EXHIBIT 99
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (the "AGREEMENT") is dated as of the "Effective
Date" (defined below) between GIBRALTAR 1031 RESTAURANTS, LLC, a Delaware
limited liability company, of X.X. Xxx 000000, Xxxxxxxxx, Xxxxxxxxxx 00000
("PURCHASER"), and CAPTEC FRANCHISE CAPITAL PARTNERS X.X. XX, a Delaware limited
partnership, of 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: Collectively, those twelve (12) parcels of real property
commonly known under the addresses set forth in attached and
incorporated Exhibit "A" and legally described in attached
and incorporated Exhibits "B-1 through B-12".
LEASE: Collectively, those ten (10) Leases described in attached and
incorporated Exhibit "C" (collectively, the "LEASES" and
individually, a "LEASE"), between Seller, as landlord, and
each "Tenant" (as defined in Exhibit "C"), as guaranteed by a
guarantor pursuant to a "Guaranty" (as defined in Exhibit
"C").
RENT ROLL: The rent roll set forth on attached and incorporated Exhibit
"C-1" setting forth the salient terms of the Leases.
DEPOSIT: An aggregate of $200,000.00, payable as set forth in Section
3 below.
SUBJECT STATE: The state in which each "Property" (defined below) is
located, as the context may provide.
PURCHASE PRICE: $20,975,000.00, payable as set forth in Section 3 below. The
allocation of the Purchase Price among the "Properties"
(defined below) is set forth in Exhibit "A".
TITLE COMPANY: LandAmerica Commercial Services - New York City Office
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Vice President
Phone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxx@xxxxxx.xxx
Xxxxx Xxxxxxxxx, CS Title Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxxxxxxxxxx@xxxxxx.xxx
INSPECTION
PERIOD: Sixty (60) days after the Effective Date.
CLOSING: The sixtieth (60th) day (if not a business day, then the
immediately succeeding business day) following the expiration
or Purchaser's earlier waiver of the Inspection Period.
BROKER: CB Xxxxxxx Xxxxx
EXPIRATION DATE
OF THE OFFER: If Seller fails to return a fully executed and dated original
of this Agreement to Purchaser by February 17, 2005, then
Purchaser's offer under this Agreement will be deemed void
and of no further force and effect.
EFFECTIVE DATE: The date that the last of the parties signing this Agreement
executes the same and delivers its executed counterpart to
the other party.
2. AGREEMENT TO SELL AND CONVEY. Seller hereby agrees 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 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
D. the Leases together with all prepaid rentals (to the extent
applicable) to a period beyond the date of Closing, any security deposits held
by Seller as of the date of Closing and Seller's interest in the Guaranty, if
any.
All of the foregoing set forth under subparagraphs (A) through (D) are
collectively referred to as the "PROPERTY" or "PROPERTIES".
3. PURCHASE PRICE; DEPOSIT. The Purchase Price shall be payable as
follows:
A. Deposit. Within three (3) business days after the Effective Date,
Purchaser shall deposit with the Title Company $100,000.00 of the Deposit to be
held pursuant to the terms of the Xxxxxxx Money Escrow Agreement set forth on
attached and incorporated Exhibit "D". Within three (3) business days after the
expiration or Purchaser's earlier waiver of the Inspection Period, Purchaser
will deposit the remaining $100,000.00 of the Deposit with the Title Company
under the terms of the Xxxxxxx Money Escrow Agreement thereby increasing the
total deposits to $200,000.00.
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B. If the Closing occurs, the Deposit shall be paid to Seller and
credited against the Purchase Price at Closing. If the Closing does not occur in
accordance with the terms of this Agreement, the Deposit shall be held and
delivered as provided this Agreement.
C. The Deposit shall: (i) be held in an interest-bearing escrow
account by the Title Company in an institution as directed by Purchaser and
reasonably acceptable to Seller; and (ii) include any interest earned thereon.
To allow the interest bearing account to be opened, Purchaser will provide the
Title Company with its tax identification or social security numbers.
D. Upon the expiration of the Inspection Period, assuming Purchaser
has not otherwise elected to terminate this Agreement, the Deposit shall be
deemed non- refundable but for Seller's default.
E. Balance of Purchase Price. The balance of the Purchase Price,
plus or minus closing adjustments, as the case may be, less the Deposit, shall
be deposited by Purchaser with the Title Company not later than three (3)
business days prior to Closing by wire transfer of immediately available U.S.
funds in exchange for deeds in form required by the jurisdiction in which the
Properties are located whereby Seller only warrants against its own acts and/or
omissions substantially in the form set forth as Exhibits "E-1 through E-12"
attached hereto (collectively, the "DEEDS"), conveying title to Purchaser
subject to the "Permitted Exceptions" (defined below).
4. DUE DILIGENCE ITEMS. Within three (3) business days (unless
otherwise provided) after the Effective Date, and at its sole cost and expense,
Seller shall furnish (to the extent in its possession) or cause the Broker to
furnish to Purchaser the following items (collectively, the "DUE DILIGENCE
ITEMS"):
A. Within fourteen (14) days after the Effective Date, and provided
Purchaser has delivered to Seller evidence that the initial $100,000.00 of the
Deposit has been tendered to the Title Company, Seller shall provide commitments
for owner's policies of title insurance on the Project (collectively, the "TITLE
COMMITMENTS", and individually, each a "TITLE COMMITMENT"), each of which shall
(i) be issued by Title Company in favor of Purchaser, (ii) provide for aggregate
coverage in an amount equal to the Purchase Price, (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 Commitments. Any endorsements to
the Title Commitments shall be obtained by Purchaser at Purchaser's sole cost
and expense;
B. copies of the existing ALTA as-built surveys of the Land
(collectively, the "SURVEYS", and individually, each a "SURVEY"). In addition,
during the Inspection Period, Seller will deliver updated versions of the
Surveys to Purchaser, the costs of such updated Surveys to be paid for by
Purchaser;
C. copies of the existing "Phase I" environmental assessments of the
Project. In addition, during the Inspection Period, Seller will deliver updated
versions of the environmental assessments to Purchaser, the costs of such
updated environmental assessments to be paid for by Purchaser;
D. copies of certificates of insurance provided by each Tenant;
E. certificates of occupancy for the Properties located in
Bakersfield, CA, College Station, TX (temporary only), Farmington Hills, MI and
Trevose, PA; and
F. complete copies of the Leases, along with any Guaranty.
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Purchaser shall acknowledge in writing its receipt of each Due
Diligence Item and immediately deliver such acknowledgement to Seller. Within
fourteen (14) 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) or
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 except: (i) to Purchaser's accountants, attorneys, lenders,
prospective lenders, investors and/or prospective investors (collectively, the
"PERMITTED OUTSIDE PARTIES") in connection with the transactions 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.
At such time as this Agreement is terminated for any reason other
than Seller's default, Purchaser shall return to Seller all of the Due Diligence
Items and any and all copies Purchaser has made of the Due Diligence Items,
along with copies of any and all reports, tests or studies relating to the
Property that Purchaser has obtained. 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 PRECEDENT.
A. Conditions Precedent to Purchaser's Obligations.
(i) During, but in no event later than the expiration of,
the Inspection Period, Purchaser shall give Seller written notice indicating
whether the Due Diligence Items, the condition of the Property, or title
thereto is unsatisfactory and specifying any matters disclosed therein which
are not satisfactory or to which Purchaser otherwise objects (the "OBJECTION
NOTICE"). In the event Seller fails to receive the Objection Notice timely,
Purchaser shall be deemed to have accepted the condition of the Property as
disclosed in the Due Diligence Items, at which time, Purchaser's Deposit shall
become non-refundable but for Seller's default. Seller acknowledges that during
the Inspection Period Purchaser will be trying to create a master lease
covering all of the Properties.
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(ii) 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 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 Effective Date and resulting in an encumbrance
thereon in addition to the Leases and the Permitted Exceptions (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 and accordingly modify the Title Commitments. 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 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 (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
neither Seller nor Purchaser shall have any further obligations under this
Agreement, except as expressly set forth herein.
(iii) If any new Title Defects arise after the expiration or
waiver of the Inspection Period and prior to Closing, Seller may promptly
undertake to eliminate such new Title Defects to the reasonable satisfaction of
Purchaser and/or, to the extent possible, cause the Title Company to insure
over any of such new Title Defects to the satisfaction of Purchaser. 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 such new Title Defects by the Closing
(which Seller may extend by up to ten (10) business days in order to cure and
remove (or procure title insurance over) the same), Purchaser may, at its
option: (1) waive any of its objections to the new Title Defects, without any
adjustment in the Purchase Price; or (2) terminate this Agreement, in either
event by giving prompt written notice thereof to Seller by the Closing Date (as
the same may have been extended by Seller under this subparagraph (iii)). In
the event Purchaser elects to terminate this Agreement, the Deposit 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 the foregoing terms of this subparagraph (iii) to the contrary,
if the new Title Defect was the result of a Tenant's acts or omission to act
and is required to be removed by such Tenant pursuant to the terms of its
Lease, then Purchaser shall have automatically elected to proceed in accordance
with option (1) under this subparagraph (iii).
(iv) Upon expiration or Purchaser's earlier waiver of the
Inspection Period, Seller will make a one time request from each Tenant for a
current estoppel certificate and a subordination, non-disturbance and
attornment agreement ("SNDA") in the form contemplated by the Leases, if any.
If the form of Tenant estoppel certificate and SNDA is not prescribed by the
Leases and Purchaser submits to Seller the form of estoppel and SNDA either
preferred by it or required by its lender, if any, prior to the expiration of
the Inspection Period, Seller will submit such form of estoppel and SNDA to
each Tenant if such form is reasonable as determined by Seller.
Notwithstanding anything contained herein to the contrary, in the event that
Seller is unable to provide the estoppel and SNDA required by at least eighty
percent (80%) ("THRESHOLD") of the Leases or any Tenant alleges that there are
outstanding material events of default under the Leases which cannot be
resolved to Purchaser's reasonable satisfaction by the Closing Date, then
Purchaser's sole remedy shall be to terminate this Agreement and receive the
prompt return of the Deposit. Seller shall be under no obligation to update
such estoppel certificate and/or SNDA received from any Tenant. Purchaser
acknowledges and agrees that the Threshold is comprised of the Leases and those
other "Leases" (as defined in the "Separate Agreement" (defined below)).
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(v) Purchaser acknowledges that certain of the Leases
provide the Tenant with a right of first refusal (as disclosed on Exhibit "C")
to purchase the Property subject to the terms of such Lease ("RIGHT OF FIRST
REFUSAL"). Promptly following the Effective Date, Seller will use commercially
reasonable efforts to cause any Tenant that has a Right of First Refusal to, on
or before the expiration of the Inspection Period, either waive or elect to
purchase such Property. If any such Tenant: (a) fails to respond to Seller's
notice within the time period specified in such Lease, then such Tenant will be
deemed to have waived its Right of First Refusal; and (b) elects to exercise
its Right of First Refusal for a Property (1) such Property will be removed
from this Agreement, (2) the Purchase Price will be reduced by the amount
allocated to such Property as reflected in Exhibit "C", and (3) Seller will
reimburse Purchaser for all due diligence costs incurred by Purchaser in
performing its due diligence investigations with respect to such Property, by
providing Purchaser with a credit against the Purchase Price at Closing.
B. Conditions Precedent to Seller's Obligations. If, prior to the
expiration of the Inspection Period, Seller is unable to arrange, upon terms and
conditions satisfactory to Seller, in its sole and absolute discretion, to
payoff Seller's existing loan secured by the Properties, Seller may, at its
option, terminate this Agreement by written notice to Purchaser in which event,
the Deposit will be returned to Purchaser.
6. PERMITTED EXCEPTIONS. Seller shall convey the Property to
Purchaser subject to: (i) all property taxes and assessments not yet due and
payable; (ii) all matters created by or on behalf of Purchaser, including,
without limitation, any documents or instruments to be recorded as part of any
financing of the Property by Purchaser; and (iii) any easements, liens,
exceptions and other encumbrances noted in the Title Commitments, the Surveys
and the Leases (collectively, the "PERMITTED EXCEPTIONS").
7. REPRESENTATIONS AND WARRANTIES OF SELLER.
A. 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,
conscious knowledge, without duty of inquiry:
(i) Seller is a limited partnership, duly organized,
validly existing and in good standing under the laws of the State of Delaware
and, to the extent necessary, is qualified to conduct business in Delaware and
the States in which the Properties are located. This Agreement has been duly
authorized, executed and delivered by Seller, is the legal, valid and binding
obligation of Seller, and does not, to Seller's knowledge, violate any
provision of any agreement or judicial order to which Seller is a party or to
which Seller is subject;
(ii) Except as otherwise disclosed on attached and
incorporated Schedule "1", 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;
(iii) Except as otherwise disclosed on attached and
incorporated Schedule "2", 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;
(iv) Except as otherwise disclosed on attached and
incorporated Schedule "3", 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;
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(v) The Rent Roll is true, correct and complete in all
material respects;
(vi) Seller has delivered to Purchaser true, correct and
complete copies of the Leases, including any amendments, extensions or
modifications;
(vii) To Seller's knowledge, there are no commissions or
other fees payable with regard to the execution of any of the Leases or with
regard to any renewals, extensions or expansions (whether due to options
previously or hereafter exercised or separate negotiations);
(viii)To Seller's knowledge, there are no service or
maintenance contracts affecting the Properties which Purchaser, as prospective
owner of the Properties, will be required to assume or pay; and
(ix) 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 one
(1) year. If, prior to Closing, Purchaser received 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 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 five (5) days after having knowledge of such the existence of
any untrue material representation or warranty, 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 same. 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
Effective 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 Effective Date.
B. Purchaser. Purchaser represents and warrants to Seller (which is
true and correct as of the Effective Date, and shall be true and correct as of
the date of Closing) that Purchaser is a limited liability company, duly
organized, validly existing and in good standing under the laws of the State of
Delaware and, to the extent necessary, is qualified to conduct business in
Delaware and the States in which the Properties are located. This Agreement has
been duly authorized, executed and delivered by Purchaser, is the legal, valid
and binding obligation of Purchaser, and does not, to Purchaser's knowledge,
violate any provision of any agreement or judicial order to which Purchaser is a
party or to which Purchaser is subject.
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 Leases;
(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 any Lease without the
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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
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 such letter of escrow instructions, any amendments thereto and all
directions or communications thereunder.
10. SELLER'S OBLIGATIONS AT THE CLOSING. No later than three (3)
business days prior to Closing, Seller shall:
A. execute and deliver to Purchaser the Deeds conveying the
Property;
B. execute and deliver to Purchaser a xxxx of sale conveying any
personal property owned by Seller and located on any Property, without warranty,
express or implied, as to merchantability, title, use and fitness for any
purpose;
C. cause the Title Company to furnish to Purchaser owner's policies
of title insurance pursuant to the Title Commitments (collectively, the "TITLE
POLICIES", and individually, each a "TITLE POLICY");
D. execute and deliver to Purchaser a closing statement itemizing
the Purchase Price and all adjustments thereto as provided herein;
E. execute and deliver to Purchaser an assignment of all of Seller's
right, title and interest in and to the Leases in substantially the form
attached hereto as Exhibit "F" (the "ASSIGNMENT"), together with such consents
to and notices of such assignment as may be required under the Leases;
F. execute and deliver to Purchaser a Non- Foreign Persons Affidavit
in the form attached hereto as Exhibit "G";
G. deliver to Purchaser an original of each estoppel certificate and
SNDA, in accordance with the terms of Section 5A(iv) of this Agreement, from
each Tenant in the form required by the Leases;
H. execute and deliver to Purchaser a "Notice to Tenant"
substantially in the form attached hereto as Exhibit "H"; and
I. execute and deliver to Purchaser such other documents or
instruments (including, without limitation, transfer tax declarations) as may be
required under this Agreement, or as otherwise required by the Title Company or
by Purchaser (using its reasonable opinion) 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, no later than three (3)
business days prior to Closing (unless otherwise provided below), Purchaser
shall:
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A. concurrently with Closing, cause the Title Company to pay Seller
the Purchase Price;
B. execute and deliver to Seller a closing statement itemizing the
Purchase Price and all adjustments thereto as provided herein;
C. acknowledge the Assignment for the purpose of assuming Seller's
obligations under the Leases; and
D. execute and deliver to Seller such other documents or instruments
(including, without limitation, transfer tax declarations) as may be required
under this Agreement or as otherwise required by the Title Company or by Seller
(using its reasonable opinion) to effectuate the Closing.
Purchaser's obligation to close shall be specifically contingent
upon the Title Company furnishing to Purchaser the Title Policies (or executed
xxxx-ups of the same) and each Tenant executing and delivering to Purchaser an
estoppel certificate in accordance with the provisions of the Leases.
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 may, as its sole remedy
at law or in equity, terminate this Agreement and receive the immediate return
of its Deposit.
12. CLOSING COSTS. At the Closing, except for Seller's attorneys' fees
and costs and the Broker's fee, Purchaser will pay for all closing costs,
including, without limitation: (a) the cost of preparation of the Deeds; (b)
all premiums and fees related to the Title Policies; (c) escrow charges; (d)
real estate transfer taxes and fees payable upon recordation of the Deeds; (e)
the costs and expenses of any endorsements and/or additional title insurance
coverage requests by Purchaser; and (f) any other expenses, taxes and fees
related to Purchaser's loan, including any mortgage taxes.
13. PRORATIONS.
A. Taxes. Purchaser acknowledges that the Leases obligate each
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 each 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 any 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
receives rent after the Closing to which the other has a claim, such party shall
remit same to the party entitled thereto within ten (10) days of receipt. If at
the time of the Closing any rent arrearages exist under any Lease: (i) Seller
shall have the right, to the extent it is holding a security deposit under such
Lease, to set-off against such security deposit for such arrearages; (ii) for
the month in which the Closing occurs, Purchaser agrees that the first monies
received by Purchaser from said Tenant shall be received on account of rent due
for the month of Closing; and (iii) for any period prior to the month in which
the Closing occurs, all monies received by Purchaser from said Tenant shall
first be applied to rents owed to Purchaser and the balance, if any, will be
remitted to Seller. Purchaser agrees that Seller may attempt to collect any
delinquent rents owed Seller for any period prior to the month in which the
Closing occurs and may institute any lawsuit or collection procedures, but may
not: (x) evict or bring any proceeding to evict any Tenant; (ii) terminate any
Lease; or (iii) terminate a Tenant's right to possession.
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C. Security Deposits. Seller will provide Purchaser with a credit in
the amount of all unapplied security deposits being held by Seller pursuant to
the terms of the Leases.
14. POSSESSION. Subject to the Leases, Seller shall deliver exclusive
possession of the Property to Purchaser at Closing.
15. INSPECTION. During the Inspection Period, Seller agrees that
Purchaser, its representatives, agents, employees, lenders, contractors,
appraisers, architects and engineers designated by Purchaser (collectively
"PERMITTEES") 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 not: (i) perform any
invasive tests without Seller's prior consent, which may be withheld in
Seller's sole and absolute discretion; or (ii) interfere with the possessory
rights of any Tenant. Purchaser shall indemnify, defend and hold harmless
Seller, its partners, officers, directors, members, shareholders, employees,
agents, lenders, contractors and each of their respective successors and
assigns (collectively, the "SELLER INDEMNIFIED PARTIES") harmless from any and
all losses, liabilities, fines, penalties and damages (including without
limitation any damages or injury to persons, property or to the environment as
provided hereunder), or actions or claims in respect thereof (including without
limitation, amounts paid in settlement, reasonable cost of investigation,
reasonable attorneys' fees and other legal expenses and reasonable fees of
other professionals) (collectively "LOSSES") which any of the Seller
Indemnified Parties may suffer or sustain as a result of the exercise by
Purchaser of its rights (and that of its Permittees) to enter upon the Property
pursuant to this Section. The terms of this Section will survive the Closing
and the termination of this Agreement.
16. ACKNOWLEDGEMENTS.
A. As-Is. PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS
EXPRESSLY PROVIDED IN THIS AGREEMENT, AND AS A MATERIAL INDUCEMENT TO SELLER'S
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE SALE OF THE PROPERTY AS PROVIDED
FOR HEREIN IS MADE ON AN "AS IS, WHERE IS" CONDITION AND BASIS "WITH ALL
FAULTS." Purchaser acknowledges, represents and warrants that Purchaser is not
in a significantly disparate bargaining position with respect to Seller in
connection with the transaction contemplated by this Agreement; that Purchaser
freely and fairly agreed to this acknowledgment as part of the negotiations for
the transaction contemplated by this Agreement; that Purchaser is represented by
legal counsel in connection with this transaction and Purchaser has conferred
with such legal counsel concerning this waiver. Except for the representations
and warranties expressly set forth in this Agreement, no representations or
warranties have been made or are made and no responsibility has been or is
assumed by any of the Seller Indemnified Parties or anyone acting or purporting
to act on behalf of the Seller Indemnified Parties as to the condition or repair
of the Property or the value, expense of operation, or income potential thereof
or as to any other fact or condition which has or might affect the Property or
the condition, repair, value, expense of operation or income potential of the
Property or any portion thereof. The parties agree that all understandings and
agreements made between them or their respective agents or representatives prior
to the Effective Date are merged in this Agreement and the attached Exhibits,
which alone fully and completely express their agreement, and that this
Agreement has been entered into with Purchaser being provided ample opportunity
to investigate all aspects of the Property, with neither party relying upon any
statement or representation by the other unless such statement or representation
is specifically embodied in this Agreement or the attached Exhibits. Except as
set forth in this Agreement, Seller makes no representations or warranties as to
whether the Property contains asbestos or any hazardous materials or harmful or
toxic substances, or pertaining to the extent, location or nature of same, if
any. Further, to the extent that Seller has provided to Purchaser information
from any inspection, engineering or environmental reports concerning asbestos
10
or any hazardous materials or harmful or toxic substances, Seller makes no
representations or warranties with respect to the accuracy or completeness,
methodology of preparation or otherwise concerning the contents of such reports.
