EXHIBIT 99
AGREEMENT OF SALE
THIS AGREEMENT OF SALE ("Agreement") is dated as of the 19th day of
November, 2004 between GE CAPITAL FRANCHISE FINANCE CORPORATION, a Delaware
corporation, of 17207 North Perimeter Drive, Scottsdale, Arizona 85255-5402
("Purchaser"), and CAPTEC FRANCHISE CAPITAL PARTNERS L.P. III, a Delaware
limited partnership, of 24 Frank Lloyd Wright Drive, Lobby L, Fourth Floor, Ann
Arbor, Michigan 48105 ("Seller").
RECITALS:
Seller is the owner of certain real property and improvements located
at the addresses set forth in the Fundamental Sale Provisions below.
Seller is also the owner of certain equipment packages located at the
addresses set forth in the Fundamental Sale Provisions below.
Purchaser desires to purchase, and Seller is willing to sell the real
property, improvements and equipment packages upon the terms and conditions set
out below.
AGREEMENT:
In consideration of the terms, covenants and conditions set forth in
this Agreement, Seller and Purchaser agree as follows:
1. FUNDAMENTAL SALE PROVISIONS. Unless otherwise defined herein,
capitalized terms used in this Agreement shall have the meanings listed in the
following Fundamental Sale Provisions.
Land: Parcel 1: That certain real property commonly known
as an Applebee's Neighborhood Grill & Bar located at
105 Potomac Boulevard, Mt. Vernon, Illinois and more
particularly described in the attached Exhibit "A-1".
Parcel 2: That certain real property commonly known
as an Arby's Restaurant located at 1705 Red Robin
Lane, New Bern, North Carolina and more particularly
described in the attached Exhibit "A-2".
Parcel 3: That certain real property commonly known
as a Black-Eyed Pea Restaurant located at 1905
Preston Park, Plano, Texas and more particularly
described in the attached Exhibit "A-3".
Parcel 4: That certain real property commonly known
as a Boston Market Restaurant located at 1729 Olden
Avenue, Ewing Township, New Jersey and more
particularly described in the attached Exhibit "A-4".
Parcel 5: That certain real property commonly known
as a Church's Chicken located at 1003 S.E. Military,
San Antonio, Texas and more particularly described in
the attached Exhibit "A-5".
Parcel 6: That certain real property commonly known
as a Denny's located at 5720 Northampton Road,
Virginia Beach, Virginia and more particularly
described in the attached Exhibit "A-6".
Parcel 7: That certain real property commonly known
as a Golden Corral Restaurant located at West Adams
Drive and South Florida Avenue, Lakeland, Florida and
more particularly described in the attached Exhibit
"A-7".
Parcel 8: That certain real property commonly known
as a Hollywood Video located at Garriott Road and
Overland Trail, Enid, Oklahoma and more particularly
described in the attached Exhibit "A-8".
Parcel 9: That certain real property commonly known
as a Jack-In-The-Box Restaurant located at 320
Grapevine Highway, Hurst, Texas and more particularly
described in the attached Exhibit "A-9".
Parcel 10: That certain real property commonly known
as a Jack-In-The-Box Restaurant located at Meridian
Street South and 160th Street East, Puyallup,
Washington and more particularly described in the
attached Exhibit "A-10".
Parcel 11: That certain real property commonly known
as a Taco Bell Restaurant located at 45590 Gratiot
Avenue, Macomb, Michigan and more particularly
described in the attached Exhibit "A-11".
Parcel 12: That certain real property commonly known
as a Tony Roma's located at 4521 Southside Boulevard,
Jacksonville, Florida and more particularly described
in the attached Exhibit "A-12".
Equipment Packages: Equipment Package 1: That certain package of
equipment used in connection with a KFC Restaurant
located at 6636 South Avenue, Boardman, Ohio and more
particularly described in the attached Exhibit "B-1".
Equipment Package 2: That certain equipment loan
("Equipment Loan") secured by a package of equipment
used in connection with a Carino's Restaurant located
at 3402 St. Michael Drive, Texarkana, Texas and more
particularly described in the attached Exhibit "B-2".
Equipment Package 3: Intentionally omitted.
Equipment Package 4: That certain package of
equipment used in connection with a Taco Bell
Restaurant located at 132 Access Road, Waynesville,
North Carolina and more particularly described in the
attached Exhibit "B-4".
Real Estate Leases: Real Estate Lease 1: That certain Lease, dated July
24, 1995, as amended, ("Real Estate Lease 1"),
between Captec Acceptance Leasing Corporation (and
subsequently assigned to Seller), as landlord, and
Apple Partners Limited Partnership, an Ohio limited
partnership (and subsequently assigned to Gourmet
Systems, Inc.), as tenant ("Tenant 1").
Real Estate Lease 2: That certain Lease, dated July
9, 1999, as amended, ("Real Estate Lease 2"), between
Captec Franchise Capital Partners L.P. IV (and
subsequently assigned to Seller), as landlord, and
RTM Acquisition Company LLC, a Georgia limited
liability company ("Tenant 2"), as guaranteed by RTM,
Inc. ("Guarantor(s) 2") pursuant to that certain
Guaranty, dated July 9, 1999, as amended ("Real
Estate Lease Guaranty 2"), by Guarantor(s) 2 in favor
of Seller.
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Real Estate Lease 3: That certain Lease, dated
September 30, 1996, as amended, ("Real Estate Lease
3"), between Seller, as landlord, and DenAmerica
Corp, a Georgia corporation, now known as Phoenix
Restaurant Group, Inc., and subsequently assigned to
Restaurants Acquisition I, LLC, as tenant ("Tenant
3").
Real Estate Lease 4: That certain Lease, dated June
6, 1996, as amended, ("Real Estate Lease 4"), between
Seller, as landlord, and New Jersey Rose, LLC, a New
Jersey limited liability company (and subsequently
assigned through a series of assignments to Golden
Restaurant Operations, Inc.), as tenant ("Tenant 4").
Real Estate Lease 5: That certain Lease, dated
October 20, 1995, as amended, ("Real Estate Lease
5"), between Seller, as landlord, and America's
Favorite Chicken Company, a Minnesota corporation, as
tenant ("Tenant 5").
Real Estate Lease 6: That certain Lease, dated August
25, 1995, as amended, ("Real Estate Lease 6"),
between Captec Net Lease Realty, Inc. (and
subsequently assigned to Seller), as landlord, and
Denny's, Inc. by assignment from Denwest Restaurant
Corp., as tenant ("Tenant 6").
Real Estate Lease 7: That certain Lease, dated August
6, 1996, as amended, ("Real Estate Lease 7"), between
Captec Net Lease Realty, Inc. (and subsequently
assigned through a series of assignments to Seller),
as landlord, and Corral South Stores 3, Inc., a
Florida corporation (and subsequently assigned to ADL
Investments, LLC), as tenant ("Tenant 7").
Real Estate Lease 8: That certain Lease, dated
January 15, 1996, as amended, ("Real Estate Lease
8"), between Caltex Entertainment Ltd. (and
subsequently assigned through a series of assignments
to Seller), as landlord, and Hollywood Entertainment
Corporation, an Oregon corporation, as tenant
("Tenant 8").
Real Estate Lease 9: That certain Lease, dated
September 27, 1996, as amended, ("Real Estate Lease
9"), between Seller, as landlord, and Foodmaker,
Inc., a Delaware corporation, as tenant ("Tenant 9").
Real Estate Lease 10: That certain Lease, dated
December 9, 1998, as amended, ("Real Estate Lease
10"), between Seller, as landlord, and Foodmaker,
Inc., a Delaware corporation, as tenant ("Tenant
10").
Real Estate Lease 11: That certain Lease, dated
December 10, 1998, as amended, ("Real Estate Lease
11"), between Seller, as landlord, and TEC Foods,
Inc., a Michigan corporation, as tenant ("Tenant
11").
Real Estate Lease 12: That certain Lease, dated
December 9, 1998, as amended, ("Real Estate Lease
12"), between Captec Net Lease Realty, Inc. (and
subsequently assigned to Seller), as landlord, and
Romacorp, Inc., a Delaware corporation, as tenant
("Tenant 12").
Equipment Leases: Equipment Lease 1: That certain Lease, dated April
12, 1999, as amended, ("Equipment Lease 1"), between
Captec Financial Group, Inc. (and subsequently
assigned through a series of assignments to Seller),
as lessor, and Morgan's Restaurants of Ohio, Inc., an
Ohio corporation as lessee ("Lessee 1"), as
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guaranteed by Morgan's Foods, Inc. ("Equipment
Guarantor(s) 1") pursuant to that certain Guaranty,
dated April 12, 1999, as amended ("Equipment Lease
Guaranty 1"), by Equipment Guarantor(s) 1 in favor of
Seller, which Lease relates to the lease of Equipment
Package 1 to Lessee 1.
Equipment Lease 2: That certain Equipment Loan
Promissory Note, dated March 25, 1999, and secured by
a security interest in Equipment Package 2, as
amended, ("Equipment Lease 2"), as executed by Roma
Texarkoma Joint Venture, a Texas general partnership
("Lessee 2") in favor of Captec Financial Group, Inc.
(and subsequently assigned through a series of
assignments to Seller), as guaranteed by Larry
Levine, Kathy Levine, Kona Restaurant Group, Inc. and
Turtle Creek Restaurants LC (collectively the
"Equipment Guarantor(s) 2") pursuant to that certain
Guaranty, dated March 25, 1999, as amended
(collectively "Equipment Lease Guaranty 2"), by
Equipment Guarantor(s) 2 in favor of Seller.
Equipment Lease 3: Intentionally omitted.
Equipment Lease 4: That certain Lease, dated April
16, 1999, as amended, ("Equipment Lease 4"), between
Captec Financial Group, Inc. (and subsequently
assigned to Seller), as lessor, and American
Hospitality Corp., a Tennessee corporation ("Lessee
4"), which Lease relates to the lease of Equipment
Package 4 to Lessee 4.
Deposit: An initial deposit of $150,000, payable as set forth
in Section 3(a) below ("Initial Deposit") and an
additional deposit of $150,000, payable as set forth
in Section 3(a) below ("Additional Deposit"). The
Initial Deposit and the Additional Deposit (when paid
as provided in Section 3(a) below) are collectively
referred to as the "Deposit."
Purchase Price: $20,565,000, subject to adjustment as set forth in
this Agreement, payable as set forth in Section 3
below and allocated among the various Properties and
Equipment Packages as set forth in Exhibit "C".
Title Company: LandAmerica Financial Group, Inc. (Phoenix, Arizona).
Inspection Period: The period commencing on the date of this Agreement
and ending no later than December 15, 2004 provided,
however, that such date shall be extended one (1) day
for each day following the Diligence Demand Date (as
hereinafter defined) that Seller fails to deliver any
Due Diligence Items in its possession that are
demanded by Purchaser, but in no event shall the
Inspection Period extend beyond December 22, 2004
(all as more particularly described in Section 4
below).
Financing Period: Not applicable.
Closing: To occur on or before December 31, 2004.
Broker: CB Richard Ellis, Inc., a Delaware corporation, with
an address at 505 North Brand Boulevard, Suite 100,
Glendale, CA 91203 Attention: Sterling Champ.
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2. AGREEMENT TO SELL AND CONVEY. Seller agrees to sell and convey to
Purchaser, and Purchaser agrees to purchase from Seller, subject to the terms
and conditions set forth in this Agreement, all of Seller's right, title and
interest in and to:
(a) Projects. All land, buildings, structures, and
improvements (individually an "Improvement" and collectively the "Improvements")
on each of the Parcels comprising the Land (individually a "Project" and
collectively the "Projects");
(b) Easements. All of the recorded easements benefiting, and
recorded rights of access appurtenant to, each of the Projects;
(c) Rights and Appurtenances. All and singular, the rights and
appurtenances pertaining to each of the Projects, including any adjacent
streets, roads, alleys, accesses, and rights-of-way;
(d) Real Estate Leases. The Real Estate Leases, together with
all prepaid rentals (to the extent applicable to a period beyond the date of
Closing), any security deposits held by Seller under the Real Estate Leases as
of the date of Closing and Seller's rights and interests in the Real Estate
Lease Guaranties (if any);
(e) Equipment. All of the restaurant equipment and other
equipment comprising the Equipment Packages (individually and collectively the
"Equipment"); and
(f) Equipment Leases. The Equipment Leases, together with all
prepaid rentals (to the extent applicable to a period beyond the date of
Closing), any security deposits held by Seller under the Equipment Leases as of
the date of Closing and Seller's rights and interests in the Equipment Lease
Guaranties (if any).
(g) Equipment Loan. The Equipment Loan, together with all
prepaid amounts in connection with such Equipment Loan (to the extent applicable
to a period beyond the date of Closing), and Seller's rights and interests in
the Equipment Guaranties (if any).
All of the items described in clauses (a), (b), (c) and (d) above is
collectively referred to as the "Real Property," all of the items described in
clauses (e), (f) and (g) above is collectively referred to as the "Personal
Property" and the Real Property and the Personal Property is collectively
referred to as the "Property".
3. PURCHASE PRICE; DEPOSIT. The Purchase Price for the Property shall
be payable as follows:
(a) Deposit. Within three (3) days of the date of this
Agreement, Purchaser shall place the Initial Deposit in escrow with the Title
Company. Provided Purchaser has not terminated this Agreement prior to the
expiration of the Inspection Period, then on or before the expiration date of
the Inspection Period, Purchaser shall place the Additional Deposit in escrow
with the Title Company. The Deposit, including any interest earned thereon,
shall be held in accordance with the terms of this Agreement and the laws of the
State of Delaware and applied to the Purchase Price at Closing (if the
transaction is consummated). The Deposit shall be held in a money market account
reasonably acceptable to Purchaser and Seller and all interest shall be paid to
the party entitled to the Deposit. Upon the expiration of the Inspection Period,
assuming Purchaser has not otherwise elected to terminate this Agreement, the
Deposit shall be deemed non-refundable (except as expressly provided to the
contrary in this Agreement); and
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(b) Balance of Purchase Price. The balance of the Purchase
Price (plus or minus closing adjustments and any other adjustments allowed under
this Agreement, as the case may be), together with the Deposit, shall be paid to
the Title Company, as escrow closing agent, three (3) business days prior to the
Closing and shall be disbursed at the Closing in accordance with escrow closing
instructions mutually satisfactory to Seller and Purchaser. Payment shall be by
wire transfer of immediately available U.S. funds in accordance with wire
transfer instructions provided by Seller at least three (3) business days prior
to the Closing. In exchange for such payment at the Closing, Seller shall
deliver to the Title Company for delivery to Purchaser in accordance with the
escrow closing instructions deeds to the Projects (in the form required by the
state in which the specific Project is located) whereby Seller warrants against
all claiming by, through or under Seller (individually a "Deed" and collectively
the "Deeds"). The Deeds shall be substantially in the form attached as Exhibit
"D" and shall convey title to the Projects to Purchaser, subject only to the
Real Estate Leases, liens for taxes which are not yet due and payable and such
other exceptions to title which are disclosed in the Title Commitments (defined
below) and to which Purchaser consents in writing or waives its objection
thereto pursuant to this Agreement. Additionally, in exchange for such payment,
Seller shall deliver to Title Company for delivery to Purchaser in accordance
with the escrow closing instructions bills of sale to the Personal Property (in
the form required by the state in which the specific Personal Property is
located) whereby Seller warrants against all claiming by, through or under
Seller (individually a "Bill of Sale" and collectively the "Bills of Sale"). The
Bills of Sale shall be substantially in the form attached as Exhibit "E" and
shall convey title to the Personal Property to Purchaser "as-is and where-is"
and subject to the Equipment Leases and liens for taxes which are not yet due
and payable. Additionally, in exchange for such payment, Seller shall deliver to
Title Company for delivery to Purchaser in accordance with the escrow closing
instructions all such assignments and related documents required by this
Agreement in accordance with the terms hereof.
