx Drive
Telecopy: (000) 000-0000 Lobby L, Xxxxxx Xxxxx, X.X. Xxx 000
Xxx Xxxxx, Xxxxxxxx 00000-0000
With a Copy To: Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxx X. Xxxxxxx, Esq.
Xxxxx Xxxx LLP
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-14-
SCHEDULE OF EXHIBITS
A - Legal Description of the Land
B - Form of Deed
C - Form of Assignment of Lease
D - Form of Non-Foreign Persons Affidavit
E - Form of Notice to Tenant
F - Alternate Form of Tenant Estoppel Certificate
G - Subordination, Non-Disturbance and Attornment Agreement
H - Equity Ownership Questionnaire
-15-
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
Tract "A", United Supermarket Addition to the City of Plainview, Xxxx County,
Texas, being a replat of Xxxx 0X, 0X, 0X xxx 0X, Xxxxx Subdivision, Unit No. 1,
according to the map, plat and/or dedication deed thereof recorded in Volume
841, Page 361, Deed Records of Xxxx County, Texas and a portion of that tract of
land conveyed to Pioneer Oil Company in Volume 676, Page 181, Deed Records of
Xxxx County, Texas, being further described as follows:
BEGINNING at a 1/2" iron rod found in the West right-of-way line of Columbia
Street at the Northeast corner of this tract which is the Xxxxxxxxx xxxxxx xx
Xxx 0X, Xxxxx Xxxxxxxxxxx, Xxxx Xx. 0;
THENCE South 00 degrees 01 minute East along said West right-of-way line a
distance of 296.80 feet to a 1/2" iron rod with cap set for the most Easterly
Southeast corner of this tract;
THENCE South 47 degrees 50 minutes 45 seconds West, continuing along said
right-of-way line, a distance of 26.85 feet to a 1/2" iron rod with cap set in
the North right-of-way line of Xxxx 00xx Xxxxxx for the most Southerly Southeast
corner of this tract;
THENCE North 89 degrees 59 minutes 20 seconds West, along said North
right-of-way line, a distance of 598.47 feet to a 1/2" iron rod found a the
Southwest corner of this tract and the Southeast corner of Xxx 0X, Xxxxx
Xxxxxxxxxxx, Xxxx Xx. 0;
THENCE North 00 degrees 03 minutes West, along the East line of said Lot 8A, a
distance of 315.00 feet to a 1/2" iron rod found at the Northwest corner of
this tract and the Northeast corner of said Lot 8A;
THENCE South 89 degrees 58 minutes 20 seconds East, a distance of 618.56 feet to
the POINT OF BEGINNING.
-16-
EXHIBIT "B"
FORM OF DEED
[Note: Modify to conform to recording/other requirements of the State of Texas.]
LIMITED/SPECIAL WARRANTY DEED
For the consideration of Six Million Dollars ($6,000,000), CAPTEC FRANCHISE
CAPITAL PARTNERS X.X. XX a Delaware limited partnership, whose address is 24
Xxxxx Xxxxx Xxxxxx Drive, Lobby L, 4th Floor, X.X. Xxx 000, Xxx Xxxxx, Xxxxxxxx
00000-0000 ("Grantor") does hereby convey to SPIRIT FINANCE ACQUISITIONS , LLC,
a Delaware limited liability company, whose address is 00000 X. Xxxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000-0000 ("Grantee") the following described
property in the Town of Plainview, County of Xxxx, State of Texas:
See Exhibit A attached hereto and made a part hereof.
Commonly known as 0000-0000 X. Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Tax Parcel ID # [#]
together with all tenements, hereditaments, appurtenances and improvements,
thereto (the "Property").
This conveyance, however, is made and accepted subject to the
encumbrances, conditions and restrictions relating to the Property as set forth
in Exhibit B attached hereto and made a part hereof, including without
limitation, that certain Lease, between Plainview Columbia, L.L.C. (and
subsequently assigned to Grantor) and United Supermarkets, Inc. (and
subsequently assigned to United Supermarkets, Ltd.), dated September 3, 1999, as
amended.