Purchaser acknowledges that Seller has requested that Purchaser inspect the
Property fully and carefully and investigate all matters relevant thereto and
that Purchaser rely solely upon the results of Purchaser's own inspections or
other information obtained or otherwise available to Purchaser, rather than any
information that may have been provided by Seller to Purchaser.
B. Release of Seller. Purchaser for itself and each of its present
and future directors, members, shareholders, officers, employees, agents,
parties, affiliates, representatives, attorneys, subsidiaries, parent and
affiliated corporations, predecessors, successors, and assigns (collectively,
"PURCHASER-RELATED ENTITIES"), hereby fully and irrevocably releases, acquits
and discharges the Seller Indemnified Parties from any and all Losses, whether
known or unknown, existing or potential, which Purchaser or the
Purchaser-Related Entities have or assert or hereafter may have or assert,
against any of the Seller Indemnified Parties by reason of any purported act or
omission on the part of any of the Seller Indemnified Parties occurring prior to
the Closing, which Losses are based upon, arise out of, or are in any way
connected with any of the following (each, a "CLAIM" and collectively, the
"CLAIMS"): (i) the condition, status, quality, nature, contamination or
environmental state of the Property; (ii) any violation of, noncompliance with,
or enforcement of applicable laws, regulations or ordinances with respect to the
Property; or (iii) any use, generation, storage, release, threatened release,
discharge, disposal, or presence of any "Hazardous Materials" (defined below)
on, under, or about the Property or, to the extent affecting the Property, any
property in the vicinity of the Property; provided however, nothing contained in
this Section shall release Seller from Seller's representations and warranties
set forth in this Agreement, or Seller's fraud. The term "HAZARDOUS MATERIALS"
means and includes flammable explosives, petroleum (including crude oil),
radioactive materials, hazardous wastes, toxic substances or related materials,
including, without limitation, any substances defined as or included in the
definition of toxic or hazardous substances, wastes or materials under any
federal or applicable state or local laws, ordinances or regulations dealing
with or otherwise pertaining to toxic or hazardous substances, wastes, or
materials (collectively, "HAZARDOUS SUBSTANCES LAWS").
C. Indemnification of Seller.
(i) Notwithstanding anything to the contrary contained herein,
Purchaser, to the maximum extent permitted by law, shall be solely responsible
for, and shall indemnify, hold harmless and defend with counsel acceptable to
Seller in its reasonable discretion, the Seller Indemnified Parties from and
against any and all Losses arising out of, or resulting from or claimed to arise
out of or result from, in whole or in part, but only to the extent of, any of
the following (collectively, the "INDEMNIFIED ACTS"): (i) any violation of,
noncompliance with, or enforcement of, any Hazardous Substances Laws with
respect to the Property; or (ii) the release, discharge, disposal, or presence
of Hazardous Materials, on, under or about the Property. The Losses referred to
herein shall include, without limitation, all foreseeable consequential damages
and the cost of any required or necessary repair, cleanup, or detoxification of
the Property or any property in the vicinity of the Property, and the
preparation and implementation of any closure, remedial, or other required plans
in connection therewith.
(ii) In the event that any suit or other proceeding is brought
against any of the Seller Indemnified Parties at any time on account of any of
the Losses, Purchaser shall, upon the request of Seller and the Seller
Indemnified Parties: (i) assume the defense of Seller and the Seller Indemnified
Parties, as the case may be; (ii) defend Seller and the Seller Indemnified
Parties, at Purchaser's own expense with counsel acceptable to Seller or the
Seller Indemnified Parties, as applicable, in their reasonable discretion; and
(iii) pay all judgments, fines, penalties and other fees and expenses in
connection therewith.
11
(iii) In the event that: (i) a final adjudication determines
that Seller took one of the Indemnified Acts prior to the Closing Date that
directly and proximately caused the Losses, and (ii) Seller failed to inform
Purchaser of such Indemnified Act prior to the Closing Date, then Seller shall
reimburse Purchaser for all amounts previously paid by Purchaser pursuant to
Section 16(C)(ii), and Purchaser's obligation to indemnify Seller with respect
to such Indemnified Act pursuant to this Section 16(C)(iii) shall terminate.
D. Survival of Indemnity and Release. The obligations of Purchaser
pursuant to Section 16(B) and Section 16(C) shall survive the Closing.
17. FURTHER ASSURANCES. Seller and Purchaser agree to use commercially
reasonable efforts 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 herein and to vest
title to the Property in Purchaser.
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, as its
sole remedy at law or in equity, elect to either: (i) terminate this Agreement
by giving prompt written notice thereof to Seller, in which event the Deposit
will be returned to Purchaser; or (ii) specifically enforce this Agreement.
Furthermore, if Purchaser elects to specifically enforce this Agreement it must
institute such action within forty-five (45) 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 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 either: (i) grant Purchaser
additional time to cure such default; or (ii) terminate the Agreement, in which
event Seller shall retain the Deposit as liquidated damages in lieu of all
other remedies available to Seller and this Agreement shall become null and
void with neither party having any further rights or liabilities hereunder,
except as provided for in this Agreement. Seller and Purchaser acknowledge and
agree that: (x) it would be extremely difficult to accurately determine the
amount of damages suffered by Seller as a result of Purchaser's default
hereunder; (y) the Deposit is a fair and reasonable amount to be retained by
Seller as agreed and liquidated damages for Purchaser's default under this
Agreement; and (z) retention by Seller of the Deposit upon Purchaser's default
hereunder shall not constitute a penalty or forfeiture.
However, the liquidated damages provision does not preclude Seller from
pursuing any: (i) claims for the return or delivery of Due Diligence Items;
(ii) actions to expunge a lis pendens or other clouds on title caused by
Purchaser; (iii) claims on account of Purchaser's indemnity obligations under
this Agreement; and (iv) attorneys' fees and costs incurred by Seller incident
to subparagraphs (i) through (iii).
20. ATTORNEY'S FEES. In the event of any legal action or other
proceeding between the parties regarding this Agreement or the Property (an
"ACTION"), the prevailing party shall be entitled to the payment by the losing
party of its reasonable attorneys' fees, court costs and litigation expenses,
as determined by the court. The term "prevailing party" as used herein
includes, without limitation, a party: (i) who agrees to dismiss an Action on
the other party's performance of the covenants allegedly breached, (ii) who
obtains substantially the relief it has sought; or (iii) against whom an Action
is dismissed (with or without prejudice). In addition, the prevailing party in
any Action shall be entitled, in addition to and separately from the amounts
recoverable under this Section, to the payment by the losing party of the
12
prevailing party's reasonable attorneys' fees, court costs and litigation
expenses incurred in connection with: (y) any appellate review of the judgment
rendered in such Action or of any other ruling in such Action; and (z) any
proceeding to enforce a judgment in such Action. It is the intent of the
parties that the provisions of this Section be distinct and severable from the
other rights of the parties under this Agreement, shall survive the entry of
judgment in any Action and shall not be merged into such judgment.
21. BROKERAGE COMMISSIONS. Each party represents to the other that no
brokers other than Broker has been involved in this transaction, and Broker has
represented Seller. 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. 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 Losses 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 Losses 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.
A. Condemnation and Casualty. If, prior to the Closing Date, all or
any portion of the Property is taken by condemnation or eminent domain, or is
the subject of a pending taking which has not been consummated, or is destroyed
or damaged by fire or other casualty, Seller shall notify Purchaser of such fact
promptly after Seller obtains knowledge thereof. If such condemnation or
casualty is "Material" (defined below), Purchaser shall have the option to
terminate this Agreement upon notice to Seller given not later than fifteen (15)
days after receipt of Seller's notice, or the date of the Closing, whichever is
earlier. If this Agreement is terminated, the Deposit shall be returned to
Purchaser and thereafter neither Seller nor Purchaser shall have any further
rights or obligations to the other hereunder except as otherwise provided in
this Agreement. If this Agreement is not terminated, Seller shall not be
obligated to repair any damage or destruction but: (x) Seller shall assign,
without recourse, and turn over to Purchaser all of the insurance proceeds or
condemnation proceeds, as applicable, net of any costs of repairs and net of
reasonable collection costs (or, if such have not been awarded, all of its
right, title and interest therein) payable with respect to such fire or other
casualty or condemnation including any rent abatement insurance for such
casualty or condemnation; and (y) the parties shall proceed to Closing pursuant
to the terms hereof without abatement of the Purchase Price.
B. Condemnation Not Material. If the condemnation is not Material,
then the Closing shall occur without abatement of the Purchase Price and, after
deducting Seller's reasonable costs and expenses incurred in collecting any
award, Seller shall assign, without recourse, all remaining awards or any rights
to collect awards to Purchaser on the date of the Closing.
C. Casualty Not Material. If the Casualty is not Material, then the
Closing shall occur without abatement of the Purchase Price except for a credit
in the amount of the applicable deductible and Seller shall not be obligated to
repair such damage or destruction and Seller shall assign, without recourse, and
turn over to Purchaser all of the insurance proceeds net of any costs of repairs
and net of reasonable collection costs (or, if such have not been awarded, all
of its right, title and interest therein) payable with respect to such fire or
such casualty including any rent abatement insurance for such casualty.
13
D. Materiality. For purposes of this Section 22: (i) with respect to
a taking by eminent domain, the term "MATERIAL" means any taking whatsoever,
regardless of the amount of the award or the amount of the Property taken,
excluding, however, any taking solely of subsurface rights or takings for
utility easements or right of way easements, if the surface of the Property,
after such taking, may be used in substantially the same manner as though such
rights had not been taken or any taking which does not permit a Tenant from
terminating the Lease affected by the taking; and (ii) with respect to a
casualty, the term "MATERIAL" means any casualty such that the cost of repair,
as reasonably estimated by Seller's engineer, is in excess of 10% of the
Purchase Price allocated to Property sustaining the casualty, excluding,
however, any casualty which does not permit a Tenant from terminating the Lease
affected by the casualty.
23. ASSIGNABILITY. Except as set forth in Section 34 below, neither
Purchaser nor Seller may assign its respective obligations hereunder without
the consent of the other; provided, however, that Purchaser shall have the
right to assign its interest in this Agreement, in whole or part, without
Seller's consent to a Delaware Statutory Trust, an affiliate entity or any
entity that is owned, managed or controlled by Purchaser or its managing member
subject to the following: (i) notice of such assignment is delivered to Seller;
and (ii) Purchaser shall not be released from any liability under this
Agreement as a result of any such assignment. No transfer or assignment by
Purchaser or Seller in violation of the provisions hereof shall be valid or
enforceable.
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 the parties 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. Subject to the terms of Section 23 of this
Agreement, 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
principals of conflicts of law.
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 the Expiration Date
of the Offer, 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.
14
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. FACSIMILE. A facsimile copy of this Agreement and any signatures
thereon will be considered for all purposes as originals.
32. INDEPENDENT COUNSEL AND INTERPRETATION. Each party acknowledges
that its legal counsel participated in the preparation and drafting of this
Agreement, and that each has been or has had the opportunity to be represented
by counsel of its own choice throughout all negotiations which preceded the
execution of this Agreement, and that they have executed this Agreement with
the consent and upon the advice of said counsel. Accordingly, it is agreed that
any legal rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not apply to the interpretation of
this Agreement or any addenda, amendments or exhibits thereto to favor any
party against the other.
33. BUSINESS DAYS. All references to "business days" contained in this
Agreement are references to normal working business days, i.e., Monday through
Friday of each calendar week, exclusive of federal and national bank holidays.
If any event hereunder is to occur, or a time period is to expire, on a date
which is not a business day, such event will occur or time period shall expire
on the next succeeding business day.
34. 1031 EXCHANGE. The parties acknowledge that each may be
consummating the transaction as part of a deferred tax-free exchange
("EXCHANGE") pursuant to Section 1031 of the Internal Revenue Code (the
"CODE"). Therefore, either party may assign its right, but not its
obligations, to a qualified third party intermediary. Each party agrees to
cooperate with the other in connection with such tax deferred exchange;
provided, however, that in no event will: (i) Seller be obligated to (a) take
title to any relinquished property that Purchaser desires to relinquish, or (b)
act as a qualified intermediary; (ii) either party incur any obligation,
indebtedness, liability, cost or expense as a result of cooperating with the
other to effect such exchange.
EACH PARTY HEREBY ACKNOWLEDGES THAT IT IS AND WILL BE SOLELY RESPONSIBLE
FOR COMPLIANCE WITH ALL LAWS, RULES AND REGULATIONS RELATED TO ITS
EXCHANGE, IF ANY. FURTHER, A PARTY CAUSING AN EXCHANGE ACKNOWLEDGES THAT
NEITHER THE NON-EXCHANGING PARTY NOR ANY OF ITS AGENTS, REPRESENTATIVES
OR AFFILIATES HAS ADVISED THE EXCHANGING PARTY, AND NO SUCH PERSON OR
ENTITY HAS ANY OBLIGATION OR DUTY TO ADVISE THE EXCHANGING PARTY, WITH
RESPECT TO WHETHER THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT
COMPLIES WITH THE LAWS, RULES AND REGULATIONS APPLICABLE TO THE EXCHANGE.
FURTHER, EACH PARTY REPRESENTS, WARRANTS AND ACKNOWLEDGES TO THE OTHER
THAT IT HAS RELIED UPON ITS OWN TAX AND LEGAL COUNSEL IN DETERMINING
COMPLIANCE WITH ALL LAWS, RULES AND REGULATIONS APPLICABLE TO ITS
EXCHANGE, IF ANY. THE PROVISIONS OF THIS SECTION WILL SURVIVE THE CLOSING
OR TERMINATION OF THIS AGREEMENT.
35. CONTEMPORANEOUS CLOSING OF SEPARATE AGREEMENT. Purchaser and
Captec Franchise Capital Partners L.P. III, a Delaware limited partnership (a
related entity of Seller) ("RELATED SELLER") are parties to a separate Sale
Agreement dated on or about the Effective Date (the "SEPARATE AGREEMENT")
pursuant to which Related Seller has agreed to sell, and Purchaser has agreed to
buy ten (10) parcels of real property. As a condition to the parties' obligation
to consummate the sale and purchase of the
15
Property under this Agreement, the closing contemplated under the Separate
Agreement must occur contemporaneously with the Closing under this Agreement.
36. REPRESENTATIONS, WARRANTIES AND COVENANTS WITH RESPECT TO THE USA
PATRIOT ACT.
A. All capitalized words and phrases and all defined terms used in
the USA Patriot Act of 2001, 107 Public Law 56 (October 26, 2001) (the "PATRIOT
ACT") and in other statutes and all orders, rules and regulations of the United
States government and its various executive departments, agencies and offices
related to the subject matter of the Patriot Act, including, but not limited to,
Executive Order 13224 effective September 24, 2001, are hereinafter collectively
referred to as the "PATRIOT RULES" and are incorporated into this Section.
B. Purchaser and Seller hereby represent and warrant, each to the
other, that each and every "person" or "entity" affiliated with each respective
party or that has an economic interest in each respective party or that has or
will have an interest in the transaction contemplated by this Agreement or in
any Property that is the subject matter of this Agreement or will participate,
in any manner whatsoever, in the purchase and sale of the Properties is, to the
best of Purchaser's or Seller's knowledge:
(i) not a "blocked" person listed in the Annex to Executive
Order Nos. 12947, 13099 and 13224;
(ii) in full compliance with the requirements of the Patriot
Rules and all other requirements contained in the rules and regulations of the
Office of Foreign Assets Control, Department of the Treasury ("OFAC");
(iii) operated under policies, procedures and practices, if
any, that are in compliance with the Patriot Rules and available to each other
for review and inspection during normal business hours and upon reasonable
prior notice;
(iv) not in receipt of any notice from the Secretary of
State or the Attorney General of the United States or any other department,
agency or office of the United States claiming a violation or possible
violation of the Patriot Rules;
(v) not listed as a Specially Designated Terrorist or as a
blocked person on any lists maintained by the OFAC pursuant to the Patriot
Rules or any other list of terrorists or terrorist organizations maintained
pursuant to any of the rules and regulations of the OFAC issued pursuant to the
Patriot Rules or on any other list of terrorists or terrorist organizations
maintained pursuant to the Patriot Rules;
(vi) not a person who has been determined by competent
authority to be subject to any of the prohibitions contained in the Patriot
Rules; and
(vii) not owned or controlled by or now acting and or will in
the future act for or on behalf of any person or entity named in the Annex or
any other list promulgated under the Patriot Rules or any other person who has
been determined to be subject to the prohibitions contained in the Patriot
Rules.
C. Each party covenants and agrees that in the event it receives any
notice that it or any of its beneficial owners or affiliates or participants
become listed on the Annex or any other list promulgated under the Patriot Rules
or indicted, arraigned, or custodially detained on charges involving
16
money laundering or predicate crimes to money laundering, the party that
receives such notice shall immediately notify the other and the effect of the
issuance of a notice pursuant to the Patriot Rules is that this Agreement shall
automatically be deemed terminated, in which event the Deposit shall be returned
to Purchaser and the parties shall have no further rights or obligations under
this Agreement, except for those rights, liabilities or obligations that survive
a termination of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK - SIGNATURE PAGE FOLLOWS]
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Sale, effective as of the Effective Date.
PURCHASER: SELLER:
GIBRALTAR 1031 RESTAURANTS, LLC, CAPTEC FRANCHISE CAPITAL
A DELAWARE LIMITED LIABILITY COMPANY PARTNERS X.X. XX,
A DELAWARE LIMITED PARTNERSHIP
By: LMA Holdings, LLC, By: GP4 Asset Acquisition, LLC,
Its Sole Member a Delaware limited liability
company,
Its General Partner
By: /s/ Xxxxxxx Xxxxxx
--------------------------- By: /s/ W. Xxxx Xxxxxx
Xxxxxxx Xxxxxx, its Sole Member ----------------------
Name: W. Xxxx Xxxxxx
DATED: FEBRUARY /s/ 15, 2005 Title: Vice President
Send Notices To: DATED: FEBRUARY /s/ 15, 2005
Xxxxxxx Xxxxxx Send Notices To:
X.X. Xxx 000000
Xxxxxxxxx, XX 00000 Xxxxxx Xxxxxxxxx
Telephone: 000.000.0000 Vice President
Facsimile: 760.633.3723 24 Xxxxx Xxxxx Xxxxxx Drive
Lobby L, Fourth Floor, P.O. Box 544
With a Copy To: Xxx Xxxxx, Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
Xxxxxxx X. Xxxxxx Facsimile: (000) 000-0000
Xxxxx & XxXxxxxx
One Prudential Plaza With a Copy To:
0000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000 Xxxxx X. Xxxxxx, Esq.
Telephone: 000.000.0000 Much Shelist
Facsimile: 312.861.2899 0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
And Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxx X. Xxxxxxx
Holland & Knight LLP
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000.000.0000
Facsimile: 312.715.5740
*XXXX GETS A DUPLICATE SET OF THE TITLE COMMITMENTS, SURVEYS AND LEASES
18
LIST OF EXHIBITS AND SCHEDULES
EXHIBITS
A: Addresses of the Land
B-1 through B-12: Legal Descriptions of the Land
C: Schedule of Leases
C-1: Rent Roll
D: Xxxxxxx Money Escrow Agreement
E-1 through E-12: Form of Deed(s)
F: Form of Assignment of Leases
G: Form of Non-Foreign Persons Affidavit
H: Form of Notice to Tenant
SCHEDULES
1: List of Violations
2 List of Litigation
3: List of Condemnation
19
EXHIBIT A
ADDRESSES OF THE LAND
PROPERTY ADDRESS CITY STATE COUNTY ZIP
---------------- ---- ----- ------ ---
00000 Xxxxxxx Xxxx Xxxx Xxxxxxxxxx Xxxxx XX Xxxxxxx 00000
0000 XX 0 Xxxxxxxxx Xxxxxxx XX Xxxxx 00000
0000 X. Xxxxxxxx Xxxxx Xxxxxxx XX Xxxxxxx 00000
0000 Xxxxxxxxxx Xxxxxx Xxxxxxxxxxx XX Xxxx 93301
32270 Van Dyke Warren MI Macomb 48089
00000 Xxxx Xxxxxx Xxxxxxxx XX Macomb 48062
000 Xxxxx Xxxxx Xxxx Xxxxx Xxxxxxxxxx XX Xxxxxx 00000
0000 X. Xxxxxxxx Xxxx Xxxx XX Xxxxxxxx 00000
000 Xxxxxxx Xxxx Xxxxx Xx Xxxx XX Xx Xxxx 00000
000 Xxxxxx Xx. Xxxxxxx Xxxxxxx XX Brazos 74880
00000 Xxxxxxxx Xxx. Xxxxxxxx XX Xxxxxxxx 45030
0000 Xxxxxx Xx. Xxxxxxx XX Xxxxxxxx 00000
X-0
XXXXXXX X-0
LEGAL DESCRIPTION OF 000 XXXXXXX XXXX XXXXX, XX XXXX, XXXXX
Land situated in the CITY of EL PASO, County of EL PASO, State of ARIZONA,
particularly described as:
(i) A portion of Xxx 0, Xxxxx 0, XXXXXXXX XXX XXX, XXXX XXX, an Addition
to the City of El Paso, El Paso County, Texas according to the plat
thereof on file in Volume 69, Page 30, Real Property Records, El Paso
County, Texas (the "Land"), said portion being more particularly described
by metes and bounds as follows;
COMMENCING for reference at the City Monument at the centerline
intersection of Mesa Hills Drive and Sunland Park Drive from which the
City Monument at Bluff Ridge Drive bears North 55 degrees, 55 minutes 09
seconds West, a distance of 850.90 feet;
THENCE, along the centerline of said Xxxx Xxxxx Xxxxx, Xxxxx 00 degrees
03 minutes 02 seconds West, a distance of 245.04 feet to a point;
THENCE, leaving said centerline, North 54 degrees 56 minutes 58 seconds
East, a distance of 72.00 feet to a point in the northeasterly right-of-
way line of said Mesa Hills Drive;
THENCE, leaving said right xx xxx xxxx, Xxxxx 00 degrees 01 minutes 02
seconds East, a distance of 182.50 feet to a set 1/2" rebar and POINT OF
BEGINNING for the herein described tract;
THENCE, North 45 degrees 01 minutes 02 seconds East, a distance of 181.78
feet to a set 1/2" rebar;
THENCE, South 90 degrees 00 minutes 00 seconds East, a distance of 67.75
feet to a set 1/2" rebar;
THENCE, South 44 degrees 58 minutes 30 seconds East, a distance of 341.21
feet to a set 1/2" rebar in the northerly right of way line of Sunland
Park Drive;
THENCE, along said right of way line, the following three courses:
South 60 degrees 07 minutes 18 seconds West, a distance of 59.09 feet to
a set 1/2" rebar;
North 44 degrees 58 minutes 30 seconds West, a distance of 10.99 feet to
a set 1/2" rebar at the beginning of a curve to the right;
Along the arc of said curve (Delta Angle 05 degrees 47 minutes 57
seconds, Radius 1,837.08 feet, Chord South 85 Degrees 10 minutes 41
seconds West, 185.86 feet) a distance of 185.94 feet to a set 1/2"
rebar;
THENCE, leaving said right xx xxx xxxx, Xxxxx 00 degrees 54 minutes 37
seconds West, a distance of 4.75 feet to a set 1/2" rebar;
B-1, Page-1
THENCE, North 44 degrees 58 minutes 58 seconds West, a distance of 294.29
feet to the POINT OF BEGINNING and containing 78,056 feet or 1.792 acres
of land.
