EXHIBIT 99
AGREEMENT OF SALE
THIS AGREEMENT OF SALE ("Agreement") is dated as of the 10th day of
November, 2005 ("Effective Date") between XXXXXX X. XXXXX AND XXXXX XXXXX,
HUSBAND AND WIFE, of ___________________ ("Purchaser"), and CAPTEC FRANCHISE
CAPITAL PARTNERS, XX XX, a Delaware limited partnership, of 24 Xxxxx Xxxxx
Xxxxxx Drive, Lobby L, Fourth Floor, Ann Arbor, Michigan 48105 ("Seller").
RECITALS:
Seller is the owner of certain real property and improvements located
at the address set forth in the Fundamental Sale Provisions below.
Purchaser desires to purchase, and Seller is willing to sell the real
property and improvements upon the terms and conditions set out below.
In consideration of the terms, covenants and conditions set forth in
this Agreement, Seller and Purchaser 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 an
Arby's located at 00000 Xxxxxxxxx, Xxxxxxxxx, XX and
more particularly described in the attached Exhibit
"A" ("Land").
Leases: That certain Lease, dated August 4, 1998, as amended,
("Real Estate Lease"), between Captec Net Lease
Realty, Inc. (and subsequently assigned to Seller),
as landlord, and RTM, Inc. (and subsequently assigned
to Sybra, Inc.), as tenant ("Tenant") and guaranteed
by ICH Corporation ("Guarantor") pursuant to that
certain Guaranty, dated April, 2001 ("Guaranty").
Deposit: an aggregate of $50,000, payable as set forth in
Section 3 below.
Subject State: Michigan
Purchase Price: $1,200,000, payable as set forth in Section 3 below.
Title Company: Lawyer's Title Insurance Corporation
000 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Inspection Period: Thirty (30) days after the Effective Date or
Purchaser's receipt of all books, records and other
due diligence items from Seller, whichever is later.
Closing: To occur within thirty (30) days following the
expiration of the Inspection Period.
Seller's Broker: CB Xxxxxxx Xxxxx
000 X. Xxxxx Xxxx., #000
Xxxxxxxx, XX 00000
Attn: Sterling Champ
Purchaser's Broker: GVA Xxxxxx Xxxxxxx
0000 Xxxxxxx Xxxxxx, Xxx. 0000
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
2. AGREEMENT TO SELL AND CONVEY. Seller agrees to sell and convey to
Purchaser, and Purchaser agrees to purchase from Seller, subject to the terms
and conditions set forth in this Agreement, all of Seller's right, title and
interest in and to:
(a) Project. All buildings, structures, and improvements
(collectively, "Improvements") on the Land (collectively, "Project");
(b) Easements. All of the recorded easements benefiting, and
recorded rights of access appurtenant to, the Land;
(c) Rights and Appurtenances. All and singular, the rights and
appurtenances pertaining to the Land, including any adjacent streets, roads,
alleys, accesses, and rights-of-way; and
(d) Lease. The Lease, together with all prepaid rentals (to
the extent applicable) to a period beyond the date of Closing, any security
deposit held by Seller as of the date of Closing and Seller's interest in the
Guaranty (if any).
All of the foregoing is collectively referred to as "Property".
