Exhibit 10.20
CONTRACT FOR SALE AND PURCHASE
THIS CONTRACT FOR SALE AND PURCHASE (the "Agreement") executed as of the
Effective Date (as herein defined), by and between the Seller, as herein
defined, and GETTY PROPERTIES CORP., a Delaware corporation ("Buyer"), whose Tax
Identification Number is 00-0000000;
WITNESSETH:
WHEREAS, Seller is the owner of certain property and other interests herein
referred to and defined as the "Property"; and
WHEREAS, Buyer desires to purchase the Property and Seller desires to sell
the Property to Buyer, all in accordance with the terms herein set forth;
NOW, THEREFORE, for and in consideration of the premises and mutual
covenants hereinafter contained and in consideration of the funds paid
simultaneously with the execution of this Agreement, Seller agrees to sell and
Buyer agrees to buy the Property upon the following terms and conditions:
1. DEFINITIONS
The terms defined in this Paragraph shall have the respective meanings
stated in this Paragraph for all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires. Other defined terms
are set forth elsewhere in this Agreement.
(a) "ABOVEGROUND STORAGE TANK" shall have the meaning ascribed to such
term under any applicable federal, state or local statute, law, ordinance, code,
rule, regulation, order ruling, or decree governing Aboveground Storage Tanks.
(b) "BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday, between the hours of 8:30 AM and 5:00 PM, except for such
days on which commercial banks doing business in the State of Florida or in the
State of New York are required to be closed for the transaction of business.
[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED.
(c) "CLOSING" shall mean the action whereby Seller conveys or causes
to be conveyed to Buyer, and Buyer purchases and accepts legal title to Seller's
right, title and interest in the Property.
(d) "CLOSING AGENT" shall mean the Title Company.
(e) "DISCHARGE" means the presence, spilling, leaking, dumping,
discharging, releasing, migrating, or emitting, as any of such terms may further
be defined in any Environmental Law, into or through any medium including,
without limitation, ground water, surface water, land, soil or air of any
Hazardous Substances.
(f) "DUE DILIGENCE COSTS" means the actual, documented, out-of-pocket
costs and expenses paid by Buyer to third parties, in connection with Buyer's
due diligence activities with respect to the Property, which are incurred from
and after the Effective Date. In no event shall Due Diligence Costs reimbursed
to Buyer in the case of a Seller default exceed the sum of Two Hundred Fifty
Thousand and 00/100 Dollars ($250,000.00).
(g) "EFFECTIVE DATE" shall be the date when the last one of the Seller
and Buyer has properly executed the Agreement and shall also be the date from
which commences any time period used for measuring performance or events
hereunder.
(h) "ENVIRONMENTAL LAWS" means all federal, state, regional or local
statutes, laws, rules, regulations, codes, common law rulings, orders, plans,
injunctions, decrees, rulings, and changes or ordinances or judicial or
administrative interpretations thereof, or similar laws of foreign jurisdictions
where the Buyer or Seller conducts business, whether currently in existence or
hereafter enacted or promulgated, any of which govern (or purport to govern) or
relate to pollution, protection of the environment, public health and safety,
air emissions, water Discharges, hazardous or toxic substances, solid or
hazardous waste or occupational health and safety, as any of these terms are or
may be defined in such statutes, laws, rules, regulations, codes, orders, plans,
injunctions, decrees, rulings and changes or ordinances, or judicial or
administrative interpretations thererof, including without limitation: the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA"); the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 and subsequent Hazardous and Solid Waste
Amendments of 1984, 42 U.S.C. Section 6901 et seq. (collectively, "RCRA"); the
Hazardous Materials Transportation Act, as amended, 49 U.S.C. Section 5101, et
seq. (the "Hazardous Materials Transportation Act"); the Clean Water Act, as
amended, 33 U.S.C Section 1311, et seq. (the "Clean Water Act"); the Clean Air
Act, as amended, 42 U.S.C. Section 7401-7642 (the "Clean Air Act"); the Toxic
Substances Control Act, as amended 15 U.S.C. Section 2601 et seq. (the "Toxic
Substances Control Act"); the Federal Insecticide, Fungicide, and Rodenticide
Act, as amended, 7 U.S.C. Section 136-136y ("FIFRA"); the Emergency Planning and
Community Right-to-Know Act of 1986, as amended, 42 U.S.C. Section 11001, et
seq. (Title III of XXXX) ("EPCRA"); and the Occupational Safety and Health Act
of 1970, as amended, 29 U.S.C. Section 651, et seq. ("OSHA").
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(i) "ESCROW AGENT" shall mean the Title Company.
(j) "HAZARDOUS SUBSTANCES" shall be construed broadly to include any
substance, material, or waste, and any other contaminant, pollutant or
constituent thereof, whether liquid, solid, semi-solid, sludge and/or gaseous,
and shall include, without limitation, chemicals, compounds, by-products,
pesticides, asbestos containing materials, petroleum or petroleum products,
methyl-tertiary butyl ether, and polychlorinated biphenyls, the presence of
which requires investigation or remediation under any Environmental Laws or
which are or become regulated, listed or controlled by under or pursuant to any
Environmental Laws, including, without limitation, RCRA, CERCLA, the Hazardous
Materials Transportation Act, the Toxic Substances Control Act, the Clean Air
Act, the Clean Water Act, FIFRA, EPCRA and OSHA, or any similar state statute,
or any future amendments to, or regulations implementing such statutes, laws,
ordinances, codes, rules, regulations, orders, rulings, or decrees, or which has
been or shall be determined or interpreted at any time by any governmental
authority to be a hazardous or toxic substance regulated under any other
statute, law, regulation, order, code, rule, or decree.
(k) "IMPROVEMENTS" shall have the meaning set forth in Section
2(a)(ii) of this Agreement.
(l) "KICKOUT OPTION" means the right and option of Buyer to elect to
exclude from the purchase and sale certain specific Parcels in accordance with
the specific terms and provisions herein set forth, while leaving this Agreement
in effect for the remaining Parcels. Buyer shall have a Kickout Option only in
the limited circumstances described in this Agreement, and only if Buyer
exercises the Kickout Option in accordance with the terms and provisions
specifically set forth herein. If Buyer exercises its Kickout Option, the
Purchase Price shall be reduced by the "Kickout Value" applicable to the
excluded Parcel(s), as set forth on Exhibit "A"; and this Agreement shall be
ineffective as to the Parcels excluded by means of the Kickout Option, except as
otherwise specifically provided herein. Except to the extent provided in this
Agreement to the contrary, the number of Kickout Options that may be exercised
by Buyer is limited by each of the following provisions:
(i) in no event may Buyer exercise Kickout Options for more than
five (5) Parcels, no matter the reason for exercise of the Kickout
Option(s); and
(ii) the number of Kickout Options, as described in subparagraph
(i) is further limited so that in no event may the cumulative "Baseline
Value Variance" (as shown on the schedule attached as Exhibit A) exceed One
Million Dollars ($1,000,000.00).
If Buyer endeavors to exercise its Kickout Option for Parcels in excess of
those that would be permitted under the limitations described in (i) and/or
(ii), the first validly-exercised Kickout Options shall be effective and
any
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subsequent efforts to exercise Kickout Options shall be ineffective and
invalid.
If Buyer exercises a Kickout Option for one or more Hawaii Parcels, all
Hawaii Parcels shall be kicked out and excluded from this Agreement, and
Buyer shall be deemed to have exercised Kickout Options for three (3)
Parcels.
Notwithstanding the foregoing, the Kickout Option is in addition to any other
rights, including termination rights, that Buyer may have under the specific
terms of this Agreement.
(m) The term "KNOWLEDGE", when used in this Agreement (whether or not
such term is capitalized) in reference to the knowledge of Seller shall in each
event refer to, and be limited to, the actual knowledge (and not deemed or
imputed knowledge) of the following persons employed by or affiliated with
Seller: Xxxxxx Xxxxx Xxxxxxx, Xx. and Xxxx xxx Xxxxxx.
(n) "LAND" shall mean the land included in the Parcels described on
Exhibit "A", annexed hereto and made a part hereof, either individually as to a
Parcel or collectively as to all Parcels, as the context may require.
(o) "LICENSES" means all licenses, certificates, permits, approvals
and registrations.
(p) "PARCEL" shall mean each of the Parcels described on Exhibit "A",
together with the Improvements located on such Parcel and the Personalty
associated with such Parcel.
(q) "PERMITTED EXCEPTIONS" shall mean, collectively those
restrictions, covenants, agreements, easements, matters and things of fact or of
record affecting title to a Parcel that are shown or listed as exceptions on any
title policy received by Seller (or Seller's affiliates) at the time of
acquisition of title to such Parcel (with copies of such documents being
furnished to Buyer during the Inspection Period), other than matters related to
Seller's financing, if any, and other matters subject to which title to the
Property is to be sold by Seller and purchased by Buyer pursuant to this
Agreement.
(r) "PROPERTY" shall mean all Parcels, together with all other rights
and interests to be conveyed by Seller to Buyer under the terms of this
Agreement.
(s) "SELLER" shall mean each of the following entities, individually
and collectively, and their successors and assigns:
(i) CNL NET LEASE FUNDING 2003, LLC, a Delaware limited liability
company;
(ii) CNL NET LEASE FUNDING 2001, LP, a Delaware limited
partnership;
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(iii) USRP HOLDING CORP., a Texas corporation;
(iv) REAL ESTATE HOLDINGS III, LLC, a Delaware limited liability
company;
(v) USRP (KATY), L.P., a Texas limited partnership;
(vi) USRP FUNDING 2001-A, LP, a Delaware limited partnership;
(vii) USRP (HAWAII), LLC, a Texas limited liability company;
(viii) USRP (XXX), LLC, a Texas limited liability company;
(ix) USRP (XXXXXXXX), LLC, a Texas limited liability company;
(x) USRP (XXXXX), LLC, a Texas limited liability company;
(xi) USRP (XXXXX), LLC, a Texas limited liability company
(xii) USRP (Xxxx 1), LLC, a Texas limited liability company;
(xiii) USRP (Xxxx 2), LLC, a Texas limited liability company;
(xiv) NET LEASE FUNDING 2005, LP, a Delaware limited partnership;
and
(xv) CNL APF Partners, LP, a Delaware limited partnership.
(t) "SELLER PARTIES" means Seller and any officer, director, partner,
shareholder, partnership, employee, agent, representative, affiliate,
predecessor, successor and assign of Seller. A sale or merger of a Seller or
Seller Party shall not be a default by Seller hereunder, so long as the
successor entity complies with Seller's obligations hereunder.
(u) "SERVICE CONTRACTS" shall mean any and all contracts relating to
or affecting the use or operation of one or more Parcels, such as service,
maintenance, and similar agreements. A description of the existing Service
Contracts shall be provided by Seller to Buyer on or before February 9, 2007.
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(v) "SUBSTANTIALLY DAMAGED" means that the Improvements and/or
Personalty (as the case may be) as to a Parcel have been damaged by fire or
other casualty to the extent that the estimated cost of repair (according to a
contractor selected by Seller, in its discretion, is more than One Hundred
Thousand and 00/100 Dollars.
(w) "TITLE COMPANY" or "TITLE AGENT" shall mean the office(s) of Land
America Title Insurance Company selected by Seller.
(x) "UNDERGROUND STORAGE TANK" shall have the meaning ascribed to such
term in Section 6901 et seq., as amended, of RCRA, or any applicable state or
local statute, law, ordinance, code, rule, regulation, order ruling or decree
governing underground storage tanks.
2. DESCRIPTION OF THE PROPERTY.
(a) The property and interests to be sold, conveyed, transferred and
assigned pursuant to this Agreement (collectively, the "Property") includes the
following rights and interests:
(i) Fee simple title, or a leasehold interest (as specified by
Exhibit A), attached hereto and incorporated herein by this reference as to
the Parcels of land described on such exhibits (the "Land").
(ii) The building improvements and other structures now or on the
Closing Date situated upon the Land, together with all fixtures located
therein or affixed thereto, and including any Aboveground Storage Tanks and
Underground Storage Tanks owned by Seller (being referred to collectively
as the "Improvements"). The Land and Buildings may collectively be referred
to as the "Premises". As soon as possible, but not later than the end of
the Inspection Period, Seller shall deliver to Buyer a list of Aboveground
Storage Tanks and Underground Storage Tanks that to Seller's Knowledge are
owned by Seller.
(iii) Any and all equipment, appliances, apparatus, furnishings,
machinery and personalty, affixed to, placed upon, located in or used in
connection with the use, occupancy or operation of the Premises and owned
by Seller, if any, and without warranty (the "Personalty").
(iv) All rights and interests of Seller in, to and under any
leases encumbering the Premises, as they may from time to time be executed,
terminated, and/or modified in accordance with the terms hereof ("Leases").
Buyer shall investigate the status of the Leases during the Inspection
Period, including the estoppels delivered by Tenants, landlords, or Seller
in accordance with this Agreement.
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(v) All rights and interests of Seller under the terms of the
Service Contracts (as herein defined), as they may from time to time be
executed, terminated, and/or modified in accordance with the terms hereof.
(b) Unless this Agreement specifically otherwise provides, Seller
shall assign and convey to Buyer at Closing, in the deed of conveyance or
otherwise, and without representation or warranty, any and all easements,
appurtenances, hereditaments, licenses, grants of right or other agreements
benefiting a Parcel of the Land; and any land lying in the bed of any street,
road, alley or avenue, opened or proposed, adjoining a Parcel, any award to be
made in lieu thereof, and any unpaid award for damages to a parcel of the Land
by reason of change of grade of any street.
(c) Exhibit A, which may be a composite exhibit of two or more
spreadsheets, sets forth the type of estate owned by Seller with respect to the
Land, Improvements and Personalty comprising each Parcel. The interests and
estates to be purchased, sold, transferred and insured shall be the type of
interests and estates (i.e. fee simple or leasehold), as set forth on Exhibit A
with respect to each Parcel.
3. PURCHASE PRICE AND METHOD OF PAYMENT.
(a) The purchase price ("Purchase Price") for the Property shall be
Eighty-Six Million Six Hundred Forty-Eight Thousand Two Hundred Thirty-Eight and
00/100 Dollars ($86,648,238.00). The Purchase Price shall be payable as follows:
(i) One Million and 00/100 Dollars ($1,000,000.00) as an initial
xxxxxxx money deposit ("Initial Deposit") by wire-transferred funds paid by
Buyer to Escrow Agent upon the execution and delivery hereof. Buyer and
Seller shall execute a standard and reasonable form of escrow agreement
required by Escrow Agent as a condition to holding the Deposit.
(ii) One Million and 00/100 Dollars ($1,000,000.00) as an
additional xxxxxxx money deposit (the "Second Deposit"), on or before the
last day of the Inspection Period (as herein defined) by wire-transferred
funds by Buyer to the trust account of Escrow Agent, if Buyer elects to
proceed with the purchase of the Property. The Initial Deposit and Second
Deposit shall be collectively referred to as the "Deposit". Failure of
Buyer to pay the Second Deposit as and when required hereunder shall allow
Seller to terminate this Agreement by written notice to Buyer, at any time
until receipt and written notice of acceptance of the Second Deposit by
Escrow Agent.