(ii) all buildings and other improvements situated on the Land and all
fixtures and other property affixed thereto;
(iii) all and singular the rights and appurtenances pertaining to the Land
and improvements, including any right, title and interest of Grantor in
and to adjacent streets, alleys or right-of way;
(iv) all of Grantor's right, title and interest in and to or arising under
that certain non-exclusive Access Easement Agreement executed by Xxxx
Building Corporation, and recorded at Volume 2768, Page 171 of the Real
Property Records, El Paso County, Texas; and all of Grantor's right, title
and interest in and to or arising under that certain non-exclusive
Reciprocal Easement and Operation Agreement dated 07/18/94, recorded in
Volume 2768, Page 187, Real Property Records of El Paso County, Texas,
(hereinafter called "Easement Tract");
(all of the foregoing hereinafter called the "Conveyed Properties").
This conveyance is made and accepted subject to the encumbrances
described in Exhibit "A" attached hereto and made a part hereof
(hereinafter called the "Permitted Encumbrances").
B-1, Page-2
EXHIBIT B-2
LEGAL DESCRIPTION OF 0000 XXXXXXXXXX XXXXXX, XXXXXXXXXXX, XXXXXXXXXX
Land situated in the CITY of BAKERSFIELD, County of XXXX, State of CALIFORNIA,
particularly described as:
ALL THAT CERTAIN LAND SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF XXXX AND
IS DESCRIBED AS FOLLOWS:
PARCEL 1:
THAT PORTION OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF THE NORTHEAST
QUARTER OF SECTION 35, TOWNSHIP 29 SOUTH, RANGE 27 EAST, M.D.B.M., IN THE
COUNTY OF XXXX, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID SECTION 35, THENCE SOUTH 00 DEGREES
52' 47" WEST, TO X XXXXX XX XXX XXXXXXXXXX XX XXXXXXXXXX XXXXXX; THENCE ALONG
SAID CENTERLINE NORTH 89 DEGREES 05'56" WEST, 70.66 FEET TO A POINT ON A CURVE
CONCAVE TO THE SOUTHEAST, WITH A RADIUS OF 3500 FEET; THENCE ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 20 DEGREES 01'59" AN ARC DISTANCE OF 1223.75 FEET;
THENCE SOUTH 70 DEGREES 52'05" WEST, 90.54 FEET TO THE POINT OF INTERSECTION OF
THE CENTERLINES OF CALIFORNIA AVENUE AND REAL ROAD; THENCE CONTINUING SOUTH 70
DEGREES 52'05" WEST 81.69 FEET TO A POINT; THENCE NORTH 15 DEGREES 43'58" WEST
49.76 FEET; THENCE NORTH 04 DEGREES 44'25" EAST, 5.84 FEET TO THE TRUE POINT OF
BEGINNING OF THIS DESCRIPTION, WHICH TRUE POINT IS HEREINAFTER CALLED "POINT
A", THENCE SOUTH 70 DEGREES 52'05" WEST 210.00 FEET; THENCE NORTH 19 DEGREES
07' 55" WEST, 160 FEET; THENCE NORTH 70 DEGREES 52'05" EAST 295.47 FEET' THENCE
SOUTH 13 DEGREES 52'54 WEST, 87.59 FEET; THENCE SOUTH 04 DEGREES 44'25" WEST
94.35 FEET TO SAID POINT A.
EXCEPTING THEREFROM ANY PORTION LYING WITHIN EASTON DRIVE AS SHOWN ON MAP OF
TRACT 3202 RECORDED OCTOBER 24, 1968 IN BOOK 16 PAGES 174, 175 AND 176 OF MAPS,
XXXX COUNTY RECORDS.
EXCEPTING THEREFROM ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS,
NATURAL GAS RIGHTS, AND OTHER HYDROCARBORNS BY WHATSOEVER NAME KNOW THAT MAY BE
WITHIN OR UNDER THE PARCEL OF LAND HEREINABOVE DESCRIBED, TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING, AND OPERATING THEREOF AND
REMOVING THE SAME FROM SAID LAND, OR ANY OTHER LAND, INCLUDING THE RIGHT TO
WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THESE
HEREINABOVE DESCRIBED, OIL OR GAS XXXXX, TUNNELS AND SHAFTS INTO, THROUGH OR
ACROSS THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED XXXXX, TUNNELS, AND SHAFTS UNDER AND
BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL,
EQUIP., MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH XXXXX OR MINES, WITHOUT,
HOWEVER, THE RIGHT TO DRILL, MINE, EXPLORE AND OPERATE THROUGH THE SURFACE OR
THE UPPER 100 FEET OF THE SUBSURFACE OF THE LAND HEREINABOVE
B-2, Page-1
DESCRIBED OR OTHERWISE IN SUCH MANNER AS TO ENDANGER THE SAFETY OF ANY HIGHWAY
THAT MAY BE CONSTRUCTED ON SAID LANDS.
PARCEL 2:
THAT PORTION OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF THE NORTHEAST
QUARTER OF SECTION 35, TOWNSHIP 29 SOUTH, RANGE 27 EAST, M.D.B.M., IN THE
COUNTY OF XXXX, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT A, AS HEREINABOVE DESCRIBED, THENCE SOUTH 70 DEGREES
52'05" WEST 210 FEET; THENCE SOUTH 19 DEGREES 07'55" EAST, 85.00 FEET; THENCE
NORTH 70 DEGREES 52'05" EAST, 16.56 FEET; THENCE NORTH 13 DEGREES 32'54" EAST
71.29 FEET; THENCE NORTH 70 DEGREES 52'05" EAST, 115.35 FEET; THENCE NORTH 43
DEGREES 01'34" EAST 42.11 FEET THENCE NORTH 04 DEGREES 44'25" EAST 5.84 FEET TO
SAID POINT A.
EXCEPTING THEREFROM ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS,
NATURAL GAS RIGHTS, AND OTHER HYDROCARBORNS BY WHATSOEVER NAME KNOW THAT MAY BE
WITHIN OR UNDER THE PARCEL OF LAND HEREINABOVE DESCRIBED, TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING, AND OPERATING THEREOF AND
REMOVING THE SAME FROM SAID LAND, OR ANY OTHER LAND, INCLUDING THE RIGHT TO
WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THESE
HEREINABOVE DESCRIBED, OIL OR GAS XXXXX, TUNNELS AND SHAFTS INTO, THROUGH OR
ACROSS THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED XXXXX, TUNNELS, AND SHAFTS UNDER AND
BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL,
EQUIP., MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH XXXXX OR MINES, WITHOUT,
HOWEVER, THE RIGHT TO DRILL, MINE, EXPLORE AND OPERATE THROUGH THE SURFACE OR
THE UPPER 100 FEET OF THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED OR
OTHERWISE IN SUCH MANNER AS TO ENDANGER THE SAFETY OF ANY HIGHWAY THAT MAY BE
CONSTRUCTED ON SAID LANDS.
B-2, Page-2
EXHIBIT B-3
LEGAL DESCRIPTION OF 000 XXXXXX XXXX, XXXXXXX XXXXXXX, XXXXX
Land situated in the CITY of XXXXXXX XXXXXXX, Xxxxxx xx XXXXXX, Xxxxx xx XXXXX,
particularly described as:
Being all that certain 1.589 acre tract or parcel of land, lying and being
situated in the XXXXXX XXXXXX LEAGUE, Abstract No. 46, College Station, Brazos
County, Texas, and being a portion out of that same 10.77 acre tract conveyed
from Pool Portfolio Properties to the Xxxxxxxx Group, Ltd., as described by
deed recorded in Volume 3091, page 1571 of the Official Records of Brazos
County, Texas, said 1.589 acre tract being more particularly described as
follows:
BEGINNING at a 1/2" iron rod found marking the north corner of said 10.77 acre
tract, the west corner of Woodstock, Section 1, as depicted by plat recorded in
Volume 436, page 481 of the Deed Records of Brazos County, Texas, and lying in
the southeast right-of-way line of Xxxxxx Road, also known as Texas Xxxxx
Xxxxxxx Xx. 00;
THENCE S 44 degrees 55 minutes 05 seconds E - 365.00 feet with the northeast
line of said 10.77 acre tract and the southwest line of said Woodstock, Section
1, to a 24" diameter post oak tree found for corner;
THENCE S 42 degrees 18 minutes 55 seconds W - 47.24 feet across said 10.77 acre
tract with the southeast line of said proposed Lot 4 to a 1/2" iron rod set
for angle point;
THENCE S 29 degrees 04 minutes 16 seconds W - 24.83 feet with said proposed lot
line to a 1/2" iron rod set for corner;
THENCE S 78 degrees 22 minutes 29 seconds W - 28.23 feet with said proposed lot
line to a 1/2" iron rod set for angle point;
THENCE N 74 degrees 30 minutes 02 seconds W - 39.63 feet with said proposed lot
line to a 1/2" iron rod set for angle point;
THENCE S 87 degrees 03 minutes 47 seconds W - 41.78 feet with said proposed lot
line to a 1/2" iron rod set for angle point;
THENCE S 87 degrees 44 minutes 30 seconds W - 51.18 feet with said proposed lot
line to a 1/2" iron rod set for angle point;
THENCE N 69 degrees 26 minutes 40 seconds W - 65.76 feet with said proposed lot
line to a 1/2" iron rod set for angle point;
THENCE N 49 degrees 35 minutes 14 seconds W - 63.17 feet with said proposed lot
line to a 1/2" iron rod set for angle point;
THENCE N 37 degrees 14 minutes 25 seconds W - 72.55 feet with said proposed lot
line to a 1/2" iron rod set for angle point;
B-3, Page-1
THENCE N 59 degrees 08 minutes 27 seconds W - 10.41 feet with said proposed lot
line to a 1/2" iron rod set for angle point;
THENCE N 73 degrees 56 minutes 01 seconds W - 49.91 feet with said proposed lot
line to a 1/2" iron rod set for angle point;
THENCE N 82 degrees 23 minutes 54 seconds W - 20.21 feet with said proposed lot
line to a 1/2" iron rod set for corner in said Xxxxxx Road right-of-way line;
THENCE N 45 degrees 45 seconds 53 seconds E - 244.74 feet with said right-of-
way line to the PLACE OF BEGINNING, and containing 1.589 acres of land.
Said 1.589 acre tract to be known as Lot 4, West Wolf Pen Creek Subdivision, a
proposed subdivision in the City of College Station, Brazos County, Texas.
B-3, Page-2
EXHIBIT B-4
LEGAL DESCRIPTION OF 00000 XXXXXXX XXXX XXXX, XXXXXXXXXX XXXXX, XXXXXXXX
Land situated in the CITY of FARMINGTON HILLS, County of OAKLAND, State of
MICHIGAN, particularly described as:
A parcel of land being part of the Northwest 1/4 of Section 14, Town 1 North,
Range 9 East, Farmington Township, now City of Farmington Hills, Oakland
County, Michigan, more particularly described as: Beginning at a point distant
North 87 degrees 31 minutes 36 seconds East, 66.00 feet and South 02 degrees 21
minutes 49 seconds East, 238.00 feet from the Northwest corner of Section 14,
proceeding thence North 87 degrees 31 minutes 36 seconds East, 225.00 feet;
thence South 02 degrees 21 minutes 49 seconds East, 52.00 feet; thence North 87
degrees 31 minutes 36 seconds East, 69.15 feet; thence South 02 degrees 21
minutes 49 seconds East, 5.00 feet; thence North 87 degrees 31 minutes 36
seconds East, 101.19 feet; thence South 02 degrees 33 minutes 54 seconds 219.26
feet to the Northerly right of way line of Xxxxx Xxxxxxx X-000; thence along
said right of way North 61 degrees 26 minutes 00 seconds West, 141.20 feet;
thence along said right of way South 87 degrees 51 minutes 11 seconds West,
160.70 feet; thence along said right of way North 59 degrees 07 minutes 02
seconds West, 136.66 feet to the Easterly line of Orchard Lake Road (126 feet
wide); thence along said Easterly line North 02 degrees 21 minutes 49 seconds
West, 127.40 feet to the point of beginning. Together with non-exclusive
easements for ingress and egress set forth in instruments recorded in Liber
6735, Page 848 and in Liber 7231, Page 303, Oakland County Records, described
as follows:
Easement Parcel No. 1:
A non-exclusive easement for ingress and egress over the following described
land: Part of the Northwest 1/4 of Section 14, Town 1 North, Range 9 East,
Farmington Township, now City of Farmington Hills, Oakland County, Michigan,
more particularly described as: Beginning at a point distant North 87 degrees
31 minutes 36 seconds East 285.00 feet from the Northwest corner of Section 14,
proceeding thence North 87 degrees 31 minutes 36 seconds East 12.15 feet;
thence South 02 degrees 21 minutes 49 seconds East 27.00 feet; thence South 87
degrees 31 minutes 36 seconds West 12.15 feet; thence North 02 degrees 21
minutes 49 seconds West 27.00 feet to the point of beginning.
Easement Parcel No. 2 ( As Amended)
A non-exclusive easement for ingress and egress over the following described
land: Part of the Northwest 1/4 of Xxxxxxx 00, Xxxx 0 Xxxxx, Xxxxx 0 Xxxx,
Xxxx of Farmington Hills, Oakland County, Michigan, described as follows:
Beginning a point distant North 87 degrees 31 minutes 36 seconds East 291.00
feet from the Northwest corner of Section 14, thence South 02 degrees 21
minutes 49 seconds East, 60 feet; thence North 87 degrees 31 minutes 36 seconds
East, 80.15 feet to the point of beginning; thence South 02 degrees 21 minutes
49 seconds East, 205 feet; thence North 87 Degrees 31 minutes 36 seconds East,
22 feet; North 02 degrees 21 minutes 49 seconds West, 205 feet; thence South 87
degrees 31 minutes 36 seconds West, 22 feet to the point of beginning.
Easement Parcel No. 3:
A non-exclusive easement for ingress and egress over the following described
land: Part of the Northwest 1/4 of Xxxxxxx 00, Xxxx 0 Xxxxx, Xxxxx 0 Xxxx,
Xxxx of Farmington Hills, Oakland County, Michigan, more particularly described
as beginning at a point distant North 87 degrees 31 minutes 36 seconds East,
B-4, Page-1
291.00 feet along the centerline of Twelve Mile Road (120 feet wide) and South
02 degrees 21 minutes 49 seconds East, 238.00 feet and North 87 degrees 31
minutes 36 seconds East, 72.15 feet from the Northwest corner of said section
14; thence continuing North 87 degrees 31 minutes 36 seconds East, 8.00 feet;
thence South 02 degrees 21 minutes 49 seconds East, 27.00 feet; thence 87
degrees 31 minutes 36 seconds West, 8.00 feet; thence North 02 degrees 21
minutes 49 seconds West, 27.00 feet to the point of beginning.
Easement Parcel No. 3-A:
Part of the Northwest 1/4 of Xxxxxxx 00, Xxxx 0 Xxxxx, Xxxxx 0 Xxxx, Xxxx of
Farmington Hills, Oakland County, Michigan, described as follows:
Beginning at a point distant North 87 degrees 31 minutes 36 seconds East 291
feet from the Northwest corner of Section 14; thence South 02 degrees 21
minutes 49 seconds East 60 feet; thence North 87 degrees 31 minutes 36 seconds
East 72.15 feet; thence South 02 degrees 21 minutes 49 seconds East, 205 feet
to the point of beginning; thence South 87 degrees 31 minutes 36 seconds West 3
feet; thence South 02 degrees 21 minutes 49 seconds East 30 feet; thence North
87 degrees 31 minutes 36 seconds East 34 feet; thence North 02 degrees 21
minutes 49 seconds West 30 feet; thence South 87 degrees 31 minutes 36 seconds
West 31 feet to the point of beginning.
B-4, Page-2
EXHIBIT B-5
LEGAL DESCRIPTION OF 2224 US 1 ROOSEVELT, TREVOSE, PENNSYLVANIA
Land situated in the TOWNSHIP of BENSALEM, County of BUCKS, State of
PENNSYLVANIA, particularly described as:
ALL THAT CERTAIN tract of land situate in the Township of Bensalem, County of
Bucks, Commonwealth of Pennsylvania, as shown on As-Built Plan of Survey
prepared for Steak and Ale of Pennsylvania, Inc. by Xxxxxxx & Xxxxxx, Inc.
dated June 21, 1989.
BEGINNING at a point on the Northwesterly sideline of Lincoln Highway, Route 1,
S.R. 001, said point being located 378 feet more or less, measured
Southwesterly from the intersection of said sideline with the centerline of Old
Lincoln Highway; thence extending along said sideline of Xxxxxxx Xxxxxxx Xxxxx
00 degrees 46 minutes 18 seconds West 284.96 feet to a point in line of lands
of Xxxxxx X. and Xxxxxx X. Xxxxxx; thence extending along said lands the
following ten (10) courses and distances: (1) North 42 degrees 13 minutes 42
seconds West 55.00 feet to a point (2) North 74 degrees 37 minutes 33 seconds
West 152.07 feet to a point (3) South 83 degrees 00 minutes 51 seconds West
52.20 feet to a point (4) North 59 degrees 43 minutes 49 seconds West 42.72
feet to a point (5) South 79 degrees 09 minutes 27 seconds West 42.72 to a
point (6) North 01 degrees 48 minutes 32 seconds West 112.17 feet to a point
(7) South 88 degrees 11 minutes 28 seconds West 73.68 feet to a point (8) North
01 degree 48 minutes 32 seconds West 45.00 feet to a point (9) North 29 degrees
54 minutes 50 seconds West 54.41 feet to a point (10) North 60 degrees 05
minutes 40 seconds East 222.00 feet to a point; thence continuing along lands
of Xxxxxx X. and Xxxxxx X. Xxxxxx and extending along lands of Bucks County
Industrial Development Authority South 29 degrees 54 minutes 56 seconds East
266.00 feet to a point; thence continuing along lands of Bucks County
Industrial Development Authority North 47 degrees 45 minutes 40 seconds East
240.78 feet to a point in line of lands of Xxxx Pizza, Inc., thence extending
along said lands South 42 degrees 14 minutes 20 seconds East 189.93 feet to the
point and place of beginning.
TOGETHER WITH the benefits of those certain Easements and/or Agreements as
follows: (1) Memorandum of Agreement recorded in Deed Book 2041 page 727 and
Deed Book 2173 page 539 as assigned in Deed Book 2264 page 410 and (2)
Reciprocal Easement Agreement recorded in Deed Book 2570 page 614 as amended in
Deed Book 2599 page 406.
BEING COUNTY PARCEL NUMBER 2-1-2-7
BEING THE SAME PREMISES WHICH S&A RESTAURANT CORP., A DELAWARE CORPORATION BY
DEED DATED JULY 25, 1989 AND RECORDED JULY 27, 1989 IN THE OFFICE FOR THE
RECORDING OF DEEDS, IN AND FOR THE COUNTY OF BUCKS, COMMONWEALTH OF
PENNSYLVANIA IN LAND RECORD BOOK 74 PAGE 2163 GRANTED AND CONVEYED UNTO S&A
PROPERTIES CORP., A DELAWARE CORPORATION, ITS SUCCESSORS AND ASSIGNS, IN FEE.