3. PURCHASE PRICE; DEPOSIT. The Purchase Price for the Property shall
be payable as follows:
(a) Deposit. Within three (3) business days after the
Effective Date, Purchaser shall deposit with the Title Company an initial
deposit of $25,000.00 ("Initial Deposit"). Within three (3) business days after
the expiration or Purchaser's earlier waiver of the Inspection Period, Purchaser
will deposit the remaining $25,000.00 of the Deposit with the Title Company
thereby increasing the total deposits to $50,000.00. 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 or in the event that the Financing
Contingency (described in Section 5(c) below) is not satisfied or waived); and
(b) Balance of Purchase Price. The balance of the Purchase
Price (plus or minus closing adjustments, as the case may be), together with the
Deposit, shall be paid to Seller at the Closing. Payment shall be by wire
transfer of immediately available U.S. funds in accordance with wire transfer
instructions provided by Seller prior to the Closing. In exchange for such
payment, Seller shall deliver to Purchaser a deed (in form required by the
Subject State) whereby Seller only warrants against its own acts
2
and/or omissions ("Deed"). The Deed shall be substantially in the form attached
as Exhibit "B" and shall convey title to Purchaser, subject to the lien for
taxes which are not yet due and payable and such other exceptions to title which
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. Unless a longer time period is specifically
identified below, within five (5) days of the date of this Agreement, and at its
sole cost and expense, Seller shall furnish or cause Broker to furnish to
Purchaser the following items (collectively, "Due Diligence Items"):
(a) Title Work. A copy of the owner's policy of title
insurance issued to Seller at the time it acquired the Project. Within twenty
(20) days of the date of this Agreement, and provided Purchaser has delivered
evidence to Seller that the Deposit has been tendered to the Title Company,
Seller shall provide a commitment for an owner's policy of title insurance on
the Project ("Title Commitment"), which shall: (i) be issued by Title Company in
favor of Purchaser without so called "Standard Exceptions", (ii) be dated after
the date of this Agreement, (iii) provide for coverage in an amount equal to the
Purchase Price, (iv) show the state and quality of title to the Property,
together with all liens, encumbrances and other charges and items affecting the
Property; and (v) be accompanied by legible copies of all documents referenced
in the Title Commitment. Any endorsements to the Title Commitment shall be
obtained by Purchaser at Purchaser's sole cost and expense;
(b) Survey. A copy of the existing ALTA as-built survey of the
Land, if any, in Seller's possession ("Survey");
(c) Phase I. A copy of the existing "Phase I" environmental
assessment of the Project, if any, in Seller's possession; and
(d) Lease Documents. A complete copy of the Lease, along with
the Guaranty (if any).
Purchaser shall promptly deliver to Seller written
acknowledgement of Purchaser's receipt of each Due Diligence Item. Within seven
(7) days after the date of this Agreement, 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 and/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 except: (i) to Purchaser's accountants, attorneys, lenders,
prospective lenders, environmental consultants, investors and/or prospective
investors (collectively, "Permitted Outside Parties") in connection with the
transactions contemplated by this Agreement, or (ii) as may be required by law.
Purchaser shall take such actions as are necessary so as to ensure that the
Permitted Outside Parties also protect the confidential nature of the Due
Diligence Items to the same extent as Purchaser is obligated to do so hereunder.
In permitting Purchaser and the Permitted Outside Parties to review the Due
Diligence Items, 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 on its own behalf and
on behalf of the Permitted Outside Parties.
3
Purchaser shall return to Seller all of the Due Diligence
Items (including all copies Purchaser has made of the Due Diligence Items) at
such time as this Agreement is terminated for any reason. 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 and, in many 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
directors, officers, partners, members, 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, (ii) Seller has
not undertaken any independent investigation as to the truth, accuracy and
completeness of the Due Diligence Items, (iii) neither Seller nor any director,
partner, member, officer, employee or agent acting on Seller's behalf is
authorized to make any representations or warranties of whatsoever kind or
nature regarding either the truth, accuracy or completeness of the Due Diligence
Items or the Property (other than as described herein) and (iv) Seller is
providing the Due Diligence Items to Purchaser (or making the Due Diligence
Items available to Purchaser) solely as an accommodation to Purchaser. Purchaser
further acknowledges and agrees that Purchaser shall be solely responsible for
reviewing, analyzing and determining the truth, completeness, accuracy and
adequacy of the Due Diligence Items.