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances thereto in anywise belonging unto the said Grantee,
Grantee's heirs, executors, administrators, successors and/or assigns forever;
and Grantor does hereby bind Grantor's heirs, executors, administrators,
successors and/or assigns, to WARRANT AND FOREVER DEFEND all and singular the
Property unto the said Grantee, Grantee's heirs, executors, administrators,
successors and/or assigns, against every person whomsoever claiming or to claim
the same or any part thereof, by, through or under Grantor, but not otherwise.
Dated:____________________, 2005.
WITNESSES: CAPTEC FRANCHISE CAPITAL
PARTNERS X.X. XX
By: GP4 Asset Acquisition, LLC
Its: General Partner
________________________________ By: _____________________________________
Print name: Print name:
________________________________ Its:______________________________________
Print name:
X-0
XXXXX XX XXXXXXXX )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this __ day of_____________,
2005, by ___________________________, who is personally known to
me, as Vice President of GP4 Asset Acquisition LLC, a Michigan limited liability
company and the general partner of Captec Franchise Capital Partners X.X. XX, a
Delaware limited partnership, on behalf of the limited partnership.
________________________________
Name: __________________________
State of Michigan, County of Washtenaw
My Commission Expires: ___________
Acting in the County of Washtenaw
Prepared by and recorded
at the request of:
________________________________
________________________________
________________________________
When recorded return to:
________________________________
________________________________
________________________________
Send subsequent tax bills to:
Grantee
C-3
EXHIBIT C
FORM OF ASSIGNMENT OF LEASE
[Note: Modify to conform to recording/other requirements of the State of Texas.]
ASSIGNMENT OF LEASE
THIS ASSIGNMENT OF LEASE ("Assignment") is made as of _____________, 2005,
by and between CAPTEC FRANCHISE CAPITAL PARTNERS X.X. XX a Delaware limited
partnership, whose address is 24 Xxxxx Xxxxx Xxxxxx Drive, Lobby L, 0xx Xxxxx,
X.X. Xxx 000, Xxx Xxxxx, Xxxxxxxx 00000-0000 ("Assignor") and SPIRIT FINANCE
ACQUISITIONS , LLC, a Delaware limited liability company, whose address is 14631
N. Scottsdale Road, Suite 200,, Scottsdale, Arizona 85254-2711 ("Assignee").
RECITALS:
Assignor leases to United Supermarkets, Ltd., a Texas limited partnership
("Tenant"), the Leased Premises (as defined in the Lease described below),
located at 0000-0000 X. Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx ("Premises"), pursuant
to a Lease dated as of September 3, 1999, as amended, a true and complete copy
of which is attached as Exhibit 1 ("Lease").
In connection with, and in consideration of, the acquisition of the Leased
Premises by the Assignee, Assignor has agreed to assign, transfer and convey to
Assignee all of Assignor's right, title and interest in and to: (a) the Lease,
and (b) the security deposit(s), if any, paid by Tenant under the Lease
("Security Deposit") and (c) the guaranty of Tenant's duties and obligations
under the Lease, given by Pamplemousse, L.L.C., dated September 30, 2001, as
amended, a true and complete copy of which is attached as Exhibit 2
("Guaranty").
Assignee agrees to accept the assignment of those items described in
Section 1 above and Assignee further agrees to perform all of the Assignor's
obligations under or relating to the Lease and the Security Deposit, if any, and
the Guaranty, arising from and after the date of this Assignment.
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, Assignor
and Assignee agree as follows:
1. Assignment and Assumption. Assignor hereby assigns to Assignee all of
Assignor's right, title and interest in, to and under the Lease, the Security
Deposit and the Guaranty, and Assignee assumes all of Assignor's duties and
obligations under the Lease and the Guaranty, and relating to the Security
Deposit, and agrees to perform and to be bound by all of the terms and
provisions of the Lease (including matters related to the Security Deposit)and
the Guaranty in the place and stead of Assignor arising from and after the date
of this Assignment. Assignee further agrees to indemnify and hold harmless
Assignor from and against all claims, awards, liabilities or damages resulting
from Assignee's failure to perform its obligations under the Lease or Guaranty
accruing or arising on and after the date of this Assignment, including
Assignee's obligations with respect to the Security Deposit. Assignor further
agrees to indemnify and hold harmless Assignee from and against all claims,
awards, liabilities or damages resulting from Assignor's failure to perform its
obligations under the Lease or Guaranty accruing or
C-4
arising before the date of this Assignment, including Assignor's obligations
with respect to the Security Deposit.