B-5, Page-1
EXHIBIT B-6
LEGAL DESCRIPTION OF 0000 X. XXXXXXXX XXXXX, XXXXXXX, XXXXXXXX
Land situated in the CITY of NORFOLK, County of NORFOLK, State of VIRGINIA,
particularly described as:
PARCEL ONE:
All that certain lot, piece or parcel of land, together with the appurtenances
thereunto appertaining, lying, situate and being in the City of Norfolk,
Virginia, and known, numbered and designated as "LOT D-1", as shown on that
certain plat entitled "PLAT SHOWING SUBDIVISION NUMBER THREE OF PROPERTY OF
MILITARY SQUARE, INC., NORFOLK, VIRGINIA", dated June 2, 1976, revised June 17,
1976 and revised ____23, 1976, and made by Xxxxxxx and Xxxxxx, surveyors and
Engineers and duly recorded in the Clerk's Office of the Circuit Court of the
City of Norfok, Virginia, in Map Book 29, Page 137.
LESS AND EXCEPT that portion of the above property conveyed for road widening
by instrument recorded in Deed Book 2711, page 445 and shown in XXXX 0, page
219.
PARCEL TWO:
TOGETHER WITH:
A fifty (50) foot wide strip over and across Parcel Eleven (11) in that Deed
from Military Square, Inc., et al, to Equitable Life Assurance Society of the
United States, recorded in Deed Book 1370, page 350 in the Clerk's Office of
the Circuit Court of the City of Norfolk, Virginia, and being more particularly
described as:
BEGINNING at a point on the southern line of Virginia Beach Boulevard where the
western line of the parcel identified as "XXXXXX" on a plat entitled
"SUBDIVISION NUMBER THREE OF PROPERTY OF MILITARY SQUARE, INC.", dated December
1, 1969 and recorded in the Clerk's Office of the Circuit Court of the City of
Norfolk, Virginia in Map Book 25, page 95 intersects; from said point of
beginning South 7 degrees 49 minutes 22 seconds West, 227.26 feet along the
western line of "XXXXXX" to a point; thence North 82 degrees 10 minutes 38
seconds West, 50.00 feet to the southeastern corner of the parcel identified as
Lot D-1 on a "Plat Showing Subdivision of a Portion of Lot D as Shown on
Subdivision Number Three of Property of Military Square, Inc.", dated June 23,
1976 and recorded in the clerk's Office of the Circuit Court of the City of
Norfolk, Virginia, in Map Book 29, page 137; thence along the eastern line of
said "Lot D-1" North 7 degrees 49 minutes 22 seconds East, 225.00 feet to the
southern line of Virginia Beach Boulevard; thence along the southern line of
Virginia Beach Boulevard South 85 degrees 36 minutes 37 seconds East, 21.04
feet and South 84 degrees 09 minutes 02 seconds East, 29.01 feet to the point
of beginning.
PARCEL THREE:
ALSO TOGETHER WITH:
An easement approximately 50 feet in width for ingress and egress, being
bounded and described as follows:
B-6, Page-1
BEGINNING at a point at the southeastern corner of Lot D-1 as shown on a plat
entitled "PLAT SHOWING SUBDIVISION OF A PORTION OF LOT D AS SHOWN ON
SUBDIVISION NUMBER THREE OF PROPERTY OF MILITARY SQUARE, INC.", dated June
23,1976, and recorded in the Clerk's Office of the Circuit Court of the City of
Norfolk, Virginia, in Map Book 29, at page 137, said southeastern corner being
located 225 feet more or less from the southern right of way line of Virginia
Beach Boulevard, and from said point of beginning S 7 degrees 49 minutes 22
seconds West 408.66 feet to a point on the southern boundary line of Lot S as
shown on a plat recorded in the aforesaid Clerk's Office in Map Book 30, page
53, and from said point South 5 degrees 53 minutes 28 seconds East 46.84 feet
to a point on the outside perimeter of the Ring Road which surrounds Military
Circle Shopping Center; thence in a northeasterly direction along a 1425 foot
radius curve to the right an arch length of 58.46 feet to a point, being the
intersection of the southern boundary line of property owned by the Virginia
Electric and Power Company and the Ring Road; thence North 82 degrees 10
minutes 38 seconds West 12.41 feet along the southern lot line of a parcel of
property now or formerly owned by the Virginia Electric and Power Company;
thence continuing North 82 degrees 10 minutes 38 seconds West 9.0 feet to a
point; thence North 7 degrees 49 minutes 22 seconds East 383.67 feet to a point
on the western boundary line of property referred to in the aforesaid Easement
Agreement recorded in Deed Book 1384, page 84, as the Xxxxxx property; thence
North 82 degrees 10 minutes 38 seconds West 50 feet to the point of beginning.
PARCEL FOUR:
AND ALSO TOGETHER WITH:
A ten (10) foot sewer easement to be centered on a line beginning at a point on
the eastern line of a parcel identified as "Lot D-1" on a "PLAT SHOWING
SUBDIVISION OF A PORTION OF LOT D AS SHOWN ON SUBDIVISION NUMBER THREE OF
PROPERTY OF MILITARY SQUARE, INC.", dated June 23, 1976, and recorded in the
clerk's Office of the Circuit Court of the City of Norfolk, Virginia, in Map
Book 29, at page 137, which point is South 7 degrees 49 minutes 22 seconds
West, 155.00 feet from the southern line of Virginia Beach Boulevard; thence
South 82 degrees 10 minutes 38 seconds East, 5.00 feet to a point; thence South
7 degrees 49 minutes 22 seconds West, 443.63 feet to a point; thence North 82
degrees 10 minutes 38 seconds West, 75.00 feet to and extending 5.00 feet past
an existing sanitary sewer manhole.
PARCEL FIVE:
All that certain lot, piece or parcel of land, with the appurtenances thereunto
belonging, lying, situate and being in the City of Norfolk, Virginia, and being
more particularly described as follows, to-wit:
BEGINNING at point being the southwest corner of Lot D-1 as shown in Map Book
29, page 137, in the Clerk's Office of the Circuit Court of the City of
Norfolk, Virginia; thence North 82 degrees 10 minutes 38 seconds West a
distance of 191.55 feet to a point for a corner, said point lying on the
easterly right of way line of Military Highway; thence North 51 degrees 24
minutes 41 seconds East along said easterly line a distance of 271.43 feet to a
point; said point lying on a curve to the right having a central angle of 00
degrees 43 minutes 59 seconds and whose center bears South 22 degrees 50
minutes 06 seconds East 399.34 feet; thence northeasterly along said curve and
arc distance of 5.11 feet to a point for a corner, said point being the
northwest corner of the above described Lot D-!; thence South 07 degrees 49
minutes 22 seconds West a distance of 199.18 feet to the point and place of
beginning.
It being the same property conveyed to CAPTEC FRANCHISE CAPITAL PARTNERS XX XX,
a Delaware LP, by deed form S&A PROPERTIES CORP., formerly known as STEAK AND
ALE RESTAURANTS OF AMERICA INC. and formerly known as STEAK AND ALE OF
VIRGINIA, INC., dated June 11, 1998 and filed for record as Instrument No.
980029642.
B-6, Page-2
EXHIBIT B-7
LEGAL DESCRIPTION OF 32270 XXX XXXX, WARREN, MICHIGAN
Land situated in the CITY of XXXXXX, County of MACOMB, State of MICHIGAN,
particularly described as:
Lots 39 through 50, both inclusive, including the adjoining one-half of the
vacated public alley at the rear thereof of Trembleton Subdivision of part of
the northwest 1/4 of Section 3, town 1 north, range 12 east, Xxxxxx Twp.,
(now City of Xxxxxx) Macomb County Records, Michigan as recorded in liber 9 of
plats, pages 51 and 52 of Macomb County Records, also described as beginning at
the northwest corner of said Lot 50, said point located due south along the
west line of Section 3 a distance of 2039.84 feet and north 88 degrees 54
minutes 30 seconds east 60.00 feet from the northwest corner of Section 3;
thence continuing north 88 degrees 54 minutes 30 seconds east along the south
line of 50 feet wide Xxxxx Ave. 109 feet, thence due south 240.00 feet thence
south 88 degrees 54 minutes 30 seconds west 109.00 feet to the east line of 120
feet wide Xxx Xxxx Ave., thence due north along said east line 240.00 feet to
the point of beginning.
Commonly known as:32270 Xxx Xxxx
Parcel Identification No.00-00-000-000
B-7, Page-1
EXHIBIT B-8
LEGAL DESCRIPTION OF 00000 XXXX XXXXXX, XXXXXXXX, XXXXXXXX
Land situated in the CITY of RICHMOND, County of MACOMB, State of MICHIGAN,
particularly described as:
Xxx 00 xxx Xxx 00, xxxxxx xxxx xxxx xx Xxx 00 described as: Beginning at the
southeast corner of Lot 28; thence north 58 degrees 14 minutes west 108.47
feet; thence north 29 degrees 05 minutes east 147.75 feet; thence south 58
degrees 14 minutes east 80 feet to east line of Lot 28; thence south 18 degrees
17 minutes 10 seconds west 151.77 feet to point of beginning, Supervisor's Plat
No. 1, according to the plat thereof as recorded in liber 16, page(s) 44 of
Plats, Macomb County Records
AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
All that certain lot or parcel of ground situate in the City of Richmond,
County of Macomb, State of Michigan, bounded and described as follows:
Beginning at a point located on the north right-of-way line of Michigan State
Highway Route 19 (Main Street), said point being situated at the southeast
corner of Lot 28 herein described; thence from the place of beginning along the
aforementioned north right-of-way line of Michigan State Highway Route 19 (Main
Street), north 58 degrees 14 minutes 00 seconds west for a distance of 118.14
feet to a point; thence north 17 degrees 48 minutes 11 seconds east for a
distance of 1,078.43 feet to a point; thence south 89 degrees 34 minutes 30
seconds east for a distance of 230.00 feet to a point; thence south 17 degrees
42 minutes 40 seconds west for a distance of 1,050.04 feet to a point; thence
north 58 degrees 14 minutes 00 seconds west for a distance of 80.00 feet to a
point; thence south 29 degrees 05 minutes 00 seconds west for a distance of
147.75 feet to the place of beginning.
Commonly known as: 00000 Xxxx Xxxxxx
Parcel Identification No.: 00-00-000-000
B-8, Page-1
EXHIBIT B-9
LEGAL DESCRIPTION OF 00000 XXXXXXXX XXX., XXXXXXXX, XXXX
Land situated in the CITY of XXXXXXXX, County of XXXXXXXX, State of OHIO,
particularly described as:
Situate in Section 00, Xxxx 0, Xxxxx 0 Xxxx, Xxxxxxxx Xxxxxxxx, Xxxx of
Xxxxxxxx, Xxxxxxxx County, Ohio and being more particularly described as
follows:
Beginning at a point in the centerline of Xxxxxxxx Avenue, said point being
South 52* 52' 32" East, 345.00 feet from the centerline intersection of said
Xxxxxxxx Avenue and Stone Road; thence from said point of beginning, North 37*
07' 28" East, 277.50 feet to a point; thence South 52* 52' 32" East, 102.50
feet to a point; thence along an arc deflecting to the right, having a radius
of 35.00 feet, a distance of 54.98 feet, the chord of said arc bears South 07*
52' 32" East, 49.50 feet to a point; thence South 37* 07' 28" West, 242.50 feet
to a point in the centerline of aforesaid Xxxxxxxx Avenue; thence with said
centerline, North 52* 52' 32" West, 137.50 feet to the point of beginning.
Containing 0.870 acres of land, 0.126 acre of which lies within the right of
way of Xxxxxxxx Avenue, leaving net area of 0.744 acres.
Together with Declaration of Reciprocal Easements and Restrictive Covenants by
and between Xxxxxx Partners A and Taco Xxxx Corp., dated October 11, 1989,
filed for record November 21, 1989 and recorded in Official Record 5148, page
158 of the Xxxxxxxx County, Ohio Records.
PRIOR DEED REFERENCE: Official Record 8052, Page 2051
Also described as follows pursuant to survey by Xxxxxxx Surveying, Inc.,
performed by Xxxxx X. Xxxxxxx Professional Surveyor No. S-7717.
Situate in Section 00, Xxxx 0, Xxxxx 0 Xxxx, Xxxxxxxx Xxxxxxxx, Xxxx of
Xxxxxxxx, Xxxxxxxx County, Ohio and being more particularly described as
follows:
Beginning at a railroad spike found in the centerline of Xxxxxxxx Avenue, said
spike being South 52* 52' 32" East 345 feet from the centerline intersection of
said Xxxxxxxx Avenue and Stone Road; thence from said point of beginning, North
37* 07' 28" East passing through a capped rebar found at 40.00 feet, a total
distance of 277.50 feet to a Mag Nail Set; thence South 52* 52' 32" East,
102.50 feet to a Mag Nail Set; thence along an arc deflecting to the right,
having a radius of 35.00 feet, a distance of 54.98 feet, the chord of said arc
bears South 07* 52' 32" East, 49.50 feet to a Mag Nail Set; thence South 37*
07' 28" West, 242.50 feet to a Mag Nail Set in the centerline of aforesaid
Xxxxxxxx Avenue (witness a 1/2" capped rebar set 40.00 feet distant therefrom
along the last described course); thence with said centerline, North 52* 52'
32" West, 137.50 feet to the point of beginning. Containing 0.870 acres
(37,897 square feet) of land.
Tax Parcel No. 000-0000-0000
Property located at 00000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000
B-9, Page-1
EXHIBIT B-10
LEGAL DESCRIPTION OF 000 XXXXX XXXXX XXXX XXXXX, XXXXXXXXXX, XXXXX
Land situated in the CITY of LEWISVILLE, County of XXXXXX, State of TEXAS,
particularly described as:
Being a 1.563 acre tract of land known as Xxx 0X-X, Xxxxx X, Xxxxx Xxxxx Xxxxx
Addition, an Addition to the City of Lewisville, Xxxxxx County, Texas,
according to the Plat recorded in Cabinet O, Page 188, of the Plat Records,
Xxxxxx County, Texas, and being more particularly described by metes and bounds
as follows:
BEGINNING at an "x" cut in concrete found for corner for the most easterly
corner of said Lot 4B-R located on the westerly right-of-way line of Vista
Ridge Mall Drive (a 70 Foot wide right-of-way), said "x" cut in concrete also
being the most southerly corner of Xxx 0, Xxxxx X, Xxxxx Xxxxx Xxxxx Addition,
to the City of Lewisville, Xxxxxx County, Texas, according to the Plat recorded
in Cabinet 1, Page 000, xx xxx Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx;
THENCE South 33 degrees 38 minutes 27 seconds West, along said westerly right-
of-way line and the southeast line of said Lot 4B-R, a distance of 37.71 feet
to a 1/2 inch iron rod with yellow cap marked RPLS 3989 set for corner, said
point also being the beginning of a curve to the right whose radius point bears
North 56 degrees 21 minutes 33 seconds West, 240.00 feet;
THENCE Southwesterly with said westerly right-of-way line and southeast line of
said Lot 4B-R through a central angle of 12 degrees 34 minutes 41 seconds, an
arc distance of 52.69 feet to a 1/2 inch iron rod with a yellow cap marked
RPLS 3989 set for corner for the end of said curve to the right and the
beginning of a reverse curve to the left having a radius of 260.00 feet;
THENCE Southwesterly with said westerly right-of-way line and the southeast
line of said Lot 4B-R, through a central angle of 12 degrees 34 minutes 41
seconds, an arc distance of 57.08 feet to a 1/2 inch iron rod with yellow cap
marked RPLS 3989 set for corner for the end of said curve;
THENCE South 33 degrees 38 minutes 27 seconds West, continuing along said
westerly right-of-way line and the southeast line of said Lot 4B-R, a distance
of 135.00 feet to a 1/2 inch iron rod with yellow cap marked RPLS 3989 set for
corner for the most southerly corner of said Lot 4B-R and the most easterly
corner of Lot 4C-R;
THENCE North 56 degrees 18 minutes 44 seconds West, along the common line
between said Lots 4B-R and 4C-R, a distance of 188.00 feet to a 1/2 inch iron
rod with yellow cap marked RPLS 3989 set for corner at an angle point on the
southwest line of said Lot 4B-R, said iron rod set being the most northerly
corner of said Lot 4C-R and also being on the southeast line of Xxx 00, Xxxxx
X, Xxxxx Xxxxx Xxxxx Addition, according to the Plat recorded in Cabinet L,
Page 33, of the Plat Records, Xxxxxx County, Texas;
THENCE North 33 degrees 38 minutes 27 seconds East, along the common line
between said Lots 4B-R and 41, a distance of 6.60 feet to a 1/2 inch iron rod
with yellow cap marked RPLS 3989 set for corner at angle point on the southwest
line of said Lot 4B-R for the most easterly corner of said Lot 41;
B-10, Page-1
THENCE North 56 degrees 18 minutes 44 seconds West, along the common line
between said Lots 4B-R and 41, a distance of 51.00 feet to a 1/2 inch iron rod
with yellow cap marked RPLS 3989 set for corner for the most westerly corner of
said Lot 4B-R and the most southerly corner of Lot 4A-R;
THENCE North 33 degrees 38 minutes 27 seconds East, along the common line
between said Lots 4B-R and 4A-R, a distance of 275.00 feet to an "x" cut in
concrete set for corner for the most northerly corner of said Lot 4B-R and the
most easterly corner of said Lot 4A-R, said "x" cut set also being on the
southwest line of Xxx 0, Xxxxx X, Xxxxx Xxxxx Xxxxx Addition, an addition to
the City of Lewisville, Xxxxxx County, Texas, according to the Plat recorded in
Cabinet I, Page 000, xx xxx Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx;
THENCE South 56 degrees 18 minutes 45 seconds East, along the common line
between said Lots 4B-R and 2, and continuing with the southwest line of the
aforementioned Lot 1, a distance of 251.00 feet to the PLACE OF BEGINNING and
containing 68,063 square feet or 1.563 acres of land.
TRACT II
Easement for surface water drainage granted in Slope and Drainage Easement
filed September 14, 1987, recorded in Volume 2240, Page 346, Official Public
Records, Xxxxxx County, Texas, as amended by instrument filed November 15,
1988, recorded in Volume 2486, Page 162, Official Public Records, Xxxxxx
County, Texas.
TRACT III
Easement for pedestrian and vehicular access, ingress/egress and for utility
systems granted in First Amended and Restated Declaration of Covenants,
Conditions and Restrictions, filed April 15, 1993, recorded under County
Clerk's File No. 93-R0022261, Official Public Records, Xxxxxx County, Texas.
TRACT IV:
Easement for pedestrian and vehicular ingress and egress, over and across those
portions of Xxx 0X-X, Xxxxx X, Xxxxx Xxxxx Xxxxx Addition, an Addition to the
City of Lewisville, Xxxxxx County, Texas, according to the plat thereof
recorded in Cabinet 0, Page 000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, now or
hereafter developed with driveways, walkways, or roadways, granted in Gross
Access Easement Agreement dated February 25, 1998, filed March 2, 1998,
recorded under County Clerk's File No. 98-R0015210, Deed Records, Xxxxxx
County, Texas.
B-10, Page-2
EXHIBIT B-11
LEGAL DESCRIPTION OF 7415 XXXXXX ROAD, PHOENIX, ARIZONA
Land situated in the CITY of PHOENIX, County of MARICOPA, State of ARIZONA,
particularly described as:
That part of the West half of the Northwest quarter of Section 36, Township 2
North, Range 1 East of the Gila and Salt River Meridian, Maricopa County,
Arizona, described more particularly as follows:
COMMENCING at the Northwest corner of said Section 36 (brass cap in a handhole)
as accepted by the City of Phoenix, being the intersection of the centerlines
of 00xx Xxxxxx and Xxxxxx Road, said point being 1.46 feet North and 32.72 feet
West of a brass cap in a handhole called the Southwest corner of Section 25 per
the map recorded in Book 21 of Maps, page 32, Maricopa County Records;
THENCE South along the West line of Section 36, a distance of 65.02 feet to a
point on a line 65 feet South of and parallel with the North line of Section
36;
THENCE North 88 degrees 43 minutes 56 seconds East along said parallel line, a
distance of 295.07 feet to the TRUE POINT OF BEGINNING;
THENCE continuing North 88 degrees 43 minutes 56 seconds East, a distance of
138.98 feet;
THENCE South 46 degrees 16 minutes 04 seconds East, a distance of 16.97 feet;
THENCE North 88 degrees 43 minutes 56 seconds East, a distance of 46.00 feet;
THENCE North 01 degrees 16 minutes 04 seconds West, a distance of 10.00 feet;
THENCE North 43 degrees 43 minutes 56 seconds East, a distance of 16.97 feet to
a point on a line 55 feet South of and parallel with the North line of Section
36;
THENCE North 88 degrees 43 minutes 56 seconds East along said parallel line, a
distance of 36.47 feet;
THENCE South 00 degrees 05 minutes 44 seconds West parallel to the East line of
the West half of the Northwest quarter of said Section 36, a distance of 177.99
feet;
THENCE South 88 degrees 43 minutes 56 seconds West parallel with the North line
of said Section 36, a distance of 244.93 feet;
THENCE North, a distance of 167.98 feet to the TRUE POINT OF BEGINNING;
EXCEPTING therefrom all rights to any and all minerals, ores and metals of
every kind and character, and all coal, asphaltum, oil, gases, fertilizers,
fossils and other like substances in or under said land and the right of
ingress and egress for the purpose of mining, together with enough of the
surface of land as may be necessary for the proper and convenient working and
extraction of such minerals and substances, as reserved by the State of Arizona
in Patent recorded April 2, 1919, in Book 137 of Deeds, page 284, Maricopa
County Records.