5. CONDITIONS TO PURCHASER'S OBLIGATIONS.
(a) Objection Notice. Purchaser shall have until the close of
Seller's business on the date the Inspection Period expires to deliver written
notice to Seller indicating whether any of the Due Diligence Items, the
condition of the Property, or title thereto is unsatisfactory to Purchaser and
specifying the matters which are not satisfactory or to which Purchaser
otherwise objects ("Objection Notice"). In the event Seller does not receive an
Objection Notice within the time period set forth in the preceding sentence,
Purchaser shall be deemed to have accepted the Due Diligence Items, the
condition of the Property, and title thereto, as disclosed in the Due Diligence
Items, at which time the Deposit shall, except as provided in the following
sentence, become non-refundable. The Deposit shall be refundable in the event of
Seller's failure to consummate the transaction described herein as a result of
Seller's default hereunder and shall also be refundable in the event that the
financing contingency set forth in Section 5(c) below is not satisfied and
Purchaser elects to terminate this Agreement as provided below.
(b) Responses to Objection Notice. In the event that either:
(i) Purchaser indicates in the Objection Notice that the Property or the Due
Diligence Items are not satisfactory in any material respect, 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 of this
Agreement and resulting in an encumbrance on the Property in addition to the
Lease and the Permitted Exceptions (as defined below) (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 Title Defect to the reasonable satisfaction of Purchaser 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 ten (10) days after receipt by Seller of the
Objection Notice or notice of any Title Defect, Purchaser may, at its option:
(1) waive any of its objections set forth in the Objection Notice or relating to
the Title Defect, without any adjustment in the Purchase Price, or (2) 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
shall be returned to Purchaser and, except as expressly set forth in this
Agreement, neither Seller nor Purchaser shall have any further obligations under
this Agreement.
4
(c) Financing Contingency. If the Purchaser and Seller have
initialed that "Financing Contingency Applies" below, Purchaser's obligations
hereunder are contingent upon Purchaser's ability to obtain a loan ("Loan") to
finance its purchase obligation hereunder. Purchaser shall: (i) apply for such
Loan within seven (7) days of the date of this Agreement, and (ii) shall have
the Financing Period in which to obtain a commitment for financing
("Commitment"). In the event Purchaser is unable to obtain the Commitment prior
to the expiration of the Financing Period, Purchaser shall have the right to
terminate this Agreement by delivering written notice thereof to Seller and the
Escrow Agent prior to the expiration of the Financing Period. The failure by
Purchaser to timely deliver such notice of termination prior to the expiration
of the Financing Period shall be an election by Purchaser to waive such
financing contingency, thereby causing the Deposit to become non-refundable. In
the event of Purchaser's timely election to terminate this Agreement, the entire
portion of the Deposit then held by the Escrow Agent shall be delivered to
Purchaser, subject to Purchaser's continuing obligations to return the Due
Diligence Items and Purchaser's indemnity obligations under Section 15.
Financing Contingency Applies: Seller's Initials XX Purchaser's Initials: XX
------ ------
Financing Contingency Does Not Apply: Seller's Initials Purchaser's Initials:
------ ------
(d) SNDA and Estoppel Certificate. Upon expiration or waiver
of the Inspection Period set forth above, Seller will make a one time request
from Tenant for a current estoppel certificate and a subordination,
non-disturbance and attornment agreement ("SNDA"), each in the form (if any)
contemplated by the Lease. If the form of Tenant estoppel certificate and/or
SNDA is not prescribed by the Lease and Purchaser submits to Seller the form of
estoppel certificate and/or SNDA (as the case may be) preferred by Purchaser or
required by Purchaser's Lender (if any) prior to the expiration of the
Inspection Period, Seller will submit such form of estoppel certificate and SNDA
to Tenant if such form is reasonable (as determined by Seller in its sole
discretion). Notwithstanding anything contained herein to the contrary, in the
event Tenant fails to provide the estoppel certificate and/or SNDA required by
the Lease or alleges that there are outstanding material events of default under
the Lease which cannot be resolved to Purchaser's reasonable satisfaction by the
Closing, then, in such event, Purchaser's sole remedy shall be to waive the
requirement or to terminate this Agreement and receive the prompt return of its
Deposit. Seller shall be under no obligation to obtain any updates to the
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, the Survey, and the Lease (collectively, "Permitted
Exceptions").