2. Representation. To Assignor's knowledge, the Lease and the Guaranty are
in full force and effect and have not been modified, amended or restated (except
as identified in Exhibit 1 and/or Exhibit 2 attached hereto).
3. Miscellaneous. This Assignment shall bind and inure to the benefit of
the parties hereto, their successors and assigns. This Assignment shall be
governed by and construed in accordance with the laws of the State where the
Leased Premises is located, without giving effect to principles of conflicts of
law. This Assignment may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
This Assignment has been executed as of the day and year noted above.
WITNESSES:
CAPTEC FRANCHISE CAPITAL
PARTNERS X.X. XX
By: GP4 Asset Acquisition, LLC
Its: General Partner
________________________________ By:________________________________
Print Name: Print Name:
________________________________ Its:________________________________
Print Name:
SPIRIT FINANCE ACQUISITIONS , LLC,
a Delaware limited liability company
________________________________ By:________________________________
Print Name: Print Name:
________________________________ Its:________________________________
Print Name:
C-5
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this __ day of ___________,
2005, by ___________________________, who is personally known to me, as Vice
President of GP4 Asset Acquisition LLC, a Michigan limited liability company and
the general partner of Captec Franchise Capital Partners X.X. XX, a Delaware
limited partnership, on behalf of the limited partnership.
________________________________
Name: __________________________
State of Michigan, County of Washtenaw
My Commission Expires: ___________
Acting in the County of Washtenaw
STATE OF MARYLAND )
)ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this ____ day of
______, 2005, by ______________________, who is personally known to me, as
__________________ of Spirit SPIRIT FINANCE ACQUISITIONS , LLC, a Delaware
limited liability company, on behalf of the company.
________________________________
Notary Public
_______________County, Maryland
My Commission Expires:_____________
[Notary's Seal]
Prepared by and recorded
at the request of: Grantor
When recorded return to: Grantee
C-6
EXHIBIT 1
TO
ASSIGNMENT OF LEASE
[Attach copy of Lease]
C-7
EXHIBIT 2
TO
ASSIGNMENT OF LEASE
[Attach copy of Guaranty]
C-8
EXHIBIT D
FORM OF NON-FOREIGN PERSONS AFFIDAVIT
NON-FOREIGN PERSONS AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a transferee
(purchaser) of a United States real property interest must withhold tax if the
transferor (seller) is a foreign person. To inform SPIRIT FINANCE ACQUISITIONS ,
LLC, a Delaware limited liability company ("Transferee"), that withholding of
tax is not required upon the disposition of a United States real property
interest by CAPTEC FRANCHISE CAPITAL PARTNERS X.X. XX, a Delaware limited
partnership ("Transferor"), the undersigned certifies the following on behalf of
Transferor:
1. Transferor is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate (as those terms are defined in the Internal Revenue
Code and Income Tax Regulations);
2. Transferor's United States Employer Identification Number is
00-0000000;
3. Transferor's office address is 24 Xxxxx Xxxxx Xxxxxx Drive, Lobby X,
Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxx 00000.
Transferor understands that this certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct,
and complete, and I further declare that I have authority to sign this document
on behalf of Transferor.
CAPTEC FRANCHISE CAPITAL
PARTNERS X.X. XX
By: GP4 Asset Acquisition, LLC
Its: General Partner
By:________________________________
Print Name:
Its:_______________________________
Dated as of __________, 2005.
D-1
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this __ day of ____________,
2005, by ___________________________, who is personally known to me, as Vice
President of GP4 Asset Acquisition LLC, a Michigan limited liability company and
the general partner of Captec Franchise Capital Partners X.X. XX, a Delaware
limited partnership, on behalf of the limited partnership.
________________________________
Name: __________________________
State of Michigan, County of Washtenaw
My Commission Expires: ___________
Acting in the County of Washtenaw
D-2
EXHIBIT E
FORM OF NOTICE TO TENANT
_____________, 2005
United Supermarkets, Ltd.