(iii) The balance of the Purchase Price, plus or minus such
amounts resulting from prorations and adjustments required by this
Agreement, by wire transfer to the Escrow Agent's trust account no later
than the close of business on the day prior to the Closing Date.
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(b) The Deposit shall be retained or disbursed pursuant to the
provisions of this Agreement and when the Closing occurs the Deposit will be
credited to Buyer on the Closing Statement against the total Purchase Price and
paid to Seller.
(c) The Escrow Agent shall invest the Deposit in federally insured
short-term account or accounts reasonably acceptable to Buyer and Seller, the
identity of which shall be supplied to Buyer and Seller. The Escrow Agent may
not commingle the Deposit with other funds of Escrow Agent. Interest on the
Deposit (if any) shall accrue to the benefit of Buyer unless and until the
Deposit is released to Seller pursuant to the provisions of this Agreement as a
result of the default of Buyer in which event interest shall accrue to the
benefit of Seller.
(d) The Escrow Agent is acting as a stakeholder only with respect to
the Deposit, and if there is any dispute as to whether the Escrow Agent is
obligated to deliver the Deposit or as to whom the Deposit is to be delivered,
the Escrow Agent may refuse to make delivery and may continue to hold the
Deposit until receipt by the Escrow Agent of an authorization in writing, signed
by both Seller and Buyer, directing the disposition of the Deposit; in the
absence of any such written authorization, the Escrow Agent shall hold the
Deposit until a final determination of the rights of the parties in an
appropriate proceeding or shall bring an appropriate action or proceeding for
leave to deposit the Deposit in a court of competent jurisdiction pending such
determination. Seller and the Buyer recognize that the Escrow Agent' s duties
hereunder are only as specifically provided herein and are purely ministerial in
nature; and Seller and Buyer therefore agree that the Escrow Agent shall, so
long as it acts in good faith, have no liability to either except for its
willful misconduct or gross negligence. Seller and Buyer do hereby further
indemnify the Escrow Agent against, and agree to hold, save, and defend the
Escrow Agent harmless from, any costs, liabilities, and expenses incurred by the
Escrow Agent in discharging its duties hereunder, except with respect to losses
or liabilities or costs as a result of fraud or gross negligence of the Escrow
Agent.
(e) If Escrow Agent shall so request, Buyer and Seller shall execute
an escrow agreement on Escrow Agent's standard forms setting forth in detail the
rights, duties and obligations of Escrow Agent.
4. EVIDENCE OF TITLE.
(a) On or within thirty (30) days from the Effective Date, Seller
shall cause to be provided to Buyer one or more title insurance commitments
issued by the Title Company agreeing to insure title to the Land and
Improvements included within each Parcel of the Property, in an amount equal to
the Kickout Value for each Parcel, together with copies of all items shown as
exceptions to such title (collectively, the "Commitment" or "Commitments"). The
Commitment shall be on the ALTA "marketability" form or equivalent forms, if
available, or, if unavailable, other forms approved for use in the jurisdictions
in which the respective Parcels are located, and shall be appropriate for the
type of interest (i.e. fee simple or leasehold) owned by Seller with respect to
the Land and Improvements within each Parcel. At the option of Seller, Seller
may cause separate Commitments to be issued with respect to one or more
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Parcels, with the amount of insurance being the Kickout Values allocated to the
Parcels insured (as shown on Exhibit A).
(b) As to each Commitment (or, at Buyer's option, as to each Parcel),
Buyer may deliver to Seller Notice of all liens, encumbrances, title objections,
financing statements, covenants or easements, to which Buyer objects (the "Title
Objections"), on or before the date that is the earlier to occur of (i) the last
day of the Inspection Period or (ii) fifteen (15) days after Buyer receives the
Commitment (the "Title Date"). To the extent Buyer fails to give written Notice
of Title Objections on or before the Title Date as to any matters set forth in a
Commitment, such matters shall be considered waived and accepted by Buyer and
shall constitute Permitted Exceptions.
(c) Seller shall have ten (10) days after receipt of Buyer's Notice of
Title Objections as to a Commitment, within which to give Notice to Buyer
setting forth the Objections that Seller, in its sole discretion, elects to
endeavor to cure. Such notice may be referred to as "Seller's Curative Notice."
Seller may, but shall not be required to, cure or attempt to cure any or all
Title Objections. Such cure may, at the option of Seller, be by means of
affirmative insurance or endorsement from the Title Company, in form and
substance reasonably satisfactory to Buyer, insuring over and providing that any
liens, encumbrances, covenants, easements or other matters which are not
Permitted Exceptions shall not be collected out of, or enforced against, Buyer
or the Property.
(d) If Buyer, in its sole discretion, is not satisfied with a Curative
Notice provided by Seller, or if Seller does not timely deliver a Curative
Notice, Buyer's sole right and remedy shall be to either:
(i) terminate this Agreement, receive the return of the Deposit
and all accrued interest and this Agreement shall be null and void, each
party having no further obligation to the other except for Buyer's
obligations that survive the termination of this Agreement. This option may
be exercised by Notice to Seller provided no later than: (A) ten (10) days
following the delivery of the Curative Notice to which Buyer objects, if a
Curative Notice was provided, or (B) twenty (20) days following the date of
Buyer's Notice of Title Objections as to a Parcel, if no Curative Notice
was provided as to such Parcel. Such notice, if provided by Buyer, shall be
referred to as the "Title Termination Notice".
(ii) elect to exercise its Kickout Option as to the specific
Parcels for which Buyer was not satisfied with a Curative Notice. The
Kickout Option set forth in this subparagraph (ii) may be exercised only by
written Notice to Seller, provided no later than the earlier to occur of:
(A) the last day of the Inspection Period; or (B)(1) ten (10) days
following the date of delivery of the Curative Notice to which Buyer
objects, if a Curative Notice was provided, or (2) twenty (20) days
following the date of Buyer's Notice of Title Objections as to a Parcel, if
no Curative Notice was provided as to such Parcel.
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(iii) purchase the Property subject to such Title Objections
(which shall be deemed Permitted Exceptions), in which case this Agreement
shall remain in full force and effect, subject to satisfaction of all of
the other terms and conditions hereof, and the parties shall proceed to
Closing without reduction in the Purchase Price or other obligation on the
part of Seller by reason of such Title Objections. If Buyer fails to
deliver a Title Termination Notice within the time required herein, Buyer
shall be deemed to have elected the option set forth in this subparagraph
(iii).
(iv) if (and only if) Seller, in its sole discretion, shall agree
in writing, the parties may agree in writing to a delay of closing as to
the Parcel subject to the outstanding Title Objections, in which event the
Purchase Price for the Parcel shall nevertheless be paid into escrow with
the Closing Agent, and shall be held in accordance with the terms of the
written agreement between Buyer and Seller.
(e) If Seller has notified Buyer in a Curative Notice that it will
attempt to cure a Title Objection prior to Closing, and if Seller has not
removed and cured that Title Objection on or prior to the Closing Date, Seller
shall be entitled to extend the Closing Date for a reasonable period not to
exceed thirty (30) days in order to allow Seller additional time to endeavor to
cure such Title Objection. Seller may exercise such option by Notice to Buyer.
(f) If, on or before the Closing Date (as it may be extended
hereunder) Seller fails or is unable to cure a Title Objection that Seller has
elected, in a Curative Notice, to endeavor to cure, Buyer's sole right and
remedy shall be to either:
(i) terminate this Agreement by written Notice to Seller, receive
the return of the Deposit and all accrued interest, in which case this
Agreement shall be null and void, each party having no further obligation
to the other except for Buyer's obligations which survive the termination
of this Agreement. Buyer may exercise this right and option only by
delivering to Seller a Title Termination Notice on the earlier to occur of:
(A) five (5) days after the date upon which Seller delivers Notice that it
will fail or be unable to cure an Objection notwithstanding Seller's
Curative Notice, or (B) the Closing Date.
(ii) elect to exercise its Kickout Option as to the specific
Parcels as to which Seller failed to cure a Title Objection. The Kickout
Option set forth in this subparagraph (ii) may be exercised only by written
Notice to Seller, provided no later than: on the earlier to occur of: (A)
five (5) days after the date upon which Seller delivers Notice that it will
fail or be unable to cure an Objection notwithstanding Seller's Curative
Notice, or (B) the Closing Date.
(iii) purchase the Property subject to such Title Objections
(which shall be deemed Permitted Exceptions), in which case this
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Agreement shall remain in full force and effect, and the parties shall
proceed to Closing hereunder without reduction in the Purchase Price or
other obligation on the part of Seller by reason of such Title Objections.
If Buyer fails to deliver a Termination Notice within the time herein
provided, Buyer shall be deemed to have elected the option to close as set
forth in this subparagraph (iii).
(g) Notwithstanding any other provision of this Agreement to the
contrary, in no event shall Seller have any affirmative curative obligation, or
be obligated to incur any expense, liability or obligation, or to commence or
continue any suit or other action to cure or remove any Title Objections, or any
other encumbrance upon or defect in title to the Property. Seller shall have the
affirmative obligation, however, to cure the following matters;
(i) Seller shall be obligated to provide such satisfactions or
other documentation sufficient to allow the Title Agent to remove from the
Title Commitment and Title Policy all exceptions for mortgages or other
liens securing debt placed on the Property by Seller or its lender;
(ii) Seller shall be obligated to satisfy or discharge
(including, without limitation, by indemnification or bonding over) any
judgment, construction mechanic's or other monetary lien against Seller and
encumbering the Property which may be satisfied or discharged by the
payment of a liquidated sum not to exceed the Deposit in the aggregate for
all such judgments, construction mechanic's and other monetary liens; and
(iii) Seller shall be obligated to expend funds, but only if and
to the extent described or provided in a Curative Notice, to endeavor to
cure an Objection that Seller elects, in its sole discretion, to endeavor
to cure. Notwithstanding anything herein to the contrary, as to matters
described in this subparagraph (iii), Seller's curative obligations shall
be limited and defined in accordance with the actions Seller specifically
agrees to take in its Curative Notice.
(h) Seller shall provide such notice as may be necessary under
applicable Leases with respect to rights of first refusal or other purchase
rights held by a Tenant under a Lease with respect to a Parcel. If a third party
exercises a purchase right with respect to a Parcel, such Parcel shall be
excluded from this Agreement, and such exclusion shall not be deemed an exercise
of a Kickout Option.
(i) At Closing, Seller shall cause to be provided, at Buyer's expense,
an Owner's Title Insurance Policy or Policies reflecting the status of title
shown in the Title Commitment with affirmative insurance or other coverage for
the period from Closing, through the moment of recording the deeds delivered at
Closing (if and to the extent such affirmative insurance can be provided by the
Title Agent) and showing good
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and marketable title in Buyer after recording the deeds, subject to no title
exceptions or defects other than those permitted by this Agreement or the
Commitments.
(j) If a Title Commitment for any Parcel is not provided to Buyer on
or before March 12, 2007, Buyer shall be entitled to treat such failure as a
Title Objection. Buyer shall have the right and option to delay the Closing for
such Parcel for a period to allow Buyer to receive and review such Commitment.
The parties shall otherwise have all rights and obligations with respect to such
Parcel as elsewhere provided herein. If, on March 12, 2007, the Title Agent has
failed to provide to Buyer Title Commitments for more than ten (10) Parcels, or
for Parcels having a collective Kickout Value of Three Million Dollars
($3,000,000.00) or more, Buyer shall have the right to extend the Inspection
Period until the day that is five (5) business days following delivery to Buyer
of sufficient additional Commitments so that the threshold described in this
sentence is satisfied.
(k) Notwithstanding anything herein to the contrary, Buyer understands
and agrees that the Title Agent may provide the Title Commitments and copies of
exception documents to Buyer by electronic mail delivery.
(l) Seller shall continue to reasonably cooperate with Buyer (at no
cost or expense to Seller) after the Closing Date to cure Title Objections of
record.
5. SURVEYS.
(a) Seller shall provide to Buyer copies of any and all surveys in
Seller's possession with respect to the Parcels, all without representation or
warranty by Seller of any kind or nature with respect to the truth, accuracy,
completeness, or other matters relative to such surveys. Buyer consents to all
matters relative to the Property as shown on any survey provided by Seller, and
Buyer shall have no right to object to such matters, except for such survey
matters as materially and adversely affect the use of a Parcel as a convenience
and gas station site.
(b) Buyer may, in its sole discretion, elect to obtain its own survey
of any Parcel. If Buyer does so, and if the survey of any Parcel reveals
encroachments, overlaps or other defects to which Buyer objects, Buyer may
notify Seller of such matters in Buyer's Notice of Title Objections as to such
Parcel. Buyer's objections as to the survey of a Parcel shall be deemed, and
shall be treated in all respects, as though they are Title Objections, and
Seller's obligations as to such matters shall be as set forth with respect to
Title Objections.
(c) If Buyer fails to give Seller written Notice of survey objections
as to a Parcel on or before the Title Objection Date for such Parcel, all survey
matters pertaining to such Parcel shall be considered waived and accepted by
Buyer and shall constitute Permitted Exceptions.
(d) Notwithstanding any provision in this Agreement to the contrary,
in no event shall Seller be obligated to incur any expense, liability or
obligation, or to commence or continue any suit or other action, to cure or
remove any Survey Objection.
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6. INSPECTION PERIOD; SAMPLING.
(a) Seller previously has provided to Buyer (whether during the
bidding process or subsequent thereto) copies of surveys, engineering reports,
building inspection reports, leases, and other documents in Seller's possession
relating to the Property. Such information has been furnished for convenience,
disclosure and information only, and Seller specifically makes no
representations or warranties whatsoever regarding the truth, correctness or
completeness of such materials. In making its determination whether to purchase
the Property, Buyer shall rely solely on its own investigations and inspections.
(b) For a period of time commencing upon the Effective Date and
continuing until 5:00 PM, March 19, 2007 (such period being referred to herein
as the "Inspection Period"), Buyer may undertake any and all physical and other
inspections of, investigations of, and inquiries concerning, the Property as
Buyer may deem necessary in order to evaluate the Property and determine the
advisability of Buyer's purchase thereof. Without limiting the generality of the
foregoing, Buyer may investigate building, zoning, environmental and other
codes, ordinances, statutes, rules and regulations affecting the Property, and
the ability of Buyer to obtain permits and approvals, and Buyer may inspect and
assess the physical condition of the Property and its components and the status
of compliance with applicable codes.
(c) Notwithstanding any other provision in this Agreement, Buyer must
obtain Seller's written approval as a condition to performing any intrusive
Phase II sampling at the Property or on any Parcel, including soil, soil vapor,
asbestos, lead- based paint, groundwater, surface water or sediment sampling
("Sampling"). Upon receipt of written request from Buyer to perform such types
of Sampling, Seller shall Notify Buyer in writing, within five (5) business days
following receipt of such request, the extent to which Seller authorizes such
Sampling. Failure of Seller to respond to such request shall be deemed a refusal
of Buyer's request. If Seller does not authorize Buyer, in writing, to perform
Sampling to the extent of Buyer's request within the time herein provided,
Buyer's sole option shall be to either:
(i) to close on the purchase of the Property in accordance with
the terms of this Agreement notwithstanding the refusal of Seller to
authorize the Sampling; or
(ii) to elect to exercise its Kickout Option as to the specific
Parcels for which Buyer's Sampling requests were denied. The Kickout Option
set forth in this subparagraph (ii) may be exercised only by written Notice
to Seller, no later than the earlier to occur of: (A) five (5) business
days following delivery of Notice from Seller that Buyer's requests for
testing and sampling were denied as to the Parcel(s) for which Buyer was
denied authorization to conduct Sampling; or (B) the last day of the
Inspection Period.