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 date of this Agreement, 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) Authority. Seller is duly formed 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;
(b) Compliance. 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 which violation has not been cured;
5
(c) Litigation. There is 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) Eminent Domain. There is no pending nor, to Seller's
knowledge, contemplated or threatened eminent domain, condemnation or other
governmental takings or proceedings relating to the Property or any part
thereof; and
(e) Foreign Entity. 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 the such act shall be assessed against or imposed
upon Purchaser in connection with the transaction contemplated by this
Agreement.
Seller acknowledges and agrees that the warranties and
representations set forth above shall survive the Closing for a period of six
(6) months. If, prior to Closing, Purchaser receives written notice from Seller
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 can not 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 which 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 date
same are made 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 date such representations or warranties are made.
8. COVENANTS OF SELLER.
(a) Actions. From and after the date of this Agreement and
until the date of Closing, Seller shall: (i) use commercially reasonable efforts
to keep (or cause to be kept) the Property fully insured in accordance with
prudent and customary practice and as required by the Lease; (ii) 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 (iii) not amend the Lease
without the prior written consent of Purchaser (which consent shall not be
unreasonably withheld, conditioned or delayed); and
(b) Change in Status. From and after the date of this
Agreement 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 Exceptions or represents an
additional encumbrance on the Property.
9. CLOSING. Seller and Purchaser shall consummate the transactions
contemplated by this Agreement at Closing through an escrow with the Title
Company and pursuant to escrow instructions acceptable to the Title Company,
Seller and Purchaser. The attorneys for Seller and Purchaser are authorized to
execute the escrow instructions letter, any amendments thereto and all
directions or communications thereunder.
6
10. SELLER'S OBLIGATIONS AT THE CLOSING. At the Closing, Seller shall:
(a) Deed. Execute and deliver the Deed to Purchaser;
(b) Title Policy. Cause the Title Company to furnish to
Purchaser an owner's policy of title insurance pursuant to the Title Commitment
("Title Policy");
(c) Closing Statement. Execute and deliver to Purchaser a
closing statement itemizing the Purchase Price and all adjustments thereto as
provided in this Agreement;
(d) Assignment of Lease. Execute and deliver to Purchaser an
assignment of all of Seller's right, title and interest in and to the Lease in
substantially the form attached as Exhibit "C" ("Assignment"), together with
such consents to and notices of such assignment as may be required under the
Lease;
(e) Affidavit. Execute and deliver to Purchaser a Non-Foreign
Persons Affidavit in substantially the form attached as Exhibit "D";
(f) Estoppel Certificate and SNDA. Deliver to Purchaser an
original of the estoppel certificate and SNDA (if any) from the Tenant in the
form required by Section 5(d) above;
(g) Notice to Tenant. Execute and deliver to Purchaser a
"Notice to Tenant" substantially in the form attached as Exhibit "E"; and
(h) Additional Documents. Execute and deliver to Purchaser
such other documents or instruments as may be required under this Agreement, or
as otherwise required in Purchaser's reasonable judgment to effectuate the
Closing.
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:
(a) Purchase Price. Pay Seller the Purchase Price;
(b) Closing Statement. Execute and deliver to Seller a closing
statement itemizing the Purchase Price and all adjustments thereto as provided
in this Agreement;
(c) Assignment of Lease. Acknowledge the Assignment for the
purpose of assuming the obligations of Seller under the Lease; and
(d) Additional Documents. Execute and deliver to Seller such
other documents or instruments as may be required under this Agreement, or as
otherwise required in Seller's reasonable opinion to effectuate the Closing.