0000 Xxxxxxx Xxxxxx
XX Xxx 0000
Xxxxxxx, XX 00000
RE: Notice of Change of Ownership of Captec Franchise Capital Partners
L.P. IV__________________________________
To Whom It May Concern:
You are hereby notified as follows:
1. That as of the date hereof, Captec Franchise Capital Partners X.X.
XX has transferred, sold, assigned, and conveyed all of its interest
in and to all of the real property and improvements described on
Exhibit A attached hereto (the "Property") to SPIRIT FINANCE
ACQUISITIONS , LLC a Delaware limited liability company (the "New
Owner").
2. For the immediate future, all rental payments with respect to the
Property should be made to the New Owner pursuant to the terms and
provisions of the Lease dated as of September 3, 1999 (the "Lease")
by wire transfer to Midland Loan Services, Inc. in accordance with
the wiring instructions attached hereto.
3. Also attached hereto is the Authorization Form for Pre-Arranged
Payments. Please fill-in the blanks, execute and send the form,
together with a voided check, to the address stated therein as soon
as possible in order to initiate automatic debit for future rental
payments.
H-1
4. Future notices should be made to the New Owner in accordance with the
terms of the Lease and should be delivered to the following address:
Midland Loan Services, Inc.
X.X. Xxx 000000
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Attn: Xxxxx XxXxx
Facsimile No.: (000) 000-0000
5. Please promptly provide a [new] [updated] Certificate of Insurance
satisfying the requirements set forth in the Lease and naming Spirit
Master Funding, LLC, a Delaware limited liability company, as a loss
payee and additional insured [and named insured]. Certificates should
be delivered to the following address:
SPIRIT FINANCE ACQUISITIONS , LLC
00000 Xx. Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
SPIRIT FINANCE ACQUISITIONS , LLC, CAPTEC FRANCHISE CAPITAL PARTNERS
X.X. XX
a Delaware limited liability company
By: GP4 Asset Acquisition LLC, Its
General Partner
By:________________________________ By:_______________________________
Name:______________________________ Name:_____________________________
Title:_____________________________ Title:____________________________
H-2
MIDLAND LOAN SERVICES
INCOMING WIRE INSTRUCTIONS
TO WIRE FUNDS TO MIDLAND LOAN SERVICES
Please give these instructions to your bank when you initiate a wire payment to
Midland
Bank Name: PNC BANK, N.A.
ABA: 000000000
Credit: 1006967647, MIDLAND
Reference: [_______________________]
* This information must be completed fully and accurately to ensure that there
is no delay in crediting funds to the proper account.
PLEASE CALL OUR CUSTOMER SERVICE REPRESENTATIVES AT 000-000-0000 MONDAY THROUGH
FRIDAY BETWEEN THE HOURS OF 8:00 A.M. AND 5:00 P.M. CST, IF YOU NEED ASSISTANCE.
H-3
EXHIBIT F
ALTERNATE FORM OF TENANT ESTOPPEL CERTIFICATE
TO: _____________________________
RE: PROPERTY ADDRESS: _______________________________________________
TITLE OF LEASE: _________________________________________________
LEASE DATE: _____________________________________________________
BY AND BETWEEN: _________________________________________
SQUARE FOOTAGE: _________________________________________
The undersigned is the Tenant under the above-referenced lease agreement
("Lease"). The undersigned hereby acknowledges and certifies to ________________
___________________ ("Purchaser") [and __________________________
("Lender")], as follows:
1. Tenant and __________________ ("Landlord") entered into the Lease, by
which Landlord leased to Tenant and Tenant leased from Landlord the
above-referenced property ("Property").
2. The Lease constitutes the only agreement between Landlord and Tenant
with respect to the Property, and the Lease and all amendments thereto as of the
date hereof are attached hereto as Exhibit A.
3. Possession of the Property was taken by Tenant on _______________.
Tenant started paying rent on _________________. The Lease is in full force and
effect and except as evidenced on Exhibit A, is not modified or amended.
4. The Lease shall expire on _________________ unless it is extended for
____ additional _____-year periods, as permitted in the Lease.
5. Tenant has paid rent due under the Lease through ______________. Tenant
has no setoffs, claims or defenses to the enforcements of the Lease.
6. Tenant's current minimum monthly base rental payments are
$____________. Tenant has not prepaid any rent.