B-11, Page-1
EXHIBIT B-12
LEGAL DESCRIPTION OF 0000 X. XXXXXXXX XXXX, XXXX, XXXXXXX
Land situated in the CITY of MESA, County of MARICOPA, State of ARIZONA,
particularly described as:
PARCEL NO. 1:
Lot 3 and that portion of Xxx 0, XXXX XXXXXX XXXXXXXX XXXXXX, XXXX XX,
according to the plat of record in the office of the County Recorder of
Maricopa County, Arizona, in Book 327 of Maps, page 50, described as follows:
BEGINNING at the Northwest corner of said Lot 3;
THENCE North 89 degrees 58 minutes 41 seconds East, a distance of 251.73 feet;
THENCE South 35 degrees 40 minutes 04 seconds along the dividing line of Lots 4
and 6 of said recorded plat, a distance of 49.24 feet;
THENCE North 79 degrees 51 minutes 15 seconds West along the dividing line of
Lots 3 and 6 of said recorded plat, a distance of 226.56 feet to the TRUE POINT
OF BEGINNING;
EXCEPT that portion of Lot 3 described as follows:
BEGINNING at the Southeast corner of said Lot 3;
THENCE South 89 degrees 58 minutes 41 seconds West, a distance of 51.27 feet;
THENCE North 80 degrees 17 minutes 38 seconds West, a distance of 59.18 feet to
a point on the North right-of-way line of East Baseline Road;
THENCE North 89 degrees 58 minutes 41 seconds East parallel with the monument
line of East Baseline Road, a distance of 109.60 feet to the East line of said
Lot 3;
THENCE South 00 degrees 01 minutes 19 seconds East, a distance of 10.00 feet to
the point of beginning.
PARCEL NO. 2:
All easements appurtenant to Parcel No. 1 for roadways, walkways, ingress and
egress, the parking of motor vehicles and use of facilities installed for the
comfort and convenience of customers, invitees and employees as created,
granted and more particularly described in the certain "Easements with
Covenants and Restrictions Affecting Land (ECR)" recorded May 4, 1984, in
Document No. 84-192823, as amended in Amendment recorded in Document No. 89-
111164, in Second Amendment recorded in Document No. 89-384877, and in Third
Amendment recorded in Document No. 00-0000000, and re-recorded in Document No.
92-0504320, Maricopa County Records, over, along and across the Common Areas.
B-12, Page-1
PARCEL NO. 3:
A nonexclusive easement for pedestrian and vehicular ingress and egress as
created, granted and more particularly described in that certain "Reciprocal
Easements" recorded June 10, 1996, in Document No. 96-0407714, Maricopa County
Records.
PARCEL NO. 4:
A nonexclusive easement for vehicular and pedestrian ingress and egress as
created, granted and more particularly described in that certain "Reciprocal
Easements" recorded November 6, 1996, in Document No. 96-0787979, Maricopa
County Records.
PARCEL NO. 5:
A nonexclusive easement for vehicular and pedestrian ingress and egress as
created, grated and more particularly described in that certain "Reciprocal
Easements" recorded August 14, 1997, in Document No. 97-0556239, Maricopa
County Records.
B-12, Page-2
EXHIBIT C
LEASE SCHEDULE
SEE NEXT PAGE
C-1
ORIGINAL COMM.
LEASE NO. TENANT NAME PROPERTY ADDRESS CITY STATE COUNTY ZIP LEASE DATE DATE
--------- ----------- ---------------- ---- ----- ------ --- ---------- ----
34-7719 S&A 00000 Xxxxxxx Xxxx Xxxxxxxxxx
Xxxx Xxxxx XX Xxxxxxx 00000 6/11/1998 7/1/1998
34-7724 S&A 0000 XX 0 Xxxxxxxxx Xxxxxxx XX Xxxxx 00000 6/11/1998 7/1/1998
34-7728 S&A 0000 X. Xxxxxxxx Xxxxx Xxxxxxx XX Xxxxxxx 00000 6/11/1998 0/0/0000
XXXXXX Xxxx XX,
00-0000 LLC 0000 Xxxxxxxxxx Xxxxxx Xxxxxxxxxxx XX Xxxx 00000 5/8/1998 2/1/1999
34-7950 Tec Foods 00000 Xxx Xxxx Xxxxxx XX Xxxxxx 00000 12/14/1998 1/1/1999
34-7951 Tec Foods 00000 Xxxx Xxxxxx Xxxxxxxx XX Macomb 48062 12/14/1998 1/1/1999
000 Xxxxx Xxxxx Xxxx
34-8582 Simply Fondue, Inc. Drive Lewisville TX Xxxxxx 75067 11/15/2004 12/1/2004
34-7810 Vacant 0000 X. Xxxxxxxx Xxxx Xxxx XX Xxxxxxxx 00000 NA NA
34-6386 NT Management 000 Xxxxxxx Xxxx Xxxxx Xx Xxxx XX Xx Xxxx 00000 7/25/1997 8/1/1997
Kona Restaurant College
34-7448 Group, Inc. 000 Xxxxxx Xx. Xxxxxxx XX Xxxxxx 00000 1/13/1999 8/1/1999
34-9223 SDI Foods, Inc. 00000 Xxxxxxxx Xxx. Xxxxxxxx XX Xxxxxxxx 45030 8/17/1999 9/1/1999
34-7809 Vacant 0000 Xxxxxx Xx. Xxxxxxx XX Maricopa 85033 NA NA
TERMINATION SECURITY PURCHASE
LEASE NO. TENANT NAME DATE DEPOSIT ROFR PRICE
--------- ----------- ---- ------- ---- -----
34-7719 S&A
7/1/2018 $0.00 Y $3,175,000
34-7724 S&A 7/1/2018 $0.00 Y $3,650,000
34-7728 S&A 7/1/2018 $0.00 Y $2,450,000
CALVIR Taco II,
34-7294 LLC 2/1/2019 $0.00 N $1,900,000
34-7950 Tec Foods 1/1/2019 $0.00 N $ 900,000
34-7951 Tec Foods 1/1/2019 $0.00 N $ 900,000
34-8582 Simply Fondue, Inc 2/1/2015 $0.00 N $1,500,000
34-7810 Vacant NA $0.00 N $ 400,000
34-6386 NT Management 8/1/2014 $0.00 N $2,125,000
Kona Restaurant
34-7448 Group, Inc. 8/1/2016 $0.00 N $2,075,000
34-9223 SDI Foods, Inc. 9/1/2019 $0.00 N $1,500,000
34-7809 Vacant NA $0.00 N $ 400,000
C-2
EXHIBIT C-1
RENT ROLL
TENANT CONCEPT CITY STATE ANNUAL RENT MONTHLY RENT
------ ------- ---- ----- ----------- ------------
NT Management Carino's El Paso TX $ 194,040 $ 16,170.00
CALVIR Taco II, LLC Del Taco Bakersfield CA $ 137,201 $ 11,433.42
Kona Restaurant Group, Inc. Carino's College Station TX $ 188,158 $ 15,679.84
S&A Restaurant Corporation Steak & Ale Farmington Hills MI $ 230,340 $ 19,195.00
S&A Restaurant Corporation Steak & Ale Trevose PA $ 267,768 $ 22,314.00
S&A Restaurant Corporation Bennigan's Norfolk VA $ 178,512 $ 14,876.00
TEC Foods Taco Xxxx Warren MI $ 77,848 $ 6,487.34
TEC Foods Taco Xxxx Richmond MI $ 77,848 $ 6,487.34
SDI Foods Inc. Taco Xxxx Xxxxxxxx OH $ 127,524 $ 10,627.00
Simply Fondue Simply Fondue Lewisville TX $ 142,716 $ 11,893.00
None Vacant Xxxxxxx XX XX XX
Xxxx Xxxxxx Xxxx XX NA NA
C-1, Page-1
EXHIBIT D
FORM OF XXXXXXX MONEY ESCROW AGREEMENT
RE: Escrow Trust No. NYN05-000257-L
DATE: February __ 2005
1. PARTIES
A. Purchaser:
Gibraltar 1031 Restaurants, LLC
X.X. Xxx 000000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telephone: 000.000.0000
Facsimile: 760.633.3723
With copies to: Xxxxxxx X. Xxxxxx
Xxxxx & XxXxxxxx
One Prudential Plaza
0000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000.000.0000
Facsimile: 312.861.2899
And
Xxxx X. Xxxxxxx
Holland & Knight LLP
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000.000.0000
Facsimile: 312.715.5740
B. Seller: Captec Franchise Capital Partners L.P. III
24 Xxxxx Xxxxx Xxxxxx Drive
Lobby L, Fourth Floor, P.O. Box 544
Ann Arbor, Michigan 48106-0544
Attention: Xxxxxx Xxxxxxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With copies to: Much Shelist
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telephone No.: (000)000-0000
Fax No.: (000) 000-0000
D-1
C. Escrow
Holder: LandAmerica Commercial Services - New York City Office
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Vice President
Phone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxx@xxxxxx.xxx
Xxxxx Xxxxxxxxx, CS Title Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxxxxxxxxxx@xxxxxx.xxx
2. PRELIMINARY STATEMENTS
A. Prior to the execution and delivery of this Xxxxxxx Money Escrow
Agreement ("ESCROW AGREEMENT"), Seller and Purchaser executed and delivered a
certain Agreement of Sale with an "Effective Date" of February ___, 2005 ("SALE
AGREEMENT"). Under the terms of the Sale Agreement, Seller agreed to sell to
Purchaser certain parcels of land and improvements commonly referred to in
Exhibit A attached to the Sale Agreement.
B. Pursuant to the Sale Agreement, Purchaser is required to deposit
with the Escrow Holder the initial sum of $100,00.00, with an additional
$100,000.00 to be deposited pursuant to the terms of the Sale Agreement (the
"XXXXXXX MONEY") to be held by Escrow Holder under the terms and provisions of
this Escrow Agreement.
3. DEPOSIT OF XXXXXXX MONEY; INVESTMENT DIRECTIONS
A. Concurrently with the execution of this Escrow Agreement, Purchaser
deposited the Xxxxxxx Money with the Escrow Holder in accordance with the Sale
Agreement.
B. The Xxxxxxx Money IS/IS NOT (Purchaser to select) to be invested.
4. INSTRUCTIONS
A. Escrow Holder is to hold the Xxxxxxx Money until: (a) Escrow Holder
is in receipt of a joint order by Seller and Purchaser as to the disposition of
the Xxxxxxx Money; or (b) Escrow Holder is in receipt of a written demand (the
"DEMAND") from either Seller or Purchaser for the payment of the Xxxxxxx Money
or any portion thereof. Any Demand under subparagraph 4.A must include proof of
delivery of a copy of the same to the non-demanding party. If within five (5)
business days after Escrow Holder's receipt of any Demand under subparagraph
4A(b), Escrow Holder has not received from the non-demanding party written
notice of its objection to the Demand, then Escrow Holder will be authorized to
disburse the Xxxxxxx Money as requested by the Demand. If within said 5-
business day period Escrow Holder receives from the non-demanding party its
notice of objection to the Demand, then Escrow Holder will continue to hold the
Xxxxxxx Money until it is in receipt of a joint order as aforesaid, but after
sixty (60) days Escrow Holder may deposit the Xxxxxxx Money with a court of
competent jurisdiction.
D-2
B. Except as set forth in Paragraph 4.A. above, the Escrow Holder is
instructed to hold the Xxxxxxx Money until the Escrow Holder is in receipt of:
(i) a joint written direction from Seller (or Seller's Counsel) and Purchaser
(or Purchaser's Counsel); or (ii) an order, judgment or decree addressed to
Escrow Holder which is entered or issued by any court and which determines the
disposition of the Xxxxxxx Money and all interest earned.
C. Any party delivering a notice required or permitted under this
Escrow Agreement must simultaneously deliver copies of such notice to all
parties listed in Section 1 of this Escrow Agreement. All required notices
must be either personally delivered, sent by certified or registered mail,
postage prepaid, return receipt requested, or sent by overnight courier and, in
all instances, will be deemed to have been received upon delivery.
D. Except as otherwise expressly set forth in this Escrow Agreement,
Escrow Holder may disregard any and all notices or warnings given by any of the
parties.
E. If Escrow Holder obeys or complies with any order, judgment or
decree of any court with respect to the Xxxxxxx Money, Escrow Holder may not be
liable to any of the parties or any other person, firm or corporation by reason
of such compliance, notwithstanding any such order, judgment or decree be
entered without jurisdiction or be subsequently reversed, modified, annulled,
set aside or vacated. In case of any suit or proceeding regarding this Escrow
Agreement to which Escrow Holder is or may be at any time a party, Seller and
Purchaser each will be liable for one-half of all such costs, fees and expenses
incurred or sustained by Escrow Holder and must promptly pay the same to Escrow
Holder upon demand; provided, however, that in the event Escrow Holder is made
a party to any suit or proceeding between Seller and Purchaser, the prevailing
party in such suit or proceeding will have no liability for the payment of
Escrow Holder's costs, fees and expenses.
F. In no case may the above mentioned deposits be surrendered except
in the manner specifically described in this Escrow Agreement.
G. All fees of Escrow Holder will be charged one-half to Seller and
one-half to Purchaser. However, Purchaser is solely responsible for the payment
of any investment fees.
H. Except as to deposits of funds for which Escrow Holder has received
express written direction from Purchaser (or Purchaser's Counsel) concerning
investment or other handling, the parties agree that Escrow Holder is under no
duty to invest or reinvest any deposits at any time held by it; and, further,
that Escrow Holder may commingle such deposits with other deposits or with its
own funds and may use any part or all such funds for its own benefit without
obligation to any party for interest or earnings derived thereby, if any,
provided, however, nothing herein shall diminish Escrow Holder's obligation to
apply the full amount of the deposits in accordance with the terms of this
Escrow Agreement.
I. Any order, judgment or decree requiring the Escrow Holder to
disburse the Xxxxxxx Money will not be binding upon Purchaser or Seller as to
the ultimate disposition of the Xxxxxxx Money unless and until a final, order,
judgment or decree (not subject to appeal) is entered by a court having
jurisdiction.
J. This Escrow Agreement is binding upon and will inure to the benefit
of the parties and their respective legal representatives, successors and
permitted assigns.
K. In the event that the Escrow Holder receives conflicting
instructions from the parties or determines in good faith that a bonafide
dispute exists as to whether the Escrow Holder is obligated to deliver the
Xxxxxxx Money, or as to whom said Xxxxxxx Money is to be delivered, the Escrow
Holder, at its option, (a) may refuse to comply with any claims or demands on
it and continue to hold the Xxxxxxx
D-3
Money until (I) the Escrow Holder receives written notice signed by the Seller
and the Purchaser directing the release and delivery of the Xxxxxxx Money, in
which event the Escrow Holder shall then release and deliver the Xxxxxxx Money
in accordance with said direction, or (ii) the Escrow Holder receives a
certified copy of a final non-appealable judgment of a court of competent
jurisdiction directing the release and delivery of the Xxxxxxx Money, in which
event the Escrow Holder shall then release and deliver the Xxxxxxx Money in
accordance with said direction, or (b) may deliver the Xxxxxxx Money to the
Clerk of the Superior Court of the State of New York, for the County of New
York, or (c) may take such affirmative steps as the Escrow Holder may elect in
order to substitute another impartial party reasonably satisfactory to the
Seller and the Purchaser (whose consents to such substitution shall not be
unreasonably withheld), to hold the Xxxxxxx Money, including, without
limitation, the deposit thereof in a court of competent jurisdiction and the
commencement of an action for interpleader, the costs thereof to be the joint
and several obligation of the Seller and the Purchaser (but, as between the
Seller and the Purchaser, such costs shall be borne by whichever of the Seller
or the Purchaser is the losing party, or in accordance with any mutual agreement
of the Seller and the Purchaser if neither party is the losing party).
The Escrow Holder is acting as a stakeholder only with respect to
the Xxxxxxx Money. It is agreed that the duties of the Escrow Holder are only
as herein specifically provided, and are purely ministerial in nature, and that
the Escrow Holder shall incur no liability whatsoever except for willful
misconduct or gross negligence. The Seller and the Purchaser each release the
Escrow Holder from any act done or omitted to be done by the Escrow Holder in
good faith in the performance of its duties hereunder.
The Seller and the Purchaser shall jointly and severally indemnify,
defend (with counsel acceptable to the Escrow Holder) and save harmless the
Escrow Holder from and against all loss, cost, claim, liability, damage and
expense, including reasonable attorneys' fees and disbursements incurred in
connection with the performance of the Escrow Holder's duties hereunder, except
with respect to actions or omissions taken or suffered by the Escrow Holder in
bad faith, in willful disregard of this Escrow Agreement, or involving gross
negligence on the part of the Escrow Holder (the "INDEMNIFIED MATTERS") (but,
as between the Seller and the Purchaser, the cost of such Indemnified Matters
shall be shared equally, except to the extent that such Indemnified Matters are
attributable to the breach by the Seller or the Purchaser of the Agreement or
this Escrow Agreement, in which event the cost shall be borne by whichever of
the Seller or the Purchaser is the breaching party.
The parties agree and acknowledge that the Escrow Holder has no
liability in connection with Xxxxxxx Money in the event of failure or
insolvency of the financial institution in which the Xxxxxxx Money is
deposited.
Escrow Holder hereunder may resign at any time giving ten (10)
business days prior written notice to that effect to each of the Seller and
Purchaser. In such event, the successor Escrow Holder shall be selected by the
Purchaser and approved by Seller, such approval not to be unreasonably withheld
or delayed. Escrow Holder shall then deliver to successor Escrow Holder the
Xxxxxxx Money, to be held by successor Escrow Holder pursuant to the terms of
this Escrow Agreement and the Agreement.
In its capacity as Escrow Holder, Escrow Holder shall not be
responsible for the genuineness or validity of any security, instrument,
document or item deposited with it, and shall have no responsibility other than
to faithfully follow the instructions contained herein, and it is fully
protected in acting in accordance with any written instrument given to it
hereunder by any of the parties hereto and believed by Escrow Holder to have
been signed by the proper person. Escrow Holder may assume that any person
purporting to give any notice hereunder and representing that they have
authority to do so has been duly authorized to do so.
D-4
Escrow Holder shall have no duties or responsibilities other than
those expressly set forth herein. Escrow Holder shall have no duty to enforce
any obligation of any person to make any payment or delivery or to enforce any
obligation of any person to perform any other act. Escrow Holder shall be
under no liability to the other parties hereto or to anyone else by reason of
any failure on the part of any party hereto or any maker, guarantor, endorser
or other signatory of any document or any other person to perform such person's
obligations under any such document.
Escrow Holder shall be entitled to approve (not to be unreasonably
withheld or delayed) any and all counsel who may be retained to defend or
prosecute any action on behalf of Escrow Holder under or arising out of this
Escrow Agreement.
This Escrow Agreement and the obligations of the parties hereunder
shall be interpreted, construed and enforced in accordance with the laws of the
State of New York.
[SIGNATURE PAGE FOLLOWS]
D-5
IN WITNESS WHEREOF, the parties have executed this Xxxxxxx Money Escrow
Agreement as of the Effective Date.
FOR PURCHASER:
By:______________________________________________
XXXXXXX X. XXXXXX, XXXXX & XXXXXXXX
OR
XXXX X. XXXXXXX, HOLLAND & KNIGHT LLP,
ITS ATTORNEYS
FOR SELLER:
By:______________________________________________
XXXXX XXXXXX, MUCH SHELIST, ITS ATTORNEYS
Accepted as of February ___, 2005
LANDAMERICA,
Escrow Holder
By:______________________________________
XX. XXXXX XXXXXXXXX, ESCROW OFFICER
D-6
EXHIBIT E-1
WARRANTY DEED
THE STATE OF TEXAS
KNOW ALL PERSONS BY THESE PRESENTS:
COUNTY OF EL PASO
CAPTEC FRANCHISE CAPITAL PARTNERS X.X. XX, a Delaware limited partnership
(hereinafter called "Grantor"), for and in consideration of the sum of Ten
Dollars ($10.00) and other valuable consideration paid by GIBRALTAR 1031
RESTAURANTS, LLC, a Delaware limited liability company (hereinafter called
"Grantee"), to Grantor, the receipt and sufficiency of which are hereby
acknowledged, does hereby GRANT, BARGAIN, SELL, CONVEY, ASSIGN and DELIVER to
Grantee the following:
See legal description attached hereto as Exhibit "A"
TO HAVE AND TO HOLD the Conveyed Properties, together with all and
singular the rights and appurtenances thereto in anywise belonging unto
Grantee, its successors and assigns FOREVER, and Grantor does hereby bind
itself and its successors to WARRANT AND FOREVER DEFEND all and singular the
Conveyed Properties unto Grantee and its successors and assigns against every
person whomsoever lawfully claiming, or to claim the same, or any part thereof,
subject, however, to the Permitted Encumbrances.
Current real property taxes on the Land have not been prorated between
the Grantor and the Grantee, and the Grantee does not assume the obligation to
pay such real property taxes, it being understood and agreed that the real
property taxes accruing against the Land prior to and including the date hereof
are to be paid by the Grantor and real property taxes accruing against the Land
accruing from and after the date hereof shall be paid by tenant of the Land
subsequent to the date hereof.