Purchaser's obligation to close shall be specifically
contingent upon the Title Company furnishing to Purchaser the Title Policy and
the Tenant executing and delivering to Purchaser an estoppel certificate in
accordance with the provisions of the Lease. Purchaser 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 the Deposit.
7
12. CLOSING COSTS. At the Closing, Seller shall pay: (a) subject to
Section 21 below, the real estate brokerage commissions payable to Seller's and
Purchaser's Broker by reason of the transaction contemplated by this Agreement;
(b) one half (1/2) of the real estate transfer tax associated with recording the
Deed and shall further pay their own attorneys' fees. All other costs and
expenses of the Closing including, but not limited to, title and any new survey
or environmental report required by Purchaser and or their lender, one half
(1/2) of the real estate transfer taxes associated with recording the Deed and
any other expenses, taxes and fees related to Purchaser's Loan, including any
mortgage taxes and any lender's policy of title insurance, if any, shall be paid
by Purchaser. Purchaser shall further pay their own attorney fees.
13. PRO-RATIONS.
(a) Taxes. Purchaser acknowledges that the 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. Rent 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 Lease, Seller shall have the
right, to the extent it is holding a security deposit under the Lease, to
set-off against such security deposit for such arrearages.
14. POSSESSION. Subject to the rights of Tenant under the Lease, Seller
shall deliver possession of the Property to Purchaser at Closing.
15. INSPECTION. From and after the date of this Agreement 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 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, subject to the rights of the
Tenant under the Lease. As to any such investigation, Purchaser shall restore
the Property to the same condition as existed prior to any such investigation,
and shall not: (i) perform any invasive tests without Seller's prior consent, or
(ii) interfere with the possessory rights of the Tenant. Purchaser shall
indemnify and hold harmless Seller from and against, and shall 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
8
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 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 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. 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
transactions contemplated in this Agreement and to vest title to the Property in
Purchaser. The provisions of this Section 17 shall survive the Closing.
18. DEFAULT BY SELLER. In the event that Seller should fail to
consummate the transactions 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, or
specifically enforce this Agreement; provided, however, that in the event that
such failure of Seller was beyond Seller's reasonable control, Purchaser's sole
remedy shall be to terminate this Agreement; provided, further, in the event
Purchaser elects to specifically enforce this Agreement, it must institute such
action within ten (10) days following Seller's default, failing which, Purchaser
shall be deemed to have waived the right to pursue specific performance.
19. DEFAULT BY PURCHASER. In the event Purchaser should fail to
consummate the transactions contemplated in this Agreement 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, or specifically enforce this Agreement.
20. ATTORNEY'S FEES. Should either Seller or Purchaser employ an
attorney or attorneys to enforce any of the provisions of this Agreement or to
protect its interest in any matter arising under this Agreement or to recover
damages for the breach of this Agreement, 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 Purchaser's and Seller's Broker have been involved in this
transaction. In the event that this transaction is consummated and Closing
occurs, Seller shall pay Purchaser's Broker a real estate commission in the
amount of two percent (2%) of the Purchase Price and shall pay Seller's Broker
in accordance with a separate agreement. Seller and Purchaser agree that if any
other 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
9
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, which obligation of each party shall survive the Closing.
22. RISK OF LOSS. All risk of loss or damage to the Property prior to
Closing, including, without limitation, loss by reason of eminent domain or
condemnation proceedings or by reason of fire, windstorm, or other casualty,
shall rest with Seller. If, prior to the Closing, the Property is subject to
eminent domain or condemnation proceedings or 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 after the date of Seller's notice, to either:
(a) Accept Title. 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 eminent domain or
condemnation award or insurance proceeds payable to Seller or its successors or
assigns by reason of such eminent domain or condemnation proceeding or damage or
casualty, and pay over to Purchaser any monies theretofore received by Seller in
connection with such eminent domain or condemnation proceeding or fire or other
casualty; or
(b) Terminate. 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 Section 22(a).