7. Tenant has paid a security deposit to Landlord in the amount of
$____________.
8. Tenant has not assigned or sublet the Property nor does Tenant hold the
Property under any assignment or sublease unless as provided by the Lease.
9. As of the date of this Certificate, Tenant is not in default in the
performance of Tenant's duties and obligations under the Lease and no event has
occurred which with notice or the passage of time would constitute a default by
Tenant of its obligations under the Lease. As of the date of this Certificate,
no notice of default under the Lease has been given to Tenant.
10. As of the date of this Certificate, Landlord is not in default in the
performance of Landlord's duties and obligations under the Lease and no event
has occurred which with notice or the passage of time would constitute a default
by Landlord of its obligations under the Lease. There is no defense, offset,
claim or counterclaim by or in favor of the undersigned against Landlord under
the Lease or against the obligations of the undersigned under the Lease.
11. Tenant is not entitled to receive any concession (rental or otherwise)
or other similar compensation for renting the Property. This Tenant Estoppel
Certificate shall not be deemed to alter or modify any of the terms or
conditions of the Lease.
12. Tenant has not received notice of a prior transfer, assignment,
hypothecation or pledge by Landlord of any of Landlord's interest in the Lease,
other than to the holder of any first mortgage on the Property.
13. Tenant has no renewal, extension or expansion option, nor right of
first offer or right of first refusal and no other similar right to renew or
extend the term of the Lease or expand the Property demised thereunder except as
may be expressly set forth in the Lease.
14. Tenant acknowledges that all improvements comprising a part of
Property have been completed on a lien-free basis in accordance with the terms
of the Lease, that Tenant has accepted possession and the condition of the
Property and is currently occupying the Property, and that the Property is not
subject to any defect.
15. Tenant is solely responsible for any and all operating costs
pertaining to the Property, including without limitation, taxes, insurance,
repair and maintenance costs and utilities. All such operating costs have been
paid in full, to the extent due and payable as of this date.
16. There are no actions, whether voluntary or otherwise, pending against
Tenant under any bankruptcy laws.
17. Tenant's Tax I.D. # is___________________________.
18. Tenant's current contact information is:
Address:_______________________________________________________
Contact Person (Not a Department):_____________________________
Phone No.:_____________________________________________________
Facsimile No.:_________________________________________________
19. The undersigned representative of Tenant is duly authorized and fully
qualified to execute this instrument on behalf of Tenant thereby binding Tenant.
20. Tenant makes this Certificate with the understanding that Purchaser is
contemplating acquiring the Property [and Lender would finance same] and that if
Purchaser acquires [and Lender finances] the Property, Purchaser [and Lender]
will do so in a material reliance on this Certificate.
Executed on _________________, 20___.
_______________________, as Tenant
By _______________________________
Name _____________________________
Title ____________________________
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EXHIBIT A TO TENANT ESTOPPEL CERTIFICATE
LEASE
Attached hereto is a true, correct and complete copy of the Lease, together with
all amendments thereto.
Exhibit G
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
RETURN TO:
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (hereinafter
referred to as "Agreement") made this ___ day of _______________, _______, among
CITIGROUP GLOBAL MARKETS REALTY CORP., a New York corporation (hereinafter
referred to as "Lender"), United Supermarkets, Ltd., a Texas limited partnership
(hereinafter referred to as "Tenant"), and SPIRIT FINANCE ACQUISITIONS , LLC, a
Delaware limited liability company (hereinafter referred to as "Landlord").
RECITALS:
A. Landlord and Tenant have entered into a certain lease dated as of
September 3, 1999, (as amended and/or assigned, the "Lease") relating to the
premises known as United Supermarket (hereinafter referred to as the
"Premises"), located at the real property more particularly described on Exhibit
A attached hereto (hereinafter referred to as the "Property").
B. Lender has made or has committed to make a loan to Landlord in the
approximate principal amount of $_________________ (hereinafter referred to as
the "Loan") secured by a mortgage or security deed (as the same may be amended,
restated, extended, or otherwise modified from time to time, the "Mortgage") and
an assignment of leases and rents (as the same may be amended, restated,
extended, or otherwise modified from time to time, the "Assignment of Leases")
from Landlord to Lender covering the Property including the Premises.