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(d) For purposes of allowing Buyer to undertake physical inspections
of the Property, Seller grants to Buyer the right of entry upon the Property. As
a condition to its exercise of such right of entry, Buyer agrees to and shall,
defend, indemnify and save and hold Seller harmless from and against any loss,
damage, liability, suit, claim, cost or expense (including attorneys' fees) if
and to the extent caused by Buyer or its agents of such right of entry. This
provision shall survive any termination of this Agreement.
(e) Buyer shall give Seller reasonable advance Notice before entering
the Property. Buyer's entry onto a Parcel shall be subject in all respects to
the terms and restrictions regarding entry and inspection as set forth in any
Lease (as herein defined) encumbering the Parcel. Seller (at no cost to it)
shall provide reasonable cooperation to Buyer to facilitate Buyer's inspections
of the Property. Seller, at Seller's option, shall have the right to accompany
Buyer and its agents and observe all or any inspections, tests, and
investigations performed by or for Buyer at or upon the Property. Upon receipt,
Buyer shall deliver to Seller (at no cost to Seller) copies of all such surveys
and tests and the results of all such investigations and analyses of the
Property. Buyer also shall promptly furnish to Seller copies of:
(i) all applications, inquiries, written communications and
submissions made by Buyer to any public authority respecting the Property,
or the use thereof, and
(ii) all responses, approvals, communications and other items
issued by any such public authorities to Buyer.
(f) Buyer may not directly contact any Tenant or other occupant of any
parcel without the prior written consent of Seller. At Seller's option, any
communications or information requested by Buyer of a Tenant shall be requested
by Seller.
(g) After completion of any inspections and tests, Buyer, at its sole
cost, shall restore the property disturbed by such inspections, tests and
surveys to the condition that previously existed and dispose of any wastes
generated onsite in accordance with all applicable laws.
(h) If the results of Buyer's inspections, investigations, or
inquiries are, within Buyer's sole discretion, unacceptable to Buyer, or if
Buyer's Board of Directors fails to ratify Buyer's execution and delivery of
this Agreement, and Buyer so notifies Seller in writing before expiration of the
Inspection Period, then Buyer may terminate this Agreement. If this Agreement is
terminated, Buyer shall promptly deliver to Seller copies of all reports,
studies and work product performed or generated by third parties or at the
direction of Buyer during the Inspection Period that have not previously been
provided to Seller, other than studies, reports or work product relating to
Buyer's business or that were internally prepared by Buyer. Buyer also shall
return to Seller all studies, reports, documents, and other materials provided
by Seller to Buyer with respect to the Property, whether provided prior to or
subsequent to the Effective Date.
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Upon receipt of such materials, Seller shall approve the return of the Deposit
to Buyer and all rights and obligations of each party under or by virtue of this
Agreement shall thereafter terminate except as otherwise expressly herein
provided.
(i) If Buyer does not elect to terminate this Agreement during the
Inspection Period, or if Buyer elects to close notwithstanding the existence of
matters to which it objected, Buyer shall be deemed to have waived the
contingency set forth in this Paragraph.
(j) If Buyer closes hereunder, Buyer shall purchase and take title to
the Property subject to all matters discovered or revealed during the course of
any investigations conducted by or at the direction of Buyer prior to the
Closing Date, and Buyer shall have waived any and all claims, damages, suits,
actions or causes of action Buyer might otherwise have against Seller Parties
due to or arising out of such matters. The provisions of the preceding sentence
shall survive the Closing and shall not be merged in the deed at Closing.
(k) Notwithstanding any other provision in this Agreement, prior to
Closing, Buyer shall not disclose, directly or indirectly, any information
obtained in connection with this Agreement or the transaction contemplated
hereby (including, without limitation, results of any tests, inspections,
analyses or investigations conducted by or for Buyer). Buyer shall keep
confidential until the Closing any information or data received or discovered in
its analyses, tests and inspections regarding the Property or at any other time
prior to the Closing, except Buyer may disclose information or data:
(i) to its attorneys, consultants or Affiliates, to the extent
reasonably necessary in connection with Buyer's evaluation and effectuation
of the transaction contemplated in this Agreement; provided that all such
attorneys, consultants and Affiliates shall be required to hold and keep
such information and data confidential, and Buyer shall be responsible for
such attorneys, consultants and Affiliates holding and keeping such
information and data confidential; and
(ii) if and only to the extent that disclosure by Buyer is
required by law or court order, then prior to making any such required
disclosure, Buyer shall provide to Seller not less than five (5) days'
written Notice, including a copy of the law, order or document requiring
disclosure, or such lessor notice is required in order to comply with
applicable law, or court order, but in no event shall the written notice be
less than forty eight (48) hours. Buyer shall further provide a copy of
Buyer's proposed disclosure. Seller, in its sole discretion, shall have the
right to challenge and contest (by legal action or otherwise) such required
disclosure, and Buyer, at no expense to it, shall fully cooperate with
Seller in making such contest and attempting to keep such information and
data confidential. Failure or omission by Seller to contest or challenge
shall not be a waiver by Seller of the provisions of this Paragraph.
15
(l) It is a condition precedent to Seller's obligation to proceed with
this transaction that Seller obtain all Board of Directors approvals that Seller
deems necessary, on or before February 9, 2007. If Seller fails to Notify Buyer,
on or before February 9, 2007, that Seller has satisfied this contingency, this
Agreement shall terminate. If this Agreement is terminated, Buyer shall promptly
deliver to Seller copies of all reports, studies and work product performed or
generated by third parties or at the direction of Buyer during the Inspection
Period that have not previously been provided to Seller, other than studies,
reports or work product relating to Buyer's business or that were internally
prepared by Buyer. Buyer also shall return to Seller all studies, reports,
documents, and other materials provided by Seller to Buyer with respect to the
Property, whether provided prior to or subsequent to the Effective Date. Upon
receipt of such materials, Seller shall approve the return of the Deposit to
Buyer and all rights and obligations of each party under or by virtue of this
Agreement shall thereafter terminate except as otherwise expressly herein
provided.
7. LEASES.
(a) Buyer's purchase of the Property shall be subject to all terms and
provisions of the leases applicable to each Parcel within the Property,
including amendments thereto. Such leases (collectively, the "Leases") may
include (without limitation) ground leases, occupancy leases, and/or equipment
leases.
(b) Promptly following the Effective Date, Seller shall provide shall
provide to each landlord (as to ground leases) and to each Tenant (as to
occupancy leases) of each Lease that relates to an interest in real estate, a
proposed estoppel letter for execution by such entity, together with copies of
the documents that Seller believes comprise the complete Lease, including any
and all amendments. Seller shall provide substantially all such estoppels no
later than February 9, 2007, and shall advise Buyer in writing of the estoppels
that have not been provided by such date and the reason for delay. The estoppel
letter provided shall be in the form attached hereto as Exhibit "B", with such
changes as may be necessary or appropriate with respect to a particular Lease.
Seller shall use reasonable diligence to endeavor to cause each estoppel to be
completed, executed and returned to Seller, but Seller makes no representations
or warranties that any particular estoppel letter shall be executed, or shall be
executed in the form provided. Buyer's obligations under this Agreement are not
contingent upon the execution or return of Tenant or landlord estoppel letters.
Simultaneously with mailing or delivery of a proposed estoppel to each tenant
under a Lease (a "Tenant"), Seller shall provide a copy of the proposed estoppel
to Buyer. Upon receipt of executed estoppel letters, Seller shall provide copies
of such estoppels to Buyer, with originals to be delivered at Closing.
(c) If an estoppel is not delivered by a Tenant or landlord with
respect to a Parcel prior to expiration of the Inspection Period, Seller shall
elect, in its sole discretion, to either:
(i) execute the estoppel for the Lease for such Parcel. Such
estoppel shall be binding upon Seller and its successors and
16
assigns. The representations of Seller in its estoppels shall be made
solely to Seller's Knowledge. If the estoppel executed by Seller as to a
Parcel contains material misstatements or misrepresentations, and if Buyer
so Notifies Seller within twelve (12) months following the Closing Date,
Seller shall take such action as it may reasonably take to correct the
inaccuracy or Buyer shall have the remedies available to it under
applicable law.
(ii) elect, in its sole discretion, not to execute an estoppel
with respect to the Lease for such Parcel. In that event, Buyer shall have
the option to either (A) include such Parcel in the sale and purchase
notwithstanding such failure to deliver a Tenant or landlord estoppel, or
(B) exclude such Parcel from the terms of this Agreement as though it were
part of buyer's Kickout Option (but without counting against Buyer's
allotted number of Kickout Options).
(d) Seller shall not enter into any new leases or letters of intent,
lease terminations, or lease modifications with respect to any Parcel between
the Effective Date and the Closing Date unless Buyer shall consent in writing.
Between the Effective Date and Closing Date, Seller shall comply, at its sole
expense, with all obligations under the Leases.
(e) One or more of the Leases may provide for a right of first refusal
or other purchase option ("ROFR") in favor of the Tenant of a Parcel, with
respect to all or a portion of such Parcel, and this Agreement is subject to the
rights of the Tenants under each ROFR. Exercise by a Tenant of its ROFR shall
not be deemed a default by Seller hereunder. Seller shall deliver to each Tenant
known to have a ROFR the form of written notice required under the respective
Lease ("ROFR Notice"), with a copy to Buyer. Notwithstanding any provision of
the Confidentiality Agreement to the contrary, Seller may provide such Tenant
with a copy of this Agreement, or the essential terms hereof, in order to
endeavor to obtain a release of the ROFR. If a Tenant elects to exercise its
ROFR, the Parcel(s) to be purchased by such Tenant shall be removed and
eliminated from this Agreement (with a corresponding reduction in the Purchase
Price in accordance with the "Kickout Value" shown on Exhibit A), but such
removal shall not be deemed an exercise of Buyer's Kickout Option.
Notwithstanding the foregoing, if a Tenant of [***] (as shown on Exhibit A)
exercises a ROFR as to its Parcel, the reduction in the Purchase Price shall be
the greater of: (x) the net proceeds of sale received by Seller with respect to
such ROFR or (y) an amount equal to the rent reduction under the master lease
covering such Parcel, capitalized at a rate of [***]. If a Tenant's period to
exercise its ROFR extends beyond the Closing Date, the Closing and conveyance
for such Parcel(s) shall be delayed for a period of up to ninety (90) days
following the Closing Date. If the Tenant closes on the purchase of the Parcel,
the terms of this Agreement shall have no further force or effect with respect
to such Parcel and the Purchase Price shall be reduced by the Kickout Value for
such Parcel. If the Tenant elects not to close on the purchase of such Parcel,
or if the ROFR expires, Seller shall notify Buyer, and Buyer shall be obligated
to purchase such Parcel following the Closing Date.
[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES
ACT OF 1934, AS AMENDED.
17
(f) If and to the extent Seller determines that any Lease requires
consent of the other parties thereto as a condition to the assignment of such
Lease, Seller shall endeavor in good faith to obtain the consent of such other
parties prior to the Closing Date. Failure of Seller to obtain such consent
shall not be a default of Seller, but shall allow Seller to delay the Closing on
such Parcel for a period of up to ninety (90) days to allow Seller to continue
its efforts to obtain such consent. Failure of Seller to obtain such consent
also may be treated by Buyer as a Title Objection.
(g) If and to the extent Closing on certain Parcel(s) is delayed
beyond the Closing Date for any reason in accordance with the terms of this
Agreement, but Closings occur subsequently, the parties shall mutually cooperate
and endeavor to close on such Parcels in clusters rather than individually, so
as to promote efficiency and convenience.
(h) Notwithstanding anything to the contrary, the term "ROFR" as used
herein shall mean only those purchase rights or options: (A) for which this
transaction or the execution of this Agreement triggers a purchase right, and/or
(B) for which a Tenant has notified Seller in writing of its intention to
exercise a purchase option. Buyer shall take title subject to any other ROFRs
that may be set forth in the Leases.
8. SERVICE CONTRACTS
(a) On or before February 9, 2007, Seller shall deliver to Buyer a
list that Seller believes (but does not warrant) is a true, correct and complete
list of all maintenance, management, or other service contracts affecting or
encumbering Seller's interest in the Property and to which Seller is a party,
including amendments thereto (the "Service Contracts"). Buyer's purchase of the
Property shall be subject to all terms and provisions of the Service Contracts
that Buyer elects to assume. Seller has no knowledge regarding the maintenance,
management, or other service contracts that may have been executed by Tenants of
the Property.
(b) If any new Service Contracts are executed during the Inspection
Period, Seller shall provide copies thereof to Buyer promptly upon execution.
Following the Inspection Period, Seller shall not execute any new Service
Contracts or execute any modifications to any existing Service Contracts, in
either event that would be binding upon Buyer, unless the Service Contracts are
terminable on thirty (30) days notice. Between the Contract Date and Closing
Date, Seller shall comply, at its sole expense, with all obligations under the
Service Contracts.
(c) Buyer shall have the right, during the Inspection Period, to
review the Service Contracts. Buyer shall notify Seller, on or before the
expiration of the Inspection Period, of the Service Contracts that Buyer does
not elect to assume. All Service Contracts that Buyer does not elect to assume
shall remain Seller's responsibility. All Service Contracts that Buyer does not
elect to assume shall remain Seller's responsibility and Seller shall indemnify
and hold harmless Buyer from and against claims made by parties to such Service
Contracts not assumed by Buyer. All other Service Contracts shall be assigned to
and assumed by Buyer on the Closing
18
Date. To Seller's knowledge, there are no defaults of Seller under the Service
Contracts, and there are no rights to offsets by any parties.
(d) Notwithstanding anything in this agreement to the contrary,
Seller, in its sole discretion, shall have the right to initiate or continue to
perform environmental assessment, monitoring and remediation activities until
the Closing Date.
9. SELLER'S MAINTENANCE; RISK OF LOSS; MATERIAL DISCHARGE.
(a) Except as otherwise provided herein, between the Effective Date
and Closing Date, Seller shall, at Seller's sole expense, maintain each Parcel
in the manner in which it has been maintained by Seller prior to the Effective
Date. Notwithstanding anything herein to the contrary, Seller's obligations
under this Paragraph do not relate to any maintenance, repairs, or restoration,
to the extent the foregoing are the responsibility of Tenants under Leases.
(b) Notwithstanding the terms of subparagraph (a) or any other
provision of this Agreement to the contrary, in no event shall Seller have any
obligation after the Effective Date to incur any expenses, costs, liabilities or
obligations to alter, repair, change or improve the Property or any part
thereof:
(i) in excess of One Hundred Thousand Dollars ($100,000.00) per
Parcel, or Five Hundred Thousand Dollars ($500,000.00) in the aggregate; or
(ii) for or in connection with any repair, improvement,
compliance with law or other matters which are the obligation of a Tenant
under a Lease.