(c) Interest Rate Change Adjustment. The Purchase Price may be
adjusted for certain changes in the 10 Year U.S. Swap Interest Rate Index
("Index"), as set forth in this Section 3(c). The Index was equal to 441 basis
points (4.41%) on October 27, 2004. In the event that on the date that is four
(4) business days prior to Closing (the "Adjustment Determination Date"), the
Index has increased or decreased in comparison to the Index on October 27, 2004,
the Purchase Price shall be adjusted as follows:
(i) If the difference (positive or negative) between
the Index on October 27, 2004 and the Index on the Adjustment Determination Date
is equal to or less than 25 basis points (0.25%), there will be no adjustment to
the Purchase Price.
(ii) If the Index on the Adjustment Determination
Date has increased by more than 25 basis points (0.25%) relative to the Index on
October 27, 2004 (the amount by which such increase exceeds 25 basis points is
hereinafter referred to as the "Decrease Factor"), the Purchase Price will be
decreased by a percentage equivalent to the product of 4 times the Decrease
Factor. Notwithstanding the foregoing, the Decrease Factor shall not exceed 35
basis points. By way of an example, if the unadjusted purchase price was $100,
the Index on October 27, 2004 was 10.00% and the Index on the Adjustment
Determination Date was 10.75%, the purchase price would be reduced by 1.40% to
$98.60. By way of another example, if the unadjusted purchase price was $100,
the Index on October 27, 2004 was 10.00% and the Index on the Adjustment
Determination Date was 10.50%, the purchase price would be reduced by 1.00% to
$99.00.
(iii) If the Index on the Adjustment Determination
Date has decreased by more than 25 basis points (0.25%) relative to the Index on
October 27, 2004 (the amount by which such decrease exceeds 25 basis points is
hereinafter referred to as the "Increase Factor"), the Purchase Price will be
increased by a percentage equivalent to the product of four times the Increase
Factor.
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Notwithstanding the foregoing, the Increase Factor shall not exceed 35 basis
points. By way of an example, if the unadjusted purchase price was $100, the
Index on October 27, 2004 was 10.00% and the Index on the Adjustment
Determination Date was 9.25%, the purchase price would be increased by 1.40% to
$101.40. By way of another example, if the unadjusted purchase price was $100,
the Index on October 27, 2004 was 10.00% and the Index on the Adjustment
Determination Date was 9.50%, the purchase price would be increased by 1.00% to
$101.00.
(d) Removal of Property. Notwithstanding anything in this
Agreement to the contrary, and subject to the conditions and limitations set
forth in this SECTION 3(d), Purchaser shall have the right to elect, at any time
prior to the expiration of the Inspection Period, in Purchaser's sole
discretion, to remove no more than one (1) item of the listed Real Property and
Personal Property set forth on Exhibit "C" from the terms of this Agreement and
the Purchase Price shall be reduced by the amount allocated to such item on
Exhibit "C"; PROVIDED, HOWEVER, that in no event shall any such item reduce the
Purchase Price by more than Two Million Dollars ($2,000,000.00).
4. DUE DILIGENCE ITEMS. Unless a longer time period is specifically
identified below, within three (3) business days of the date of this Agreement,
and at its sole cost and expense, Seller shall furnish or cause Broker to
furnish to Purchaser the following (such items, together with the Offering
Memorandum previously provided to Purchaser by Broker and identified as
"National Restaurant and Retail Portfolio A -- 13 Properties in 10 States", as
supplemented from time to time by Broker, hereinafter collectively referred to
as the "Due Diligence Items"):
(a) Title Work. A copy of the owner's policy of title
insurance issued to Seller for each Project. As soon as commercially practicable
following such date as Purchaser has delivered the Initial Deposit to the Title
Company, Seller shall provide or cause the Title Company to provide to Purchaser
a commitment for an owner's policy of title insurance for each Project
(individually a "Title Commitment" and collectively the "Title Commitments"),
which shall: (i) be issued by Title Company in favor of Purchaser without so
called "Standard Exceptions", (ii) be dated after the date of this Agreement,
(iii) provide for coverage in an amount equal to the Purchase Price allocated to
the specific Project, which allocation shall not be subject to change following
the date hereof without the written consent of the parties hereto, (iv) show the
state and quality of title to the Project, together with all liens, encumbrances
and other charges and items affecting the Project; and (v) be accompanied by
legible copies of all documents referenced in the Title Commitment. Any
endorsements to the Title Commitments shall be obtained by Purchaser at
Purchaser's sole cost and expense;
(b) Surveys. A copy of the existing ALTA as-built survey of
each Parcel comprising the Land (individually a "Survey" and collectively the
"Surveys");
(c) Environmental Reports. A copy of any existing "Phase I"
environmental assessments, reports and related information for each Project;
(d) Property Condition Reports. To the extent in Seller's
possession, a copy of the existing property condition reports for each Project
(if any);
(e) Real Estate Lease Documents. A complete copy of each Real
Estate Lease, along with the Real Estate Lease Guaranties (if any), including
any modification or amendments thereto; and
(f) Equipment Lease Documents. A complete copy of each
Equipment Lease, along with the Equipment Lease Guaranties (if any), including
any modification or amendments thereto.
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(g) Equipment Loan Documents. A complete copy of the Equipment
Loan, along with the Equipment Loan Guaranties (if any), including any
modification or amendments thereto.
(h) Seller's System Data. A reasonably complete set of all
data on Seller's computer systems and networks, with respect to the servicing of
any portion of the Property and with respect to the individual Tenants and their
respective guarantors, in electronic format. Seller shall use commercially
reasonable efforts to provide such electronic data to Purchaser in a format that
is compatible with Purchaser's computer systems; provided, however, that Seller
shall not be required to retain any third party consultants or purchase any
additional hardware, software or licenses in order to fulfill this obligation,
nor shall the fulfillment of this obligation unduly burden Seller's employees or
agents. Finally, Seller shall not be required to deliver this item 4(h) to
Purchaser until the second (2nd) business day after the expiration of the
Inspection Period.
On or before November 30, 2004 (the "Diligence Demand Date"),
Purchaser shall deliver to Seller written notice of any Due Diligence Item that
Purchaser reasonably believes that Seller has failed to provide to Purchaser.
Promptly following receipt of notice from Purchaser of any Due Diligence Items
believed by Purchaser not to have been delivered by Seller, Seller shall either
(1) furnish such Due Diligence Items to Purchaser, or (2) deliver to Purchaser
notice that Seller does not possess the requested Due Diligence Item. Commencing
on the day after the Diligence Demand Date and continuing until such time as
Seller responds to Purchaser with respect to each Due Diligence Item referenced
in Purchaser's notice to Seller in one of the two methods referred to in the
preceding sentence, the Inspection Period shall be extended by one (1)
additional day for each day that Seller fails to respond with regard to the last
of Seller's requested Due Diligence Items; provided, however, in no event shall
the Inspection Period extend beyond December 22, 2004.
Purchaser shall return to Seller all of the Due Diligence
Items (including all copies Purchaser has made of the Due Diligence Items;
provided Purchaser may retain one (1) complete set of such items for its files,
subject to the confidentiality requirements under which such items were
delivered) at such time as this Agreement is terminated for any reason.
Purchaser's obligations under this Section 4 shall survive the termination of
this Agreement.
Purchaser acknowledges that most of the Due Diligence Items
were prepared by third parties and, in many instances, were prepared prior to
Seller's ownership of the Property. Purchaser further acknowledges and agrees
that, except as specifically set forth herein: (i) neither Seller nor any of its
directors, officers, partners, members, agents, employees or contractors have
made any warranty or representation regarding the truth, accuracy or
completeness of the Due Diligence Items or the sources thereof, (ii) neither
Seller nor any director, officer, partner, member, employee or agent acting on
Seller's behalf is authorized or empowered to make any warranties or
representations of whatsoever kind or nature regarding the truth, accuracy or
completeness of the Due Diligence Items or the Property (other than as expressly
set forth in this Agreement), and (iii) except as otherwise provided herein,
Seller has not undertaken any independent investigation as to the truth,
accuracy and completeness of the Due Diligence Items. Purchaser further
acknowledges and agrees that (except as otherwise provided herein) Purchaser
shall be solely responsible for reviewing, analyzing and determining the truth,
completeness, accuracy and adequacy of the Due Diligence Items.
5. CONDITIONS TO PURCHASER'S OBLIGATIONS.
(a) Inspection Notice. Purchaser shall have until 5:00 p.m.
Central Standard Time on the date the Inspection Period expires to deliver
written notice to Seller indicating whether any of the Due Diligence Items, the
condition of the Property, or title thereto is satisfactory to or unsatisfactory
to Purchaser and specifying the matters which are not satisfactory or to which
Purchaser otherwise objects
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("Inspection Notice"). In the event Seller does not receive an Inspection Notice
within the time period set forth in the preceding sentence, Purchaser shall be
deemed to have objected to the Due Diligence Items, the condition of the
Property, and title thereto, as disclosed in the Due Diligence Items, at which
time the Deposit shall be immediately refunded to Purchaser, this Agreement
shall terminate, and the parties shall have no further obligations one to the
other, except as expressly set forth herein to the contrary.
(b) Responses to Inspection Notice. In the event that either:
(i) Purchaser indicates in the Inspection Notice that the Property or the Due
Diligence Items are not satisfactory in any respect, or (ii) Purchaser discovers
and informs Seller in writing of, or Seller informs Purchaser of, any change in
the status of title to the Property occurring after the date of this Agreement
and resulting in an encumbrance on the Real Property in addition to the Real
Estate Leases and the Permitted Exceptions (as defined below) (each a "Title
Defect"), Seller shall have the right, but not the obligation, to elect to cure
or otherwise correct those items as provided herein. If Seller elects to cure or
otherwise correct such items, Seller shall provide Purchaser with written notice
of such election and a detailed plan for curing or otherwise correcting such
items (including causing Title Company to insure over any Title Defect) and
specifying the time frame in which such plan shall be completed, which plan must
be approved by Purchaser in writing. If Purchaser approves such plan, Seller
shall have the right, but not the obligation, to proceed to cure or otherwise
correct such item in accordance with the plan approved by Purchaser. If Seller
does not complete such cure or correction as and when required by the
Purchaser-approved plan, then Purchaser may, at its option: (1) waive any of its
objections set forth in the Inspection Notice or relating to the Title Defect,
without any adjustment in the Purchase Price, or (2) Purchaser may terminate
this Agreement. Purchaser shall deliver to Seller prompt written notice of which
option Purchaser has elected pursuant to the preceding sentence. In the event
Purchaser elects to terminate this Agreement, the Deposit shall be returned to
Purchaser and, except as expressly set forth in this Agreement, neither Seller
nor Purchaser shall have any further obligations under this Agreement.
(c) Financing Contingency. The Purchaser's obligations
hereunder are not contingent upon Purchaser's ability to obtain a loan or any
other financing to finance its purchase obligation hereunder.
(d) Estoppel Certificates. Within five (5) business days of
the date of execution of this Agreement, Seller will make a request from each
Tenant and each Lessee for a current estoppel certificate, each in the form (if
any) contemplated by the applicable Real Estate Lease or Equipment Lease. If the
form of Tenant or Lessee estoppel certificate is not prescribed by the Real
Estate Lease or Equipment Lease, and Purchaser submits to Seller the form of
estoppel certificate preferred by Purchaser within three (3) business days of
the date of execution of this Agreement, Seller will submit such form of
estoppel certificate to the Tenants and Lessees, as applicable, if such form is
reasonable (as determined by Seller in its reasonable discretion). Seller shall
make commercially reasonable efforts to obtain the estoppel certificates from
each Tenant and Lessee; PROVIDED, HOWEVER, that Seller shall not be obligated to
exercise any rights or remedies available to Seller under the Real Estate Leases
or the Equipment Leases or at law or in equity to obtain such estoppel
certificates. Notwithstanding anything contained herein to the contrary, in the
event any Tenant or Lessee fails to provide the estoppel certificate required by
this Section, or alleges that there are outstanding events of default under the
Real Estate Lease or Equipment Lease which cannot be resolved to Purchaser's
reasonable satisfaction by the end of the Inspection Period, then, in such
event, Purchaser's sole remedy shall be to either waive the requirement or
terminate this Agreement by written notice to Seller and the Title Company and
receive the prompt return of its Deposit from the Title Company. Seller shall be
under no obligation to update any estoppel certificate received from any Tenant
or Lessee.
(e) Rights of First Refusal. Seller and Purchaser acknowledge
and agree that the Right of First Refusal Rider attached to this Agreement is
incorporated into the terms and provisions of
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this Agreement. Seller shall use Seller's best efforts to cause any tenants that
have a right of first refusal with respect to all or any portion of any of the
Projects to, on or before the expiration of the Inspection Period, either waive
or elect to purchase such Projects. Notwithstanding the foregoing, with respect
to any tenant who has not waived or elected to exercise such right of first
refusal prior to the expiration of the Inspection Period, if any such tenant
elects to exercise a right of first refusal for a Project after the expiration
of the Inspection Period but before Closing, such Real Property shall be removed
from this Agreement, and the Purchase Price shall be reduced by the amount
allocated to such Real Property in Exhibit "C", and Seller shall reimburse
Purchaser for all due diligence costs incurred by Purchaser in performing its
due diligence investigations with respect to such Project, with such amounts to
be credited against the Purchase Price at Closing, or if Purchaser has the right
to terminate this Agreement after the expiration of the Inspection Period, then
Seller shall immediately pay such amounts to Purchaser upon demand. The
foregoing obligation of Seller to reimburse Purchaser shall survive any
termination of this Agreement. If any tenant with a right of first refusal has
not exercised or waived such right of first refusal prior to the Closing, then
Purchaser shall close on such Projects. If any tenant elects to exercise a right
of first refusal for any of such Projects after the Closing, then Purchaser
shall be entitled to receive all amounts paid by such tenant for such Project.
(f) Purchaser Investment Approvals. Purchaser's obligations
under this Agreement are contingent upon obtaining all necessary board of
directors' and related investment approvals for this transaction; provided,
however, this requirement shall be deemed to have been waived if this Agreement
is not terminated prior to the expiration of the Inspection Period.
6. PERMITTED EXCEPTIONS. Seller shall convey the Property to Purchaser
subject to any easements, liens, exceptions, and other encumbrances noted in the
Title Commitments, the Surveys, the Real Estate Leases and the Equipment Leases;
provided Purchaser has expressly approved or waived its objection to such items,
which approval or waiver shall be deemed to have occurred if Purchaser has not
objected to such items and this Agreement is not terminated prior to the
expiration of the Inspection Period (collectively the "Permitted Exceptions").
7. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to Purchaser as to the following matters, each of which is true and
correct as of the date of this Agreement, and each of which shall be true and
correct as of the date of Closing. As used in this Section, the phrase "to
Seller's knowledge" means (except as otherwise specifically stated) Seller's
actual knowledge, after reasonable due diligence and inquiry by Seller.
(a) Authority. Seller is duly formed in the State of Delaware,
Seller has obtained all necessary approvals for the execution of this Agreement
and the performance of its obligations arising hereunder. The persons executing
this Agreement on behalf of Seller have full power and authority to do so and to
perform every act and to execute and deliver every document and instrument
necessary or appropriate to consummate the transactions contemplated by this
Agreement.
(b) Compliance. Except as set forth on Schedule 7(b), Seller
has received no notice from any governmental agency alleging a violation of any
statute, ordinance, regulation or code with respect to any Property which
violation has not been cured;
(c) Litigation. Except as set forth on Schedule 7(c), there is
no pending nor, to Seller's knowledge, threatened matters of litigation,
administrative action or examination, claim or demand relating to the Property
or Seller's interest in the Property;
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(d) Eminent Domain. Except as set forth on Schedule 7(d),
there is no pending nor, to Seller's knowledge, contemplated or threatened
eminent domain, condemnation or other governmental takings or proceedings
relating to the Property or any part thereof;
(e) Foreign Entity. Seller is not a foreign person or entity
under the Foreign Investment in Real Property Tax Act of 1980, as amended, and
no taxes or withholding under such act shall be assessed against or imposed upon
Purchaser in connection with the transaction contemplated by this Agreement;
(f) Leases and Loan. Except as set forth on Schedule 7(f),
neither Seller nor any Tenant or Lessee is in default, nor, to Seller's
knowledge, has any event occurred which, with notice or the passage of time or
both, would cause Seller or any Tenant or Lessee to be in default, under any of
the Real Estate Leases or the Equipment Leases. Neither Seller nor the borrower
under the Equipment Loan is in default, nor, to Seller's knowledge, has any
event occurred which, with notice or the passage of time or both, would cause
Seller or the borrower under the Equipment Loan to be in default, under the
Equipment Loan.
(g) Absence of Breaches or Defaults. Seller is not, and the
authorization, execution, delivery and performance of this Agreement and the
documents, instruments and agreements provided for herein will not result, in
any breach or default under any other document, instrument or agreement to which
Seller is a party or by which Seller, the Projects or any of the Property is
subject or bound. The authorization, execution, delivery and performance of this
Agreement and the documents, instruments and agreements provided for herein will
not violate any applicable law, statute, regulation, rule, ordinance, code, rule
or order and will not result in any lien or encumbrance being placed on all or
any portion of the Property.
(h) Specific Equipment Loan Representations and Warranties.
(i) The Equipment Loan is free and clear of any and
all encumbrances and all related loan documents (including, without limitation,
the Equipment Promissory Note (the "NOTE" and any guaranties in connection with
the Equipment Loan) (collectively, the "LOAN DOCUMENTS") are free and clear of
any and all encumbrances. Seller is the sole owner of the right to receive all
principal, interest and all other amounts required to be paid to the lender
under the Equipment Loan. Seller is the sole owner and holder of the Equipment
Loan and has the full right, power and authority, subject to no interest or
participation of, or agreement with, any third party, to sell, transfer and
assign the same to Purchaser pursuant to this Agreement.
(ii) The Equipment Loan has not been satisfied,
subordinated, assigned or rescinded, in whole or in part, or canceled, except
for scheduled payments made in the ordinary course of business, and except for
assignments disclosed to Purchaser.
(iii) Seller has delivered to the Purchaser copies of
all of the Loan Documents in connection with the Equipment Loan. The Note to be
delivered to the Purchaser at Closing is the only original promissory note for
the Equipment Loan. The Loan Documents are the only documents executed by
Seller's predecessor in interest and Lessee 2 with respect to the Equipment Loan
and the related collateral securing such Equipment Loan as described on Exhibit
B-2 hereto (the "COLLATERAL"). The entire agreement between Seller and Lessee 2
(whether originated by Seller or a third party) is contained in the related Loan
Documents and there are no warranties, agreements or options not set forth
therein. Other than the Loan Documents, there are no agreements between Seller
and Lessee 2 with respect to any of the Collateral securing the Equipment Loan.
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(iv) To the best of Seller's knowledge without
independent inquiry, Lessee 2 has not asserted in writing to Seller nor, to
Seller's knowledge, does Lessee 2 have any basis to assert, any defense, right
of rescission, counterclaim or set off to its obligations under the Equipment
Loan.
(v) The Equipment Loan constitutes and arose out of a
bona fide business transaction entered into in the ordinary course of business.
(vi) The proceeds of the Equipment Loan have been
fully disbursed, and there is no requirement for future advances with respect
thereto.
(vii) Seller has not received any written notice of
violation of any law or regulation relating to the Equipment Loan or the
ownership or operation thereof which remains uncured.
(viii) The Collateral does not secure any obligations
to Seller or any of its affiliates other than the obligations evidenced by the
Equipment Loan.
(i) Accuracy of Information. To Seller's actual knowledge,
without any independent investigation or verification whatsoever, the Due
Diligence Items and all other information delivered by Seller to Purchaser with
respect to the Real Property and the Personal Property (including, without
limitation, any and all financial information regarding tenants, borrowers or
guarantors for any of the Real Estate Leases, the Equipment Loan or the
Equipment Leases) are true, accurate and complete in all material respects.
Seller acknowledges and agrees that the warranties and
representations set forth above shall survive the Closing for a period of twelve
(12) months. If prior to Closing, Purchaser receives written notice from Seller
that any representation or warranty of Seller is untrue and cannot be remedied,
or Purchaser becomes aware that any material representation or warranty of
Seller is untrue and cannot be remedied, Purchaser shall, as Purchaser's sole
and exclusive remedy, be entitled to terminate this Agreement by written notice
delivered to Seller on or before the Closing in which event, the Deposit shall
be refunded to Purchaser, and, except for the terms and provisions of this
Agreement which specifically survive the termination of this Agreement, the
parties shall have no further obligations hereunder. If Purchaser is so advised
and Purchaser fails to terminate this Agreement within such period, Purchaser
shall be deemed to have waived the breach of such representation or warranty and
shall have no further rights or remedies as a result of the breach of such
representation or warranty. Seller does not, by this Agreement, represent or
warrant that there will be no changes in any of the matters referred to in
Seller's representations or warranties after the date same are made through the
acts and/or omissions of persons other than Seller, and shall have no liability
or responsibility in the event that any representation or warranty becomes false
or misleading as a result of any change in circumstances after the date such
representations or warranties are made, except as expressly provided herein.
8. COVENANTS OF SELLER.
(a) Actions. From and after the date of this Agreement and
until the date of Closing, Seller shall: (i) keep (or cause to be kept) the
Property fully insured in accordance with prudent and customary practice and as
required by the Real Estate Leases and/or the Equipment Leases (as the case may
be); (ii) not alienate, encumber or transfer the Property or any part thereof in
favor of or to any other person or entity unless required by law; and (iii) not
amend any of the Real Estate Leases, the Equipment Loan and/or the Equipment
Leases (as the case may be) without the prior written consent of Purchaser
(which consent shall not be unreasonably withheld, conditioned or delayed); and
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(b) Change in Status. From and after the date of this
Agreement and until the date of Closing, Seller shall promptly (but in no event
later than the next business day after Seller becomes aware of the same) give
Purchaser written notice of (1) any change in the status of title to any
Property, which either changes the nature of any Permitted Exceptions or
represents an additional encumbrance on a particular Property; and (2) any
events or facts after the date of this Agreement which have caused Seller's
representations or warranties to become untrue or incorrect and which would
alter or amend any of the rights or remedies of the parties under this
Agreement.
9. CLOSING. Seller and Purchaser shall consummate the transactions
contemplated by this Agreement at Closing through an escrow with the Title
Company and pursuant to escrow instructions acceptable to the Title Company,
Seller and Purchaser. The attorneys for Seller and Purchaser are authorized to
execute the escrow instructions letter, any amendments thereto and all
directions or communications thereunder.
10. SELLER'S OBLIGATIONS AT THE CLOSING. On such date as is three (3)
business days prior to the Closing (other than with respect to item (c), which
item shall be satisfied only at Closing), Seller shall:
(a) Deeds. Execute and deliver the Deeds to Title Company for
delivery to Purchaser in accordance with the escrow instructions letter;
(b) Bills of Sale. Execute and deliver the Bills of Sale to
Title Company for delivery to Purchaser in accordance with the escrow
instructions letter;
(c) Title Policy. Cause the Title Company to be irrevocably
prepared to issue to Purchaser an owner's policy of title insurance for each
Project pursuant to the applicable Title Commitment (individually a "Title
Policy" and collectively the "Title Policies");
(d) Closing Statement. Execute and deliver to Title Company a
closing statement itemizing the Purchase Price and all adjustments thereto as
provided in this Agreement;
(e) Assignment(s) of Lease(s). Execute and deliver to Title
Company for delivery to Purchaser in accordance with the escrow instructions
letter an assignment (or assignments) of all of Seller's right, title and
interest in and to the Real Estate Leases and/or the Equipment Leases (as the
case may be) in substantially the form attached as Exhibit "F" (individually an
"Assignment" and collectively the "Assignments"), together with such consents to
and notices of such Assignments as may be required under the Real Estate Leases
and/or the Equipment Leases (as the case may be);
(f) Assignment(s) of UCC Filings. Execute and deliver to Title
Company for delivery to Purchaser in accordance with the escrow instructions
letter an assignment (or assignments) of all of Seller's right, title and
interest in and to any UCC filings in connection with any of the Personal
Property in a form reasonably acceptable to Purchaser;
(g) Assignment of Equipment Loan. Execute and deliver to Title
Company for delivery to Purchaser in accordance with the escrow instructions
letter an assignment of all Seller's right, title and interest in and to the
Equipment Loan in substantially the form attached as Exhibit "F-1" (the "Loan
Assignment"), together with such consents to and notices of such Loan Assignment
as may be required under the Equipment Loan and together with the allonge
required by the Loan Assignment;
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(h) Affidavit. Execute and deliver to Title Company for
delivery to Purchaser in accordance with the escrow instructions letter a
Non-Foreign Persons Affidavit in substantially the form attached as Exhibit "G";
(i) Estoppel Certificates. Deliver to Title Company for
delivery to Purchaser in accordance with the escrow instructions letter an
original of the estoppel certificates from all Tenants and Lessees providing
such documents to Seller, in each case in the form required by SECTION 5(d)
above;
(j) Notice to Tenants/Lessees/Borrower. Execute and deliver to
Title Company for delivery to Purchaser in accordance with the escrow
instructions letter a "Notice to Tenant" or "Notice to Lessee" or "Notice to
Borrower" for each Real Estate Lease and/or Equipment Lease and/or the Equipment
Loan (as the case may be) substantially in the form attached as Exhibit "H"; and
(k) Additional Documents. Execute and deliver to Title Company
for delivery to Purchaser in accordance with the escrow instructions letter such
other documents or instruments as may be required under this Agreement, or as
otherwise required in Purchaser's reasonable judgment to effectuate the Closing.
11. PURCHASER'S OBLIGATIONS AT CLOSING. Subject to the terms,
conditions, and provisions hereof, and contemporaneously with the performance by
Seller of its obligations under SECTION 10 above, on such date as is three (3)
business days prior to Closing, Purchaser shall:
(a) Purchase Price. Deliver the Purchase Price, as adjusted in
accordance with the terms of this Agreement, to Title Company for payment to
Seller in accordance with the escrow instructions letter;
(b) Closing Statement. Execute and deliver to Title Company
for delivery to Seller in accordance with the escrow instructions letter a
closing statement itemizing the Purchase Price and all adjustments thereto as
provided in this Agreement;
(c) Assignments of Leases. Execute and deliver to Title
Company for delivery to Seller in accordance with the escrow instructions letter
a counterpart of the Assignments for the purpose of assuming the obligations of
Seller under each of the Real Estate Leases and/or the Equipment Leases (as the
case may be);
(d) Assignment of Equipment Loan. Execute and deliver to Title
Company for delivery to Seller in accordance with the escrow instructions letter
a counterpart of the Loan Assignment for the purpose of assuming the obligations
of Seller under the Equipment Loan; and
(e) Additional Documents. Execute and deliver to Title Company
for delivery to Seller in accordance with the escrow instructions letter such
other documents or instruments as may be required under this Agreement, or as
otherwise required in Seller's reasonable opinion to effectuate the Closing.
12. CLOSING COSTS. At the Closing, Seller shall pay: (a) the cost of
preparation of the Deeds, the Bills of Sale and the Assignments, (b) all
premiums and fees related to the Title Policies, but excluding endorsement
premiums or any charges for extended coverage endorsements, and (c) subject to
Section 21 below, the real estate brokerage commissions payable to Broker by
reason of the transactions contemplated by this Agreement. Seller and Purchaser
shall each pay half of all real estate transfer taxes and filing fees payable
upon recordation of the Deeds and/or the Assignments and shall each pay half of
any escrow charges (provided, however, in no event shall Purchaser be
responsible for paying more than
14
an aggregate total of $80,000.00 toward any such transfer taxes, fees and escrow
charges). Seller and Purchaser shall each pay their own attorneys' fees.
Purchaser shall be responsible for the costs and expenses of any additional
endorsements and/or additional title insurance coverage requests by Purchaser.
All other costs and expenses of the Closing shall be paid by the party incurring
such costs and expenses.
13. PRORATIONS.
(a) Taxes. Purchaser acknowledges that the Real Estate Leases
and the Equipment Leases obligate the Tenants and the Lessees (as the case may
be) to pay the property taxes directly to the taxing authority. Accordingly, the
parties shall not prorate property taxes between Purchaser and Seller, it being
acknowledged that the Tenants and the Lessees (as the case may be) shall be
responsible for same. In no event shall Seller be responsible for the payment of
any real estate taxes, personal property taxes and/or assessments applicable
during its period of ownership in the event any Tenant or Lessee has defaulted
in the prompt payment of same. Notwithstanding the foregoing, Seller and
Purchaser acknowledge that the payment of sales tax on the rental payments under
the Equipment Leases is the responsibility of Seller to the date of Closing and
thereafter shall be the responsibility of Purchaser.
(b) Rent. Rent actually paid for the month in which the
Closing occurs shall be prorated between Seller and Purchaser as of such date as
is three (3) business days prior to Closing, with Purchaser receiving a credit
for amounts attributable to time periods following and including such date. To
the extent either party hereto receives rent after Closing to which the other
has a claim, such party shall remit same to the party entitled thereto within
ten (10) days of receipt.