C. Tenant has agreed that the Lease shall be subject and subordinate to
the Mortgage held by Lender, provided Tenant is assured of continued occupancy
of the Premises under the terms of the Lease.
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, the sum of Ten Dollars ($10.00) and other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
and notwithstanding anything in the Lease to the contrary, it is hereby agreed
as follows:
1. Subordination and Consent. Lender, Tenant and Landlord do hereby
covenant and agree that the Lease with all rights, options, liens and charges
created thereby (including, without limitation, any option or rights contained
in the Lease, or otherwise existing, to acquire any or all of the Premises, or
any superior leasehold interest therein), is and shall continue to be subject
and subordinate in all respects to the Mortgage and to any renewals,
modifications, consolidations, replacements and extensions thereof and to all
advancements made thereunder. Tenant acknowledges that Landlord will execute and
deliver to Lender an assignment of the Lease as security for said loan, and
Tenant hereby expressly consents to such assignment. Tenant agrees that if there
is a default by Landlord in the performance and observance of any of the terms
of such Loan, Lender may, at its option, demand all rents due under the Lease be
paid by Tenant directly to Lender at the address specified below, or as
otherwise specified by Lender. Tenant
2
agrees that upon Lender's written request for payment of rent directly to
Lender, Tenant will timely remit any and all payments due under the Lease
directly to, and payable to the order of, Lender. Such payments to Lender will
constitute performance of Tenant's payment obligations under the Lease.
2. Nondisturbance. Lender does hereby agree with Tenant that, in the event
Lender becomes the fee simple owner of the Property by foreclosure, conveyance
in lieu of foreclosure or otherwise, so long as Tenant complies with and
performs its obligations under the Lease, (a) the Lease shall continue in full
force and effect as a direct Lease between the succeeding owner of the Property
and Tenant, upon and subject to all of the terms, covenants and conditions of
the Lease, for the balance of the term of the Lease, and Lender will not disturb
the possession of Tenant, and (b) the Premises shall be subject to the Lease and
Lender shall recognize Tenant as the tenant of the Premises for the remainder of
the term of the Lease in accordance with the provisions thereof; provided,
however, that Lender shall not be:
(i) subject to any claims, offsets or defenses which Tenant might
have against any prior landlord (including Landlord); or
(ii) liable for any act or omission of any prior landlord (including
Landlord); or
(iii) bound by any rent or additional rent which Tenant might have
paid for more than the current month or any security deposit or other
prepaid charge paid to any prior landlord (including Landlord); or
(iv) bound by any amendment or modification of the Lease made
without its written consent.
Nothing contained herein shall prevent Lender from naming Tenant in any
foreclosure or other action or proceeding initiated by Lender pursuant to the
Mortgage to the extent necessary under applicable Law in order for Lender to
avail itself of and complete the foreclosure or other remedy. Tenant
acknowledges and agrees that it has no right or option of any nature whatsoever,
whether pursuant to the Lease or otherwise, to purchase the Premises or the
Property, or any portion thereof or any interest therein, and to the extent that
Tenant has had, or hereafter acquires, any such right or option, the same is
hereby acknowledged to be subject and subordinate to the Mortgage and is hereby
waived and released as against Lender.
3. Attornment. Tenant does hereby agree with Lender that, in the event
Lender becomes the owner of the Property by foreclosure, conveyance in lieu of
foreclosure or otherwise, then Tenant shall attorn to and recognize Lender as
the landlord under the Lease for the remainder of the term thereof, and Tenant
shall perform and observe its obligations thereunder, subject only to the terms
and conditions of the Lease. Tenant further covenants and agrees to execute and
deliver upon request of Lender an appropriate agreement of attornment to Lender
and any subsequent titleholder of the Premises.
4. Lease Defaults. In the event Landlord shall fail to perform or observe
any of the terms, conditions or agreements in the Lease, Tenant shall give
written notice thereof to Lender and Lender shall have the right (but not the
obligation) to cure such default. Tenant shall not take any action with respect
to such default under the Lease, including without limitation any action in
order to terminate, rescind or avoid the Lease or to withhold any rent or other
monetary obligations thereunder, for a period of thirty (30) days following
receipt of such written notice by Lender; provided, however, that in the case of
any default which cannot with diligence be cured within said thirty (30) day
period, if Lender shall proceed promptly to cure such default and thereafter
prosecute the curing of such default with diligence and continuity, the time
within which such default may be cured shall be extended for such period as may
be necessary to complete the curing of such default with diligence and
continuity.