IN WITNESS WHEREOF, this Warranty Deed is executed as of the
___ day of __________________________, 2005.
CAPTEC FRANCHISE CAPITAL
PARTNERS X.X. XX
By: GP 4 Asset Acquisition, LLC
Its: General Partner
By: ________________________
Its: ________________________
E-1, Page-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 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
Grantee's Address:
X.X. Xxx 000000, Xxxxxxxxx, XX 00000
E-1, Page-2
Exhibit "A"
(i) A portion of Xxx 0, Xxxxx 0, XXXXXXXX XXX XXX, XXXX XXX, an Addition
to the City of El Paso, El Paso County, Texas according to the plat
thereof on file in Volume 69, Page 30, Real Property Records, El Paso
County, Texas (the "Land"), said portion being more particularly described
by metes and bounds as follows;
COMMENCING for reference at the City Monument at the centerline
intersection of Mesa Hills Drive and Sunland Park Drive from which the
City Monument at Bluff Ridge Drive bears North 55 degrees, 55 minutes 09
seconds West, a distance of 850.90 feet;
THENCE, along the centerline of said Xxxx Xxxxx Xxxxx, Xxxxx 00 degrees
03 minutes 02 seconds West, a distance of 245.04 feet to a point;
THENCE, leaving said centerline, North 54 degrees 56 minutes 58 seconds
East, a distance of 72.00 feet to a point in the northeasterly right-of-
way line of said Mesa Hills Drive;
THENCE, leaving said right xx xxx xxxx, Xxxxx 00 degrees 01 minutes 02
seconds East, a distance of 182.50 feet to a set 1/2" rebar and POINT OF
BEGINNING for the herein described tract;
THENCE, North 45 degrees 01 minutes 02 seconds East, a distance of 181.78
feet to a set 1/2" rebar;
THENCE, South 90 degrees 00 minutes 00 seconds East, a distance of 67.75
feet to a set 1/2" rebar;
THENCE, South 44 degrees 58 minutes 30 seconds East, a distance of 341.21
feet to a set 1/2" rebar in the northerly right of way line of Sunland
Park Drive;
THENCE, along said right of way line, the following three courses:
South 60 degrees 07 minutes 18 seconds West, a distance of 59.09 feet to
a set 1/2" rebar;
North 44 degrees 58 minutes 30 seconds West, a distance of 10.99 feet to
a set 1/2" rebar at the beginning of a curve to the right;
Along the arc of said curve (Delta Angle 05 degrees 47 minutes 57
seconds, Radius 1,837.08 feet, Chord South 85 Degrees 10 minutes 41
seconds West, 185.86 feet) a distance of 185.94 feet to a set 1/2"
rebar;
THENCE, leaving said right xx xxx xxxx, Xxxxx 00 degrees 54 minutes 37
seconds West, a distance of 4.75 feet to a set 1/2" rebar;
THENCE, North 44 degrees 58 minutes 58 seconds West, a distance of 294.29
feet to the POINT OF BEGINNING and containing 78,056 feet or 1.792 acres
of land.
(ii) all buildings and other improvements situated on the Land and all
fixtures and other property affixed thereto;
E-1, Page-3
(iii) all and singular the rights and appurtenances pertaining to the
Land and improvements, including any right, title and interest of Grantor
in and to adjacent streets, alleys or right-of way;
(iv) all of Grantor's right, title and interest in and to or arising
under that certain non-exclusive Access Easement Agreement executed by
Xxxx Building Corporation, and recorded at Volume 2768, Page 171 of the
Real Property Records, El Paso County, Texas; and all of Grantor's right,
title and interest in and to or arising under that certain non-exclusive
Reciprocal Easement and Operation Agreement dated 07/18/94, recorded in
Volume 2768, Page 187, Real Property Records of El Paso County, Texas,
(hereinafter called "Easement Tract");
(all of the foregoing hereinafter called the "Conveyed Properties").
This conveyance is made and accepted subject to the encumbrances
described in Exhibit "A" attached hereto and made a part hereof
(hereinafter called the "Permitted Encumbrances").
E-1, Page-4
EXHIBIT E-2
RECORDING REQUESTED BY
Grantee
WHEN RECORDED MAIL TO:
Gibraltar 1031 Restaurants, LLC
X.X. Xxx 000000
Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
THE UNDERSIGNED GRANTOR DECLARES:
DOCUMENTARY TRANSFER TAX $ NOT FOR PUBLIC RECORD.
COMPUTED ON THE CONSIDERATION OR VALUE OF PROPERTY CONVEYED; OR COMPUTED ON THE
CONSIDERATION OR VALUE LESS LIENS OR ENCUMBRANCES REMAINING AT THE TIME OF
SALE.
APN: 020-020-05-00-7
--------------------------------------------------------------------------------
GRANT DEED
FOR A VALUABLE CONSIDERATION, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED,
CAPTEC FRANCHISE CAPITAL PARTNERS X.X. XX, a Delaware limited partnership
HEREBY GRANT(S) TO
GIBRALTAR 1031 RESTAURANTS, LLC, a Delaware limited liability company
THE REAL PROPERTY IN XXX XXXX XX XXXXXXXXXXX, XXXXXX XX XXXX, XXXXX OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
SEE THE ATTACHED EXHIBIT "A"
DATE: ____________
CAPTEC FRANCHISE CAPITAL
PARTNERS X.X. XX
By: GP 4 Asset Acquisition, LLC
Its: General Partner
By: ________________________
Its: ________________________
E-2, Page-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
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
MAIL TAX STATEMENTS TO:
GRANTEE
E-2, Page-2
EXHIBIT "A"
ALL THAT CERTAIN LAND SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF XXXX AND
IS DESCRIBED AS FOLLOWS:
PARCEL 1:
THAT PORTION OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF THE NORTHEAST
QUARTER OF SECTION 35, TOWNSHIP 29 SOUTH, RANGE 27 EAST, M.D.B.M., IN THE
COUNTY OF XXXX, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID SECTION 35, THENCE SOUTH 00 DEGREES
52' 47" WEST, TO X XXXXX XX XXX XXXXXXXXXX XX XXXXXXXXXX XXXXXX; THENCE ALONG
SAID CENTERLINE NORTH 89 DEGREES 05'56" WEST, 70.66 FEET TO A POINT ON A CURVE
CONCAVE TO THE SOUTHEAST, WITH A RADIUS OF 3500 FEET; THENCE ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 20 DEGREES 01'59" AN ARC DISTANCE OF 1223.75 FEET;
THENCE SOUTH 70 DEGREES 52'05" WEST, 90.54 FEET TO THE POINT OF INTERSECTION OF
THE CENTERLINES OF CALIFORNIA AVENUE AND REAL ROAD; THENCE CONTINUING SOUTH 70
DEGREES 52'05" WEST 81.69 FEET TO A POINT; THENCE NORTH 15 DEGREES 43'58" WEST
49.76 FEET; THENCE NORTH 04 DEGREES 44'25" EAST, 5.84 FEET TO THE TRUE POINT OF
BEGINNING OF THIS DESCRIPTION, WHICH TRUE POINT IS HEREINAFTER CALLED "POINT
A", THENCE SOUTH 70 DEGREES 52'05" WEST 210.00 FEET; THENCE NORTH 19 DEGREES
07' 55" WEST, 160 FEET; THENCE NORTH 70 DEGREES 52'05" EAST 295.47 FEET' THENCE
SOUTH 13 DEGREES 52'54 WEST, 87.59 FEET; THENCE SOUTH 04 DEGREES 44'25" WEST
94.35 FEET TO SAID POINT A.
EXCEPTING THEREFROM ANY PORTION LYING WITHIN EASTON DRIVE AS SHOWN ON MAP OF
TRACT 3202 RECORDED OCTOBER 24, 1968 IN BOOK 16 PAGES 174, 175 AND 176 OF MAPS,
XXXX COUNTY RECORDS.
EXCEPTING THEREFROM ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS,
NATURAL GAS RIGHTS, AND OTHER HYDROCARBORNS BY WHATSOEVER NAME KNOW THAT MAY BE
WITHIN OR UNDER THE PARCEL OF LAND HEREINABOVE DESCRIBED, TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING, AND OPERATING THEREOF AND
REMOVING THE SAME FROM SAID LAND, OR ANY OTHER LAND, INCLUDING THE RIGHT TO
WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THESE
HEREINABOVE DESCRIBED, OIL OR GAS XXXXX, TUNNELS AND SHAFTS INTO, THROUGH OR
ACROSS THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED XXXXX, TUNNELS, AND SHAFTS UNDER AND
BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL,
EQUIP., MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH XXXXX OR MINES, WITHOUT,
HOWEVER, THE RIGHT TO DRILL, MINE, EXPLORE AND OPERATE THROUGH THE SURFACE OR
THE UPPER 100 FEET OF THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED OR
OTHERWISE IN SUCH MANNER AS TO ENDANGER THE SAFETY OF ANY HIGHWAY THAT MAY BE
CONSTRUCTED ON SAID LANDS.
E-2, Page-3
PARCEL 2:
THAT PORTION OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF THE NORTHEAST
QUARTER OF SECTION 35, TOWNSHIP 29 SOUTH, RANGE 27 EAST, M.D.B.M., IN THE
COUNTY OF XXXX, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT A, AS HEREINABOVE DESCRIBED, THENCE SOUTH 70 DEGREES
52'05" WEST 210 FEET; THENCE SOUTH 19 DEGREES 07'55" EAST, 85.00 FEET; THENCE
NORTH 70 DEGREES 52'05" EAST, 16.56 FEET; THENCE NORTH 13 DEGREES 32'54" EAST
71.29 FEET; THENCE NORTH 70 DEGREES 52'05" EAST, 115.35 FEET; THENCE NORTH 43
DEGREES 01'34" EAST 42.11 FEET THENCE NORTH 04 DEGREES 44'25" EAST 5.84 FEET TO
SAID POINT A.
EXCEPTING THEREFROM ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS,
NATURAL GAS RIGHTS, AND OTHER HYDROCARBORNS BY WHATSOEVER NAME KNOW THAT MAY BE
WITHIN OR UNDER THE PARCEL OF LAND HEREINABOVE DESCRIBED, TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING, AND OPERATING THEREOF AND
REMOVING THE SAME FROM SAID LAND, OR ANY OTHER LAND, INCLUDING THE RIGHT TO
WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THESE
HEREINABOVE DESCRIBED, OIL OR GAS XXXXX, TUNNELS AND SHAFTS INTO, THROUGH OR
ACROSS THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED XXXXX, TUNNELS, AND SHAFTS UNDER AND
BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL,
EQUIP., MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH XXXXX OR MINES, WITHOUT,
HOWEVER, THE RIGHT TO DRILL, MINE, EXPLORE AND OPERATE THROUGH THE SURFACE OR
THE UPPER 100 FEET OF THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED OR
OTHERWISE IN SUCH MANNER AS TO ENDANGER THE SAFETY OF ANY HIGHWAY THAT MAY BE
CONSTRUCTED ON SAID LANDS.
E-2, Page-4
EXHIBIT E-3
WARRANTY DEED
DATE: ______________, __, 2005
GRANTOR: Captec Franchise Capital Partners XX X.X., a Delaware limited
partnership
GRANTOR'S MAILING ADDRESS (INCLUDING COUNTY):
24 Xxxxx Xxxxx Xxxxxx Drive, Lobby L, 0xx Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxxx, XX 00000-0000
GRANTEE: Gibraltar 1031 Restaurants, LLC, a Delaware limited liability company
GRANTEE'S MAILING ADDRESS (INCLUDING COUNTY):
X.X. Xxx 000000, Xxxxxxxxx, __________ Xxxxxx, XX 00000
CONSIDERATION:
Ten and No/100 Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged by Grantor
PROPERTY (INCLUDING ANY IMPROVEMENTS):
See Exhibit "A" attached hereto
RESERVATIONS FROM AND EXCEPTIONS TO CONVEYANCE AND WARRANTY:
GRANTOR, FOR THE CONSIDERATION AND SUBJECT TO THE RESERVATIONS FROM AND
EXCEPTIONS TO CONVEYANCE AND WARRANTY, GRANTS, CONVEYS AND DELIVERS TO GRANTEE
THE PROPERTY, TOGETHER WITH ALL AND SINGULAR THE RIGHTS AND APPURTENANCES
THERETO IN ANYWISE BELONGING, TO HAVE AND HOLD IT TO GRANTEE, GRANTEE'S
SUCCESSORS, OR ASSIGNS FOREVER. GRANTOR BINDS GRANTOR AND GRANTOR'S SUCCESSORS
TO WARRANT AND FOREVER DEFEND ALL AND SINGULAR THE PROPERTY TO GRANTEE,
GRANTEE'S SUCCESSORS, AND ASSIGNS, AGAINST EVERY PERSON WHOMSOEVER LAWFULLY
CLAIMING OR TO CLAIM THE SAME OR ANY PART THEREOF, EXCEPT AS TO THE
RESERVATIONS FROM AND EXCEPTIONS TO CONVEYANCE AND WARRANTY.
WHEN THE CONTEXT REQUIRES, SINGULAR NOUNS AND PRONOUNS INCLUDE THE
PLURAL.
E-3, Page-1
IN WITNESS WHEREOF, this Warranty Deed is executed as of the ___ day of
__________________________, 2005.
CAPTEC FRANCHISE CAPITAL
PARTNERS X.X. XX
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
E-3, Page-2
Exhibit "A"
Being all that certain 1.589 acre tract or parcel of land, lying and being
situated in the XXXXXX XXXXXX LEAGUE, Abstract No. 46, College Station, Brazos
County, Texas, and being a portion out of that same 10.77 acre tract conveyed
from Pool Portfolio Properties to the Xxxxxxxx Group, Ltd., as described by
deed recorded in Volume 3091, page 1571 of the Official Records of Brazos
County, Texas, said 1.589 acre tract being more particularly described as
follows:
BEGINNING at a 1/2" iron rod found marking the north corner of said 10.77 acre
tract, the west corner of Woodstock, Section 1, as depicted by plat recorded in
Volume 436, page 481 of the Deed Records of Brazos County, Texas, and lying in
the southeast right-of-way line of Xxxxxx Road, also known as Texas Xxxxx
Xxxxxxx Xx. 00;
THENCE S 44 degrees 55 minutes 05 seconds E - 365.00 feet with the northeast
line of said 10.77 acre tract and the southwest line of said Woodstock, Section
1, to a 24" diameter post oak tree found for corner;
THENCE S 42 degrees 18 minutes 55 seconds W - 47.24 feet across said 10.77 acre
tract with the southeast line of said proposed Lot 4 to a 1/2" iron rod set
for angle point;
THENCE S 29 degrees 04 minutes 16 seconds W - 24.83 feet with said proposed lot
line to a 1/2" iron rod set for corner;
THENCE S 78 degrees 22 minutes 29 seconds W - 28.23 feet with said proposed lot
line to a 1/2" iron rod set for angle point;
THENCE N 74 degrees 30 minutes 02 seconds W - 39.63 feet with said proposed lot
line to a 1/2" iron rod set for angle point;
THENCE S 87 degrees 03 minutes 47 seconds W - 41.78 feet with said proposed lot
line to a 1/2" iron rod set for angle point;
THENCE S 87 degrees 44 minutes 30 seconds W - 51.18 feet with said proposed lot
line to a 1/2" iron rod set for angle point;
THENCE N 69 degrees 26 minutes 40 seconds W - 65.76 feet with said proposed lot
line to a 1/2" iron rod set for angle point;
THENCE N 49 degrees 35 minutes 14 seconds W - 63.17 feet with said proposed lot
line to a 1/2" iron rod set for angle point;
THENCE N 37 degrees 14 minutes 25 seconds W - 72.55 feet with said proposed lot
line to a 1/2" iron rod set for angle point;
THENCE N 59 degrees 08 minutes 27 seconds W - 10.41 feet with said proposed lot
line to a 1/2" iron rod set for angle point;
THENCE N 73 degrees 56 minutes 01 seconds W - 49.91 feet with said proposed lot
line to a 1/2" iron rod set for angle point;
E-3, Page-3
THENCE N 82 degrees 23 minutes 54 seconds W - 20.21 feet with said proposed lot
line to a 1/2" iron rod set for corner in said Xxxxxx Road right-of-way line;
THENCE N 45 degrees 45 seconds 53 seconds E - 244.74 feet with said right-of-
way line to the PLACE OF BEGINNING, and containing 1.589 acres of land.
Said 1.589 acre tract to be known as Lot 4, West Wolf Pen Creek Subdivision, a
proposed subdivision in the City of College Station, Brazos County, Texas.
E-3, Page-4
EXHIBIT E-4
OAKLAND COUNTY, MICHIGAN
DEED
CAPTEC FRANCHISE CAPITAL PARTNERS XX XX, a Delaware limited partnership
("Grantor"), whose address is 24 Xxxxx Xxxxx Xxxxxx Drive, Lobby L, 0xx Xxxxx,
Xxx Xxxxx, XX 00000-0000, conveys to GIBRALTAR 1031 RESTAURANTS, LLC , a
Delaware limited liability company ("Grantee"), whose address is X.X. Xxx
000000, Xxxxxxxxx, XX 00000, the following described premises situated in
Oakland County, Michigan:
See Exhibit "A" attached hereto and made a part hereof.
Together with any tenement, hereditaments or appurtenance belong or
appertaining to the premises and any right against any prior owner of the
premises. The consideration for this instrument is set forth in a Real Estate
Transfer Tax Valuation Affidavit filed pursuant to MCLA 207.511 and MCLA
207.533.
Grantor makes no warranty, express or implied, as to title in the
premises hereinabove described.
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: ________________________
E-4, Page-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 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
E-4, Page-2
Exhibit "A"
A parcel of land being part of the Northwest 1/4 of Section 14, Town 1 North,
Range 9 East, Farmington Township, now City of Farmington Hills, Oakland
County, Michigan, more particularly described as: Beginning at a point distant
North 87 degrees 31 minutes 36 seconds East, 66.00 feet and South 02 degrees 21
minutes 49 seconds East, 238.00 feet from the Northwest corner of Section 14,
proceeding thence North 87 degrees 31 minutes 36 seconds East, 225.00 feet;
thence South 02 degrees 21 minutes 49 seconds East, 52.00 feet; thence North 87
degrees 31 minutes 36 seconds East, 69.15 feet; thence South 02 degrees 21
minutes 49 seconds East, 5.00 feet; thence North 87 degrees 31 minutes 36
seconds East, 101.19 feet; thence South 02 degrees 33 minutes 54 seconds 219.26
feet to the Northerly right of way line of Xxxxx Xxxxxxx X-000; thence along
said right of way North 61 degrees 26 minutes 00 seconds West, 141.20 feet;
thence along said right of way South 87 degrees 51 minutes 11 seconds West,
160.70 feet; thence along said right of way North 59 degrees 07 minutes 02
seconds West, 136.66 feet to the Easterly line of Orchard Lake Road (126 feet
wide); thence along said Easterly line North 02 degrees 21 minutes 49 seconds
West, 127.40 feet to the point of beginning. Together with non-exclusive
easements for ingress and egress set forth in instruments recorded in Liber
6735, Page 848 and in Liber 7231, Page 303, Oakland County Records, described
as follows:
Easement Parcel No. 1:
A non-exclusive easement for ingress and egress over the following described
land: Part of the Northwest 1/4 of Section 14, Town 1 North, Range 9 East,
Farmington Township, now City of Farmington Hills, Oakland County, Michigan,
more particularly described as: Beginning at a point distant North 87 degrees
31 minutes 36 seconds East 285.00 feet from the Northwest corner of Section 14,
proceeding thence North 87 degrees 31 minutes 36 seconds East 12.15 feet;
thence South 02 degrees 21 minutes 49 seconds East 27.00 feet; thence South 87
degrees 31 minutes 36 seconds West 12.15 feet; thence North 02 degrees 21
minutes 49 seconds West 27.00 feet to the point of beginning.
Easement Parcel No. 2 ( As Amended)
A non-exclusive easement for ingress and egress over the following described
land: Part of the Northwest 1/4 of Xxxxxxx 00, Xxxx 0 Xxxxx, Xxxxx 0 Xxxx,
Xxxx of Farmington Hills, Oakland County, Michigan, described as follows:
Beginning a point distant North 87 degrees 31 minutes 36 seconds East 291.00
feet from the Northwest corner of Section 14, thence South 02 degrees 21
minutes 49 seconds East, 60 feet; thence North 87 degrees 31 minutes 36 seconds
East, 80.15 feet to the point of beginning; thence South 02 degrees 21 minutes
49 seconds East, 205 feet; thence North 87 Degrees 31 minutes 36 seconds East,
22 feet; North 02 degrees 21 minutes 49 seconds West, 205 feet; thence South 87
degrees 31 minutes 36 seconds West, 22 feet to the point of beginning.
Easement Parcel No. 3:
A non-exclusive easement for ingress and egress over the following described
land: Part of the Northwest 1/4 of Xxxxxxx 00, Xxxx 0 Xxxxx, Xxxxx 0 Xxxx,
Xxxx of Farmington Hills, Oakland County, Michigan, more particularly described
as beginning at a point distant North 87 degrees 31 minutes 36 seconds East,
291.00 feet along the centerline of Twelve Mile Road (120 feet wide) and South
02 degrees 21 minutes 49 seconds East, 238.00 feet and North 87 degrees 31
minutes 36 seconds East, 72.15 feet from the Northwest corner of said section
14; thence continuing North 87 degrees 31 minutes 36 seconds East, 8.00 feet;
thence South 02 degrees 21 minutes 49 seconds East, 27.00 feet; thence 87
degrees 31 minutes 36 seconds West, 8.00 feet; thence North 02 degrees 21
minutes 49 seconds West, 27.00 feet to the point of beginning.
E-4, Page-3
Easement Parcel No. 3-A:
Part of the Northwest 1/4 of Xxxxxxx 00, Xxxx 0 Xxxxx, Xxxxx 0 Xxxx, Xxxx of
Farmington Hills, Oakland County, Michigan, described as follows:
Beginning at a point distant North 87 degrees 31 minutes 36 seconds East 291
feet from the Northwest corner of Section 14; thence South 02 degrees 21
minutes 49 seconds East 60 feet; thence North 87 degrees 31 minutes 36 seconds
East 72.15 feet; thence South 02 degrees 21 minutes 49 seconds East, 205 feet
to the point of beginning; thence South 87 degrees 31 minutes 36 seconds West 3
feet; thence South 02 degrees 21 minutes 49 seconds East 30 feet; thence North
87 degrees 31 minutes 36 seconds East 34 feet; thence North 02 degrees 21
minutes 49 seconds West 30 feet; thence South 87 degrees 31 minutes 36 seconds
West 31 feet to the point of beginning.