(c) Loan Payments. The payment under the Equipment Loan due
and payable on the first (1st) day of the month immediately following the month
in which the Closing occurs shall be prorated between Seller and Purchaser as of
such date as is three (3) business days prior to Closing, with Seller receiving
a credit for amounts attributable to time periods prior to such date. To the
extent either party hereto receives payments with respect to the Equipment Loan
after Closing to which the other has a claim, such party shall remit same to the
party entitled thereto within ten (10) days of receipt.
14. POSSESSION. Subject to the rights of Tenants and Lessees under the
Real Estate Leases and the Equipment Leases (as the case may be), and subject to
the rights of the borrower under the Equipment Loan, Seller shall deliver
possession of the Property to Purchaser at Closing.
15. INSPECTION. From and after the date of this Agreement and until the
Closing or the termination of this Agreement, Seller agrees that Purchaser and
its agents and representatives shall, subject to arranging all onsite visits
with Seller and Broker, be entitled to enter upon any Property for inspection,
soil tests, examination, and for any due diligence investigation relating to
Purchaser's proposed ownership of the Property, subject in every case to the
rights of Tenants and Lessees under the Real Estate Leases and the Equipment
Leases. As to any such investigation, Purchaser shall restore the Property to
the same condition as existed prior to any such investigation, and shall not:
(i) perform any invasive tests without Seller's prior consent, or (ii) interfere
with the possessory rights of any Tenant or Lessee (as the case may be). On the
condition that Seller has the right and authority to grant Purchaser access as
provided herein, Purchaser shall indemnify and hold harmless Seller from and
against, and shall reimburse Seller with respect to, any and all claims,
demands, causes of action, loss, damage, liabilities, costs and expenses
(including reasonable attorneys' fees and disbursements) asserted against or
incurred by Seller by reason of or arising out of any such on-site
investigation, it being acknowledged that all such obligations shall survive the
termination of this Agreement; PROVIDED HOWEVER, if any of the foregoing result
from preexisting contamination or conditions at the Property or from the
negligence, misrepresentation or intentional act of Seller or any of its agents,
employees or contractors, or from the
15
Seller's breach of any warranty or other covenant, then Purchaser shall not be
obligated to indemnify or hold harmless the Seller as provided herein.
16. ACKNOWLEDGMENT. Purchaser understands and acknowledges that Seller
has not made and does not make any representation or warranties whatsoever, oral
or written, express or implied, to Purchaser with respect to the condition,
state of repair or operability of any Property (including but not limited to
environmental protection, pollution or land use laws, rules, regulations, orders
or requirements, including the existence in, on, or under any Property of any
hazardous materials or substances, soil or sub-soil conditions, all improvements
thereon, the structural portions thereof, and the personal property, mechanical,
plumbing, electrical, sewer, sanitary disposal, heating, ventilating and air
conditioning systems and other building service equipment therein), with respect
to the suitability or fitness for the Purchaser's intended use or purpose or
with respect to the appreciation or income potential of any Property, the zoning
of any Property, the platting of any Property, the availability or adequacy of
utilities to any Property, access to any Property, requirements in connection
with any development of any Property or any other matter whatsoever. Purchaser
further acknowledges and agrees that Purchaser has investigated or will
investigate all matters of concern to Purchaser with respect to any Property and
that, except as specifically set forth in this Agreement, Purchaser is not
relying and hereby expressly waives any reliance on any representation or
warranty, oral or written, express or implied, of Seller with respect to such
matters. Purchaser agrees to purchase the Property and all improvements thereon
and mechanical systems therein delivered to Purchaser, "as is and where is",
with all faults. The provisions of this SECTION 16 shall survive the Closing.
17. FURTHER ASSURANCES. Seller and Purchaser agree to perform such
other acts, and to execute, acknowledge, and/or deliver subsequent to the
Closing such other instruments, documents and other materials as Seller or
Purchaser may reasonably request in order to effectuate the consummation of the
transactions contemplated in this Agreement and to vest title to the Property in
Purchaser. In addition, if Purchaser so elects in writing at Closing, Seller
agrees to continue to service the Property, or cause the Property to be
serviced, for a period of no more than thirty (30) days after the Closing
pursuant to an interim servicing agreement in the form attached as Exhibit "I".
The provisions of this Section 17 shall survive the Closing.
18. DEFAULT BY SELLER. IF SELLER SHALL DEFAULT IN THE PERFORMANCE OF
ITS OBLIGATIONS OR BREACH ANY COVENANT OF SELLER THAT HAS A MATERIAL ADVERSE
EFFECT ON THE PROPERTY OR ON PURCHASER'S RIGHTS UNDER THIS AGREEMENT OR IF
SELLER SHALL FAIL TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
FOR ANY REASON, EXCEPTING PURCHASER'S DEFAULT OR THE FAILURE OF ANY OF THE
CONDITIONS TO SELLER'S OBLIGATIONS HEREUNDER TO BE SATISFIED OR WAIVED,
PURCHASER'S SOLE AND EXCLUSIVE REMEDY SHALL BE TO TERMINATE THIS AGREEMENT
EFFECTIVE IMMEDIATELY UPON PURCHASER GIVING WRITTEN NOTICE TO SELLER AND TITLE
COMPANY, WHEREUPON PURCHASER SHALL RECEIVE THE IMMEDIATE REFUND OF THE DEPOSIT,
AND SELLER SHALL PAY PURCHASER DAMAGES IN AN AMOUNT EQUAL TO THE AMOUNT OF THE
DEPOSIT, WHICH PAYMENT SHALL NOT BE A PENALTY, BUT INSTEAD SHALL CONSTITUTE
LIQUIDATED DAMAGES, THE PARTIES AGREEING AND STIPULATING THAT THE EXACT AMOUNT
OF DAMAGES WOULD BE EXTREMELY DIFFICULT TO ASCERTAIN AND THAT THE DEPOSIT
CONSTITUTES A REASONABLE AND FAIR APPROXIMATION OF SUCH DAMAGES AND SELLER SHALL
BE RESPONSIBLE FOR ALL COSTS OF ESCROW, IF ANY.
Seller's Initials: /s/ WRM Purchaser's Initials: /s/ TJW
16
19. DEFAULT BY PURCHASER. IN THE EVENT PURCHASER SHOULD FAIL TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT FOR ANY REASON,
EXCEPTING A DEFAULT BY SELLER OR THE FAILURE OF ANY OF THE CONDITIONS TO
PURCHASER'S OBLIGATIONS HEREUNDER TO BE SATISFIED OR WAIVED, SELLERS' SOLE AND
EXCLUSIVE REMEDY WILL BE TO CANCEL THIS AGREEMENT AND THE ESCROW, SUCH
CANCELLATION TO BE EFFECTIVE IMMEDIATELY UPON SELLER GIVING WRITTEN NOTICE OF
CANCELLATION TO PURCHASER AND TITLE COMPANY. UPON SUCH CANCELLATION, SELLER WILL
BE ENTITLED TO RECEIVE THE DEPOSIT, AS LIQUIDATED DAMAGES AND NOT AS A PENALTY,
THE PARTIES AGREEING AND STIPULATING THAT THE EXACT AMOUNT OF DAMAGES WOULD BE
EXTREMELY DIFFICULT TO ASCERTAIN AND THAT THE DEPOSIT CONSTITUTES A REASONABLE
AND FAIR APPROXIMATION OF SUCH DAMAGES.
Seller's Initials: /s/ WRM Purchaser's Initials: /s/ TJW
20. ATTORNEY'S FEES. Should either Seller or Purchaser employ an
attorney or attorneys to enforce any of the provisions of this Agreement or to
protect its interest in any matter arising under this Agreement or to recover
damages for the breach of this Agreement, the losing party in any final judgment
agrees to pay the prevailing party all reasonable costs, charges, and expenses,
including reasonable attorney's fees, expended or incurred by it in connection
therewith.
21. BROKERAGE COMMISSIONS. Each party represents to the other that no
brokers other than Broker (who represents Seller in the transaction) has been
involved in this transaction. In the event that this transaction is consummated
and Closing occurs, Seller shall pay Broker a real estate commission as set
forth in a separate written agreement between Seller and Broker. Seller and
Purchaser agree that if any other claims for brokerage commissions are ever made
against Seller or Purchaser in connection with this transaction, all claims
shall be handled and paid by the party whose actions or alleged commitments form
the basis of such claim. Seller agrees to indemnify and hold Purchaser harmless
from any loss, liability, damage, cost, or expense (including, without
limitation, reasonable attorney's fees) paid or incurred by Purchaser by reason
of any claim to any broker's, finder's, or other fee in connection with this
transaction by any party claiming by, through, or under Seller. Except as
provided in the foregoing sentence, Purchaser agrees to indemnify and hold
Seller harmless from any loss, liability, damage, cost or expense (including,
without limitation, reasonable attorney's fees) paid or incurred by Seller by
reason of any claim to any broker's, finder's, or other fee in connection with
this transaction by any party claiming by, through, or under Purchaser, which
obligation of each party shall survive the Closing.
22. RISK OF LOSS. All risk of loss or damage to any Property prior to
Closing, including, without limitation, loss by reason of eminent domain or
condemnation proceedings or by reason of fire, windstorm, or other casualty,
shall rest with Seller. If, prior to the Closing, any Property is subject to
eminent domain or condemnation proceedings or is damaged as a result of fire or
other casualty, Seller shall give Purchaser written notice thereof and Purchaser
shall have the option, exercisable by written notice to Seller within ten (10)
days after receipt of such notice, to either:
(a) Accept Title. Accept title to the Property without any
reduction of the Purchase Price, in which event, at the Closing and subject to
the rights of the applicable Tenant or Lessee (as the case may be), Seller shall
assign to Purchaser any eminent domain or condemnation award or insurance
proceeds payable to Seller or its successors or assigns by reason of such
eminent domain or condemnation proceedings or damage or casualty, and pay over
to Purchaser any monies theretofore received by Seller in connection with such
eminent domain or condemnation proceedings or fire or other casualty; or
17
(b) Terminate. Purchaser may terminate this Agreement, in
which event, neither Seller nor Purchaser shall have any further obligations
under this Agreement and the Purchaser shall receive the prompt return of the
Deposit.
In the event Purchaser shall fail to exercise any such option
within such ten (10) day period, Purchaser shall be deemed to have elected the
option set forth in SECTION 22(b).
23. ASSIGNMENT OF AGREEMENT. Except as set forth in SECTION 31 below,
neither Purchaser nor Seller may assign its respective rights or obligations
under this Agreement without the consent of the other provided Purchaser may
assign all or any portion of this Agreement or its rights hereunder to any
entity which is wholly-owned or ultimately owned (i.e. through various
subsidiaries) by Purchaser or to any entity that is owned or otherwise
controlled by the General Electric Company or any of its subsidiaries or
affiliates (a "PURCHASER AFFILIATE"); PROVIDED, HOWEVER, that Purchaser shall
give Seller at least three (3) business days prior written notice of such
assignment, such assignment shall not delay the Closing and Purchaser shall
remain liable for all obligations to be performed by Purchaser under this
Agreement.
24. NOTICES. Any notice to be given or to be served upon either party
in connection with this Agreement must be in writing and shall be given by
certified or registered mail (return receipt requested), by overnight express
delivery or by facsimile (followed by hard copy by either of the two preceding
methods of delivery) and shall be deemed to have been given upon receipt.
Notices shall be sent to the addresses set forth on the signature page of this
Agreement and shall be deemed delivered upon delivery or on the date when the
receiving party first refuses to accept such delivery. Either party may at any
time, by giving five (5) days written notice to the other, designate any other
address in substitution of any of the foregoing addresses to which such notice
shall be given and other parties to whom copies of all notices under this
Agreement shall be sent.
25. BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the Seller and Purchaser and their respective permitted
successors and assigns.
26. ENTIRE AGREEMENT. This Agreement represents the entire agreement
between Seller and Purchaser with respect to the subject matter hereof, and all
prior agreements between Seller and Purchaser with respect to such subject
matter shall have no further force or effect, including, without limitation, any
proposal letters.
27. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware or if there is a dispute
regarding a particular property or asset, then the laws of the state in which
such property or asset is located, in either case without giving effect to
principles of conflicts of law.
28. MODIFICATION. This Agreement may only be modified or otherwise
amended by a written instrument executed by duly authorized representatives of
Seller and Purchaser.
29. TIME OF ESSENCE. Time is of the essence of this Agreement.
30. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original, and all of which
together shall constitute one and the same instrument.
31. 1031 EXCHANGE. In the event, prior to Closing, Purchaser shall
desire to structure this transaction as a part of a tax deferred exchange,
pursuant to Section 1031 of the Internal Revenue Code, Purchaser may assign its
rights, but not its obligations, to a Qualified Intermediary under Treasury
18
Regulation 1.103(k)-(1)(9)(4) and Seller, as an accommodation to Purchaser,
shall enter into and execute any such amendatory documentation as Purchaser may
reasonably request; provided, however, that Seller shall not incur any
additional cost, expense, risk or potential liability whatsoever on account
thereof. Seller shall have no liability to Purchaser whatsoever in the event the
subject transaction is found, held or adjudicated not to qualify as or as a part
of a tax deferred exchange pursuant to Section 1031 of the Internal Revenue
Code.
32. WAIVER OF JURY TRIAL. SELLER AND PURCHASER UNCONDITIONALLY,
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THEIR RIGHT TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT. THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING. IN THE EVENT OF LITIGATION, THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
[Signature page to follow]
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
effective as of the date first written above.
PURCHASER: SELLER:
GE CAPITAL FRANCHISE FINANCE CORPORATION, CAPTEC FRANCHISE CAPITAL PARTNERS L.P. III
A Delaware corporation
By: GP3 Asset Acquisition, LLC
Its: General Partner
By: /s/ Todd J. Weiss
---------------------------
Print Name: Todd J. Weiss By: /s/ W. Ross Martin
-----------------------
Print Name: W. Ross Martin
Its: Associate General Counsel
and Assistant Secretary Its: Vice President
Send Notices To: Send Notices To:
Bruce Nichols Captec Franchise Capital Partners L.P. III
GE Capital Franchise Corporation Attention: Steven Willison
17207 North Perimeter Drive 24 Frank Lloyd Wright Drive
Scottsdale, Arizona 85255-5402 Lobby L, Fourth Floor, P.O. Box 544
Telephone: (480) 563-6372 Ann Arbor, Michigan 48106-0544
Facsimile: (480) 563-6172 Telephone: (734) 994-5505
Facsimile: (734) 994-1376
With a Copy To:
Todd J. Weiss, Esq. With a Copy To:
GE Capital Franchise Finance Corporation Shumaker Loop & Kendrick LLP
17207 North Perimeter Drive Attention: James I. Rothschild, Esq.
Scottsdale, Arizona 85255-5402 North Courthouse Square
Telephone: (480) 563-6016 1000 Jackson
Facsimile: (480) 585-2225 Toledo, OH 43624-1573
Telephone: (419) 321-1232
And With a Copy To: Facsimile: (419) 241-6894
Snell & Wilmer, L.L.P.
Attention: W. Brian Hulse, Esq.