23. ASSIGNMENT. Except as set forth in Section 31 below, neither
Purchaser nor Seller may assign its respective rights or obligations under this
Agreement without the consent of the other.
24. NOTICES. Any notice to be given or to be served upon either party
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 by facsimile (followed by hard copy by either of the two preceding
methods of delivery) and shall be deemed to have been given upon receipt.
Notices shall be sent to the addresses set forth on the signature page of this
Agreement and shall 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 under this
Agreement 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 permitted
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
principles of conflicts of law.
10
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.
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)(g)(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 account
thereof. Seller shall have no liability to Purchaser whatsoever in the event the
subject transaction is found, held or adjudicated not to qualify as or as a part
of a tax deferred exchange pursuant to Section 1031 of the Internal Revenue
Code.
[Signature page to follow]
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
effective as of the date first written above.
PURCHASER: SELLER:
XXXXXX X. XXXXX CAPTEC FRANCHISE CAPITAL PARTNERS X.X. XX
By: GP4 Asset Acquisition, LLC
/s/ Xxxxxx X. Xxxxx Its: General Partner
----------------------------------------
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Print Name: Xxxxxx X. Xxxxx
---------------------------------
XXXXX XXXXX
Its: Vice President
----------------------------------------
/s/ Xxxxx Xxxxx
-----------------------------------------
Send Notices To:
Captec Franchise Capital Partners X.X. XX
Attention: Xxxxx Xxxxxxxx
Send Notices To: 24 Xxxxx Xxxxx Xxxxxx Drive
Lobby L, Fourth Floor, P.O. Box 544
Xx Xxxxx Xxx Xxxxx, Xxxxxxxx 00000-0000
----------------------------------------- Telephone: 000-000-0000
0000 X. 00xx Xx. Facsimile: 000-000-0000
----------------------------------------- E-mail: xxxxxxxxx@xxxxxx.xxx
Xxxxxx, XX 00000
-----------------------------------------
Telephone: (000) 000-0000
-----------------------------
Facsimile: (000) 000-0000
----------------------------- With a Copy To:
Captec Financial Group, Inc.
Attention: Xxxxxxxx X. Xxxxxxx
With a Copy To: 24 Xxxxx Xxxxx Xxxxxx Drive
Lobby L, 4th Floor
----------------------------------------- Xxx Xxxxx, Xxxxxxxx 00000
----------------------------------------- Telephone: (000) 000-0000
----------------------------------------- Facsimile: (000) 000-0000
----------------------------------------- E-Mail: xxxxxxxx@xxxxxx.xxx
Telephone:
-----------------------------
Facsimile:
-----------------------------
12
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
13
EXHIBIT A
LEGAL DESCRIPTION
Land situated in the State of Michigan, County of Xxxxx, City of Southgate,
being in the Xxxxxxxxx 0/0 xx Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 10 East, being
more particularly described as follows:
Beginning, for reference, at a point at the North 1/4 corner of said Section 26;
thence North 89 degrees 41 minutes 10 seconds West, with the North line of said
Section 26, a distance of 1311.72 feet to a point; thence South 0 degrees 36
minutes 40 seconds West, a distance of 60.00 feet to a point in the Southerly
right-of-way line of Northline Road; thence North 89 degrees 47 minutes 50
seconds West, with the Southerly right-of-way line of said Northline Road, a
distance of 150.00 feet to the true point of beginning; thence, from said true
point of beginning, South 0 degrees 12 minutes 10 seconds West, a distance of
224.56 feet to a point; thence South 43 degrees 14 minutes 13 seconds East, a
distance of 58.07 feet to a point in the Northwesterly right-of-way line of West
Frontage Road; thence South 46 degrees 45 minutes 47 seconds West, with the
Northwesterly right-of-way line of said West Frontage Road, a distance of 240.00
feet to a point; thence North 43 degrees 14 minutes 13 seconds West, a distance
of 6.52 feet to a point; thence North 0 degrees 18 minutes 50 seconds East, a
distance of 136.22 feet to a point; thence North 89 degrees 41 minutes 10
seconds West, a distance of 25.00 feet to a point; thence North 0 degrees 18
minutes 50 seconds East, a distance of 291.05 feet to a point in the Southerly
right-of-way line of said Northline Road; thence South 89 degrees 47 minutes 50
seconds East, with a Southerly right-of-way line of said Northline Road, a
distance of 162.99 feet to the true point of beginning.