E-4, Page-4
EXHIBIT E-5
DEED
THIS INDENTURE made this ___ day of ____ 2005 and effective as of the ___
day of ____ 2005, between Captec Franchise Capital Partners XX XX, a Delaware
limited partnership (hereinafter called the Grantor), of the one part, and
Gibraltar 1031 Restaurants, LLC, a Delaware limited liability company
(hereinafter called the Grantee), of the other part.
WITNESSETH
That the said Grantor for and in the consideration of the sum of Ten
Dollars ($10.00) lawful money of the United States of America, unto Grantor
well and truly paid by the said Grantee, at or before the sealing and delivery
hereof, the receipt whereof is hereby acknowledged, granted, bargained and
sold, aliened, enfeoffed, released and confirmed, and by these presents, grant,
bargain and sell, alien, enfeoff, release and confirm unto the said Grantee and
to its successors and assigns forever, all of that certain tract or parcel of
property more particularly described on Exhibit A attached hereto and
incorporated herein by reference.
UNDER AND SUBJECT TO such easements, restrictions, and other agreements
of record as may remain valid and enforceable.
TOGETHER with all and singular the improvements, ways, streets, alleys,
passages, waters, water-courses, rights, liberties, privileges, hereditaments,
and appurtenances, whatsoever thereunto belonging, or in any wise appertaining,
and the reversions and remainders, rents, issues and profits thereof; and all
the estate, right, title, interest, property, claim and demand whatsoever of
said Grantor in law as in equity, or otherwise howsoever, of, in, and to the
same and every part thereof.
TO HAVE AND TO HOLD the said tract or parcel of property above described,
hereditaments and premises hereby granted, or mentioned and intended so to be,
with the appurtenances, unto the said Grantee, its successors and assigns, to
and for the only proper use and behoof of said Grantee, its successors and
assigns, forever.
AND the said Grantor makes no warranty, express or implied, as to the
title in the property hereinabove described.
E-5, Page-1
IN WITNESS WHEREOF, the Grantor has caused this instrument to be executed
in its name the day and year first above written.
Sealed and Delivered CAPTEC FRANCHISE CAPITAL
In the Presence of: PARTNERS X.X. XX
____________________________ By: GP4 Asset Acquisition, LLC
Its: General Partner
____________________________
By: ___________________________
Print Name:
Its: ___________________________
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this __ day of
______________, 200_, 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
When recorded return to:
Grantee
E-5, Page-2
Exhibit "A"
ALL THAT CERTAIN tract of land situate in the Township of Bensalem, County of
Bucks, Commonwealth of Pennsylvania, as shown on As-Built Plan of Survey
prepared for Steak and Ale of Pennsylvania, Inc. by Xxxxxxx & Xxxxxx, Inc.
dated June 21, 1989.
BEGINNING at a point on the Northwesterly sideline of Lincoln Highway, Route 1,
S.R. 001, said point being located 378 feet more or less, measured
Southwesterly from the intersection of said sideline with the centerline of Old
Lincoln Highway; thence extending along said sideline of Xxxxxxx Xxxxxxx Xxxxx
00 degrees 46 minutes 18 seconds West 284.96 feet to a point in line of lands
of Xxxxxx X. and Xxxxxx X. Xxxxxx; thence extending along said lands the
following ten (10) courses and distances: (1) North 42 degrees 13 minutes 42
seconds West 55.00 feet to a point (2) North 74 degrees 37 minutes 33 seconds
West 152.07 feet to a point (3) South 83 degrees 00 minutes 51 seconds West
52.20 feet to a point (4) North 59 degrees 43 minutes 49 seconds West 42.72
feet to a point (5) South 79 degrees 09 minutes 27 seconds West 42.72 to a
point (6) North 01 degrees 48 minutes 32 seconds West 112.17 feet to a point
(7) South 88 degrees 11 minutes 28 seconds West 73.68 feet to a point (8) North
01 degree 48 minutes 32 seconds West 45.00 feet to a point (9) North 29 degrees
54 minutes 50 seconds West 54.41 feet to a point (10) North 60 degrees 05
minutes 40 seconds East 222.00 feet to a point; thence continuing along lands
of Xxxxxx X. and Xxxxxx X. Xxxxxx and extending along lands of Bucks County
Industrial Development Authority South 29 degrees 54 minutes 56 seconds East
266.00 feet to a point; thence continuing along lands of Bucks County
Industrial Development Authority North 47 degrees 45 minutes 40 seconds East
240.78 feet to a point in line of lands of Xxxx Pizza, Inc., thence extending
along said lands South 42 degrees 14 minutes 20 seconds East 189.93 feet to the
point and place of beginning.
TOGETHER WITH the benefits of those certain Easements and/or Agreements as
follows: (1) Memorandum of Agreement recorded in Deed Book 2041 page 727 and
Deed Book 2173 page 539 as assigned in Deed Book 2264 page 410 and (2)
Reciprocal Easement Agreement recorded in Deed Book 2570 page 614 as amended in
Deed Book 2599 page 406.
BEING COUNTY PARCEL NUMBER 2-1-2-7
BEING THE SAME PREMISES WHICH S&A RESTAURANT CORP., A DELAWARE CORPORATION BY
DEED DATED JULY 25, 1989 AND RECORDED JULY 27, 1989 IN THE OFFICE FOR THE
RECORDING OF DEEDS, IN AND FOR THE COUNTY OF BUCKS, COMMONWEALTH OF
PENNSYLVANIA IN LAND RECORD BOOK 74 PAGE 2163 GRANTED AND CONVEYED UNTO S&A
PROPERTIES CORP., A DELAWARE CORPORATION, ITS SUCCESSORS AND ASSIGNS, IN FEE.
E-5, Page-3
EXHIBIT E-6
RECORD AND RETURN TO: NORFOLK COUNTY, VIRGINIA
Gibraltar 1031 Restaurants, LLC
X.X. Xxx 000000
Xxxxxxxxx, XX 00000
DEED
Exemption claimed:
THIS DEED is made ___________, 200__ and effective as of _____, 200__, by
and between Captec Franchise Capital Partners X.X. XX, a Delaware limited
partnership, as Grantor, and Gibraltar 1031 Restaurants, LLC, a Delaware
limited liability company, as Grantee.
WITNESSETH:
That for and in consideration of the sum of Ten Dollars ($10.00) cash in
hand paid, and other good and valuable consideration, the receipt of which is
hereby acknowledged, the Grantor does hereby grant and convey, without
Warranty, unto the Grantee, the following described property located in the
City/County of Norfolk, Virginia (the "Property"):
See Exhibit A attached hereto and made a part hereof. Being the same
property which was conveyed to Grantor by S & A Properties Corp.
This conveyance is made subject to easements, conditions and restrictions
of record insofar as they may lawfully affect the Property. The Grantor makes
no warranty, express or implied, as to the title in the Property.
WITNESS the following signature and seal.
CAPTEC FRANCHISE CAPITAL PARTNERS X.X. XX
By: GP4 Asset Acquisition, LLC
Its: General Partner
By: ___________________________
Print Name:
Its: ___________________________
E-6, Page-1
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this __ day of
______________, 200_, 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
E-6, Page-2
Exhibit "A"
PARCEL ONE:
All that certain lot, piece or parcel of land, together with the appurtenances
thereunto appertaining, lying, situate and being in the City of Norfolk,
Virginia, and known, numbered and designated as "LOT D-1", as shown on that
certain plat entitled "PLAT SHOWING SUBDIVISION NUMBER THREE OF PROPERTY OF
MILITARY SQUARE, INC., NORFOLK, VIRGINIA", dated June 2, 1976, revised June 17,
1976 and revised ____23, 1976, and made by Xxxxxxx and Xxxxxx, surveyors and
Engineers and duly recorded in the Clerk's Office of the Circuit Court of the
City of Norfok, Virginia, in Map Book 29, Page 137.
LESS AND EXCEPT that portion of the above property conveyed for road widening
by instrument recorded in Deed Book 2711, page 445 and shown in XXXX 0, page
219.
PARCEL TWO:
TOGETHER WITH:
A fifty (50) foot wide strip over and across Parcel Eleven (11) in that Deed
from Military Square, Inc., et al, to Equitable Life Assurance Society of the
United States, recorded in Deed Book 1370, page 350 in the Clerk's Office of
the Circuit Court of the City of Norfolk, Virginia, and being more particularly
described as:
BEGINNING at a point on the southern line of Virginia Beach Boulevard where the
western line of the parcel identified as "XXXXXX" on a plat entitled
"SUBDIVISION NUMBER THREE OF PROPERTY OF MILITARY SQUARE, INC.", dated December
1, 1969 and recorded in the Clerk's Office of the Circuit Court of the City of
Norfolk, Virginia in Map Book 25, page 95 intersects; from said point of
beginning South 7 degrees 49 minutes 22 seconds West, 227.26 feet along the
western line of "XXXXXX" to a point; thence North 82 degrees 10 minutes 38
seconds West, 50.00 feet to the southeastern corner of the parcel identified as
Lot D-1 on a "Plat Showing Subdivision of a Portion of Lot D as Shown on
Subdivision Number Three of Property of Military Square, Inc.", dated June 23,
1976 and recorded in the clerk's Office of the Circuit Court of the City of
Norfolk, Virginia, in Map Book 29, page 137; thence along the eastern line of
said "Lot D-1" North 7 degrees 49 minutes 22 seconds East, 225.00 feet to the
southern line of Virginia Beach Boulevard; thence along the southern line of
Virginia Beach Boulevard South 85 degrees 36 minutes 37 seconds East, 21.04
feet and South 84 degrees 09 minutes 02 seconds East, 29.01 feet to the point
of beginning.
PARCEL THREE:
ALSO TOGETHER WITH:
An easement approximately 50 feet in width for ingress and egress, being
bounded and described as follows:
BEGINNING at a point at the southeastern corner of Lot D-1 as shown on a plat
entitled "PLAT SHOWING SUBDIVISION OF A PORTION OF LOT D AS SHOWN ON
SUBDIVISION NUMBER THREE OF PROPERTY OF MILITARY SQUARE, INC.", dated June
23,1976, and recorded in the Clerk's Office of the Circuit Court of the City of
Norfolk, Virginia, in Map Book 29, at page 137, said southeastern corner being
located 225 feet more or less from the southern right of way line of Virginia
Beach Boulevard, and from said point of beginning S 7 degrees 49 minutes 22
seconds West 408.66 feet to a point on the southern boundary line of Lot S as
shown on a plat recorded in the aforesaid Clerk's Office in Map Book 30, page
53, and from said point South 5 degrees 53 minutes 28 seconds East 46.84
E-6, Page-3
feet to a point on the outside perimeter of the Ring Road which surrounds
Military Circle Shopping Center; thence in a northeasterly direction along a
1425 foot radius curve to the right an arch length of 58.46 feet to a point,
being the intersection of the southern boundary line of property owned by the
Virginia Electric and Power Company and the Ring Road; thence North 82 degrees
10 minutes 38 seconds West 12.41 feet along the southern lot line of a parcel of
property now or formerly owned by the Virginia Electric and Power Company;
thence continuing North 82 degrees 10 minutes 38 seconds West 9.0 feet to a
point; thence North 7 degrees 49 minutes 22 seconds East 383.67 feet to a point
on the western boundary line of property referred to in the aforesaid Easement
Agreement recorded in Deed Book 1384, page 84, as the Xxxxxx property; thence
North 82 degrees 10 minutes 38 seconds West 50 feet to the point of beginning.
PARCEL FOUR:
AND ALSO TOGETHER WITH:
A ten (10) foot sewer easement to be centered on a line beginning at a point on
the eastern line of a parcel identified as "Lot D-1" on a "PLAT SHOWING
SUBDIVISION OF A PORTION OF LOT D AS SHOWN ON SUBDIVISION NUMBER THREE OF
PROPERTY OF MILITARY SQUARE, INC.", dated June 23, 1976, and recorded in the
clerk's Office of the Circuit Court of the City of Norfolk, Virginia, in Map
Book 29, at page 137, which point is South 7 degrees 49 minutes 22 seconds
West, 155.00 feet from the southern line of Virginia Beach Boulevard; thence
South 82 degrees 10 minutes 38 seconds East, 5.00 feet to a point; thence South
7 degrees 49 minutes 22 seconds West, 443.63 feet to a point; thence North 82
degrees 10 minutes 38 seconds West, 75.00 feet to and extending 5.00 feet past
an existing sanitary sewer manhole.
PARCEL FIVE:
All that certain lot, piece or parcel of land, with the appurtenances thereunto
belonging, lying, situate and being in the City of Norfolk, Virginia, and being
more particularly described as follows, to-wit:
BEGINNING at point being the southwest corner of Lot D-1 as shown in Map Book
29, page 137, in the Clerk's Office of the Circuit Court of the City of
Norfolk, Virginia; thence North 82 degrees 10 minutes 38 seconds West a
distance of 191.55 feet to a point for a corner, said point lying on the
easterly right of way line of Military Highway; thence North 51 degrees 24
minutes 41 seconds East along said easterly line a distance of 271.43 feet to a
point; said point lying on a curve to the right having a central angle of 00
degrees 43 minutes 59 seconds and whose center bears South 22 degrees 50
minutes 06 seconds East 399.34 feet; thence northeasterly along said curve and
arc distance of 5.11 feet to a point for a corner, said point being the
northwest corner of the above described Lot D-!; thence South 07 degrees 49
minutes 22 seconds West a distance of 199.18 feet to the point and place of
beginning.
It being the same property conveyed to CAPTEC FRANCHISE CAPITAL PARTNERS XX XX,
a Delaware LP, by deed form S&A PROPERTIES CORP., formerly known as STEAK AND
ALE RESTAURANTS OF AMERICA INC. and formerly known as STEAK AND ALE OF
VIRGINIA, INC., dated June 11, 1998 and filed for record as Instrument No.
980029642.
E-6, Page-4
EXHIBIT E-7
CORPORATION DEED
KNOW ALL MEN BY THESE PRESENTS: That CAPTEC FRANCHISE CAPITAL PARTNERS X.X. XX,
A DELAWARE LIMITED LIABILITY COMPANY
Whose address is: 24 Xxxxx Xxxxx Xxxxxx Drive, Lobby L, 0xx Xxxxx, Xxx Xxxxx,
XX 00000-0000
Conveys to: GIBRALTAR 1031 RESTAURANTS, LLC, A DELAWARE LIMITED LIABILITY
COMPANY
Whose Address is: X.X. Xxx 000000, Xxxxxxxxx, XX 00000
All the estate, right, title and interest of the following described premises
situated in the City of Xxxxxx, County of Macomb and State of Michigan,
described as:
See legal description attached hereto as Exhibit "A"
Commonly known as:32270 Van Dyke
Parcel Identification No.00-00-000-000
Together with all and singular the tenements, hereditaments and appurtenances
thereto belonging or otherwise appertaining for the sum of:
Subject to existing building and use restrictions, easements and zoning
ordinances, if any.
THE GRANTOR HEREIN WARRANTS TITLE AGAINST ITS ACTS OR OMISSIONS ONLY AND NON
OTHER.
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: ________________________
E-7, Page-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 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
E-7, Page-2
Exhibit "A"
Lots 39 through 50, both inclusive, including the adjoining one-half of the
vacated public alley at the rear thereof of Trembleton Subdivision of part of
the northwest 1/4 of Section 3, town 1 north, range 12 east, Xxxxxx Twp.,
(now City of Xxxxxx) Macomb County Records, Michigan as recorded in liber 9 of
plats, pages 51 and 52 of Macomb County Records, also described as beginning at
the northwest corner of said Lot 50, said point located due south along the
west line of Section 3 a distance of 2039.84 feet and north 88 degrees 54
minutes 30 seconds east 60.00 feet from the northwest corner of Section 3;
thence continuing north 88 degrees 54 minutes 30 seconds east along the south
line of 50 feet wide Xxxxx Ave. 109 feet, thence due south 240.00 feet thence
south 88 degrees 54 minutes 30 seconds west 109.00 feet to the east line of 120
feet wide Xxx Xxxx Ave., thence due north along said east line 240.00 feet to
the point of beginning.
Commonly known as:32270 Van Dyke
Parcel Identification No. 00-00-000-000
E-7, Page-3
EXHIBIT E-8
CORPORATION DEED
KNOW ALL MEN BY THESE PRESENTS: That CAPTEC FRANCHISE CAPITAL PARTNERS X.X. XX,
A DELAWARE LIMITED PARTNERSHIP
Whose address is: 24 Xxxxx Xxxxx Xxxxxx Drive, Lobby L, 0xx Xxxxx, Xxx Xxxxx,
XX 00000-0000
Conveys to: GIBRALTAR 1031 RESTAURANTS, LLC, A DELAWARE LIMITED LIABILITY
COMPANY
Whose address is: X.X. Xxx 000000, Xxxxxxxxx, XX 00000
See Legal Description attached hereto as Exhibit "A"
Commonly known as: 00000 Xxxx Xxxxxx
Parcel Identification No.: 00-00-000-000
Together with all and singular the tenements, hereditaments and appurtenances
thereto belonging or otherwise appertaining for the sum of:
Subject to existing building and use restrictions, easements and zoning
ordinances, if any.
THE GRANTOR HEREIN WARRANTS TITLE AGAINST ITS ACTS OR OMISSIONS ONLY AND NON
OTHER.
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: ________________________
E-8, Page-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 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
E-8, Page-2
Exhibit "A"
Lot 27 and Lot 28, except that part of Lot 28 described as: Beginning at the
southeast corner of Lot 28; thence north 58 degrees 14 minutes west 108.47
feet; thence north 29 degrees 05 minutes east 147.75 feet; thence south 58
degrees 14 minutes east 80 feet to east line of Lot 28; thence south 18 degrees
17 minutes 10 seconds west 151.77 feet to point of beginning, Supervisor's Plat
No. 1, according to the plat thereof as recorded in liber 16, page(s) 44 of
Plats, Macomb County Records
AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
All that certain lot or parcel of ground situate in the City of Richmond,
County of Macomb, State of Michigan, bounded and described as follows:
Beginning at a point located on the north right-of-way line of Michigan State
Highway Route 19 (Main Street), said point being situated at the southeast
corner of Lot 28 herein described; thence from the place of beginning along the
aforementioned north right-of-way line of Michigan State Highway Route 19 (Main
Street), north 58 degrees 14 minutes 00 seconds west for a distance of 118.14
feet to a point; thence north 17 degrees 48 minutes 11 seconds east for a
distance of 1,078.43 feet to a point; thence south 89 degrees 34 minutes 30
seconds east for a distance of 230.00 feet to a point; thence south 17 degrees
42 minutes 40 seconds west for a distance of 1,050.04 feet to a point; thence
north 58 degrees 14 minutes 00 seconds west for a distance of 80.00 feet to a
point; thence south 29 degrees 05 minutes 00 seconds west for a distance of
147.75 feet to the place of beginning.
Commonly known as: 00000 Xxxx Xxxxxx
Parcel Identification No.: 00-00-000-000
E-8, Page-3
EXHIBIT E-9
LIMITED WARRANTY DEED
Captec Franchise Capital Partners X.X. XX, a Delaware limited partnership
("Grantor"), of Washtenaw County, Michigan, for valuable consideration paid,
grant(s) with limited warranty covenants, to Gibraltar 1031 Restaurants, LLC, a
Delaware limited liability company ("Grantee")
whose tax mailing address is X.X. Xxx 000000, Xxxxxxxxx, XX 00000,
the following REAL PROPERTY: Situated in the County of Xxxxxxxx, in the State
of Ohio and in the City of Xxxxxxxx:
SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF
PARCEL NO.: 000-0000-0000
Subject to easements and restrictions of record, if any; excepting taxes and
assessments due and payable in _____________ which the grantee herein assumes
and agrees to pay.
PRIOR INSTRUMENT REFERENCE: Official Record 8052, page 2051.
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: ________________________
E-9, Page-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 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
E-9, Page-2
EXHIBIT "A"
Situate in Section 00, Xxxx 0, Xxxxx 0 Xxxx, Xxxxxxxx Xxxxxxxx, Xxxx of
Xxxxxxxx, Xxxxxxxx County, Ohio and being more particularly described as
follows:
Beginning at a point in the centerline of Xxxxxxxx Avenue, said point being
South 52* 52' 32" East, 345.00 feet from the centerline intersection of said
Xxxxxxxx Avenue and Stone Road; thence from said point of beginning, North 37*
07' 28" East, 277.50 feet to a point; thence South 52* 52' 32" East, 102.50
feet to a point; thence along an arc deflecting to the right, having a radius
of 35.00 feet, a distance of 54.98 feet, the chord of said arc bears South 07*
52' 32" East, 49.50 feet to a point; thence South 37* 07' 28" West, 242.50 feet
to a point in the centerline of aforesaid Xxxxxxxx Avenue; thence with said
centerline, North 52* 52' 32" West, 137.50 feet to the point of beginning.
Containing 0.870 acres of land, 0.126 acre of which lies within the right of
way of Xxxxxxxx Avenue, leaving net area of 0.744 acres.
Together with Declaration of Reciprocal Easements and Restrictive Covenants by
and between Xxxxxx Partners A and Taco Xxxx Corp., dated October 11, 1989,
filed for record November 21, 1989 and recorded in Official Record 5148, page
158 of the Xxxxxxxx County, Ohio Records.