15 West South Temple, Suite 1200
Salt Lake City, Utah 84101
Telephone: (801) 257-1957
Facsimile: (801) 257-1800
20
EXHIBIT 99
SCHEDULE OF EXHIBITS AND SCHEDULES
A -- Legal Description of the Land
B -- Description of Equipment Packages
C -- Allocation of Purchase Price
D -- Form of Deed
E -- Form of Bill of Sale
F -- Form of Assignment of Lease
F-1 -- Form of Assignment of Equipment Loan
G -- Form of Non-Foreign Persons Affidavit
H -- Form of Notice to Tenant/Lessee
I -- Form of Interim Servicing Agreement
Schedule 7(b) -- Notices of Noncompliance
Schedule 7(c) -- Pending Litigation
Schedule 7(d) -- Eminent Domain
Schedule 7(f) -- Lease/Loan Defaults
SCHEDULE OF RIDERS
Right of First Refusal Rider
EXHIBIT "A-1"
LEGAL DESCRIPTION OF THE LAND
Parcel 1: Land situated in the County of Jefferson, State of Illinois,
particularly described as follows:
Lot 4 of the THIRD SUBDIVISION OF OUTLOT 2 IN MT. VERNON CENTRE SUBDIVISION, as
shown by a plat recorded on April 25, 1994 in Cabinet 5 Drawer 1, Instrument No.
2343 (Plat Cabinet 2, Slide D-66) in the Office of the Recorder of Jefferson
County, Illinois.
A-1
EXHIBIT "A-2"
LEGAL DESCRIPTION OF THE LAND
Parcel 2: Land situated in the County of Craven, State of North Carolina,
particularly described as follows:
ALL THAT CERTAIN TRACT OR PARCEL OF LAND LYING AND BEING SITUATE IN NEW BERN,
NUMBER EIGHT TOWNSHIP, CRAVEN COUNTY, NORTH CAROLINA, AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT AN EXISTING IRON PIPE ON THE SOUTH RIGHT OF WAY LINE OF U.S.
HIGHWAY NUMBER 17, SAID POINT HAVING NORTH AMERICAN DATUM 1983, NORTH CAROLINA
GRID COORDINATES, WHERE NORTH = 151495.62573 METERS AND EAST = 783493.49133
METERS; SAID POINT BEING LOCATED NORTH 67 DEGREES 34 MINUTES 17 SECONDS EAST
338.37' FROM THE NORTH CAROLINA GEODETIC SURVEY STATION J 110, WHICH HAS A
PUBLISHED PRELIMINARY POSITION WHERE NORTH = 151456.281 METERS AND EAST =
783398.169 METERS; THENCE FROM SAID BEGINNING POINT ALONG AND WITH THE SOUTH
RIGHT OF WAY OF U.S. HIGHWAY NUMBER 17, NORTH 64 DEGREES 07 MINUTES 11 SECONDS
EAST 182.16' TO AN EXISTING IRON PIPE AT THE INTERSECTION OF THE SOUTH RIGHT OF
WAY OF U.S. HIGHWAY NUMBER 17 WITH THE WEST RIGHT OF WAY LINE OF RED ROBIN LANE
(NORTH CAROLINA SECONDARY ROAD NUMBER 1340; THENCE, ALONG AND WITH THE WEST
RIGHT OF WAY LINE OF RED ROBIN LANE THE FOLLOWING COURSES AND DISTANCES; SOUTH
22 DEGREES 38 MINUTES 14 SECONDS EAST 42.92' TO A SET IRON PIPE; THENCE SOUTH 13
DEGREES 19 MINUTES 14 SECONDS EAST 125.12' TO AN EXISTING IRON PIPE; THENCE
LEAVING SAID WEST RIGHT OF WAY LINE ALONG AND WITH THE McDONALD'S CORPORATION
PROPERTY LINE, SOUTH 81 DEGREES 54 MINUTES 02 SECONDS WEST 195.40' TO AN
EXISTING IRON PIPE, A COMMON PROPERTY CORNER BETWEEN THE McDONALD'S CORPORATION
PER DEED BOOK 1013, PAGE 131 AND JKLM, INC. PER DEED BOOK 1629, PAGE 832 IN THE
CRAVEN COUNTY REGISTER OF DEEDS OFFICE; THENCE ALONG AND WITH THE JKLM, INC.
PROPERTY LINE, NORTH 08 DEGREES 12 MINUTES 45 SECONDS WEST 110.52' TO THE POINT
AND PLACE OF BEGINNING, CONTAINING 0.603 ACRES, BEARINGS HEREIN REFERENCED TO
NORTH CAROLINA GRID NORTH, NORTH AMERICAN DATUM 1983.
A-2
EXHIBIT "A-3"
LEGAL DESCRIPTION OF THE LAND
Parcel 3: Land situated in the City of Plano, County of Collin, State of Texas,
particularly described as follows:
TRACT I
Being Lot 9, Block 1 of WALTON PARK SQUARE ADDITION, an Addition to the City of
PLANO, COLLIN County, Texas, according to the Replat thereof recorded in Volume
J, Page 297, Map Records, COLLIN County, Texas.
TOGETHER WITH the following easement rights:
TRACT II
Those certain non-exclusive easement rights as set out in that Easement and
Indemnity Agreement dated November 21, 1995, filed November 22, 1995, by and
between Wal-Mart Stores, Inc., and Texas BEP, L.P., recorded under County
Clerk's file number 95-0087886, Deed Records, COLLIN County, Texas.
TRACT III
Those easement rights as set out in that Parking Easement granted by Wal-Mart
Stores, Inc. to Texas BEP, L.P., dated November 17, 1995, filed November 22,
1995, recorded under County Clerk's file number 95-0087888, Deed Records, COLLIN
County, Texas.
TRACT IV
Those non-exclusive easement rights as set out in the Driveway Easement
Agreement by and between Texas BEP, L.P. and Chick-Fil-A, Inc., dated November
21, 1995, filed November 22, 1995, recorded under County Clerk's file number
95-0087889, Deed Records, COLLIN County, Texas.
A-3
EXHIBIT "A-4"
LEGAL DESCRIPTION OF THE LAND
Parcel 4: Land situated in the Township of Ewing, County of Mercer, State of New
Jersey, particularly described as follows:
All that certain lot, piece of parcel of land, with the buildings and
improvements thereon erected, situated, lying and being in the Township of
Ewing, County of Mercer, State of New Jersey:
Beginning at a point in the southwesterly line of North Olden Avenue
Extension (County Route No. 622) (80 feet ROW). Said point being N 56 degrees 03
minutes 00 seconds W, 618.91 feet from the intersection of the aforesaid
southwesterly line of North Olden Avenue Extension extended with the
northwesterly line of Prospect Street (50 foot ROW) extended; and running
thence:
1. S 33 degrees 57 minutes 00 seconds W, along the common line of
Lot 30 and 24, Block 118.04, 400.00 feet to a point in the
northeasterly line of Lot 53; thence;
2. N 56 degrees 03 minutes 00 seconds W, along the common line of
Lots 30 and 53, Block 118.04, 150.00 feet to a point being the
common corner of Lots 30 and 31, thence;
3. N 33 degrees 57 minutes 00 seconds E, along the common line of
Lots 30 and 14, Block 118.04, 400.00 feet to a point in the
aforesaid southwesterly line of North Olden Avenue Extension;
thence
4. S 56 degrees 03 minutes 00 seconds E, along the aforesaid
southwesterly line of North Olden Avenue Extension, 150.00
feet to the POINT AND PLACE OF BEGINNING.
A-4
EXHIBIT "A-5"
LEGAL DESCRIPTION OF THE LAND
Parcel 5: Land situated in the City of San Antonio, County of Bexar, State of
Texas, and more particularly described as follows:
A 0.687 (29,927 square feet) an acre parcel of land, more or less, in Lot 31,
Block 7, New City Block 11911, Ravenhill Subdivision as recorded in Volume 7800,
Page 246 of the Deed and Plat records of Bexar County, Texas, which said 0.687
of an acre of land, more or less, is more particularly described by metes and
bounds as follows:
BEGINNING from a 1/2" iron rod set (Geogram cap) on the north right of way line
of Quintard Street at the northwest end of a curve return to the north right of
way line of southeast Military drive for a corner of this parcel;
THENCE North 12 degrees 56'30" West, along said northeast right of way line, a
distance of 152.67 feet to a pk nail with shiner set at the southwest corner of
the remaining portion Lot 26, Block 7, N.C.B. 11911, Ravenhill Subdivision
recorded in Volume 5580, Page 226 of the Deed and Plat Records of Bexar County,
Texas for the northwest corner of this parcel;
THENCE North 77 degrees 10'30" East, along the common lot line of said remaining
portion of Lot 26 and Lot 31, a distance of 62.00 feet to a pk nail with shiner
set for an angle point and South 89 degrees 19'49" east a distance of 52.30 feet
to a 1/2" iron rod set (Geogram cap) at the southeast corner of said remaining
portion of Lot 26 for a corner of this parcel;
THENCE South 00 degrees 44'30" West, crossing said Lot 31, a distance of 17.54
feet to a pk nail with shinner found for a re-entrance corner of this parcel;
THENCE South 89 degrees 30'00" East, continuing across said Lot 31, a distance
of 88.66 feet to a pk nail with shinner found for the northeast corner of this
parcel;
THENCE South 10 degrees 30'09" West, a distance of 187.85 feet to a 1/2" iron
rod found on the curvilinear north right of way line of Southeast Military Drive
for the southeast corner of this parcel;
THENCE curving to the left, along said north right of way line, having a radius
of North 12 degrees 33'15" East, a radius of 2,219.79 feet, a central angle of 2
degrees 58'05", a tangent length of 57.51 feet and arc distance of 114.99 feet
to a 1/2" iron rod set (Geogram cap) at the southeast end of a curve return for
a point of reverse curvature of this parcel;
THENCE curing to the right having a radius of 25.00 feet, a central angle of 66
degrees 46'08", a tangent length of 16.48 feet and arc distance of 29.14 feet to
the point of BEGINNING.
A-5
EXHIBIT "A-6"
LEGAL DESCRIPTION OF THE LAND
Parcel 6: Land situated in the City of Virginia Beach, County of Bayside
Borough, State of Virginia, particularly described as follows:
All that certain lot, piece or parcel of land, with the buildings and
improvements thereon, situate, lying and being of the City of Virginia Beach,
Virginia, and known, numbered and designated as parcel B, as shown on that
certain plat entitled "SUBDIVISION OF A PARCEL OF LAND STANDING IN THE NAME OF
KETTLE RESTAURANTS, INC. (D.B. 2054, PG. 357) FOR KETTLE RESTAURANTS, INC.",
dated June 27, 1989, revised October 10, 1989, prepared by Langley and McDonald,
Engineers-- Planners--Surveyors, which said plat is duly recorded in the Clerk's
Office of the Circuit Court of the City of Virginia Beach, Virginia, in Map Book
197, Page 14.
Together with that certain private fifty foot ingress/egress easement dedicated
from Parcel A to Parcel B and shown on plat recorded in Map Book 197, page 14.
IT BEING a part of the same property conveyed to CAPTEC NET LEASE REALTY, INC.,
a Michigan corporation, by deed from KETTLE RESTAURANTS, INC., dated August 28,
1995, and filed for record in Deed Book 3536, page 1974.
A-6
EXHIBIT "A-7"
LEGAL DESCRIPTION OF THE LAND
Parcel 7: Land situated in the City of Lakeland, County of Polk, State of
Florida, particularly described as follows:
THE NORTH 100 FEET OF THE SOUTH 200 FEET OF THE WEST 1/2 OF THE SOUTHWEST 1/4 OF
THE SOUTHWEST 1/4 OF SECTION 6, TOWNSHIP 29 SOUTH, RANGE 24 EAST, POLK COUNTY,
FLORIDA, LESS RIGHT OF WAY.
AND
THE SOUTH 100 FEET OF THE WEST 1/2 OF THE SOUTHWEST 1/4 OF THE SOUTHWEST 1/4 OF
SECTION 6, TOWNSHIP 29 SOUTH, RANGE 24 EAST, POLK COUNTY, FLORIDA, LESS RIGHT OF
WAY.
All of the above being further described as:
COMMENCE AT THE SOUTHWEST CORNER OF SAID SECTION 6, THENCE S 89 DEGREES 01'06"
E, 41.48 FEET, ALONG THE SOUTH LINE OF THE SOUTHWEST 1/4 OF SAID SECTION 6 TO
THE EAST RIGHT OF WAY LINE OF STATE ROAD NO. 37 (S. FLORIDA AVE) AND THE POINT
OF BEGINNING, SAID POINT ALSO LYING ON A NON TANGENT CURVE CONCAVE WESTERLY
HAVING A RADIUS OF 3894.72 FEET; THENCE, NORTHERLY ALONG SAID CURVE AND
RIGHT-OF-WAY LINE 200.60 FEET THROUGH A CENTRAL ANGLE OF 02 DEGREES 57' 04"
(CHORD BEARING N 05 DEGREES 27'20" E, 200.58 FEET); THENCE, LEAVING SAID CURVE
AND RIGHT-OF-WAY LINE, S 89 DEGREES 01'06" E, 601.52 FEET; THENCE SOUTH 200.00
FEET TO THE SOUTH LINE OF SAID SECTION 6; THENCE, ALONG SAID SOUTH LINE, N 89
DEGREES 01'06" W, 620.60 FEET TO THE POINT OF BEGINNING.
A-7
EXHIBIT "A-8"
LEGAL DESCRIPTION OF THE LAND
Parcel 8: A tract of land situated in the Southwest Quarter (SW/4) of Section
Eleven (11), Township Twenty-two (22) North, Range Seven (7) West of the Indian
Meridian, Garfield County, Oklahoma, being more particularly described as
follows:
Commencing at the southwest corner of said SW/4;
Thence S. 89 degrees 46'04" E. along the south line of said SW/4 a distance of
900.5 feet;
Thence N. 0 degrees 08'34" W. parallel to the west line of said SW/4 a distance
of 65.0 feet to a point on the present north right-of-way line of Owen K.
Garriott Road, in Enid, Oklahoma, said point also being on the east right-of-way
line of Commerce Street in Enid, Oklahoma;
Thence S. 89 degrees 46' 04" E. along said north right-of-way line of Owen K.
Garriott Road, same being parallel to and 65.0 feet north of the south line of
said SW/4, a distance of 57.70 feet;
Thence easterly along said north right-of-way line along a curve to the left
having a radius of 34,277.5 feet, an arc length of 358.70 feet to the true point
of beginning of the herein described tract of land;
Thence N. 0 degrees 08'34" W. parallel to the west line of said SW/4 a distance
of 300.82 feet;
Thence N. 89 degrees 51'39" E. a distance of 143.50 feet;
Thence S. 0 degrees 08'34" E. parallel to the west line of said SW/4 a distance
of 299.99 feet to a point on the north right-of-way line of Owen K. Garriott
Road;
Thence westerly along said north right-of-way line, along a curve to the right
having a radius of 34,277.5 feet, an arc length of 143.50 to the point of
beginning;
A-8
EXHIBIT "A-9"
LEGAL DESCRIPTION OF THE LAND
Parcel 9: Land situated in the City of Hurst, County of Tarrant, State of Texas,
and more particularly described as follows:
FEE: Being Lot 4R, Block 2 of WOODBRIDGE PLAZA ADDITION, an Addition to the City
of Hurst, Texas, according to the map thereof recorded in Cabinet A, Slide 2397,
Plat Records, Tarrant County, Texas.