(c) The Property shall be held at the risk of the Seller until 11:59
A.M., Eastern Daylight Savings Time, on the day of Closing, and thereafter, the
Property shall be held at the risk of the Buyer. If any portion of the
Improvements or Personalty within a Parcel, for which Seller (rather than the
Tenant of the Parcel) has repair obligations, is Substantially Damaged (as
herein defined) by fire or casualty on or before the Closing Date, Seller shall
promptly notify Buyer in writing. Seller have no obligation to restore such
Parcel, except to the extent provided in subparagraph (b). Seller may, however,
elect either of the following:
(i) to repair the damage to the Parcel (or cause or require the
Tenant of the Parcel to do so), in which case Seller may extend the Closing
Date (either as to such Parcel or as to all of the Property, at Seller's
option) for up to one hundred twenty (120) days to allow repairs and
restoration to be completed, and the parties shall then close as otherwise
provided herein. If Seller elects to repair and restore the Parcel or cause
it to be repaired and restored, Seller shall so notify Buyer in writing on
or within seven (7) Business Days following the date Seller receives notice
of the casualty; or
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(ii) to give a credit to Buyer on the Closing Statement for the
Parcel in the amount of the estimated cost to repair the Parcel, as
mutually agreed upon by Buyer and Seller. If Seller elects to do so, Seller
shall so notify Buyer in writing on or within seven (7) Business Days
following the date of casualty, including the projected credit to the
Buyer, if yet available.
(d) If any portion of the Improvements or Personalty within a Parcel,
for which Seller (rather than the Tenant of the Parcel) has repair obligations,
are Substantially Damaged by fire or casualty after the Inspection Period but on
or before the Closing Date and Seller does not elect, in its discretion, to
perform one of the options described in subparagraph (c), Buyer shall have the
following options:
(i) closing the purchase and sale transaction contemplated in
this Agreement and taking title to the Property (including the damaged
Parcel) in its damaged condition, in which event Buyer shall receive an
assignment, without warranty, as to all applicable insurance proceeds, if
any, plus an amount equal to the deductible; or
(ii) excluding the Substantially Damaged Parcel from the purchase
and sale, in which event the Purchase Price shall be reduced by the
"Kickout Value" for the excluded Parcel(s) as shown on the attached Exhibit
A. Such exclusion shall not be deemed one of Buyer's Kickout Options. Such
option can be exercised only by written Notice to Seller, on or within ten
(10) days after Notice from Seller regarding the damage or casualty.
(e) Seller shall continuously maintain casualty insurance during the
pendency of this Agreement covering the Improvements and Personalty to the
extent of Seller's insurable interest.
(f) If any portion of the Improvements or Personalty are damaged by
fire or casualty on or before the Closing Date, but are not deemed Substantially
Damaged, Buyer shall nevertheless be obligated to close on the purchase and sale
transaction contemplated in this Agreement and take title to the Property in its
damaged condition, in which event Buyer shall receive all insurance proceeds, if
any, plus an amount equal to the deductible.
(g) The omission or refusal of Seller to incur any expense, cost,
liability or obligation as described in subparagraph (b) shall not be a default
by Seller under this Agreement, nor shall Buyer have any rights or remedies as a
result thereof.
(h) The obligation of Seller to deliver insurance proceeds to Buyer
following Closing in accordance with the terms of this Paragraph shall survive
the Closing Date.
(i) If, during the Inspection Period, but prior to the Closing Date,
Seller acquires Knowledge of the occurrence of any Discharge (which is required
to be
20
reported to any applicable regulatory agency), Seller shall promptly give Buyer
written Notice of such Discharge. Notwithstanding anything herein to the
contrary, if any material Discharge of Hazardous Substances occurs on a Parcel,
after the end of the Inspection Period but on or before the Closing Date, and
such Discharge results in assessment and remediation costs, then such Parcel
shall be excluded from the purchase and sale. In that event the Purchase Price
shall be reduced by the Kickout Value for the excluded Parcel(s) as shown on
Exhibit A. Such exclusion shall not be deemed one of Buyer's Kickout Options.
10. CLOSING DATE.
(a) The "Closing Date" or "Closing" of this Agreement and the transfer
of title and possession of the Property shall occur as of March 31, 2007,
subject to the right of Seller to extend the Closing Date for an additional
period of up to thirty (30) days. All executed closing documents, funds and
other matters required to be done in order to accomplish closing shall be
delivered by Buyer and Seller to Closing Agent on or before March 29, 2007, and
the effective date of the Closing shall be midnight on March 31, 2007,
notwithstanding that such date is not a Business Day. It is a condition to
closing that any and all representations of Seller as herein set forth are true
and correct as of the Closing Date.
(b) If Buyer determines a filing is necessary under the Xxxx Xxxxx
Xxxxxx Act, Seller shall reasonably cooperate with Buyer, but such filing shall
be at Buyer's sole expense. Solely if and to the extent necessary to comply with
the requirements of the Xxxx Xxxxx Xxxxxx Act, Buyer may extend the Closing Date
for a period of up to thirty (30) days.
11. CLOSING AND CONVEYANCE DOCUMENTS.
(a) At Closing, Seller shall execute and deliver to Buyer the
following documents to convey the Property to Buyer:
(i) A special warranty deed (being the same as a bargain and sale
deed with warranty against the grantor's acts) to transfer to Buyer fee
simple title to the Land within the Parcels owned by Seller in fee simple
(as shown on Exhibit A). The deed shall be subject to the Permitted
Exceptions. The deed shall be prepared in accordance with applicable laws,
rules and regulations of the jurisdiction in which each respective Parcel
is located.
(ii) An assignment to Buyer, without representation or warranty,
except to the extent otherwise specifically herein provided, of all of
Seller's rights and interests under any and all Leases pursuant to which
Seller is a lessee under a ground lease with respect to the Land within any
Parcel. Buyer shall execute such assignment for purposes of agreeing to
assume and be bound by such the terms of such Leases from and after
21
the Closing Date. If required by the Title Agent, such assignment, or a
memorandum thereof, shall be recorded in the applicable public records.
(iii) An assignment to Buyer, without representation or warranty,
except to the extent otherwise specifically herein provided, of all of
Seller's rights and interests under any and all Leases encumbering or
affecting a Parcel other than those described in subparagraph (ii). Buyer
shall execute such assignment for purposes of agreeing to assume and be
bound by such the terms of such Leases from and after the Closing Date.
Seller shall deliver to Buyer (by credit on the Closing Statement or
otherwise) any security deposits held by Seller under the Leases.
(iv) A xxxx of sale, without representation or warranty, to
assign and transfer to Buyer all Personalty.
(v) An assignment to Buyer of all Seller's rights under Service
Contracts affecting the Parcels. Buyer shall execute such assignment for
purposes of agreeing to assume and be bound by such Service Contracts from
and after the Closing Date.
(vi) an affidavit of Seller setting forth the tax identification
number of Seller and certifying that it is not a foreign person as that
term is used and defined in Paragraph 1455 and 7701 of the United States
Internal Revenue Code of 1986, as amended.
(vii) An assignment to Buyer, without warranty or representation,
of all rights of Seller in, to and under any and all warranties,
guaranties, permits and licenses, and any documents evidencing governmental
approvals, if and to the extent assignable.
(viii) Notices to the Tenants (or landlords, as appropriate) of
each of the Leases assigned to Buyer, executed by Seller, indicating the
transfer of such Lease to Buyer and Buyer's assumption of the obligations
of Seller under the Lease, including liability for any security deposits to
the extent delivered to Buyer.
(ix) A Closing Statement setting forth the Purchase Price and all
costs, expenses, adjustments, and prorations as may be herein required.
(x) Such additional documents as may be required elsewhere in
this Agreement, or by applicable law, or which Seller and Buyer shall
mutually agree are necessary to carry out the provisions of this Agreement,
or as the Title Company may reasonably require, provided that such
additional documents do not expand either party's liability beyond the
liability described in or under this Agreement, and do not diminish any
rights or remedies of either party.
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(b) At Closing, Buyer shall execute and deliver to Seller the
following closing documents:
(i) The assignment and assumption documents described in
subparagraph (a), above, to acknowledge Buyer's assumption of duties and
obligations from and after the Closing Date.
(ii) A Closing Statement setting forth the Purchase Price and all
costs, expenses, adjustments, and prorations as may be herein required.
(iii) certified copies or originals of certificates of good
standing, incumbency certificates and resolutions consenting to and
approving the transaction herein described
(iv) Such additional documents as may be required elsewhere in
this Agreement, or by applicable law, or which Seller and Buyer shall
mutually agree are necessary to carry out the provisions of this Agreement,
or as the Title Company may reasonably require, provided that such
additional documents do not expand either party's liability beyond the
liability described in or under this Agreement, and do not diminish any
rights or remedies of either party.
(c) At Closing, Seller shall deliver to Buyer originals, to the extent
available (and copies if originals are not available), of all Leases and Service
Contracts assumed by Buyer, together with any and all permits, licenses,
certificates of occupancy, surveys, building plans, "as built" plans,
environmental reports, third party notices and other similar materials in
Seller's possession.
(d) The parties shall endeavor to distribute drafts of proposed
Closing Documents for review five (5) Business Days prior to the Closing Date.
12. ALLOCATION OF CLOSING EXPENSES.
(a) Seller shall pay all costs and expenses associated with curing any
Title Objections that Seller is obligated to cure, or that Seller elects to
cure.
(b) Buyer shall pay all recording costs; all documentary stamp tax,
excise tax, surtax, or other taxes imposed by governmental agencies or
authorities on the deeds of conveyance, the assignments of lease, or other
documents; the cost of all due diligence work obtained or performed by or on
behalf of Buyer; the cost of issuance of the Title Commitment and subsequent
policy; any costs associated with financing of Buyer's purchase price; escrow
and closing fees assessed by the Closing Agent or Title Agent; and other costs
and expenses. It is the intent of the parties that Buyer shall pay all costs and
expenses necessary to accomplish the Closing other than those allocated to
Seller under subparagraph (a).
(c) Each party shall pay its respective attorney's fees.
23
13. PRORATIONS.
(a) The items listed in this Paragraph shall be apportioned between
the Seller and Buyer as of the Closing Date. Notwithstanding anything set forth
in this Agreement to the contrary, Buyer shall be entitled to the income, and
shall incur the expenses, attributable to the Closing Date. Further,
notwithstanding anything herein to the contrary, there shall be no proration of
costs, expenses or other items as to a Parcel that are required to be paid by a
Tenant under a Lease pertaining to such Parcel.
(b) Rents and other monthly payments under the Leases (including,
without limitation, additional rents, common area maintenance charges, charges
under Lease for taxes and insurance premiums or for escalations thereof and any
other expense reimbursements), utility charges and property owners association
charges for the year of the Closing shall be prorated as of the Closing Date.
Buyer shall receive a credit for security deposits, if any, actually held by
Seller. Real and personal property taxes shall be prorated as of the Closing
Date based upon the maximum discount amounts; provided, however, such amounts
shall not be prorated as to a Parcel if and to the extent that the Tenant under
the Lease for such Parcel is required to pay such amounts directly to the taxing
authority. If the Closing shall occur before the tax rate is fixed for the then
current year, the apportionment of taxes shall be upon the basis of the tax rate
for the preceding year applied to the latest assessed valuation. Subsequent to
the Closing, when the tax rate is fixed for the year in which the Closing
occurs, Seller and Buyer agree to adjust the proration of taxes and, if
necessary, to refund or pay (as the case may be) such sums as shall be necessary
to effect such adjustment. Seller's insurance coverage on the Property may be
terminated effective as of Closing. If a Tenant under a Lease has failed to pay
rent as and when due under its Lease, then payments received following Closing
from such Tenant shall be applied in the following order of priority (and the
assignment of the Lease executed at Closing shall so provide): (i) first, to any
amounts currently due under such Lease, if any; (ii) next, to amounts due under
such Lease for prior months, in reverse chronological order. To the extent Buyer
or Seller receives payments from a Tenant under a Lease following Closing, it
shall be deemed to hold such payment in trust and shall be obligated to pay to
the other party any sums to which it is entitled under this Paragraph. This
obligation shall survive Closing.
(c) Certified, confirmed and ratified special assessment liens as of
the Closing Date shall be paid by Seller. Pending liens as of the Closing Date
shall be assumed by Buyer.
(d) Assessments payable pursuant to any recorded restrictions shall be
prorated to the Closing Date.
(e) Utility charges for telephone, gas, electricity, sewer, water and
other utilities, if any, shall not be prorated as of the closing date to the
extent that arrangements can be made by Seller for the rendition of final bills,
based upon a reading of meters on the Closing Date. Seller shall be responsible
for and pay all such bills for utility services up to and including the Closing
Date. Buyer shall assume
24
responsibility for the payment of utility services provided to the Property
subsequent to the Closing Date. To the extent that utility bills cannot be
handled in the foregoing manner, they shall be prorated as of the closing date
based upon the most recent bills available and readjusted on the basis of the
actual bills rendered for the period during which the Closing Date occurs, as
and when such bills are received. The obligations set forth in this subparagraph
shall survive Closing.
(f) Seller shall seek the refund of any utility deposits from the
utility companies directly, and Buyer shall be responsible for posting deposits
and making arrangements for utility services in its own name, effective as of
the Closing Date.
(g) Amounts payable under Service Contracts assumed by Buyer shall be
prorated as of the Closing Date.
(h) All prorations and adjustments shall be made by the parties,
assisted by their respective counsel or accountants. If final adjustments are
not completed as of the Closing Date, the parties shall nevertheless close the
transaction contemplated herein and make prorations and adjustment on the basis
of mutually agreeable estimates, subject, however, to later reproration or
readjustment based upon the final determination of their respective accountants.
Each party agrees to exercise diligence and good faith in reaching agreement
with respect to such prorations and adjustments. The obligations set forth in
this subparagraph shall survive Closing.
14. DEFAULT BY BUYER.
Buyer understands that if this transaction is not closed as provided in
this Agreement, Seller will sustain damages (including, but not by limitation,
expenses incurred in connection with the negotiation and preparation of this
Agreement and in preparation for closing this transaction, problems associated
with not having funds flowing to Seller at the times and in the amounts provided
for in this Agreement, problems involved in changing its land usage and
disposition plans, and other tangible and intangible elements of damages), the
exact amount of which would be extremely difficult to ascertain. Accordingly, if
the conditions precedent to Buyer's obligation to purchase have been fulfilled
in the times required herein, and thereafter Buyer defaults on its closing
obligations hereunder, then and in that event this Agreement, at Seller's
option, shall terminate, and all sums paid hereunder may be retained by Seller
as its sole liquidated damages in full and final settlement of all claims Seller
may have against Buyer for breach of this Agreement. Provided, however, Seller
may remove Buyer as a trespasser from the Property without liability for damage,
or dispossess Buyer by summary proceedings, if Buyer shall have occupied the
Property in any manner. Notwithstanding anything herein to the contrary, in no
event shall Seller be entitled to bring or maintain a cause of action against
Buyer to collect compensatory or monetary damages as a result of a Buyer
default, as a result of Buyer's failure to close hereunder.