PRIOR DEED REFERENCE: Official Record 8052, Page 2051
Also described as follows pursuant to survey by Xxxxxxx Surveying, Inc.,
performed by Xxxxx X. Xxxxxxx Professional Surveyor No. S-7717.
Situate in Section 00, Xxxx 0, Xxxxx 0 Xxxx, Xxxxxxxx Xxxxxxxx, Xxxx of
Xxxxxxxx, Xxxxxxxx County, Ohio and being more particularly described as
follows:
Beginning at a railroad spike found in the centerline of Xxxxxxxx Avenue, said
spike being South 52* 52' 32" East 345 feet from the centerline intersection of
said Xxxxxxxx Avenue and Stone Road; thence from said point of beginning, North
37* 07' 28" East passing through a capped rebar found at 40.00 feet, a total
distance of 277.50 feet to a Mag Nail Set; thence South 52* 52' 32" East,
102.50 feet to a Mag Nail Set; thence along an arc deflecting to the right,
having a radius of 35.00 feet, a distance of 54.98 feet, the chord of said arc
bears South 07* 52' 32" East, 49.50 feet to a Mag Nail Set; thence South 37*
07' 28" West, 242.50 feet to a Mag Nail Set in the centerline of aforesaid
Xxxxxxxx Avenue (witness a 1/2" capped rebar set 40.00 feet distant therefrom
along the last described course); thence with said centerline, North 52* 52'
32" West, 137.50 feet to the point of beginning. Containing 0.870 acres
(37,897 square feet) of land.
Tax Parcel No. 000-0000-0000
Property located at 00000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000
E-9, Page-3
EXHIBIT E-10
SPECIAL WARRANTY DEED
Date: ___________, 2005
Grantor: Captec Franchise Capital Partners XX XX, a Delaware limited
partnership
Grantor's Mailing Address (including county):
24 Xxxxx Xxxxx Xxxxxx Drive, Lobby L, 4th Floor, Washtenaw County,
Xxx Xxxxx, XX 00000-0000
Grantee: Gibraltar 1031 Restaurants, LLC, a Delaware limited liability
company
Grantee's Mailing Address (including county):
X.X. Xxx 000000, Xxxxxxxxx, _____________ Xxxxxx, XX 00000
Consideration: $10.00 (Ten dollars and no/100) and all other good and
valuable consideration
Property (including improvements):
See Exhibit "A" attached hereto and made a part hereof for
all purposes.
Reservations from and Exceptions to Conveyance and Warranty:
See Exhibit "B" attached hereto and made a part hereof for
all purposes.
Grantor, for the consideration and subject to the reservations from and
exceptions to conveyance and warranty, grants, sells, and conveys to Grantee
the property, together with all and singular the rights and appurtenances
thereto in any wise belonging, to have and hold it to Grantee, Grantee's heirs,
executors, administrators, successors, or assigns forever. Grantor binds
Grantor and Grantor's heirs, executors, administrators, and successors to
warrant and forever defend all and singular the property to Grantee and
Grantee's heirs, executors, administrators, successors, and assigns against
every person whomsoever lawfully claiming or to claim the same or any part
thereof, except as to the reservations from and exceptions to conveyance and
warranty, when the claim is by, through, or under Grantor but not otherwise.
When the context requires, singular nouns and pronouns include the
plural.
IN WITNESS WHEREOF, the Grantor has caused this instrument to be executed
in its name the day and year first above written.
E-10, Page-1
CAPTEC FRANCHISE CAPITAL PARTNERS X.X. XX
By: GP4 Asset Acquisition, LLC
Its: General Partner
By: ___________________________
Print Name:
Its: ___________________________
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this __ day of
______________, 200_, 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
E-10, Page-2
EXHIBIT "A"
Being a 1.563 acre tract of land known as Xxx 0X-X, Xxxxx X, Xxxxx Xxxxx Xxxxx
Addition, an Addition to the City of Lewisville, Xxxxxx County, Texas,
according to the Plat recorded in Cabinet O, Page 188, of the Plat Records,
Xxxxxx County, Texas, and being more particularly described by metes and bounds
as follows:
BEGINNING at an "x" cut in concrete found for corner for the most easterly
corner of said Lot 4B-R located on the westerly right-of-way line of Vista
Ridge Mall Drive (a 70 Foot wide right-of-way), said "x" cut in concrete also
being the most southerly corner of Xxx 0, Xxxxx X, Xxxxx Xxxxx Xxxxx Addition,
to the City of Lewisville, Xxxxxx County, Texas, according to the Plat recorded
in Cabinet 1, Page 000, xx xxx Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx;
THENCE South 33 degrees 38 minutes 27 seconds West, along said westerly right-
of-way line and the southeast line of said Lot 4B-R, a distance of 37.71 feet
to a 1/2 inch iron rod with yellow cap marked RPLS 3989 set for corner, said
point also being the beginning of a curve to the right whose radius point bears
North 56 degrees 21 minutes 33 seconds West, 240.00 feet;
THENCE Southwesterly with said westerly right-of-way line and southeast line of
said Lot 4B-R through a central angle of 12 degrees 34 minutes 41 seconds, an
arc distance of 52.69 feet to a 1/2 inch iron rod with a yellow cap marked
RPLS 3989 set for corner for the end of said curve to the right and the
beginning of a reverse curve to the left having a radius of 260.00 feet;
THENCE Southwesterly with said westerly right-of-way line and the southeast
line of said Lot 4B-R, through a central angle of 12 degrees 34 minutes 41
seconds, an arc distance of 57.08 feet to a 1/2 inch iron rod with yellow cap
marked RPLS 3989 set for corner for the end of said curve;
THENCE South 33 degrees 38 minutes 27 seconds West, continuing along said
westerly right-of-way line and the southeast line of said Lot 4B-R, a distance
of 135.00 feet to a 1/2 inch iron rod with yellow cap marked RPLS 3989 set for
corner for the most southerly corner of said Lot 4B-R and the most easterly
corner of Lot 4C-R;
THENCE North 56 degrees 18 minutes 44 seconds West, along the common line
between said Lots 4B-R and 4C-R, a distance of 188.00 feet to a 1/2 inch iron
rod with yellow cap marked RPLS 3989 set for corner at an angle point on the
southwest line of said Lot 4B-R, said iron rod set being the most northerly
corner of said Lot 4C-R and also being on the southeast line of Xxx 00, Xxxxx
X, Xxxxx Xxxxx Xxxxx Addition, according to the Plat recorded in Cabinet L,
Page 33, of the Plat Records, Xxxxxx County, Texas;
THENCE North 33 degrees 38 minutes 27 seconds East, along the common line
between said Lots 4B-R and 41, a distance of 6.60 feet to a 1/2 inch iron rod
with yellow cap marked RPLS 3989 set for corner at angle point on the southwest
line of said Lot 4B-R for the most easterly corner of said Lot 41;
THENCE North 56 degrees 18 minutes 44 seconds West, along the common line
between said Lots 4B-R and 41, a distance of 51.00 feet to a 1/2 inch iron rod
with yellow cap marked RPLS 3989 set for corner for the most westerly corner of
said Lot 4B-R and the most southerly corner of Lot 4A-R;
THENCE North 33 degrees 38 minutes 27 seconds East, along the common line
between said Lots 4B-R and 4A-R, a distance of 275.00 feet to an "x" cut in
concrete set for corner for the most northerly corner of said Lot 4B-R and the
most easterly corner of said Lot 4A-R, said "x" cut set also being on the
southwest line of Xxx 0, Xxxxx X, Xxxxx Xxxxx Xxxxx Addition, an addition to
the City of Lewisville,
X-00, Xxxx-0
Xxxxxx Xxxxxx, Xxxxx, according to the Plat recorded in Cabinet I, Page 000, xx
xxx Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx;
THENCE South 56 degrees 18 minutes 45 seconds East, along the common line
between said Lots 4B-R and 2, and continuing with the southwest line of the
aforementioned Lot 1, a distance of 251.00 feet to the PLACE OF BEGINNING and
containing 68,063 square feet or 1.563 acres of land.
TRACT II
Easement for surface water drainage granted in Slope and Drainage Easement
filed September 14, 1987, recorded in Volume 2240, Page 346, Official Public
Records, Xxxxxx County, Texas, as amended by instrument filed November 15,
1988, recorded in Volume 2486, Page 162, Official Public Records, Xxxxxx
County, Texas.
TRACT III
Easement for pedestrian and vehicular access, ingress/egress and for utility
systems granted in First Amended and Restated Declaration of Covenants,
Conditions and Restrictions, filed April 15, 1993, recorded under County
Clerk's File No. 93-R0022261, Official Public Records, Xxxxxx County, Texas.
TRACT IV:
Easement for pedestrian and vehicular ingress and egress, over and across those
portions of Xxx 0X-X, Xxxxx X, Xxxxx Xxxxx Xxxxx Addition, an Addition to the
City of Lewisville, Xxxxxx County, Texas, according to the plat thereof
recorded in Cabinet 0, Page 000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, now or
hereafter developed with driveways, walkways, or roadways, granted in Gross
Access Easement Agreement dated February 25, 1998, filed March 2, 1998,
recorded under County Clerk's File No. 98-R0015210, Deed Records, Xxxxxx
County, Texas.
E-10, Page-4
EXHIBIT "B"
E-10, Page-5
EXHIBIT E-11
When Recorded Return To:
Gibraltar 1031 Restaurants, LLC
X.X. Xxx 000000
Xxxxxxxxx, XX 00000
SPECIAL WARRANTY DEED
For the consideration of Ten Dollars, and other valuable consideration,
we do hereby convey to GIBRALTAR 1031 RESTAURANTS, LLC, a Delaware limited
liability company ("Grantee"), the following real property located in Maricopa
County, Arizona:
See Attached Exhibit A and incorporated herein by reference
together with all hereditaments and appurtenances.
Subject to current taxes and other assessments, reservations in patents
and easements, rights-of-way, encumbrances, liens, covenants, conditions,
restrictions, obligations and liability as may appear of record, the Grantor
hereby binds itself to warrant and defend the title as against all acts of the
Grantor herein and no other.
Dated: ____________, 2005
CAPTEC FRANCHISE CAPITAL PARTNERS X.X. XX
By: GP4 Asset Acquisition, LLC
Its: General Partner
By: ___________________________
Print Name:
Its: ___________________________
X-00, Xxxx-0
XXXXX XX XXXXXXXX )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this __ day of
______________, 200_, 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
E-11, Page-2
EXHIBIT "A"
That part of the West half of the Northwest quarter of Section 36, Township 2
North, Range 1 East of the Gila and Salt River Meridian, Maricopa County,
Arizona, described more particularly as follows:
COMMENCING at the Northwest corner of said Section 36 (brass cap in a handhole)
as accepted by the City of Phoenix, being the intersection of the centerlines
of 00xx Xxxxxx and Xxxxxx Road, said point being 1.46 feet North and 32.72 feet
West of a brass cap in a handhole called the Southwest corner of Section 25 per
the map recorded in Book 21 of Maps, page 32, Maricopa County Records;
THENCE South along the West line of Section 36, a distance of 65.02 feet to a
point on a line 65 feet South of and parallel with the North line of Section
36;
THENCE North 88 degrees 43 minutes 56 seconds East along said parallel line, a
distance of 295.07 feet to the TRUE POINT OF BEGINNING;
THENCE continuing North 88 degrees 43 minutes 56 seconds East, a distance of
138.98 feet;
THENCE South 46 degrees 16 minutes 04 seconds East, a distance of 16.97 feet;
THENCE North 88 degrees 43 minutes 56 seconds East, a distance of 46.00 feet;
THENCE North 01 degrees 16 minutes 04 seconds West, a distance of 10.00 feet;
THENCE North 43 degrees 43 minutes 56 seconds East, a distance of 16.97 feet to
a point on a line 55 feet South of and parallel with the North line of Section
36;
THENCE North 88 degrees 43 minutes 56 seconds East along said parallel line, a
distance of 36.47 feet;
THENCE South 00 degrees 05 minutes 44 seconds West parallel to the East line of
the West half of the Northwest quarter of said Section 36, a distance of 177.99
feet;
THENCE South 88 degrees 43 minutes 56 seconds West parallel with the North line
of said Section 36, a distance of 244.93 feet;
THENCE North, a distance of 167.98 feet to the TRUE POINT OF BEGINNING;
EXCEPTING therefrom all rights to any and all minerals, ores and metals of
every kind and character, and all coal, asphaltum, oil, gases, fertilizers,
fossils and other like substances in or under said land and the right of
ingress and egress for the purpose of mining, together with enough of the
surface of land as may be necessary for the proper and convenient working and
extraction of such minerals and substances, as reserved by the State of Arizona
in Patent recorded April 2, 1919, in Book 137 of Deeds, page 284, Maricopa
County Records.
E-11, Page-3
EXHIBIT E-12
When Recorded Mail To:
Gibraltar 1031 Restaurants, LLC
X.X. Xxx 000000
Xxxxxxxxx, XX 00000
SPECIAL WARRANTY DEED
For the consideration of Ten Dollars, and other valuable consideration,
we do hereby convey to GIBRALTAR 1031 RESTAURANTS, LLC, a Delaware limited
liability company ("Grantee"), the following real property located in Maricopa
County, Arizona:
See Attached Exhibit A and incorporated herein by reference
together with all hereditaments and appurtenances.
Subject to current taxes and other assessments, reservations in patents
and easements, rights-of-way, encumbrances, liens, covenants, conditions,
restrictions, obligations and liability as may appear of record, the Grantor
hereby binds itself to warrant and defend the title as against all acts of the
Grantor herein and no other.
Dated: ____________, 2005
CAPTEC FRANCHISE CAPITAL PARTNERS X.X. XX
By: GP4 Asset Acquisition, LLC
Its: General Partner
By: ___________________________
Print Name:
Its: ___________________________
X-00, Xxxx-0
XXXXX XX XXXXXXXX )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this __ day of
______________, 200_, 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
E-12, Page-2
EXHIBIT "A"
PARCEL NO. 1:
Lot 3 and that portion of Xxx 0, XXXX XXXXXX XXXXXXXX XXXXXX, XXXX XX,
according to the plat of record in the office of the County Recorder of
Maricopa County, Arizona, in Book 327 of Maps, page 50, described as follows:
BEGINNING at the Northwest corner of said Lot 3;
THENCE North 89 degrees 58 minutes 41 seconds East, a distance of 251.73 feet;
THENCE South 35 degrees 40 minutes 04 seconds along the dividing line of Lots 4
and 6 of said recorded plat, a distance of 49.24 feet;
THENCE North 79 degrees 51 minutes 15 seconds West along the dividing line of
Lots 3 and 6 of said recorded plat, a distance of 226.56 feet to the TRUE POINT
OF BEGINNING;
EXCEPT that portion of Lot 3 described as follows:
BEGINNING at the Southeast corner of said Lot 3;
THENCE South 89 degrees 58 minutes 41 seconds West, a distance of 51.27 feet;
THENCE North 80 degrees 17 minutes 38 seconds West, a distance of 59.18 feet to
a point on the North right-of-way line of East Baseline Road;
THENCE North 89 degrees 58 minutes 41 seconds East parallel with the monument
line of East Baseline Road, a distance of 109.60 feet to the East line of said
Lot 3;
THENCE South 00 degrees 01 minutes 19 seconds East, a distance of 10.00 feet to
the point of beginning.
PARCEL NO. 2:
All easements appurtenant to Parcel No. 1 for roadways, walkways, ingress and
egress, the parking of motor vehicles and use of facilities installed for the
comfort and convenience of customers, invitees and employees as created,
granted and more particularly described in the certain "Easements with
Covenants and Restrictions Affecting Land (ECR)" recorded May 4, 1984, in
Document No. 84-192823, as amended in Amendment recorded in Document No. 89-
111164, in Second Amendment recorded in Document No. 89-384877, and in Third
Amendment recorded in Document No. 00-0000000, and re-recorded in Document No.
92-0504320, Maricopa County Records, over, along and across the Common Areas.
PARCEL NO. 3:
A nonexclusive easement for pedestrian and vehicular ingress and egress as
created, granted and more particularly described in that certain "Reciprocal
Easements" recorded June 10, 1996, in Document No. 96-0407714, Maricopa County
Records.
E-12, Page-3
PARCEL NO. 4:
A nonexclusive easement for vehicular and pedestrian ingress and egress as
created, granted and more particularly described in that certain "Reciprocal
Easements" recorded November 6, 1996, in Document No. 96-0787979, Maricopa
County Records.
PARCEL NO. 5:
A nonexclusive easement for vehicular and pedestrian ingress and egress as
created, grated and more particularly described in that certain "Reciprocal
Easements" recorded August 14, 1997, in Document No. 97-0556239, Maricopa
County Records.
E-12, Page-4
EXHIBIT F
ASSIGNMENT OF LEASES
THIS ASSIGNMENT OF LEASES ("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, 4th
Floor, X.X. Xxx 000, Xxx Xxxxx, Xxxxxxxx 00000 ("ASSIGNOR") and GIBRALTAR 1031
RESTAURANTS, LLC, a(n) ______________ limited liability company, whose address
is [ASSIGNEE ADDRESS] ("ASSIGNEE").
RECITALS:
1. Assignor leased to each "Tenant" (as defined in attached and
incorporated Exhibit "1") certain "Premises" (as defined in Exhibit "1"),
pursuant to those certain Leases described in Exhibit "1", a true and complete
copy of each which are attached as Exhibit 2 (collectively, the "LEASES" and
individually, a "LEASE").
2. In connection with, and in consideration of, the acquisition of the
Premises by Assignee, Assignor has agreed to assign, transfer and convey to
Assignee all of its right, title and interest in and to: (a) the Leases; (b)
any security deposit(s) paid by any Tenant thereunder (collectively, the
"SECURITY DEPOSITS"); and (c) any guaranty of any Lease.
3. Assignee agrees to accept such assignment and perform all of the
Assignor's obligations under the Leases arising from and after the date hereof.
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
(a) Assignor hereby assigns to Assignee all of Assignor's right,
title and interest to and under the Leases and the Security Deposits, and
Assignee assumes all of Assignor's duties and obligations under the Leases and
agrees to perform and to be bound by all of the terms and provisions of the
Leases in the place and stead of Assignor arising from and after the date
hereof and to indemnify Assignor from and against all claims, awards or damages
resulting from the acts and/or omissions of Assignee from and after the date
hereof.
(b) To Assignor's knowledge, each Lease is in full force and
effect and has not been modified, amended or restated.
(c) This Assignment shall bind and inure to the benefit of the
parties hereto, their successors and assigns.
(d) This Assignment shall be governed by and construed in
accordance with the laws of the state where the Premises is located, without
giving effect to principles of conflicts of law.
(e) 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK - SIGNATURE PAGE FOLLOWS]
F-1
This Assignment of Leases has been executed as of the day and year noted
above.
WITNESSES: ASSIGNOR
CAPTEC FRANCHISE CAPITAL PARTNERS X.X. XX,
A DELAWARE LIMITED PARTNERSHIP
_______________________________
Print
Name:__________________________
By: GP4 Asset Acquisition, LLC,
a Delaware limited liability company,
_______________________________ Its General Partner
Print
Name:__________________________
By:________________________
Name:______________________
Title:_______________________
ASSIGNEE:
WITNESSES: GIBRALTAR 1031 RESTAURANTS, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By: LMA Holdings, LLC,
Its Sole Member
______________________________
Print
Name:__________________________
By:_________________________________
_______________________________ Xxxxxxx Xxxxxx, its Sole Member
Print
Name:__________________________
F-2
EXHIBIT 1
TO
ASSIGNMENT OF LEASES
LEASE SCHEDULE
F-3
EXHIBIT 2
TO
ASSIGNMENT OF LEASES
COPIES OF THE LEASES
[ATTACH LEASES]
F-4
EXHIBIT G
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 GIBRALTAR 1031 RESTAURANTS,
LLC, a Delaware limited liability company, 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
______________;
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,
A DELAWARE LIMITED PARTNERSHIP
By: GP4 Asset Acquisition, LLC,
a Delaware limited liability company,
Its General Partner
By:_________________________________
Name:_______________________________
Title:______________________________
Dated as of __________, 2005.
G-1
EXHIBIT H
FORM OF NOTICE TO TENANT
_____________, 2005
[TENANT NAME]
[TENANT ADDRESS]
Ladies and Gentlemen:
This is to inform you that on __________________, 2005 the interest of
CAPTEC FRANCHISE CAPITAL PARTNERS X.X. XX, a Delaware limited partnership (the
"SELLER") in that certain Lease, dated as of ____________________, ______ (the
"LEASE"), between [SELLER][SELLER'S PREDECESSOR IN INTEREST,
____________________________], as landlord, and [TENANT NAME][TENANT ENTITY],
as tenant, for the Property, located at [PROPERTY ADDRESS], has been assigned
to GIBRALTAR 1031 RESTAURANTS, LLC, a(n) ______________ limited liability
company ("PURCHASER"). Accordingly, all future payments owed, and notices to
be given, to the landlord under the Lease should be delivered to Purchaser at
the following address: [PURCHASER ADDRESS].
Very truly yours,
CAPTEC FRANCHISE CAPITAL PARTNERS X.X. XX,
A DELAWARE LIMITED PARTNERSHIP
By: GP4 Asset Acquisition, LLC,
a Delaware limited liability company,
Its General Partner
By:_________________________________
Name:_______________________________
Title:______________________________
H-1
SCHEDULE 1
LIST OF VIOLATIONS
NONE
Schedule 1, Page-1
SCHEDULE 2
LIST OF LITIGATION
NONE
Schedule 2, Page-1
SCHEDULE 3
LIST OF CONDEMNATION
NONE
Schedule 3, Page-1