EASEMENT: Non-Exclusive Easement Appurtenant in Volume 11706, Page 2201, Deed
Records of Tarrant County, Texas.
Fee tract being more particularly described as follows:
TRACT I
BEING a tract of land situated in the JOHN H. DUNCAN SURVEY, Abstract No. 399,
City of Hurst, Tarrant County, Texas and being all of Lot 4R, Block 2 of the
WOODBRIDGE PLAZA recorded in Cabinet A, Slide 2397 of the Plat Records of
Tarrant County, Texas (PRTCT) and being more particularly described as follows:
BEGINNING at a 1/2 inch iron rod found at the most southwesterly corner of said
Lot 4R, Block 2, said point also being the northerly right-of-way of GRAPEVINE
HIGHWAY (State Highway No. 26);
THENCE departing the northerly right-of-way of said GRAPEVINE HIGHWAY North 45
degrees 39 minutes 28 seconds West, a distance of 238.81 feet to 1/2 inch iron
rod set for corner;
THENCE North 45 degrees 45 minutes 19 seconds East, a distance of 143.10 feet to
an x cut in concrete set;
THENCE South 44 degrees 14 minutes 41 seconds East, distance of 247.89 feet to a
1/2 inch iron rod set in the northerly right-of-way of said GRAPEVINE HIGHWAY
for corner;
THENCE along the northerly right-of-way of said GRAPEVINE HIGHWAY as follows:
South 45 degrees 45 minutes 19 seconds West, a distance of 46.09 feet to a 1/2
inch iron rod found;
South 51 degrees 29 minutes 17 seconds West, a distance of 91.58 feet to the
POINT OF BEGINNING;
Containing within these metes and bounds 0.787 acres or 34,300 square feet of
land, more or less.
A-9
EXHIBIT "'A-10"
LEGAL DESCRIPTION OF THE LAND
Parcel 10: Land situated in the County of Pierce, State of Washington,
particularly described as follows:
PARCEL 3 OF MERIDIAN CENTER PARCEL MAP RECORDED JULY 2, 1993 UNDER RECORDING NO.
9307020261, RECORDS OF PEIRCE COUNTY AUDITOR;
SITUATE IN THE COUNTY OF PIERCE, STATE OF WASHINGTON.
A-10
EXHIBIT "A-11"
LEGAL DESCRIPTION OF THE LAND
Parcel 11: Land situated in the City of Macomb, County of Macomb, State of
Michigan, particularly described as follows:
Part of the southeast 1/4 of Section 36, town 3 north, range 13 east, being more
fully described as:
Commencing at a point 1528.45 feet north 01 degree 42 minutes east from the
southeast corner of Section 36; thence extending north 66 degrees 55 minutes
west 499.02 feet; thence north 23 degrees 39 minutes east 135.85 feet along the
southeast line of Gratiot Avenue (120 feet wide); thence south 67 degrees 07
minutes east 443.89 feet; thence south 1 degree 45 minutes (record) (42 minutes
measured) west 147.55 feet along the east line of section 36 to the point of
beginning.
AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
Beginning at a point located on the east right-of-way line of Michigan State
Highway Route 3 (Gratiot Avenue), said point being situate north 86 degrees 04
minutes 18 seconds east a distance of 67.69 feet from a point located at the
intersection of the projected centerline of Abington Circle with the centerline
of aforementioned Michigan State Highway Route 3 (Gratiot Avenue); thence from
the place of beginning along the aforementioned east right of way line of
Michigan State Highway Route 3 (Gratiot Avenue), north 23 degrees 39 minutes 00
seconds east for a distance of 135.85 feet to a point; thence south 67 degrees
07 minutes 00 seconds east for a distance of 443.89 feet to a point; thence
south 1 degrees 42 minutes 00 seconds west for a distance of 147.55 feet to a
point; thence north 66 degrees 55 minutes 00 seconds west for a distance of
499.02 feet to the place of beginning.
Commonly known as: 45590 Gratiot
Parcel Identification Number 08-36-429-007
A-11
EXHIBIT "A-12"
LEGAL DESCRIPTION OF THE LAND
Parcel 12: Land situated in the City of Jacksonville, County of Duval, State of
Florida, particularly described as follows:
A part of Parcel "H", Deerwood Park North Replat Number One, as recorded in Plat
Book 51, pages 6, 6A through 6N of the public records of Duval County, Florida;
together with a part of section 12, Township 3 South, Range 27 East; all being a
part of the lands described as "Overall Out Parcel" on page 1 of 2, Exhibit "A",
Book 8710, pages 347 through 352 of said public records and more particularly
described as follows: For a point of reference commence at the point of cusp
formed by the intersection of curve No. C76 (curve number according to said
plat) on the Southerly right of way line of Deer Lake Court with the Easterly
right of way line of Southside Boulevard, State Road No. 115 (as now established
as a 250 foot wide right of way); thence Southerly along said Easterly right of
way line of Southside Boulevard, the same being a curve concave Easterly and
having a radius of 11309.16 feet, an arc distance of 423.64 feet, said arc being
subtended by a chord bearing of South 15 degrees 44'38" East and a chord
distance of 423.62 feet to the Point of Beginning; thence continue Southerly
along said right of way line and along the arc of said curve a distance of
263.60 feet, said arc being subtended by a chord bearing of South 17 degrees
29'05" East and a chord distance of 263.59 feet; thence North 71 degrees 39'36"
East, departing from said right of way line, a distance of 41.82 feet to the
point of curvature of a curve concave Northwesterly and having a radius of
200.00 feet; thence Northeasterly along the arc of said curve a distance of
72.23 feet, said arc being subtended by a chord bearing of North 61 degrees
18'49" East and a chord distance of 71.84 feet to the point of tangency of said
curve; thence North 50 degrees 58'03" East a distance of 119.33 feet to the
point of curvature of a curve concave Southeasterly and having a radius of
256.50 feet; thence Northeasterly along the arc of said curve a distance of
79.84 feet, said arc being subtended by a chord bearing of North 59 degrees
53'06" East and a chord distance of 79.52 feet to a point of reverse curvature;
thence Northeasterly along the arc of a curve concave Northwesterly and having a
radius of 23.50 feet, an arc distance of 7.30 feet, said arc being subtended by
a chord bearing of North 59 degrees 53'57" East and a chord distance of 7.27
feet to a non-tangent end of said curve; thence North 17 degrees 47'58" West a
distance of 187.90 feet; thence South 71 degrees 12'02" West a distance of
306.94 feet to the Point of Beginning.
A-12
EXHIBIT "B-1"
DESCRIPTION OF EQUIPMENT PACKAGE
Equipment Package 1: That certain package of equipment used in connection with a
KFC Restaurant located at 6636 South Avenue, Boardman, Ohio, and more
particularly described as follows:
QTY EQUIPMENT DESCRIPTION
SUPPLIER: FOODSERVICE PURCHASING COOPERATIVE, INC.- PO BOX 32033,
LOUISVILLE, KY 40232
1 QKSRV-WINDOW, CLEAR ANODIZED
1 MTCRFT-N/S-POWER SOAK SYSTEM
1 THERMKL-COOLER, FREEZER, WALK-IN
1 SEATING, ALL THEMES
1 DECOR, ALL THEMES
1 ACCSRV-LIGHT FIXTURE
1 LOT ARTWORK
1 LOT SMALLWARES
1 LOT OFFICE SUPPLIES
1 LOT KITCHEN WARES
1 ALUMINUM CAN RACK
2 HOT WATER MACHINE
1 MENUBOARD
4 WARMING CABINET
3 NATURAL GAS FRYER
1 DISPLAY CABINET
1 WORK TABLE
1 OVEN TABLE
1 FILTER UNIT WITH DUMP TABLE
1 BASE UNIT
1 SALAD DOLLY
2 BREADER
2 BREADER ACCESSORY KIT
1 COLE SLAW UNIT
1 MARINATOR
1 USE E30306043
1 FREEZER
1 FREEZER U/C
2 REFIGERATOR U/C
1 FAST TIMER
1 COMPUTER BISCUIT OVEN
1 VINYL CLAD EXT. BIN
1 CUBER
1 CONVECTION OVEN
1 FREESTANDING MARINATION STATION
1 BREADING STATION
1 WORKSTATION
1 MIXING STATION
B-1
QTY EQUIPMENT DESCRIPTION
2 48" FREESTANDING WORKSTATION
1 72" FREESTANDING WORKSTATION
1 LOT SHELVING
1 OVEN
1 MARINATOR DRUM
1 MEDIUM CRIME SAFE
1 VIDEO TRAINING SYSTEM
3 CRISPY FRYER
3 DUAL NAPKIN DISPENSER
1 FOOD SAFETY KIT
1 ADD-ON HEATER ASSEMBLY FOR FRIES
1 ADD-ON BLOOMINGTON RAIL
1 ADD-ON FRIES TABLE
1 ELECTRIC STEAMER
B-2
EXHIBIT "B-2"
DESCRIPTION OF EQUIPMENT PACKAGE
Equipment Package 2: That certain package of equipment used in connection with a
Carino's Restaurant located at 3402 St. Michael Avenue, Texarkana, Texas,
securing an equipment loan owing by Lessee 2 to Seller, and more particularly
described as follows:
SUPPLIER: SAM'S CLUB
1 TELEVISION
SUPPLIER: OFFICE DEPOT- FILE #81901, LOS ANGELES, CA 90074-1901
1 LOT MISC. OFFICE SUPPLIES
1 CASH DRAWER W/ TRAY
1 LABELER
1 LASERJET PRINTER
SUPPLIER: USA PEG- PO BOX 162234 FORT WORTH, TX 76161
6 24X32 WHITE PEG BOARD
SUPPLIER: THE LESLIE-DAVIES GROUP- 12088 FORESTGATE DRIVE, DALLAS, TX
75243
1 DECOR PACKAGE
SUPPLIER: LANDMARK SIGN CO.- 2094 VISTA DRIVE, LEWISVILLE, TX 75067
1 ADDITIONS TO SIGN PACKAGE, SINGLE SIDE NON-ILLUMINATED WALL SIGN
LOGO
1 LOT MISC. SMALLWARES
1 50' SIGN PACKAGE
2
SUPPLIER: AEI MUSIC NETWORK, INC.- 900 EAST PINE STREET, SEATTLE, WA
98122
1 LOT MISC. SMALLWARES
1 AMPLIFIER
1 CUSTOM VC PANEL
1 LOT MISC. MUSIC EQUIPMENT
1 PIONEER RECIEVER
20 SPEAKERS
SUPPLIER: EL PASO IMPORT COMPANY- 4324 MCKINNEY AVE S-102, DALLAS, TX
75205
B-3
QTY EQUIPMENT DESCRIPTION
SUPPLIER: CHARITY CORNELIUS- 6310 VELASCO, DALLAS, TX 75214
1 LOT PLATE STANDS
1 LOT MISC. HARDWARE
SUPPLIER: JEFFREY WALSH ASSOCIATES- 4 MORGAN ROAD, BEVERLY, MA 01915
1 WHEELBARROW
1 LOT MISC. DECOR
SUPPLIER: M&S SUPPLY COMPANY- PO BOX 171014, ARLINGTON, TX 76003-1014
3 DRAPES WITH IRON RINGS AND RODS
1 LACE PANEL W/ WROUGHT ROD IRON
18 2" WOOD BLINDS
SUPPLIER: AA PORTER LIGHTING FIXTURE COMPANY- 16451 ADDISON RD, ADDISON,
TX 75001-5166
3 IE 20
3 IE 818 PB
3 IE 20 GLASS MARKCTN TYPE 5 N/C
SUPPLIER: JACKSON'S
1 LOT MISC DECOR
SUPPLIER: FREEMAN NURSERIES
1 LOT MISC DECOR
SUPPLIER: ATLANTICPACIFIC- 1416 N. SAM HOUSTON PKWY E., SUITE 160,
HOUSTON, TX 77032
4 CABLE DROPS
4 PLENUM CABLE DROPS
SUPPLIER: HOPE FIRE EXTINGUISHER SERVICE, INC.- PO BOX 1037, HOPE, AR
71802
2 ABC FIRE EXTINGUISHER
2 CLASS K FIRE EXTINGUISHER
SUPPLIER: EDWARD DON & COMPANY- 135 LASALLE ST. DEPT. 2562, CHICAGO, IL
60674
1 LOT MISC. SMALLWARES
1 2 SPEED TIMER BLENDER
2 LETTUCE CRISPER
1 ANTI SLIP MAT
1 6 CUT WEDGER
B-4
QTY EQUIPMENT DESCRIPTION
1 PORTION SCALE
1 DIAL SCALE
1 COUNTERTOP MIXER
1 TRIPLE INGREDIENT BIN
1 HAND TRUCK
1 LOT MISC. KITCHENWARES
1 HORIZONTAL BABY CHANGER
1 TEA BREWER
1 POTATO FRY CUTTER
1 SOILED DISHTABLE
1 CLEAN DISHTABLE
1 PANT LEG DUCT
2 PRE RINSE UNIT
1 ICE MAKER
2 REMOTE CONDENSER
2 35" PRECHARGED
1 ICE BIN
1 TILTING SKILLET
1 POT AND GLASS
1 MICROWAVE SHELF
2 ICE CREAM DIPPING
1 DIPPERWELL
1 LOT SHELVING
1 THREE SINK
1 8" PRE RINSE UNIT
1 S/S PASS OVER SHELF
1 WORK TABLE
1 WALL MOUNTED SHELF
1 CHAR BROILER
2 SECURITY UNIT
1 GAS PASTA COOKER
1 CHEESE MELTER
1 MOBILE PASTA STATION
1 REFRIGERATOR
1 REFRIGERATED TSSU-72-30M
1 WALL PANELING
2 REFRIGERATED TPP-93
1 WALL HAND SINK
2 CONVECTION OVEN
11 GAS CONNECTOR KIT
1 EXHAUST HOOD FANS
1 S/S MOBILE EQUIPMENT
1 EXHAUST HOOD, FANS
1 COUNTER FREEZER
2 GAS FIRED FRYER
1 FRYER FILTER
1 REFRIGERATED TSSU-72-30M
2 TIMER WITH BRACKET
1 FIRE SYSTEM
B-5
QTY EQUIPMENT DESCRIPTION
1 COUNTER HOTPLATE
1 EQUIPMENT STAND
2 S/S 30X84 MOBILE
1 FOOD WARMER
2 HOT FOOD WELL UNIT
3 MOBILE CABINET
2 FLAV-R SAVOR HOLDING
1 CONVECTION STEAMER
1 HEATED DISPENSER
1 TWO SINK
1 ANGLE FOOD SLICER
1 WALK IN
1 SECURITY FENCE
1 LOT 2436NK2
1 LOT 2448NK2
14 CORNER GUARDS
14 WALL CAPS
6 MOBILE RACK PANS
1 A200 FOOD MIXER
1 CUSTOM MIXER STAND
1 SALAD DRYER
1 9" VEGETABLE SLICER
1 PASS THRU ICE BIN
1 FROZEN BEVERAGE COCKTAIL FREEZER
1 MOBILE STAND
1 BLENDER STATION
1 UNDERBAR WORKBOARD
1 SINGLE SPEED RAIL
1 FREE HAND SINK UNIT
2 BACKBAR STORAGE
1 DRAFT BEER COOLER
2 WATER FILTER SYSTEM
2 COUNTER HOTPLATE
1 S/S MOBILE EQUIPMENT
2 EXHAUST FANS
1 EXHAUST FAN AND CURB
1 HOT FOOD WELL UNIT
1 COLD FOOD UNIT
1 FLAV-R-SAVOR HOLDING
2 DROP IN SINK
SUPPLIER: MICROS- PO BOX 23747, BALTIMORE, MD 21203
4 PCWS-AD/ULTRA KIT
4 HARD DRIVE ASSY
4 PRINTER KIT
1 LINE COND/UPS,ONEAC
1 ADDITIONAL 64MB MED PROSERVER
1 MED PENTIUM REST SERVER
B-6
QTY EQUIPMENT DESCRIPTION
1 LOT SOFTWARE
1 PTR AUTO KIT
1 LOT COMPUTER HARDWARE
SUPPLIER: SMITH & HAWKIN- 117 E. STRAWBERRY DR., MILL VALLEY, CA 94941
1 5' GARDEN BENCH COT
SUPPLIER: COCA-COLA USA-
2 DROP IN DISPENSER
2 CARBONATOR
1 LOT MISC. BEVERAGE EQUIPMENT
SUPPLIER: HONEYWELL- 1301 RECORD CROSSING, DALLAS, TX 75235
1 SECURITY SYSTEM W/ ADDITION
SUPPLIER: PIER ONE IMPORTS
1 LOT MISC. DECOR
SUPPLIER: COST PLUS WORLD MARKET
1 LOT MISC. DECOR
SUPPLIER: ECOLAB- PO BOX 70343, CHICAGO, IL 60673-0343
1 LOT MISC. KITCHENWARES
1 SILVERMASTER SYS PKD
SUPPLIER: CHAUCER ANTIQUES LTD.- 1415 SLOCUM STREES, DALLAS, TEXAS 7520
1 PINE DISPLAY PC.
1 REG OAK TABLE
1 PINE CUPBOARD
1 OAK CUPBOARD
1 PINE WINE HOLDER WITH DOORS & MESH
SUPPLIER: EL PASO IMPORT CO. DALLAS STORE.- 4524 MCKINNEY AVE, DALLAS,
TX 75205
13 4022 MY COLONIAL BARSTOOL
51 4030 UA VICTOR SIDE CHAIR
51 STYLE "B" CHAIR
51 STYLE "C" CHAIR
1 1030 LMS 8' RODOLFO LEG TABLE
40 3420 CU LISA CHAIR (IRON)
8 3421 CU LISA ARM CHAIR (IRON)
1 COLONIAL WITHOUT ARMS
B-7
QTY EQUIPMENT DESCRIPTION
1 COLONIAL WITH ARMS
SUPPLIER: SOUTHWEST OVENS, INC.- 890 N. MILL ST., SUITE 108, LEWISVILLE,
TX 75057
1 CUSTOM WOODBURNING OVEN MODEL: C-600
1 CUSTOM STEEL STAND ON CASTERS
1 THERMOSTATICALLY CONTROLLED GAS UNIT
SUPPLIER: WOODARD, INC.- PO BOX 280, 210 S DELANEY RD., OWOSSO, MI 48867
5 24X36 DIN TBL ANT PUT FIBERST TEXANCOP#53
4 36"SQ DIN TBL ANT PUT FIBERST TEXANCOP#53
2 48"D DIN TBL ANT PUT FIBERSTN TEXANCOP#53
SUPPLIER: AFC TARP & AWNING INC.- 5960 EAST LOOP 820 SOUTH, FORT WORTH, TX
76119
1 AWNING PACKAGE
SUPPLIER: S & S INTERIOR DESIGN.- 701 TRAIL LAKE DR., EULESS, TX 76039
12 4 TOP SINGLES
13 4 TOP DOUBLE
11 34 X 34 SOFT TOP TABLE
2 30 X 72 SOFT TOP TABLES
5 30 X 42 SOFT TOP TABLES
1 LOT FURNITURE
6 34 X 34 WOOD TABLE
19 30 X 48 WOOD TABLE
5 30 X 42 WOOD TABLE
9 T BASES FOR 6 TOP TABLES & 52 INCH ROUND TABLE
29 REGULAR TABLE BASES
19 CANTILEVER TABLE BASES
1 FRGHT & DELIVERY
1 34 X 34 WOOD TABLE
SUPPLIER: THE LESLIE-DAVIES GROUP- 12088 FOREST GATE DRIVE, DALLAS, TX
75243
1 LOT KITCHENWARE
4 OLD ENAMEL
9 MISC. TIN, ALUM, ENAMEL
1 GIANT CARBOY
8 MEDIUM WICKER-WRAP JUGS
2 30-GAL BARREL HALVES
1 ANTIQUE ITALIAN SQUEEZEBOX
3 HAND-PAINTED ITALIAN, VEGGIES
5 OLD-WORLD REPRO
B-8
QTY EQUIPMENT DESCRIPTION
13 SMALL CROCK CERAMIC PITCHERS
2 LARGE: PEPPERS, ONIONS
2 MEDIUM: LEEKS, ASPARAGUS
16 SMALL/MEDUIM VINEGARS
6 1-GAL DECORATIVE TINS
10 GARLIC
10 WHITE ONIONS
10 RED ONIONS
1 ANTIQUE WOODEN WINE PRESS
13 MISC. FLAT DISPLAY BASKETS
50 ITALIAN PHOTOS, 8X10, FRAMED
20 ITALIAN PHOTOS, 11X14, FRAMED
12 ITALIAN PHOTOS, MISC. SIZES, FRAMED
3 ITALIAN PHOTOS, 16X20, FRAMED
14 ITALIAN ADS, MIX B&W AND HAND-TINT
1 60X36 HORIX, ORNATE BLACK FRAME
1 36X24, 4 1/2" ORNATE GOLD FRAME
1 36x24, 3" ORNATE GOLD FRAME
1 30X36 VERT, 3" OXIDIZED BRONZE FRAME
SUPPLIER: MARLIN CONTROLS, INC.- PO BOX 550457, DALLAS, TX 75355-04457
1 PDBS W/24 DIGITAL DIMMER MODULES
1 FREIGHT
SUPPLIER: AA PORTER LIGHTING FIXTURE CO INC.- 16541 ADDISON RD, ADDISON,
TX 75001-5166
1 LOT SMALLWARES
3 TY 3SL30BZP-3RA12BZP-MARK TYPE G
6 TROY- 3SL30-BZP- TYPE G
6 TROY 3RA12 BZP-TYPE G
3 QUORUM-132525-33
2 QUORUM- 6028-1-33
1 KA-8303-BARK SH
1 KA-3650-BARK
2 KA-3813 BARK
2 KCH-2238-DB
2 TROY-1536-6 BP-SH
2 TROY- 6836-RP
12 REMCRAFT 1106 BZ
3 IE-818-PB
10 QUORUM-690-1-5
12 TROY B6820-BZP
1 ROPELITE 36' W/CONNECTER
1 TROY-1846-H AG
1 FREIGHT
1 22 1/2" ROPE LIGHT W/CONNECTOR
B-9
EXHIBIT "B-3"
DESCRIPTION OF EQUIPMENT PACKAGE
Intentionally Omitted
B-10
EXHIBIT "B-4"
DESCRIPTION OF EQUIPMENT PACKAGE
Equipment Package 4: That certain package of equipment used in connection with a
Taco Bell Restaurant located at 132 Access Road, Waynesville, North Carolina,
and more particularly described as follows:
QTY EQUIPMENT DESCRIPTION
- --------------------------------------------------------------------------------
SUPPLIER: AMERISERVE FOOD DIST.- 14841 DALLAS PKWY, DALLAS, TX 75240-2100
1 LOT MISC. SMALLWARES
2 DIGITAL THERMOMETER
1 VCR/MONITOR, W/SEC CABLE
4 TRASH RECEPTACLES
1 DISHWASHER
1 SAFE
1 DESKTOP FACSIMILE
1 LOT MISC. LEASEHOLD IMPROVEMENTS
1 SECURITY SYSTEM
1 LOT MISC. SHELVING
1 CAN CART
1 WORKSTATION W/ BACKSPLASH
1 ICED TEA SERVER
1 DISPENSER, CUP- 5 HOLE
1 SPEAKER POST
1 SIGN 141 SQ FEET DRIVE THRU
4 SIGN DIRECTIONAL TOMBSTONE
1 D/T MENUBOARD
3 SIGN, CLOUD "TACO BELL"
3 SIGN, CLOUD "MINI BELLS"
1 SIGN, READERBOARD 4'X8'
1 SIGN, FONTS 8" KIT
1 COLUMN, F/SIGN 150 SQ FEET
1 RETHERM- PROPANE
1 PROPANE FRYER W/ COMPUTER
1 CO2 TANK
2 PRICE CONFIRMATION BOARD
1 D/T TIMER SYSTEM
1 BAG HOLDER
1 MINILINE LTR 98 DESIGN WESFAC
1 BAR, BEV 5'8"
1 DRINK COUNTER
2 HOOD/ STEAM F/MINILINE
1 MINILINE RTL
2 WORKTABLES, 24X30X36
1 ONE COMPARTMENT SINK
1 CUP DISPENSER
1 AIR DOOR- 42" REAR DR
1 CLR/FRZR, W/O L.S.W./WAR
B-11
QTY EQUIPMENT DESCRIPTION
- --------------------------------------------------------------------------------
2 WINDOW SLIDER
1 HOOD, 7' W/ PREPIPE
1 INTERIOR ROOF LADDER
1 MONEY COUNTER
1 STEAM TABLE
1 DOUBLE CHEESE MELTER
2 TOASTERS
1 CABINET, HOT HOLD
1 24" STAGER W/O PANS
SUPPLIER: AWNING ENGINEERING CORPORATION- 1900 NW 40TH COURT BLDG 1, POMPANO
BEACH, FL 33064
1 AWNING A-1 10'-0
1 AWNING A 10'-0
1 AWNING B 9'-6"
1 AWNING C 9'-6"
1 AWNING D 9'-6"
1 AWNING E 6'-9"
1 AWNING F 8'-4"
1 AWNING G 6"-9"
1 AWNING H 9'-6"
1 AWNING I 9'-6"
1 AWNING J 8'-4"
1 AWNING K 9'-6"
1 AWNING L 5'-6"
SUPPLIER: DRIVE THRU COMMUNICATIONS, INC.-PO BOX 1387, DECATUR, GA 30031
1 LOT MISC. LEASEHOLD IMPROVEMENTS
SUPPLIER: ECKSTEIN SIGNS-1885 NAZARETH CHURCH RD., SPARTENBURG, SC 29301
1 LOT MISC. LEASEHOLD IMPROVEMENTS
SUPPLIER: INDUSTRIAL MAINTENANCE OVERFLOW CORP.- HWY 25 S, PO BOX 1689,
FLETCHER, NC 28732
1 LOT MISC. LEASEHOLD IMPROVEMENTS
SUPPLIER: NATIONS SERVICES, INC.- PO BOX 648, POIEDMONT, SC 29673
1 LOT MISC. LEASEHOLD IMPROVEMENTS
SUPPLIER: PETER ANTHONY DESIGN- PO BOX 32382, DETROIT, MI 48232
2 46" FRP BOOTH
3 46" DOUBLE FRP BOOTH
B-12
QTY EQUIPMENT DESCRIPTION
- --------------------------------------------------------------------------------
1 8'-9" DOUBLE FRB SETTEE
8 TACO BELL STYLE F/S CHAIR
5 TACO BELL STYLE SWIVEL CHAIRS W/ 21"X24" TABLE TOP
8 TACO BELL STYLE SWIVEL CHAIRS W/ 18"X24" TABLE TOP
4 21"X24" PLASTIC LAMINATE INLAID TABLE TOP
2 24"X42" PLASTIC LAMINATE INLAID TABLE TOP
4 24"X42" PLASTIC LAMINATE INLAID TABLE TOP
1 WOOD HIGHCHAIR
2 OPEN CORED DIVIDER WALL CONSISTING OF GLASS BLOCK PANEL
1 ANGLED SOLID SURFACE SERVICE COUNTER TOP
1 SERVICE COUNTER BASE
3 FRAMED GRAPHIC PRINTS
1 DRIVE THRU SINK
1 LOT MISC. LEASEHOLD IMPROVEMENTS
B-13
EXHIBIT C
ALLOCATION OF PURCHASE PRICE
Property: Allocated Portion of Purchase Price:
- --------- ------------------------------------
Real Property 1 located in Mt. Vernon, Illinois $ 3,202,000.00
Real Property 2 located in New Bern, North Carolina $ 972,000.00
Real Property 3 located in Plano, Texas $ 1,900,000.00
Real Property 4 located in Ewing Township, New Jersey $ 1,815,000.00
Real Property 5 located in San Antonio, Texas $ 977,000.00
Real Property 6 located in Virginia Beach, Virginia $ 1,625,000.00
Real Property 7 located in Lakeland, Florida $ 2,583,000.00
Real Property 8 located in Enid, Oklahoma $ 1,157,000.00
Real Property 9 located in Hurst, Texas $ 1,435,000.00
Real Property 10 located in Puyallup, Washington $ 1,792,000.00
Real Property 11 located in Macomb, Michigan $ 1,202,000.00
Real Property 12 located in Jacksonville, Florida $ 1,700,000.00
Personal Property 1 located in Boardman, Ohio $ 48,000.00
Personal Property 2 located in Texarkana, Texas $ 107,000.00
Personal Property 3 -- Intentionally Omitted
Personal Property 4 located in Waynesville, North Carolina $ 50,000.00
- -----------------
Total Purchase Price: $20,565,000.00
==============
C-1
EXHIBIT D
FORM OF DEED
[Note: Modify to conform to recording/other requirements of the state where the
Project is located.]
LIMITED/SPECIAL WARRANTY DEED
For the consideration of [PURCHASE PRICE] ($ ), CAPTEC FRANCHISE
----------------
CAPITAL PARTNERS L.P. III a Delaware limited partnership, whose address is 24
Frank Lloyd Wright Drive, Lobby L, 4th Floor, P.O. Box 544, Ann Arbor, Michigan
48106-0544 ("Grantor") does hereby convey to GE CAPITAL FRANCHISE FINANCE
CORPORATION, a Delaware corporation, whose address is 17207 North Perimeter
Drive, Scottsdale, Arizona 85255-5402 ("Grantee") the following described
property in the [CITY/TOWNSHIP/VILLAGE] of [MUNICIPALITY], County of [COUNTY],
State of [STATE]:
See Exhibit A attached hereto and made a part hereof.
Commonly known as [PROPERTY ADDRESS]
Tax Parcel ID # [#]
Subject to: The permitted exceptions set forth on Exhibit B attached hereto and
made a part hereof, and further subject to that certain [LEASE DOCUMENT],
between [LANDLORD] and [TENANT], dated [LEASE DATE], as amended.