3
5. Obligations and Liability of Lender. Lender shall have no obligations
nor incur any liability with respect to any warranties of any nature whatsoever,
whether pursuant to the Lease or otherwise, including, without limitation, any
warranties respecting use, compliance with zoning, hazardous wastes or
environmental laws, Landlord's title, Landlord's authority, habitability,
fitness for purpose or possession. Furthermore, in the event that Lender shall
acquire Landlord's interest in the Property, Lender shall have no obligation,
nor incur any liability, beyond Lender's then equity interest, if any, in the
Property, and Tenant shall look exclusively to such equity interest of Lender,
if any, in the Property for the payment and discharge of any obligations or
liability imposed upon Lender hereunder, under the Lease (or under any new lease
with Tenant), and Lender is hereby released and relieved of any other
obligations or liability hereunder, under the Lease or under any such new lease.
Lender shall not, either by virtue of the Mortgage, the Assignment of Leases or
this Agreement, be or become a mortgagee in possession or be or become subject
to any liability or obligation under the Lease or otherwise until Lender shall
have acquired the Landlord's interest in the Property, by foreclosure or
otherwise, and then such liability or obligation of Lender under the Lease (as
modified by the terms of this Agreement) shall extend only to those liability or
obligations accruing subsequent to the date that Lender has acquired Landlord's
interest in the Property. Without limiting the generality of the foregoing,
neither the Mortgage, the Assignment of Leases nor this Agreement shall, prior
to Lender's acquisition of Landlord's interest in the Property, by foreclosure
or otherwise, operate to place responsibility for the control, care, management
or repair of the Property upon Lender or impose upon Lender responsibility for
the carrying out of any of the terms or conditions of the Lease, and Lender
shall not be responsible or liable for any waste committed on either the
Premises or the Property by any party whatsoever, for any dangerous or defective
condition of the Property or for any negligence in the management, upkeep,
repair or control of either the Premises or the Property.
6. Severability. If any portion or portions of this Agreement shall be
held invalid or inoperative, then all of the remaining portions shall remain in
full force and effect, and, so far as is reasonable and possible, effect shall
be given to the intent manifested by the portion or portions held to be invalid
or inoperative.
7. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
8. Notices. So long as the Mortgage remains outstanding and unsatisfied,
Tenant will mail or deliver to Lender, at the address and in the manner
hereinbelow provided, a copy of all notices permitted or required to be given to
the Landlord by Tenant under and pursuant to the terms and provisions of the
Lease. All notices or other communications required or permitted to be given
pursuant to the provisions hereof shall be in writing and shall be considered as
properly given if (i) mailed to the addressee by first class United States mail,
postage prepaid, registered or certified with return receipt requested, (ii) by
delivering same in person to the addressee, or (iii) by delivery to a third
party commercial delivery service for same day or next day delivery to the
office of the addressee with proof of delivery. Notice so given shall be
effective, as applicable, upon (i) the third (3rd) day following the day such
notice is deposited with the U.S. Postal Service, (ii) delivery to the
addressee, or (iii) upon delivery to such third party delivery service. Notice
given in any other manner shall be effective only if and when received by the
addressee. For purposes of notice, the addresses of the parties shall be:
Lender: Citigroup Global Markets Realty Corp.
000 Xxxxxxxxx Xxxxxx, Xxxxx 00
Xxx Xxxx, XX 00000
Attn: ____________
Landlord: SPIRIT FINANCE ACQUISITIONS , LLC,
a Delaware limited liability company,
00000 X. Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000-0000
Tenant United Supermarkets, Ltd.
0000 Xxxxxxx Xxx.
XX Xxx 0000
Xxxxxxx, XX 00000
4
Notwithstanding the foregoing, any party shall have the right to change
its address for notice hereunder to any other location within the continental
United States by the giving of thirty (30) days' notice to the other parties in
the manner set forth herein.
9. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, legal
representatives, successors, successors-in-title and assigns. When used herein,
the term "landlord" refers to Landlord and to any successor to the interest of
Landlord under the Lease and "Lender" refers to Lender and to any assignee of
the note secured by the Mortgage and Lender's servicer of the Loan, if any.
10. Tenant's Personal Property. In no event shall the Mortgage cover or
encumber (and shall not be construed as subjecting in any manner to the lien
thereof) any of Tenant's moveable trade fixtures, business equipment, furniture,
signs or other personal property at any time placed on or about the Premises.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
12. Headings. The headings, captions, and arrangements used in this
Agreement are for convenience only and shall not affect the interpretation of
this Agreement.
(SIGNATURE PAGE FOLLOWS)
5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
LENDER:
CITIGROUP GLOBAL MARKETS REALTY CORP.,
a New York corporation
By:________________________________
Print Name:
Title: __________________________
TENANT:
UNITED SUPERMARKETS, LTD., a Texas
limited partnership
By: PAMPLEMOUSSE, L.L.C., a Texas limited
liability company, its general partner
By: __________________________________
Print Name:
Its: ________________________________
LANDLORD:
SPIRIT FINANCE ACQUISITIONS, LLC,
a Delaware limited liability company
By____________________________________
Print Name:
Its___________________________________
0
XXXXX XX Xxxxxxx
Xxxxxxx
XXXXXX OF Section
This instrument was acknowledged before me on the day of ___________,
_________, by ___________________, _____________________ of Citigroup
Global Markets Realty Corp., a New York corporation, on behalf of said
corporation.
[SEAL]
Notary Public - State of _______
My Commission Expires:
______________________ Printed Name of Notary Public
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this __ day of ____________,
2005, by ___________________________, who is personally known to me, as
_______________ of ___________________________________, a ______________________
______________ , on behalf of the limited partnership.
______________________________________
Name: ________________________________
State of Michigan, County of Washtenaw
My Commission Expires: _______________
Acting in the County of Washtenaw
2
STATE OF MARYLAND )
)ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this ____ day of
______, 2005, by ______________________, who is personally known to me, as
__________________ of SPIRIT FINANCE ACQUISITIONS , LLC, a Delaware limited
liability company, on behalf of the company.
__________________________________
Notary Public
__________________County, Maryland
My Commission Expires: ___________
[Notary's Seal]
3
Exhibit H
SPIRIT FINANCE CORPORATION
EQUITY OWNERSHIP QUESTIONNAIRE
Please complete this Questionnaire promptly and return it to:
_____________________________________[insert sender's name]
Spirit Finance Corporation
00000 Xxxxx Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Spirit cannot complete its underwriting and credit analysis in connection with
the contemplated transaction until it has received a completed and executed copy
of this Questionnaire from you.
SELLER/BORROWER
Name: Captec Franchise Capital Partners, XX XX
Principal Place of Business: 24 Xxxxx Xxxxx Xxxxxx Dr.,
Lobby L, 4th Floor,
Xxx Xxxxx, XX 00000
Type of Entity: Limited Partnership
State of Formation or Country of Citizenship: Delaware
Tax ID or Social Security Number: 00-0000000
ALL TENANTS LOCATED AT SUBJECT PROPERTY OR PROPERTIES
(Attach additional sheets if necessary)
Name: United Supermarkets, Ltd.
Principal Place of Business: 0000 Xxxxxxx Xxx.,
XX Xxx 0000,
Xxxxxxx, XX 00000
Type of Entity: Limited Partnership
State of Formation or Country of Citizenship: Texas
Tax ID or Social Security Number: ________________________________
The undersigned represents to Spirit Finance Corporation and its affiliates that
the foregoing information is complete and accurate.
4
The undersigned hereby acknowledges that Spirit Finance Corporation and its
affiliates may obtain credit reports on the Seller/Borrower listed above and by
its signature below acknowledges and consents to the acquisition and use of such
information as part of its credit decision.
CAPTEC FRANCHISE CAPITAL
PARTNERS X.X. XX
By: GP4 Asset Acquisition, LLC
Its: General Partner
By: /s/ Xxxx X. Xxxxxx
-------------------------
Print Name: Xxxx X. Xxxxxx
Its: Vice President
------------------------
5