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15. DEFAULT BY SELLER.
(a) Provided Buyer is not in default, should Seller refuse or be
unable to comply with and perform in accordance with the provisions of this
Agreement the Deposit shall be returned to Buyer on demand and neither party
shall be under any further obligation or liability to the other under this
Agreement except as otherwise specifically herein provided. In addition to the
return of the Deposit, in the case of a Seller default in its obligations under
this Agreement, Buyer shall be entitled to obtain from Seller a reimbursement
for Buyer's Due Diligence Costs (as herein defined.) together with liquidated
damages in the amount of Two Hundred Thousand and 00/100 Dollars ($200,000.00)
("Buyer's Liquidated Damages"). The remedies provided in this Agreement are
Buyer's sole remedy for a default by Seller. Notwithstanding anything herein to
the contrary, in no event shall Buyer be entitled to bring or maintain a cause
of action against Seller to collect compensatory or monetary damages as a result
of a Seller default, or to obtain specific performance. Further, in no event
shall Seller be required to initiate any quiet title actions, make any payments
or perform any other acts to remove title defects.
(b) If Seller shall default by willfully refusing or failing to close
under the terms of this Agreement as to one or more Parcels (but not in the
event Seller is unable, in spite of good faith efforts, to comply with the terms
of this Agreement), and if Seller closes on the conveyance of all or some of
such Parcel(s) to another party on or before December 31, 2007, Buyer shall be
entitled to (and Seller shall pay to Buyer) additional damages (the "Breakup
Fee" ) equal to the sales price (net of reasonable and customary closing costs)
received by Seller for such sales or conveyances of such Parcels, reduced by the
Kickout Value of such Parcels. The obligations set forth in this subparagraph
shall survive Closing.
(c) If and to the extent that Seller is obligated to pay to Buyer the
Breakup Fee, and Seller fails to do so, such amount shall be paid to Buyer by
Trustreet Properties, Inc., a Maryland corporation ("Trustreet"). Trustreet
executes this Agreement for the sole and limited purpose of agreeing to the
terms of this Paragraph 15.
16. NOTICE OF DEFAULT
No default as to any provision of this Agreement, on the part of
either Buyer or Seller, shall be claimed or charged by either party against the
other until notice thereof has been given to the defaulting party in writing,
and such default remains uncured for a period of ten (10) days after the
defaulting party's receipt of such notice. Notwithstanding the above, the
Closing Date shall not be changed, delayed, postponed, or extended by any
requirement for notice of default.
17. MEDIATION AND ARBITRATION.
(a) It shall be a condition precedent to the right of either party to
bring suit to construe or enforce any term or provision of this Agreement, or
any matter
26
relating to the Property or any portion thereof or any matter relating to the
Closing, that such matter first be submitted first to: (i) non-binding mediation
conducted in Orange County, Florida, and to (ii) binding arbitration in
accordance with the applicable rules of the American Arbitration Association at
a hearing conducted in Orange County, Florida. It shall be a condition precedent
to the right of either party to submit to arbitration an issue or controversy
arising hereunder or to construe or enforce any term or provision of this
Agreement, or any matter relating to the Property or any portion thereof or any
matter relating to the Closing, that such matter first be submitted first to
non-binding mediation conducted in Orange County, Florida.
(b) If either party elects to submit an issue to mediation, the
parties shall cooperate in an effort to select a mediator, who shall be an
attorney admitted to practice law in the State of Florida and certified as a
mediator by the Supreme Court of the State of Florida. If the parties are unable
to agree upon a mediator, each shall select a mediator, who shall select a third
mediator, and the proceedings shall be conducted by the third mediator. The
parties shall equally share the costs and expenses of the mediator and the
mediation proceedings and shall cooperate in good faith in an effort to reach a
mutually acceptable resolution of the dispute.
(c) If the parties attempt in good faith to resolve a dispute by means
of mediation proceedings in accordance with this paragraph but either party is
unsatisfied with the result of such mediation, either party may then (and only
then) submit the matter to binding arbitration in accordance with the applicable
rules of the American Arbitration Association at a hearing conducted in Orange
County, Florida.
(d) The arbitrator in such proceedings shall be entitled to award
appropriate relief to the non-defaulting party, including an award of costs, and
judgment upon the award may be entered in any court having jurisdiction thereof.
(e) Arbitration proceedings shall be conducted using one (1)
arbitrator, selected in accordance with rules or guidelines, then in effect, as
adopted by the American Arbitration Association ("AAA"), and the arbitration
proceedings also shall be conducted pursuant to such rules or guidelines.
Arbitration shall occur in Orlando, Florida. The results of the arbitration
proceedings shall be legally binding upon the parties and may be enforced in a
court in having jurisdiction over such matters.
18. TIME OF THE ESSENCE.
Time, and timely performance, are of the essence of this Agreement and
of the covenants and provisions hereunder. When a date upon which a specified
event shall occur or be performed falls upon a day other than a Business Day,
the time allowed for the event or performance to occur shall be extended to 5:00
p.m. on the next succeeding Business Day.
19. ASSIGNMENT.
(a) Neither this Agreement nor the rights created hereby may be
assigned by Buyer to any person, partnership or corporation, and Buyer may not
elect
27
to appoint a nominee to take title, unless Buyer shall first obtain prior
written approval from Seller, which approval may be denied in the sole
discretion of Seller. If Seller approves such assignment or nominee, Seller and
the assignee or nominee shall proceed under the terms and conditions hereof, and
the assignee or nominee shall have severally all of the rights, privileges and
obligations of Buyer hereunder. Such assignment and the approval of Seller shall
not release Buyer from the provisions of this Agreement unless Seller shall
specifically so agree in writing.
(b) Notwithstanding the provisions of subparagraph (a), Seller shall
consent in writing to a designation by Buyer of a nominee to take title to any
Parcel, so long as: (i) the proposed nominee is an entity that is wholly owned
by Buyer and Buyer submits to Seller documents evidencing the existence and good
standing of the nominee and its ownership by Seller; (ii) the nominee agrees to
be bound by the terms and provisions of this Agreement that relate to the Parcel
to be acquired; and (iii) Seller is not released from its duties or obligations
hereunder. Buyer must submit any request to have a nominee take title to a
Parcel on or before ten (10) days prior to the Closing Date.
20. REAL ESTATE COMMISSION.
(a) Buyer represents and warrants to Seller the following matters: (i)
Buyer did not learn of the Property through any real estate broker or agent;
(ii) Buyer has not agreed to pay a commission or fee to any real estate broker
or agent in connection with Buyer's purchase of the Property; and (iii) Buyer
was not shown the Property by any real estate broker or agent. Buyer shall
indemnify, defend and hold Seller Parties harmless from all loss, cost, expense
or damage suffered or incurred by Seller if such representations are not true
and correct.
(b) Seller represents and warrants to Buyer the following matters: (i)
Seller has not employed the services of any real estate broker or agent in
connection with the negotiation of this Agreement; (ii) Seller has not agreed to
pay a real estate brokerage commission to any real estate broker in connection
with this Agreement. Seller shall indemnify, defend and hold Buyer harmless from
all loss, cost, expense or damage suffered or incurred by Buyer if such
representations are not true and correct.
21. CONFIDENTIALITY.
Buyer and Seller previously have executed a confidentiality agreement, a
copy of which is attached hereto as Exhibit "C" (the "Confidentiality
Agreement"). Buyer and Seller shall continue to be bound by the terms of the
Confidentiality Agreement, and the terms and provisions thereof are incorporated
herein by this reference as though set forth herein.
22. ENVIRONMENTAL MATTERS.
Buyer acknowledges that the Property has been or currently is being used as
convenience and gas station stores, and/or restaurants and the Property includes
certain petroleum Underground Storage Tanks, Aboveground Storage Tanks, and
lines
28
and dispensers and Seller has disclosed certain existing environmental reports
with regard to known environmental conditions on the Property. Buyer
acknowledges that Seller is not making any representations or warranties with
regard to the Property, the environmental condition of the Property, or the
condition of the Underground Storage Tanks, the Aboveground Storage Tanks, and
lines or dispensers and Buyer is being given the opportunity to perform any
necessary inspection of the Property including the Underground Storage Tanks,
the Aboveground Storage Tanks, and lines and dispensers as set forth in
Paragraph 6 and will fully avail the opportunity to make any environmental
inspections of the Property which Buyer deems necessary. Buyer acknowledges it
is purchasing the Property "AS- IS" as set forth more specifically in this
Agreement. Seller agrees that it will assign to Buyer at Closing all of Seller's
rights with regard to any applicable state Underground Storage Tank remediation
funds or programs.
23. NOTICES.
(a) All notices provided for in this Agreement ("Notices") shall be in
writing and shall be delivered or sent in the manner described in this
Paragraph, to the parties at the addresses set forth below or at such other or
additional addresses as the parties shall designate to each other in writing
from time to time:
Seller (Primary Notice): T. Xxxxx Xxxxxxx
Senior Vice President of Real Estate
Trustreet Properties, Inc.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Copy to: Akerman Senterfitt.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Buyer (Primary Notice): Getty Realty Corp.
000 Xxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx, EVP and
Xxxxxx Xxxxx, President and GC
Facsimile: (000) 000-0000 (f)
29
Copy to: Xxxxx X. Xxxxxxxx, Esq.
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
(b) Any Notice given, delivered or made shall be deemed so given,
delivered or made according to the following guidelines:
(i) If Notice is given by United States mail, registered or
certified matter, such notice shall be effective on the date such Notice is
signed for and accepted.
(ii) If Notice is sent by nationally recognized overnight courier
service, it shall be effective when such receipt for such Notice is signed
by or on behalf of the party to whom such notice is addressed.
(iii) If Notice is sent by facsimile, such Notice shall be
effective on the date of confirmation of delivery of such facsimile, if
during a Business Day, or on the following Business Day, if such
confirmation is not dated during a Business Day.
(iv) If any Notice, demand or document is personally delivered,
or is delivered or sent by any method not specifically herein described, it
shall be deemed to be delivered upon receipt by the party to whom the same
is given, delivered or made.
The effective date of delivery of Notices to Buyer and Seller shall be the date
upon which the Primary Notice to each party (as designated above) is effective
in accordance with this Paragraph, regardless of the effective date of delivery
of notices sent to other parties listed in this notice provision.
(c) Buyer and Seller may from time to time notify the other of changes
or additions regarding where and to whom notices should be sent by sending
notification of such changes pursuant to this paragraph.
24. NON-RECORDING.
(a) Neither this Agreement nor any memorandum thereof may be recorded
in the Public Records of any County of any State or County by Buyer. If this
Agreement or any memorandum thereof is recorded by or at the direction of Buyer,
such action shall be a default of Buyer and, at the option of Seller, the
Agreement may be terminated and Seller shall retain the Deposit. Notwithstanding
anything herein to the contrary, Buyer shall not be entitled to notice of
default or any curative period in the event of a default under this Paragraph.
30
25. MULTIPLE SELLERS.
(a) Notwithstanding anything herein to the contrary, the entities
defined herein as "Seller" shall not collectively perform or be required to
perform each of the duties, obligations, terms and provisions of this Agreement,
and shall not collectively be bound by the warranties and representations
imposed upon Seller under this Agreement. Rather, each duty, obligation,
representation, and warranty set forth herein with respect to "Seller" shall be
performed, as to each Parcel or the relevant Parcel (as the case may be) by the
respective entity that owns the Parcel.
(b) Prior to Closing, the entities that comprise the Seller shall
agree among themselves as to the method of allocation of the Purchase Price
among them. In no event shall Buyer be entitled to a copy of such separate
agreement, nor shall Buyer have any obligation (other than payment in full of
the Purchase Price) to assure that the Purchase Price is paid or allocated in
accordance with the separate agreement by and among the Sellers.
26. SELLER NEGOTIATIONS.
Following the Effective Date and continuing unless and until this Agreement
is terminated, Seller shall not enter into or pursue negotiations with any
entity other than Buyer with respect to the purchase and sale of Parcels of the
Property. Notwithstanding the foregoing, Seller may enter into negotiations with
respect to any Parcel(s) as to which Buyer has exercised its Kickout Option, and
Seller may discuss and negotiate with respect to ROFRs and eminent domain
matters (if any).. This provision shall not prohibit Seller from speaking or
corresponding with persons or entities that have expressed interest in
purchasing Parcels, so long as Seller does not enter into discussions or
negotiations regarding the terms under which Seller would enter into a letter of
intent or purchase agreement.
27. TYPEWRITTEN OR HANDWRITTEN PROVISIONS.
Handwritten provisions inserted into this Agreement and typewritten
provisions initialed by both parties shall control over the typewritten
provisions in conflict therewith.
28. SUCCESSORS AND ASSIGNS.
The rights and obligations created by this Agreement shall be binding upon
and inure to the benefit of the parties hereto, their heirs, executors,
receivers, trustees, successors and assigns. Whenever used the singular number
shall include the plural, the plural the singular, and the use of any gender
shall include all genders, as the context requires.
29. AMENDMENTS AND WAIVERS.
This Agreement may not be amended, modified, altered, or changed in any
respect whatsoever, except by a further agreement in writing duly executed by
the parties hereto. No failure by Buyer or Seller to insist upon the strict
performance of any
31
covenant, duty, agreement or condition of this Agreement or to exercise any
right or remedy upon a breach thereof shall constitute a waiver of any such
breach or of such or any other covenant, agreement, term or condition. Any party
hereto, by notice, may, but shall be under no obligation to, waive any of its
rights or any conditions to its obligations hereunder, or any duty, obligation
or covenant of any other party hereto. No waiver shall affect or alter this
Agreement, but each and every covenant, agreement, term and condition of this
Agreement shall continue in full force and effect with respect to any other
then-existing or subsequent breach thereof.
30. NON-MERGER.
To the extent this Agreement explicitly states that specific
representations, warranties, obligations or provisions shall survive the Closing
Date, they shall so survive for the period herein provided. All other
representations, warranties, obligations or provisions shall be merged in the
conveyance documents and shall not survive Closing.
31. ENTIRE AGREEMENT.
This Agreement contains the entire understanding between the parties, and
the parties agree that no representation was made by or on behalf of either that
is not contained in this Agreement, and that in entering into this Agreement
neither relied upon, or was entitled to rely upon, any representation not herein
specifically set forth. This Agreement shall be interpreted and enforced under
the laws of the State of Florida to the extent feasible.
32. ATTORNEYS' FEES.
If legal proceedings are instituted by either party hereto to enforce,
construe or interpret any provisions of this Agreement, or to enforce the rights
of either party arising under or by virtue of the execution of this Agreement,
whether such proceedings are instituted before or after Closing, the prevailing
party shall be entitled to recover all reasonable costs and expenses, including
attorney's fees, incurred by it in connection with such proceedings, including
costs and fees incurred on appeals. This Paragraph is intended to and shall
survive closing and conveyance of the Property to Buyer, or termination of the
Agreement for any reason whatsoever.
33. CAPTIONS.
The captions for each paragraph of this Agreement are for convenience and
reference only and in no way define, describe, extend or limit the scope or
intent of this Agreement, or the intent of any provision hereof.
34. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which
shall be and be taken to be an original, and all collectively but one
instrument.
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35. FURTHER ASSURANCES.
Each party shall reasonably cooperate to take such actions and execute such
documents as may reasonably be requested by the other, whether prior to or
following Closing, so long as such actions or documents are in furtherance of
the spirit and intent of this Agreement and do not expand the liability or
obligations of either party. This provision shall survive Closing.
36. AUTHORITY.
The persons executing this Agreement for and on behalf of Buyer and Seller
each represent that they have the requisite authority to bind the entities on
whose behalf they are signing.
37. RELEASE AND DISCHARGE.
Buyer, for itself, its officers, directors, partners, shareholders,
employees, agents, affiliated companies, partnerships, representatives,
successors, and employees does hereby release, and forever discharge Seller
Parties, from any and all costs, expenses, damages, claims, loss, liability,
sanction, order, penalty, fee judgment, demand, settlement, actions or causes of
action including without limitation, attorneys and paralegal fees related to the
condition of the Property, including but not limited to, the environmental
condition of the Property, or the compliance of the Property with Environmental
Laws, or the presence or Discharge of any Hazardous Substances on, above,
within, from or underneath any portion of the Property, including the soil, soil
vapor, groundwater or subsurface water of the Property.
38. AS-IS SALE.
(a) EXCEPT AS SPECIFICALLY SET FORTH TO THE CONTRARY IN THIS AGREEMENT
OR IN THE INSTRUMENTS DELIVERED BY SELLER AT CLOSING, SELLER MAKES NO
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, OR
ANY IMPROVEMENTS ON THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ABOVEGROUND OR
UNDERGROUND STORAGE TANKS, LINES OR DISPENSERS:
(i) PRESENT OR FUTURE PHYSICAL (INCLUDING, WITHOUT LIMITATION,
ENVIRONMENTAL) CONDITION OF THE PROPERTY (OR ANY PARCEL CONSTITUTING A
PORTION OF THE PROPERTY) OR ANY COMPONENT THEREOF;
(ii) THE PRESENT OR PERMISSIBLE USES OF THE PROPERTY (OR ANY
PARCEL CONSTITUTING A PORTION OF THE PROPERTY);
(iii) THE INCOME OR EXPENSES OF THE PROPERTY (OR ANY PARCEL
CONSTITUTING A PORTION OF THE PROPERTY);
33
(iv) THE COMPLIANCE OF THE PROPERTY (OR ANY PARCEL CONSTITUTING A
PORTION OF THE PROPERTY), ITS OPERATION OR OCCUPANCY, WITH ANY LEGAL
REQUIREMENTS, INCLUDING BUT NOT LIMITED TO, COMPLIANCE WITH ENVIRONMENTAL
LAWS INCLUDING ANY ASSOCIATED LICENSES;
(v) THE LEASES OR SERVICE CONTRACTS, OR THE STATUS OR STANDING OF
ANY OF SUCH AGREEMENTS, OR
(vi) ANY OTHER MATTERS CONCERNING THE PROPERTY OR ITS CONDITION
(INCLUDING, WITHOUT LIMITATION, ENVIRONMENTAL CONDITION) OF THE PROPERTY
(OR ANY PARCEL CONSTITUTING A PORTION OF THE PROPERTY).
(b) BUYER ACKNOWLEDGES THAT IT WILL THOROUGHLY INSPECT THE PROPERTY
PRIOR TO THE CLOSING DATE, TO THE EXTENT IT DESIRES TO DO SO, (INCLUDING EACH
PARCEL CONSTITUTING THE PROPERTY). BUYER FURTHER ACKNOWLEDGES THAT BUYER HAS HAD
AND WILL HAVE A FULL OPPORTUNITY TO INSPECT AND REVIEW THE PROPERTY (AND THE
PARCELS CONSTITUTING THE PROPERTY) AND IMPROVEMENTS THEREON, AND ALL MATTERS
RELATING THERETO, AND THAT BUYER WILL ACCEPT THE PROPERTY (AND THE PARCELS
CONSTITUTING THE PROPERTY) AND ITS USES "AS-IS," "WHERE IS," AND "WITH ALL
FAULTS" AS OF THE CLOSING DATE.
(c) EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS AGREEMENT AND THE
INSTRUMENTS DELIVERED BY SELLER AT CLOSING, AND TO THE MAXIMUM EXTENT
PERMISSIBLE BY LAW, BUYER IRREVOCABLY WAIVES ANY REPRESENTATIONS OR WARRANTIES
IMPLIED BY LAW, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANTIES
AS TO MERCHANTABILITY, TITLE, MARKETABILITY OF TITLE, FITNESS, QUANTITY, QUALITY
OR SUITABILITY. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT EXCEPT AS MAY
OTHERWISE BE PROVIDED BY THE EXPRESS TERMS OF THIS AGREEMENT, SELLER HAS NO
OBLIGATION WHATSOEVER TO UNDERTAKE ANY REPAIRS, ALTERATIONS OR OTHER WORK OF ANY
KIND WITH RESPECT TO ANY PORTION OF THE PROPERTY. BUYER WAIVES ANY RIGHT IT NOW
OR IN THE FUTURE MAY HAVE TO AVOID THE CONVEYANCE OF THE PROPERTY (AND/OR ANY OF
THE PARCELS CONSTITUTING THE PROPERTY) BY SELLER TO BUYER AS CONTEMPLATED BY
THIS AGREEMENT. BUYER FURTHER AGREES THAT BUYER, ITS SUCCESSORS AND ASSIGNS,
WILL NOT, UNDER ANY CIRCUMSTANCES, BRING OR IMPEDE, CROSSCLAIM, COUNTERCLAIM OR
OTHERWISE INTERPOSE ANY ACTION, CLAIM OR LAWSUIT AGAINST SELLER, OR ANY SELLER
PARTY, OR ANY OF THEIR RESPECTIVE SUCCESSORS-IN-INTEREST OR ASSIGNEES, IF SUCH
ACTION, CLAIM OR LAWSUIT ARISES OUT OF, OR IS THE RESULT OF, OR IS IN ANY WAY
CONNECTED TO THE CONDITION OF THE PROPERTY OR COMPLIANCE WITH ENVIRONMENTAL LAWS
OF ANY UNDERGROUND STORAGE TANKS OR
34
ABOVE-GROUND STORAGE TANKS, OR THE REGISTRATION OR LACK OF REGISTRATION THEREOF,
THE PRESENCE OR DISCHARGE OF ANY HAZARDOUS SUBSTANCES ON OR FROM THE PROPERTY
(AND/OR THE PARCELS CONSTITUTING THE PROPERTY) OR THE EXPOSURE OF ANY PERSON OR
PERSONS TO SUCH HAZARDOUS SUBSTANCES, WHETHER SUCH CLAIM, ACTION OR LAWSUIT
ARISES UNDER COMMON LAW OR BY VIRTUE OF ANY LOCAL, STATE OR FEDERAL STATUTE,
RULE, ORDINANCE, REGULATION AND/OR THE LIKE, INCLUDING, WITHOUT LIMITATION,
ENVIRONMENTAL LAWS.
(d) THE AGREEMENTS AND PROVISIONS CONTAINED IN THIS PARAGRAPH SHALL
SURVIVE THE CLOSING.
39. INDEMNIFICATION.
Buyer, for itself, its officers, directors, partners, shareholders,
employees, agents, affiliated companies, partnerships, representatives,
successors, and employees does hereby agree to indemnify, defend, save and hold
harmless Seller Parties from any and all loss, liability, sanction, order,
costs, expenses, damages, claims, actions or causes of actions, penalty, fee
judgment, demand or settlement, including without limitation attorneys',
paralegals' and consultant fees on direct and appeal, which may be asserted
against or recovered from Seller Parties under Environmental Laws in connection
with, or which otherwise arise out of or relate to the mandate of any applicable
regulatory agency to assess or remediate any contamination on the Property as
identified in existing environmental reports and documents (which reports and
documents shall be provided by Seller to Buyer on or before February 19, 2007),
or any contamination first arising subsequent to the Closing Date. The terms of
this provision shall survive Closing and shall remain in effect for a period of
three (3) years from and after the Closing Date. Within thirty (30) days of
receiving written notice of any potential claim giving rise to any right of
indemnity under this paragraph, Seller shall notify Buyer of such potential
claim and shall cooperate fully with Buyer to defend any such claim.
40. NOTICES IN CONNECTION WITH SALE.
Buyer and Seller acknowledge that in connection with the sale of the
Property, which may contain, in certain instances, petroleum underground storage
tanks, or may involve previously identified petroleum soil or groundwater
impacts, certain notices may be required to be given to the state, county, the
applicable local environmental regulatory agency, or other interested persons.
Buyer agrees that Seller shall provide such notices as required by law, and
Buyer agrees to cooperate with Seller as necessary to assist in providing the
such required notices.
35
IN WITNESS WHEREOF, the parties hereunder have this day set their
hands and seals.
CNL NET LEASE FUNDING 2003, LLC, a
Delaware limited liability company
By: /s/ Xxxxxx X. XxXxxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxxx
Title: Manager
36
CNL NET LEASE FUNDING 2001, LP, a
Delaware limited partnership
By: CNL NET LEASE FUNDING 2001, INC.,
a Delaware corporation, as General
Partner
By: /s/ Xxxxxx X. XxXxxxxxxx
------------------------------------
As its President
37
USRP HOLDING CORP., a Texas corporation
By: /s/ Xxxxxx X. XxXxxxxxxx
------------------------------------
As its President
38
REAL ESTATE HOLDINGS III, LLC, a
Delaware limited liability company
By: /s/ Xxxxxx X. XxXxxxxxxx
------------------------------------
As its President
39
USRP (Katy), L.P., a Texas limited
partnership
By: USRP GP8, LLC, a Texas limited
liability company, its sole General
Partner
By: CNL APF Partners, LP (f/k/a U.S.
Restaurant Properties Operating
L.P.), a Delaware limited
partnership, its Manager
By: CNL APF GP Corp. (f/k/a USRP
Managing, Inc.), a Delaware
corporation, its sole General
Partner
By: /s/ Xxxxxx X. XxXxxxxxxx
------------------------------------
As its President
40
USRP FUNDING 2001-A, LP, a Delaware
limited partnership
By: USRP (SFGP), LLC as its general
partner
By: /s/ Xxxxxx X. XxXxxxxxxx
------------------------------------
As its President
41
USRP (HAWAII), LLC, a Texas limited
liability company
By USRP HOLDING CORP., a Texas
corporation
By: /s/ Xxxxxx X. XxXxxxxxxx
------------------------------------
As its President
42
USRP (XXX), LLC, a Texas limited
liability company
By: CNL APF Partners, LP (f/k/a U.S.
Restaurant Properties Operating
L.P.), a Delaware limited
partnership, its Manager
By: CNL APF GP Corp. (f/k/a USRP
Managing, Inc.), a Delaware
corporation, its sole General
Partner
By: /s/ Xxxxxx X. XxXxxxxxxx
------------------------------------
As its President
43
USRP (XXXXXXXX), LLC, a Texas limited
liability company
By: CNL APF Partners, LP (f/k/a U.S.
Restaurant Properties Operating
L.P.), a Delaware limited
partnership, its Manager
By: CNL APF GP Corp. (f/k/a USRP
Managing, Inc.), a Delaware
corporation, its sole General
Partner
By: /s/ Xxxxxx X. XxXxxxxxxx
------------------------------------
As its President
44
USRP (XXXXX), LLC, a Texas limited
liability company
By: CNL APF Partners, LP (f/k/a U.S.
Restaurant Properties Operating
L.P.), a Delaware limited
partnership, its Manager
By: CNL APF GP Corp. (f/k/a USRP
Managing, Inc.), a Delaware
corporation, its sole General
Partner
By: /s/ Xxxxxx X. XxXxxxxxxx
------------------------------------
As its President
45
USRP (XXXXX), LLC, a Texas limited
liability company
By: CNL APF Partners, LP (f/k/a U.S.
Restaurant Properties Operating
L.P.), a Delaware limited
partnership, its Manager
By: CNL APF GP Corp. (f/k/a USRP
Managing, Inc.), a Delaware
corporation, its sole General
Partner
By: /s/ Xxxxxx X. XxXxxxxxxx
------------------------------------
As its President
46
USRP (Gant 1), LLC, a Texas limited
liability company
By: CNL APF Partners, LP (f/k/a U.S.
Restaurant Properties Operating
L.P.), a Delaware limited
partnership, its Manager
By: CNL APF GP Corp. (f/k/a USRP
Managing, Inc.), a Delaware
corporation, its sole General
Partner
By: /s/ Xxxxxx X. XxXxxxxxxx
------------------------------------
As its President
47
USRP (Gant 2), LLC, a Texas limited
liability company
By: CNL APF Partners, LP (f/k/a U.S.
Restaurant Properties Operating
L.P.), a Delaware limited
partnership, its Manager
By: CNL APF GP Corp. (f/k/a USRP
Managing, Inc.), a Delaware
corporation, its sole General
Partner
By: /s/ Xxxxxx X. XxXxxxxxxx
------------------------------------
As its President
48
NET LEASE FUNDING 2005, LP, a Delaware
limited partnership
By: NET LEASE FUNDING 2005, LLC, a
Delaware limited liability company
By: /s/ Xxxxxx X. XxXxxxxxxx
------------------------------------
As its President
49
CNL APF Partners, LP (f/k/a U.S.
Restaurant Properties Operating L.P.), a
Delaware limited partnership
By: CNL APF GP Corp. (f/k/a USRP
Managing, Inc.), a Delaware
corporation, its sole General
Partner
By: /s/ Xxxxxx X. XxXxxxxxxx
------------------------------------
As its President
Executed by Seller on February 5, 2007.
50
Trustreet Properties, Inc., a Maryland corporation, executes this Agreement
below solely for the purpose of agreeing to be bound by the terms of Xxxxxxxxx
00.
XXXXXXXXX PROPERTIES, INC.,
a Maryland corporation
By: /s/ Xxxxxx X. XxXxxxxxxx
------------------------------------
As its
51
Attest: GETTY PROPERTIES CORP., Buyer
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxx Xxxxxxxxx
--------------------------------- ------------------------------------
Xxxxxx X. Xxxxx, its President Xxx Xxxxxxxxx, its Chairman And
And Secretary Chief Executive Officer
(SEAL)
[CORPORATE SEAL]
Executed by Seller on February 6, 2007.