EXHIBIT B
FORM OF DEED
[Note: Modify to conform to recording/other requirements
of the State of Michigan.]
WARRANTY DEED
--------------------------------------------------------------------------------
KNOW ALL MEN BY THESE PRESENTS: That Captec Franchise Capital Partners XX XX, a
Delaware limited partnership
Whose address is: 24 Xxxxx Xxxxx Xxxxxx Drive, Lobby L, 0xx Xxxxx, Xxx Xxxxx, XX
00000-0000
Conveys and warrants to: XXXXXX X. XXXXX AND XXXXX XXXXX, HUSBAND AND WIFE
Whose address is:
---------------------------
The following described premises situated in the City of Southgate, County of
Xxxxx and State of Michigan, to wit:
See Exhibit "A" attached hereto and made a part hereof
Together with all and singular the tenements, hereditaments and appurtenances
thereto belonging or otherwise appertaining for the sum of: $
--------------
THE GRANTOR HEREIN WARRANTS TITLE AGAINST ITS ACTS OR OMISSIONS ONLY AND NONE
OTHER, EXCEPT FOR THE MATTERS SHOWN ON EXHIBIT B ATTACHED HERETO AND MADE A PART
THEREOF.
IN WITNESS WHEREOF, this Warranty Deed is executed as of the ___ day of
__________________, 2005.
CAPTEC FRANCHISE CAPITAL
PARTNERS X.X. XX
Signed in the presence of: By: GP 4 Asset Acquisition, LLC
Its: General Partner
By:
-------------------- ------------------------
Its:
-------------------- -----------------------
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 GP 4 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
When recorded return to:
Grantee
This instrument prepared by:
Captec Financial Group, Inc.
24 Xxxxx Xxxxx Xxxxxx Drive
Lobby L, 0xx Xxxxx
Xxx Xxxxx, XX 00000-0000
EXHIBIT "A"
LEGAL DESCRIPTION
Land situated in the State of Michigan, County of Xxxxx, City of Southgate,
being in the Xxxxxxxxx 0/0 xx Xxxxxxx 00, Xxxxxxxx 0 Xxxxx, Xxxxx 10 East, being
more particularly described as follows:
Beginning, for reference, at a point at the North 1/4 corner of said Section 26;
thence North 89 degrees 41 minutes 10 seconds West, with the North line of said
Section 26, a distance of 1311.72 feet to a point; thence South 0 degrees 36
minutes 40 seconds West, a distance of 60.00 feet to a point in the Southerly
right-of-way line of Northline Road; thence North 89 degrees 47 minutes 50
seconds West, with the Southerly right-of-way line of said Northline Road, a
distance of 150.00 feet to the true point of beginning; thence, from said true
point of beginning, South 0 degrees 12 minutes 10 seconds West, a distance of
224.56 feet to a point; thence South 43 degrees 14 minutes 13 seconds East, a
distance of 58.07 feet to a point in the Northwesterly right-of-way line of West
Frontage Road; thence South 46 degrees 45 minutes 47 seconds West, with the
Northwesterly right-of-way line of said West Frontage Road, a distance of 240.00
feet to a point; thence North 43 degrees 14 minutes 13 seconds West, a distance
of 6.52 feet to a point; thence North 0 degrees 18 minutes 50 seconds East, a
distance of 136.22 feet to a point; thence North 89 degrees 41 minutes 10
seconds West, a distance of 25.00 feet to a point; thence North 0 degrees 18
minutes 50 seconds East, a distance of 291.05 feet to a point in the Southerly
right-of-way line of said Northline Road; thence South 89 degrees 47 minutes 50
seconds East, with a Southerly right-of-way line of said Northline Road, a
distance of 162.99 feet to the true point of beginning.