52
EXHIBIT LIST
EXHIBIT A List of Parcels, with Kickout Value and addresses
EXHIBIT B Form of Tenant Estoppel
EXHIBIT C Confidentiality Agreement
53
EXHIBIT A
LIST OF PARCELS, WITH KICKOUT VALUES AND ADDRESSES
Baseline
Kickout Value
Asset Portfolio Owning Entity Tenant Address City State Value Variance Ownership
------------------------------------------------------------------------------------------------------------------------------------
4590 1 USRP (Hawaii), LLC Aloha Petroleum, Ltd (03050) 00-000 Xxxxxxxxxx Xxx Xxxxxxx XX [***] - Fee
4593 1 USRP (Hawaii), LLC Aloha Petroleum, Ltd (03050) 00-000 Xxxxxxxxxx Xxx Xxxxxxx XX [***] - Fee
4598 1 USRP (Hawaii), LLC Aloha Petroleum, Ltd (03050) 00-000 Xxxxxxxxxx Xxx Xxxxxx XX [***] - Fee
4595 1 USRP (Xxx), LLC Aloha Petroleum, Ltd (03050) 0000 X. Xxxx Xxxxxx Xxxxxxxx XX [***] Fee
4585 1 USRP (Xxx), LLC Aloha Petroleum, Ltd (03050) 0000 Xxxxxxxxx Xxx Xxxxxxxx XX [***] - Fee
4587 1 USRP (Hawaii), LLC Aloha Petroleum, Ltd (03050) 0000 X. Xxxxxx Xx Xxxxxxxx XX [***] - Fee
4591 1 USRP (Hawaii), LLC Aloha Petroleum, Ltd (03050) 00-0000 Xxxxxxxxxx Xxx Xxxxxxx XX [***] - Fee
4592 1 USRP (Hawaii), LLC Aloha Petroleum, Ltd (03050) 00-000 Xxxxxxxxxx Xxx Xxxxxxx XX [***] - Fee
4596 1 USRP (Hawaii), LLC Aloha Petroleum, Ltd (03050) 000 Xxxxxxxx Xxxx. Xxxxxxxx XX [***] - Fee
4604 1 USRP (Hawaii), LLC Aloha Petroleum, Ltd (03050) 0000 Xxxxxxxx Xxx. Xxxxxxxx XX [***] (2,612,421)Fee
4599 1 USRP (Hawaii), LLC Aloha Petroleum, Ltd (03050) 00-000 Xxxxxxxxxx Xxx Xxxxxxx XX [***] - Fee
4584 1 USRP (Xxxxxxxx), LLC Aloha Petroleum, Ltd (03050) 00-000 Xxxxxxxxxx Xxx Xxxxxxx XX [***] - Leasehold
4588 1 USRP (Xxxxxxxx), LLC Aloha Petroleum, Ltd (03050) 0000 X. Xxxxx Xx Xxxxxxxx XX [***] - Leasehold
4602 1 USRP (Xxxxxxxx), LLC Aloha Petroleum, Ltd (03050) 0000 Xxxxxx Xxx. Xxxxxxxx XX [***] - Leasehold
4586 1 USRP (Xxxxx), LLC Aloha Petroleum, Ltd (03050) 00-000 Xxxxxxxx Xx Xxxxxxx XX [***] - Leasehold
4597 1 USRP (Xxxxx), LLC Aloha Petroleum, Ltd (03050) 00-000 Xxxxxxxxxx Xxx Xxxxxxx XX [***] - Leasehold
4594 1 USRP (Xxxxx), LLC Aloha Petroleum, Ltd (03050) 0000 Xxxxxx Xxx Xxxxxxxx XX [***] - Leasehold
4600 1 USRP (Xxxxx), LLC Aloha Petroleum, Ltd (03050) 000 X. Xxxxxxxxxxx Xxx Xxxxxxx XX [***] - Leasehold
4645 2 USRP Holding Corp 7-Eleven, Inc. (02890) 000 Xxxxxxx Xx Xxxxxxx XX [***] (863,210)Fee
4647 2 CNL APF Partners LP Body Beautiful Car Wash, 000 Xx Xxxxx Xxxx Xx Xxxxx XX [***] (1,323,210)Fee
Inc. (02638)
4648 2 USRP Funding 2001-A, Body Beautiful Car Wash, 00000 Xxxxx Xx Xxxxx XX [***] 40,047 Leasehold
LP Inc. (02638)
4613 2 CNL APF Partners LP Chevron USA, Inc. (02739) 00000 Xxxxxxxx Xxxx Xxxxxxxxxx XX [***] 111,790 Fee
4434 2 CNL APF Partners LP G & M Oil Company, LLC (02761 0000 X. Xxxxxxxxx Xx Xxx Xxxxx XX [***] (1,009,779)Fee
4469 2 Real Estate Holdings B & B Franchise, Inc. 00000 Xxxx Xxxxxx Xxxxxxxx XX [***] 196,555 Fee
III, LLC
4520 2 USRP (Katy), LP Xxxx X. Xxxxxxx & Xxxxxxx 0000 Xxxxxx Xx Xx Xxxxx XX [***] 365,221 Fee
Xxxxxx (02950)
1618 2 CNL Net Lease Funding Xxxx in The Box, Inc. (00257) 0000 Xxxxxxxx Xxxx Xxxxxxx XX [***] 706,790 Fee
2001, LP
1619 2 CNL Net Lease Funding Xxxx in The Box, Inc. (00257) 00000 Xxxxxx Xxxx Xxxxxxxxx XX [***] 587,085 Fee
2001, LP
4510 3 CNL APF Partners LP Xxx Xxxxxxxx (02699) 000 X. Xxxx Xxxx Xxxxx Xxxx XX [***] (153,406)Fee
4468 3 CNL APF Partners LP Fuel Supply, Inc. (02663) & 000 X. Xxxxxxxxx Xx Xxxxxxxxxx XX [***] (703,210)Fee
Frontier Petro, LLC (0270
4557 3 CNL APF Partners LP Two Pillars Investments, Inc. 0000 Xxxxx Xxxx. X. Xxxxxxx XX [***] (225,783)Fee
(03198) Hills
4554 3 CNL APF Partners LP Xxxxxx, Inc. (02723) 0000 Xxxxxxx Xx. Xxxxxxx XX [***] (603,602)Fee
4556 3 CNL APF Partners LP Super Five, Inc. (02969) 000 Xxxx Xxxx Xx. Xxxxxxxxxx XX [***] 270,319 Fee
4555 3 USRP Holding Corp Xxxxxxxx Xxxxx (02702) 0000 X. Xxxxxxxx Xx Xxxxxxxxx XX [***] (443,406)Fee
4444 3 Net Lease Funding Xxxxx Xxxxxxxxxxxxx (02670) & 000 X. Xxxx Xxxxxx XX [***] 77,845 Fee
2005, LP Xxxx in the Box Eastern
4522 3 USRP (Katy), XX Xxxxxxxxx Khader, Inc. (02762) 00000 Xxx Xxxxxxxxx Xxxxxxx XX [***] 518,803 Fee
& Xxxx in the Box Eastern Rd.
4473 3 Net Lease Funding Choice Food Mart, Inc. (02717) 000 Xxxx Xx 0000 Xxxxxx XX [***] 206,043 Fee
2005, LP & Xxxx in the Box Eastern Heights
4351 3 Net Lease Funding Xxxx in the Box Eastern 00000 Xxxxxxx Xx. Xxx Xxxxxxx XX [***] (78,210)Fee
2005, LP Division LP (01040) Suite 102
4494 3 CNL APF Partners LP Xxxxx Xxxxxxxxxxxxx (02670) & 000 X. Xxx Xx Xxxx XX [***] 1,356,823 Fee
Xxxx in the Box Eastern
4709 3 Net Lease Funding Northwest Petroleum, Inc. 00000 XX (Xxxxx Xxxx) Xxxxxx XX [***] 589,066 Fee
2005, LP (02627) & Xxxx in the Box 620 N
Easter
4235 3 Net Lease Funding Xxxxx Xxxxxxxxxxxxx (02670) & 0000 Xxxxx Xxxxx Xx. Xxxxx XX [***] 203,353 Fee
2005, LP Xxxx in the Box Eastern Street
4509 3 CNL APF Partners LP Manchav X. Xxxxxx (02673) 0000 X. Xxxxx Xxxx. Xxxxxx XX [***] (24,053)Fee
4652 3 Net Lease Funding M/121 LP (02642) 0000 Xxxxxxx 000 Xxx Xxxxxx XX [***] 1,146,790 Fee
2005, LP
4462 3 CNL APF Partners LP Northwest Petroleum, Inc. 0000 Xxxxx Xxxxxx Xxxxxx XX [***] 611,617 Fee
[***] Indicates material that has been omitted and for which confidential
treatment has been requested. All such omitted material has been filed with the
Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 as amended.
Baseline
Kickout Value
Asset Portfolio Owning Entity Tenant Address City State Value Variance Ownership
------------------------------------------------------------------------------------------------------------------------------------
4545 3 CNL APF Partners LP Northwest Petroleum, Inc. 0000 xx-00 Xxxxx Xxx Xxxxxx XX [***] 261,104 Fee
4474 3 CNL APF Partners LP CEFCO Convenience Stores 00000 XX X X Xxxxxx Xxxxxx XX [***] 91,888 Fee
(02660) & CTW LLC (02 Loop
4627 4 USRP (Gant 1), LLC Exprezill Convenience Stores 000 X. Xxxxxxxx Xx Xxxxxxxxxxx XX [***] 188,029 Fee
00-North Carolina, LLC
4628 4 USRP (Gant 1), LLC Exprezill Convenience Stores 0000 Xxx Xxxxxx Xx Xxxxxxxxxx XX [***] 369,466 Fee
00-North Carolina, LLC
4630 4 USRP (Gant 1), LLC Exprezill Convenience Stores 0000 Xxxxxxxxxx Xx Xxxxxxx XX [***] 347,840 Fee
00-North Carolina, LLC Salem
4631 4 USRP (Gant 1), LLC Exprezill Convenience Stores 000 Xxxxxxx Xx. Xxxxxxx XX [***] 105,533 Fee
00-North Carolina, LLC
4632 4 USRP (Gant 1), LLC Exprezill Convenience Stores 000 X. Xxxxxxxx Xx. Xxxxxxxxxxxx XX [***] (91,089)Fee
00-North Carolina, LLC
4634 4 USRP (Gant 1), LLC Exprezill Convenience Stores 0000 Xxx Xxxxx Xxxxxxx XX [***] 6,790 Fee
00-North Carolina, LLC Half Rd Salem
4618 4 USRP (Gant 1), LLC Exprezill Convenience Stores 0000 Xxxxxxxxx Xx. Xxxxxxxxxxxx XX [***] (188,124)Fee
00-North Carolina, LLC
4637 4 USRP (Gant 1), LLC Exprezill Convenience Stores 0000 XX Xxxxxxx Xxx Xxxx XX [***] 89,620 Fee
00-North Carolina, LLC 70 E
4625 4 Lease Funding 2005 LP Exprezill Convenience Stores 0000 X. Xxxxxxxx XX [***] (309,415)Fee
00-North Carolina, LLC Fayettesville St.
4629 4 Lease Funding 2005 LP Exprezill Convenience Stores 0000 X XX Xxx 00 Xxxxxxxxx XX [***] (277,142)Fee
00-North Carolina, LLC
4638 4 Lease Funding 2005 LP Exprezill Convenience Stores 000 X. Xxxx Xxxxxx Xxxx XX [***] 410,959 Fee
00-North Carolina, LLC
3932 5 CNL Net Lease Funding Kum & Go, LC (02917) 0000 Xxxx Xxxxxxxx Xxxxxxxxx XX [***] 136,970 Fee
2003, LLC Drive
4484 5 CNL APF Partners, XX Xxxxxxx Ibrahem (02686) 00000 Xxxxxxx Xxxxx Xxxxxxxx XX [***] 27,966 Fee
Heights
4485 5 CNL APF Partners, XX Xxxx'x Food Market of Illinois 000 X. Xxxxxxxxx Xx Xxxxxxx XX [***] (206,445)Fee
(02907) Hills
4564 5 USRP Funding 2001-A, Xxxxxxx Convenience Stores LLC 0000 X. Xxxxxx Xxxxxxxxx MD [***] 633,229 Leasehold
LP (02630) Street
4565 5 USRP Funding 2001-A, Xxxxxxx Convenience Stores LLC 8300 Baltimore Ellicott MD [***] 713,021 Leasehold
LP (02630) National Pike City
4563 5 CNL APF Partners LP 2 Bam (83000 Master) 000 X 00xx Xxxxxx Xxxxxxxxx XX [***] 506,790 Fee
4478 5 CNL APF Partners LP Xxxxxx Xxxxxx (02679) 0000 Xxxxx Xxxxxx Xxxxxxxxxx XX [***] (35,000)Leasehold
Rd City
4344 5 CNL APF Partners LP Superpumper, Inc. (02584) Xxx 00 & Xxxxxxxxxx Xxxxxxx XX [***] (291,837)Fee
94
4460 5 CNL APF Partners LP Volume, Inc. (02616) Queen City Mobil Hooksett NH [***] (718,210)Fee
4608 5 USRP Funding 2001-A, Volume, Inc. (02616) 00 Xxxxxxxxxx Xx Xxxxxxxxxx XX [***] (618,210)Fee
LP
4649 5 USRP Funding 2001-A, Volume, Inc. (02616) 0 Xxxxxxxxxx Xxxxx Xxxxxxx XX [***] (84,015)Fee
LP
[***] Indicates material that has been omitted and for which confidential
treatment has been requested. All such omitted material has been filed with the
Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities
Exchange Act of 1934 as amended.
EXHIBIT B
TENANT ESTOPPEL CERTIFICATE
The undersigned, having the power and authority to do so on behalf of
___________________ ("TENANT"), this ___________________ day of
___________________, 2007, with the understanding that Getty Properties Corp., a
Delaware corporation, and its successors and assigns ("BUYER") will rely upon
Tenant's agreements and representations made in this Tenant Estoppel Certificate
("CERTIFICATE"), hereby certifies, represents, warrants and agrees as follows:
1. Tenant is the tenant under that certain lease dated ___________________
___________________, ___________________, ("LEASE") by and between Tenant and
___________________ ("LANDLORD"), a copy of which is attached hereto as EXHIBIT
"A", concerning Tenant's occupancy of the real property known as
___________________, ___________________, ___________________ and legally
described in the Lease, together with all buildings, structures, improvements
and fixtures now or hereafter located thereon, and together with all easements
and other rights appurtenant thereto. ___________________ (collectively, the
"PREMISES"). The Lease contains all of the understandings and agreements between
Tenant and Landlord, and is in existence and in full force and effect without
modification, addition, extension or renewal as of the date hereof, and the
Premises have not been subleased except as set forth in the attached documents.
2. Tenant is in possession of the Premises and all work required to be
completed pursuant to the Lease has been satisfactorily completed; and all
conditions precedent to Tenant's obligations under the Lease have been
satisfied. There is no other work to be performed by Landlord as of the date of
this Certificate.
3. The current term of the Lease commenced on ___________ _______, ______,
___________________, and will expire on ___________________ ___________________,
20__. Tenant has no right to renew or extend the Lease term except pursuant to
Section ___________________ of the Lease.
4. The current annual base or fixed rent payable by Tenant under the Lease
is $___________________. Tenant has no agreement with Landlord concerning free
rent, partial rent, rebate of rental payments or any other type of rental
concession, except as set forth in the attached documents.
5. The current annual amount for all other monetary amounts (other than
annual base or fixed rent) payable by Tenant under the Lease collectively is
$___________________. Tenant has no agreement with Landlord concerning any
offsets, concessions, abatement or rebating with respect to such monetary
amounts, except as set forth in the attached documents.
6. Tenant has delivered a security deposit to Landlord in the amount of
$___________________.