EXHIBIT "B"
Permitted Exceptions
EXHIBIT C
FORM OF ASSIGNMENT OF LEASE AND GUARANTY
[Note: Modify to conform to recording/other requirements of the State of Texas.]
ASSIGNMENT OF LEASE AND GUARANTY
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 XXXXXX X. XXXXX
AND XXXXX XXXXX, HUSBAND AND WIFE, of ______________________("Assignee").
RECITALS:
Assignor leases to Sybra, Inc., a Michigan corporation ("Tenant"), the
Leased Premises (as defined in the Lease described below), located at 00000
Xxxxxxxxx, Xxxxxxxxx, XX ("Premises"), pursuant to a Lease dated as of August 4,
1998, 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 ICH Corporation dated April, 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 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 and the
Security Deposit and the Guaranty, and Assignee assumes all of Assignor's duties
and obligations under the Lease and the Security Deposit and the Guaranty and
agrees to perform and to be bound by all of the terms and provisions of the
Lease and 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 the acts and/or omissions of
Assignee from and after the date of this Assignment.
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:
XXXXXX X. XXXXX
------------------------------ --------------------------------
Print Name: Print Name: Xxxxxx X. Xxxxx
------------------------------
Print Name:
XXXX XXXXX
------------------------------ --------------------------------
Print Name: Print Name: Xxxxx Xxxxx
------------------------------
Print Name:
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 ___________ )
)ss.
COUNTY OF __________ )
The foregoing instrument was acknowledged before me this __ day of
______________, 2005, by Xxxxxx X. Xxxxx.
_____________________________________
Notary Public
County, Minnesota
My Commission Expires:_______________
[Notary's Seal]
STATE OF ___________ )
)ss.
COUNTY OF __________ )
The foregoing instrument was acknowledged before me this __ day of
______________, 2005, by Xxxxx Xxxxx.
_______________________________________
Notary Public
County, Minnesota
My Commission Expires:_________________
[Notary's Seal]
Prepared by and recorded
at the request of: Grantor
When recorded return to: Grantee
EXHIBIT 1
TO
ASSIGNMENT OF LEASE
[Attach copy of Lease]
EXHIBIT 2
TO
ASSIGNMENT OF LEASE
[Attach copy of Guaranty]
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 XXXXXX X. XXXXX AND XXXXX
XXXXX ("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
Sybra, Inc.
0000 Xxxxx Xxxxxx Xx., Xxx 000
Xxx Xxxxx, XX 00000
Attn: Director of Real Estate
ICH Corporation
000 Xxxxx Xxx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx
Ladies and Gentlemen:
This is to inform you that on __________________, 2005 the interest of
Captec Franchise Capital Partners X.X. XX ("Seller") in that certain Lease,
dated as of August 4, 1998, as amended ("Lease"), between Seller's predecessor
in interest, Captec Net Lease Realty, Inc., as landlord, and Tenant's
predecessor in interest, RTM, Inc., as tenant, and in that certain Guaranty,
dated April 2001 ("Guaranty") between Seller and ICH Corporation, as Guarantor,
for the real property located at 00000 Xxxxxxxxx, Xxxxxxxxx, XX has been
assigned to XXXXXX X. XXXXX AND XXXXX XXXXX. Accordingly, all future payments
owed, and notices to be given, to the landlord under the Lease should be
delivered to XXXXXX X. XXXXX AND XXXXX XXXXX at the following address:
______________________.
Very truly yours,
CAPTEC FRANCHISE CAPITAL
PARTNERS X.X. XX
By: GP4 Asset Acquisition LLC
Its: General Partner
By
Print Name:
Its Vice President