7. Tenant has no rights of first refusal, rights of first offer or other
rights to expand or purchase the Premises, except as set forth in Section
___________________ of the Lease.
8. As of the date of this Certificate: (a) neither Tenant nor Landlord is
in monetary or other material default under any of the terms of the Lease; (b)
all obligations and conditions under the Lease to be performed to date by
Landlord have been satisfied; (c) no event has occurred which, with the passage
of time or the giving of notice or both, would constitute an event of default by
Landlord under the Lease; (d) all allowances to be paid to Tenant have been
paid, and there is no construction completed, ongoing, or planned for which
Landlord is obligated to reimburse Tenant; and (e) Tenant has no current
defenses or claims against Landlord or rights of offset against any rents
payable to Landlord under the Lease or otherwise.
9. Tenant has not assigned the Lease nor sublet, licensed, mortgaged or
otherwise encumbered all or any portion of the Premises, except as set forth in
the attached documents.
10. Tenant has received no notice by any governmental authority or person
claiming a violation of, or requiring compliance with, any federal, state or
local statute, ordinance, rule, regulation or other requirement of law
including, without limitation, laws pertaining to environmental matters and any
environmental contamination at the Premises.
Tenant acknowledges that Buyer will rely upon the matters set forth herein
in acquiring the Premises. This Certificate shall inure to the benefit of, and
may be relied upon by, Buyer and Landlord, their respective successors and
assigns.
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be duly
executed and delivered this _________ day of ___________________, 2007.
TENANT:
---------------------------------------
By:
-----------------------------------
Name:
---------------------------------
Its:
----------------------------------
LANDLORD ESTOPPEL CERTIFICATE
(GROUND LEASE)
The undersigned, having the power and authority to do so on behalf
of ______________________________ ("LANDLORD"), this _______________ day
of _________________, 2007, with the understanding that Getty Properties Corp.,
a Delaware corporation, and its successors and assigns ("Buyer") will rely upon
Landlord's agreements and representations made in this Landlord Estoppel
Certificate ("CERTIFICATE"), hereby certifies, represents, warrants and agrees
as follows:
1. Landlord is the landlord under that certain ground lease dated _________
_________________________________________,________, ("LEASE") by and between
Landlord and ___________________________________________ ("TENANT"), a copy of
which is attached hereto as EXHIBIT "A", concerning Tenant's occupancy of the
real property known as ____________________________,_____________________,______
_________________ and legally described in the Lease (the "LAND"), together with
all easements and other rights appurtenant thereto _____________________________
(collectively, the "PREMISES"). The Lease contains all of the understandings and
agreements between Tenant and Landlord, and is in existence and in full force
and effect without modification, addition, extension or renewal as of the date
hereof, and the Premises have not been sold, transferred or subleased except as
set forth in the attached documents.
2. Landlord is the sole fee simple title owner of the Land.
3. Tenant is in possession of the Premises and all work required to be
completed pursuant to the Lease has been satisfactorily completed; and all
conditions precedent to Tenant's obligations under the Lease have been
satisfied. There is no other work to be performed by either Landlord or Tenant
as of the date of this Certificate.
4. The current term of the Lease commenced on _____________________________
________________________,________, and will expire on _______________________,
20______. Tenant has no right to renew or extend the Lease term except pursuant
to Section _________ of the Lease.
5. The current annual base or fixed rent payable by Tenant under the Lease
is $_____________. Landlord has no agreement with Tenant concerning free rent,
partial rent, rebate of rental payments or any other type of rental concession,
except as set forth in the attached documents.
6. The current annual amount for all other monetary amounts (other than
annual base or fixed rent) payable by Tenant under the Lease collectively is
$_____________. Landlord has no agreement with Tenant concerning any offsets,
concessions, abatement or rebating with respect to such monetary amounts, except
as set forth in the attached documents.
7. Tenant has delivered a security deposit to Landlord in the amount of
$_____________.
8. Tenant has no rights of first refusal, rights of first offer or other
rights to expand or purchase the Premises, except as set forth in Section __ of
the Lease.
9. As of the date of this Certificate: (a) neither Landlord nor Tenant is
in monetary or other material default under any of the terms of the Lease; (b)
all obligations and conditions under the Lease to be performed to date by Tenant
have been satisfied; (c) no event has occurred which, with the passage of time
or the giving of notice or both, would constitute an event of default by Tenant
under the Lease; (d) all allowances to be paid to Tenant have been paid, and
there is no construction completed, ongoing, or planned for which Tenant is
obligated to reimburse Landlord; and (e) Landlord has no current defenses or
claims against Tenant under the Lease or otherwise.
10. Landlord has not assigned the Lease nor sold, transferred, sublet,
licensed, mortgaged or otherwise encumbered all or any portion of the Premises,
except as set forth in the attached documents.
11. Landlord has received no notice by any governmental authority or person
claiming a violation of, or requiring compliance with, any federal, state or
local statute, ordinance, rule, regulation or other requirement of law
including, without limitation, laws pertaining to environmental matters and any
environmental contamination at the Premises.
12. Landlord hereby consents, to the extent required by the terms of the
Lease, to the transfer and assignment of the Lease from Tenant to the Buyer and
hereby agrees to promptly execute such other documents as may be reasonably
required by Tenant or the Buyer to further evidence such consent.
Landlord acknowledges that Buyer will rely upon the matters set forth
herein in acquiring the Premises. This Certificate shall inure to the benefit
of, and may be relied upon by, Buyer and Tenant, their respective successors and
assigns.
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be duly
executed and delivered this _______ day of _____________________, 2007.
LANDLORD:
----------------------------------------
By:
------------------------------------
Name:
----------------------------------
Its:
-----------------------------------
EXHIBIT C
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (this "Agreement") is entered into as of
the _____ day of February, 2006, by and between TRUSTREET PROPERTIES, INC., a
Maryland corporation ("TSY"), and GETTY REALTY CORP, a MARYLAND CORPORATION, its
subsidiaries, and their respective agents, representatives, officers, directors,
employees, advisors, counsel, affiliates and contractors (collectively, the
"Company").
WITNESSETH
WHEREAS, TSY intends to disclose (or cause one or more of its subsidiaries
to disclose) certain confidential information which is not readily available to
the general public (as defined hereinafter and referred to as "Confidential
Information") to the Company with respect to the potential purchase of certain
real property and improvements thereon, as described on Exhibit "A" attached
hereto (the "Transaction"); and
WHEREAS, without the execution of this Agreement, TSY would not disclose
the Confidential Information to the Company.
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. Recitals. The recitals hereinabove set forth are acknowledged by the
parties to be true and correct and are incorporated herein by reference.
2. Definition of Confidential Information.
(a) "Confidential Information" shall mean all information (in written,
oral or electronic form) including information with respect to TSY and
TSY's subsidiaries and affiliates, that is disclosed by (or at the
direction of) TSY to the Company and that is designated by TSY as
being confidential, or should have been reasonably understood by the
Company to be confidential.
(b) Confidential Information shall include, without limitation,
leases, title policies and exceptions, rent payment history, surveys,
environmental reports, tenant financial information and analyses, rent
payment information, property management histories, valuations,
records, files, memoranda, reports, drawings, plans, or other
information. In addition, the existence and terms of this Agreement,
and the fact and substance of all discussions or correspondence
relating to this Agreement or the Transaction, including the
identification by name or identifiable description of the parties,
shall be deemed Confidential Information and shall not be disclosed
without the prior written consent of TSY.
(c) Confidential Information shall not include information that: (a)
is or becomes public domain through no action on the part of the
Company, (b) is lawfully obtained from any source other than TSY,
without an obligation to keep it confidential; (c) is previously known
to the Company without an obligation to keep it confidential, as can
be substantiated by written records; (d) is expressly released in
writing from the obligations of confidentiality imposed by this
Agreement by TSY; (e) is required to be disclosed pursuant to any
applicable law, regulation, judicial or administrative order or
decree, or request by other regulatory organization having authority
pursuant to the law; provided, however, that the Company shall first
have given prior written notice to TSY and made a reasonable effort to
obtain a protective order requiring that the Confidential Information
not be disclosed; and further provided that the Company shall use
reasonable efforts to minimize such disclosure and to obtain an
assurance that the recipient shall accord confidential treatment to
the Confidential Information; or (f) is independently developed by the
Company without the use of the Confidential Information. Any party
asserting that information is not Confidential Information by virtue
of any of (a) through (f) hereof shall have the burden of proof on
such issue.
3. Review of Confidential Information. TSY shall provide (or cause one or
more of its affiliates to provide) the Confidential Information to the Company
at such time and in such manner as may be mutually determined by TSY and the
Company. Confidential Information shall only be provided by TSY to those
employees and representatives of the Company specified by the Company.
4. Disclosure of Confidential Information. In consideration of the
disclosure of Confidential Information by TSY, the Company shall:
(a) use the Confidential Information received solely in connection
with and for the furtherance of the Transaction, and not for any other
purpose whatsoever without the prior express written consent of TSY,
and shall limit access to such Confidential Information solely to its
employees and consultants with a need to know for such purpose, and
shall advise such employees and consultants of their confidentiality
obligations hereunder; and
(b) be liable for the breach of this Agreement by any of its agents or
representatives; and
(c) take strict precautions to maintain the confidentiality of the
Confidential Information received, and shall take appropriate action,
by instruction, agreement or otherwise with any person permitted
access to the Confidential Information received, to ensure that the
Company will be able to satisfy its obligations under this Agreement;
and
(d) refrain from copying or disclosing the Confidential Information
received, except as expressly permitted in this Agreement; and
(e) within ten (10) days of a written request by TSY, promptly destroy and
certify to TSY as destroyed, or return any and all copies on any media
containing, such Confidential Information, except such copies as Company's
counsel advises must be retained by the Company.
5. Remedies. Unauthorized disclosure or use of Confidential Information may
give rise to irreparable injury, which may not be adequately compensated by
damages. In the event of a breach or threatened breach of this Agreement, TSY
shall be entitled to a preliminary injunction and a temporary restraining order
restraining the Company from using or disclosing the Confidential Information or
such other equitable relief as may be necessary to protect the interests of TSY.
Such remedy shall be additional to and not a limitation upon any other remedy
which may otherwise be legally available to TSY, including but not limited to a
remedy for actual damages occasioned by the breach of the terms of this
Agreement (which damages shall include costs, expenses and reasonable attorneys'
fees).
6. Relationship of Parties. Nothing contained in this Agreement shall be
construed as granting or conferring any rights by license or otherwise in any
Confidential Information disclosed, or under any trademark, patent, trade
secret, copyright, or any other intellectual property right of TSY, TSY's
affiliates. Except for the obligations of use and confidentiality imposed
herein, no obligation of any kind is assumed or implied against either party by
virtue of the parties' meetings or conversations with respect to the subject
matter stated above or with respect to whatever Confidential Information is
exchanged. Each party further acknowledges that this Agreement and any meetings
and communications of the parties relating to the same subject matter, including
the exchange of Confidential Information, shall not: (a) constitute an offer,
request, or contract with the other to engage in any other work; (b) constitute
an offer, request or contract involving a buyer seller relationship, venture,
teaming or partnership relationship between the parties; or (c) impair or
restrict either party's right to contractual agreements with others, or which
are the subject matter of this Agreement, so long as that party's obligations of
confidentiality under this Agreement are not breached.
7. Costs. The parties expressly agree that any money, expenses or losses
expended or incurred by each party in preparation of this Agreement shall be at
each party's sole cost and expense.
8. Disclaimer. TSY makes no representation or warranty, express or implied,
as to the accuracy or completeness of any Confidential Information, and
expressly disclaims any and all responsibility and liability for all conclusions
derived from the Confidential Information.
9. Restrictions on Sale of Securities. The Company is aware of the
restrictions imposed by the United States securities laws on the purchase or
sale of securities by any person who has received material, non-public
information from the issuer of such securities and on the communication of such
information to any other
person when it is reasonably foreseeable that such other person is likely to
purchase or sell such securities in reliance upon such information.
10. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes any prior or contemporaneous oral or written
representations regarding the subject matter hereof. No amendment, modification
or waiver of any paragraphs or provisions of this Agreement shall be valid
unless undertaken in conformity with this Agreement and unless in writing and
signed by all parties hereto.
11. Attorneys' Fees. In the event of a dispute with reference to this
Agreement, the prevailing party shall be entitled to attorneys' fees and costs
incurred in resolving such dispute at all levels, including appeals.
12. Governing Law. This Agreement shall be construed and interpreted in
accordance with and shall be governed by the laws of the State of
Florida,
United States of America, without regard to principles of conflict of law and
irrespective of the fact that one or more parties hereto is now or may hereafter
be a resident of a different state, jurisdiction or country.
13. Venue/Jurisdiction. In the event of the institution of any such action,
suit or proceeding, each of the parties hereto hereby consents to the exclusive
jurisdiction and venue of the courts of the State of Florida located in Orange
County, Florida and the United States District Court in and for the Middle
District of Florida with respect to any matter relating to this Agreement and
the performance of the parties' obligations hereunder and each of the parties
hereto hereby further consents to the personal jurisdiction of such courts. Any
action, suit or proceeding brought by or on behalf of any of the parties hereto
relating to such matters shall be commenced, pursued, defended and resolved only
in such courts and any appropriate appellate court having jurisdiction to hear
an appeal from any judgment entered in such courts. The parties hereby agree
that service of process may be made in any manner permitted by the rules of such
courts and the laws of the State of Florida. Each party further agrees that the
exclusive choice of forum set forth in this paragraph does not prohibit the
enforcement of any judgment obtained in that forum or any other appropriate
forum.
14. No Implied Waivers. The failure of any party to require the performance
by any other party to any provision hereof shall in no way affect the full right
to require such performance at any time thereafter. The waiver of any party of a
breach of any provision hereof shall not constitute a waiver of any subsequent
breach of the same or any other provision, nor shall it constitute a waiver of
the provision itself.
15. Authorization. The parties signing this Agreement represent that they
have the full authority to do so.
16. Binding Effect. This Agreement, and any amendments hereto made in
accordance herewith, shall be binding upon the parties hereto, their legal
representatives,
assignees and creditors and all other persons with notice or knowledge of this
Agreement, whether such notice is constructive or actual.
17. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart will for all purposes be deemed an
original instrument, but all such counterparts together will constitute but one
and the same agreement.
18. Severability. If any paragraph or provision of this Agreement is held
invalid or unenforceable, such invalidity or unenforceability shall not affect
the validity and enforceability of the other provisions hereof, all of which
paragraphs and provisions and portions thereof are hereby declared severable.
19. Facsimile Execution. Facsimile signatures on counterparts of this
Agreement are hereby authorized and shall be acknowledged as if such facsimile
signatures were an original execution, and this Agreement shall be deemed as
executed when an executed facsimile hereof is transmitted by a party to any
other party.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
The parties hereto, intending to be legally bound, have executed this
Agreement as of the day and year first hereinabove written.
TRUSTREET PROPERTIES, INC.,
a Maryland corporation
By: /s/ T. XXXXX XXXXXXX
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Name:
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Title:
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GETTY REALTY CORP
By: /s/ XXXXX XXXX
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Name: XXXXX XXXX
Title: EXECUTIVE VICE PRESIDENT