The Grantor hereby binds itself and its successors to warrant and defend the
title, against all claiming by, through or under Grantor, and no other, subject
to the matters set forth herein.
Dated: , 200 .
------------------- --
WITNESSES: CAPTEC FRANCHISE CAPITAL
PARTNERS L.P. III
By: GP3 Asset Acquisition, LLC
Its: General Partner
By:
- -------------------------------- --------------------------------
Print name: Print name:
Its:
- -------------------------------- --------------------------------
Print name:
D-1
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this day of
--
, 200 , by , who is personally known to
- -------------- -- --------------------------
me, as Vice President of GP3 Asset Acquisition LLC, a Michigan limited liability
company and the general partner of Captec Franchise Capital Partners L.P. III, a
Delaware limited partnership, on behalf of the limited partnership.
--------------------------------------
Name:
--------------------------------
State of Michigan, County of Washtenaw
My Commission Expires:
---------------
Acting in the County of Washtenaw
Prepared by and recorded
at the request of:
- ---------------------------------
- ---------------------------------
- ---------------------------------
When recorded return to:
- ---------------------------------
- ---------------------------------
- ---------------------------------
Send subsequent tax bills to:
Grantee
D-2
EXHIBIT E
FORM OF BILL OF SALE
[Note: Modify to conform to requirements of the state where the Project is
located.]
BILL OF SALE
For the consideration of [PURCHASE PRICE] ($ ), CAPTEC FRANCHISE
----------------
CAPITAL PARTNERS L.P. III, a Delaware limited partnership, whose address is 24
Frank Lloyd Wright Drive, Lobby L, 4th Floor, P.O. Box 544, Ann Arbor, Michigan
48106-0544 ("Seller") does hereby sell, assign, convey, transfer and set over to
GE CAPITAL FRANCHISE FINANCE CORPORATION, a Delaware corporation, whose address
is 17207 North Perimeter Drive, Scottsdale, Arizona 85255-5402 ("Purchaser") the
following described personal property:
See Exhibit 1 attached hereto and made a part hereof.
Seller represents and warrants to Purchaser that Seller is the owner of the
personal property described above and that such personal property is not subject
to any lien, charge or encumbrance created or granted by Seller. All other
warranties, expressed or implied (including any warranty of merchantability or
fitness for a particular purpose) are disclaimed; provided, however, that the
representations and warranties made by Seller under that certain Agreement of
Sale between Seller and Purchaser, dated , 2004, to the extent
----------------
applicable to the personal property described herein shall remain
notwithstanding the foregoing limitation. Except as set forth above, the
personal property described above is being sold "as is and where is" and subject
to the liens for taxes which are not yet due and payable. This Bill of Sale may,
but need not be, supplemented by specific assignments and conveyances of any and
all the assets covered hereby, and Seller covenants and agrees that it will, on
Purchaser's request, execute and deliver to Purchaser, its successors and
assigns, such supplemental or specific assignments and conveyances as Purchaser,
its successors or assigns may reasonably deem necessary and advisable to carry
out the purposes of this sale, assignment, transfer and conveyance, and to vest
in Purchaser, as of the date hereof, good title to the assets covered hereby,
wherever situated.
Dated: , 200 .
------------------ --
WITNESSES: CAPTEC FRANCHISE CAPITAL
PARTNERS L.P. III
By: GP3 Asset Acquisition, LLC
Its: General Partner
By:
- -------------------------------- --------------------------------
Print name: Print name:
Its:
- -------------------------------- -------------------------------
Print name:
E-1
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this day of
--- ------------
, 200 , by , who is personally known to
- -------------- - ---------------------------
me, as Vice President of GP3 Asset Acquisition LLC, a Michigan limited liability
company and the general partner of Captec Franchise Capital Partners L.P. III, a
Delaware limited partnership, on behalf of the limited partnership.
--------------------------------------
Name:
--------------------------------
State of Michigan, County of Washtenaw
My Commission Expires:
--------------
Acting in the County of Washtenaw
E-2
EXHIBIT 1
TO
BILL OF SALE
[Insert description of personal property]
E-3
EXHIBIT F
FORM OF ASSIGNMENT OF LEASE
[Note: Modify to conform to recording/other requirements of the state where the
Project is located.]
ASSIGNMENT OF LEASE
THIS ASSIGNMENT OF LEASE ("Assignment") is made as of , 200_,
----------
by and between CAPTEC FRANCHISE CAPITAL PARTNERS L.P. III, a Delaware limited
partnership, whose address is 24 Frank Lloyd Wright Drive, Lobby L, Fourth
Floor, P.O. Box 544, Ann Arbor, Michigan 48106-0544 ("Assignor"), and GE CAPITAL
FRANCHISE FINANCE CORPORATION, a Delaware corporation, whose address is 17207
North Perimeter Drive, Scottsdale, Arizona 85255-5402 ("Assignee").
RECITALS:
Assignor leased to [TENANT NAME], [TENANT ENTITY] ("Tenant"), the
PREMISES* (as defined in the Lease described below), located at [PROPERTY
ADDRESS] ("Premises"), pursuant to a Lease dated as of [LEASE DATE], as amended,
a true and complete copy of which is attached as Exhibit 1 ("Lease"). [*NOTE:
CONFIRM THAT PREMISES IS THE CORRECT DEFINED TERM UNDER THE LEASE.]
In connection with, and in consideration of, the acquisition of the
Premises by the Assignee, Assignor has agreed to assign, transfer and convey to
Assignee all of Assignor's right, title and interest in and to: (a) the Lease,
and (b) the security deposit(s), if any, paid by Tenant under the Lease
("Security Deposit") [and (c) the guaranty, if any, guaranteeing performance of
Tenant's duties and obligations under the Lease, given by [GUARANTOR NAME(S)]
dated [GUARANTY DATE], as amended, a true and complete copy of which is attached
as Exhibit 2 ("Guaranty")].
Assignee agrees to accept the assignment of those items described above
and Assignee further agrees to perform all of the Assignor's obligations under
or relating to the Lease and the Security Deposit, if any, [and the Guaranty,]
arising from and after the date of this Assignment.
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, Assignor
and Assignee agree as follows:
1. Assignment and Assumption. Assignor hereby assigns to Assignee all
of Assignor's right, title and interest in, to and under the Lease and the
Security Deposit [and the Guaranty], and Assignee assumes all of Assignor's
duties and obligations under the Lease and the Security Deposit [and the
Guaranty] and agrees to perform and to be bound by all of the terms and
provisions of the Lease and the Security Deposit [and the Guaranty] in the place
and stead of Assignor arising from and after the date of this Assignment.
Assignee further agrees to indemnify and hold harmless Assignor from and against
all claims, awards, liabilities or damages resulting from the acts and/or
omissions of Assignee from and after the date of this Assignment. Assignor
agrees to indemnify and hold harmless Assignee and its successors and assigns
from and against all claims, awards, liabilities or damages resulting from the
acts and/or omissions of Assignor prior to the date of this Assignment.
F-1
2. Representation. To Assignor's knowledge, the Lease [and the
Guaranty] is [are] in full force and effect and has not been modified, amended
or restated (except as identified in Exhibit 1[and Exhibit 2] attached hereto).
3. Miscellaneous. This Assignment shall bind and inure to the benefit
of the parties hereto, their successors and assigns. This Assignment shall be
governed by and construed in accordance with the laws of the state where the
Premises is located, without giving effect to principles of conflicts of law.
This Assignment may be executed in several counterparts, each of which shall be
an original and all of which shall constitute but one and the same instrument.
This Assignment has been executed as of the day and year noted above.
WITNESSES:
CAPTEC FRANCHISE CAPITAL
PARTNERS L.P. III
By: GP3 Asset Acquisition, LLC
Its: General Partner
By:
- --------------------------------- -----------------------------
Print Name: Print Name:
Its:
- --------------------------------- ----------------------------
Print Name:
GE CAPITAL FRANCHISE FINANCE
CORPORATION,
a Delaware corporation
By:
- -------------------------------- -----------------------------
Print Name: Print Name:
Its:
- -------------------------------- ----------------------------
Print Name:
F-2
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this day of
---
, 200 , by , who is personally known to
- -------------- -- --------------------------
me, as Vice President of GP3 Asset Acquisition LLC, a Michigan limited liability
company and the general partner of Captec Franchise Capital Partners L.P. III, a
Delaware limited partnership, on behalf of the limited partnership.
--------------------------------------
Name:
------------------------------
State of Michigan, County of Washtenaw
My Commission Expires:
--------------
Acting in the County of Washtenaw
STATE OF )
--------------
)ss.
COUNTY OF )
--------------
The foregoing instrument was acknowledged before me this day of
-----
, 200 , by , the
- -------------- -- --------------------------------------
of GE CAPITAL FRANCHISE FINANCE CORPORATION, a Delaware
- -----------------------
corporation, on behalf of the corporation.
----------------------------------
Notary Public
County,
-------------- -----------
My Commission Expires:
-----------
[Notary's Seal]
Prepared by and recorded
at the request of:
- ---------------------------------
- ---------------------------------
- ---------------------------------
When recorded return to:
- ---------------------------------
- ---------------------------------
- ---------------------------------
F-3
EXHIBIT 1
TO
ASSIGNMENT OF LEASE
[Attach copy of Lease]
F-4
EXHIBIT 2
TO
ASSIGNMENT OF LEASE
[Attach copy of Guaranty]
F-5
EXHIBIT F-1
FORM OF ASSIGNMENT OF EQUIPMENT LOAN
ASSIGNMENT OF EQUIPMENT LOAN
THIS ASSIGNMENT OF EQUIPMENT LOAN ("Assignment") is made as of
_______________, 200_, by and between CAPTEC FRANCHISE CAPITAL PARTNERS L.P.
III, a Delaware limited partnership, whose address is 24 Frank Lloyd Wright
Drive, Lobby L, Fourth Floor, P.O. Box 544, Ann Arbor, Michigan 48106-0544
("Assignor"), and GE CAPITAL FRANCHISE FINANCE CORPORATION, a Delaware
corporation, whose address is 17207 North Perimeter Drive, Scottsdale, Arizona
85255-5402 ("Assignee").
RECITALS:
Assignor made a loan to [BORROWER NAME], [BORROWER ENTITY]
("Borrower"), secured by certain equipment described on Exhibit 1 attached
hereto ("Equipment") located at [PROPERTY ADDRESS] ("Premises"), pursuant to
certain loan documents dated as of [LOAN DATE], as amended, true and complete
copies of which are attached hereto as Exhibit 2 ("Loan Documents").
In connection with, and in consideration of, the acquisition of the
Loan by the Assignee, Assignor has agreed to assign, transfer and convey to
Assignee all of Assignor's right, title and interest in and to: (a) the Loan
Documents, and (b) all amounts payable by Borrower thereunder [and (c) the
guaranty, if any, guaranteeing performance of Borrower's duties and obligations
under the Loan Documents, given by [GUARANTOR NAME(S)] dated [GUARANTY DATE], as
amended, a true and complete copy of which is attached as Exhibit 3
("Guaranty")].
Assignee agrees to accept the assignment of those items described above
and Assignee further agrees to perform all of the Assignor's obligations under
or relating to the Loan Documents [and the Guaranty,] arising from and after the
date of this Assignment.
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, Assignor
and Assignee agree as follows:
1. Assignment and Assumption. Assignor hereby assigns to Assignee all
of Assignor's right, title and interest in, to and under the Loan Documents [and
the Guaranty] and all amounts payable by Borrower [and the Guarantor]
thereunder, and Assignee assumes all of Assignor's duties and obligations under
the Loan Documents [and the Guaranty] and agrees to perform and to be bound by
all of the terms and provisions of the Loan Documents [and the Guaranty] in the
place and stead of Assignor arising from and after the date of this Assignment.
Assignee further agrees to indemnify and hold harmless Assignor from and against
all claims, awards, liabilities or damages resulting from the acts and/or
omissions of Assignee from and after the date of this Assignment. Assignor
agrees to indemnify and hold harmless Assignee and its successors and assigns
from and against all claims, awards, liabilities or damages resulting from the
acts and/or omissions of Assignor prior to the date of this Assignment.
2. Representation and Allonge. To Assignor's knowledge, the Loan
Documents [and the Guaranty] are in full force and effect and have not been
modified, amended or restated (except as
F-1 -- 1
identified in Exhibit 2 [and Exhibit 3] attached hereto). Assignor further
agrees to execute and deliver to Assignee concurrently herewith an allonge in
the form attached hereto as Exhibit 4.
3. Miscellaneous. This Assignment shall bind and inure to the benefit
of the parties hereto, their successors and assigns. This Assignment shall be
governed by and construed in accordance with the laws of the state where the
Premises is located, without giving effect to principles of conflicts of law.
This Assignment may be executed in several counterparts, each of which shall be
an original and all of which shall constitute but one and the same instrument.
This Assignment has been executed as of the day and year noted above.
WITNESSES:
CAPTEC FRANCHISE CAPITAL
PARTNERS L.P. III
By: GP3 Asset Acquisition, LLC
Its: General Partner
By:
- ----------------------------- ---------------------------------
Print Name: Print Name:
Its:
- ----------------------------- -------------------------------
Print Name:
GE CAPITAL FRANCHISE FINANCE
CORPORATION,
a Delaware corporation
By:
- ----------------------------- ---------------------------------
Print Name: Print Name:
Its:
- ----------------------------- -------------------------------
Print Name:
F-1 -- 2
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this __ day of
______________, 200_, by ___________________________, who is personally known to
me, as Vice President of GP3 Asset Acquisition LLC, a Michigan limited liability
company and the general partner of Captec Franchise Capital Partners L.P. III, a
Delaware limited partnership, on behalf of the limited partnership.
--------------------------------
Name:
---------------------------
State of Michigan, County of Washtenaw
My Commission Expires:
-----------
Acting in the County of Washtenaw
STATE OF )
---------------- )ss.
COUNTY OF )
----------------
The foregoing instrument was acknowledged before me this ____ day of
______, 200_, by _________________________________________, the
_______________________of GE CAPITAL FRANCHISE FINANCE CORPORATION, a Delaware
corporation, on behalf of the corporation.
--------------------------------
Notary Public
County,
------------------ -----
My Commission Expires:
----------
[Notary's Seal]
Prepared by and recorded
at the request of:
- ---------------------------------
- ---------------------------------
- ---------------------------------
When recorded return to:
- ---------------------------------
- ---------------------------------
- ---------------------------------
F-1 -- 3
EXHIBIT 1
TO
ASSIGNMENT OF EQUIPMENT LOAN
[Description of Equipment]
F-1 -- 4
EXHIBIT 2
TO
ASSIGNMENT OF EQUIPMENT LOAN
[Attach copies of Loan Documents]
F-1 -- 5
EXHIBIT 3
TO
ASSIGNMENT OF EQUIPMENT LOAN
[Attach copy of Guaranty]
F-1 -- 6
EXHIBIT 4
TO
ASSIGNMENT OF EQUIPMENT LOAN
FORM OF ALLONGE
This allonge is attached to and forms a part of the Equipment Loan Promissory
Note (the "NOTE") dated as of [ -- ] made by Roma Texarkoma Joint Venture, a
Texas general partnership in favor of Captec Financial Group, Inc., and
subsequently assigned through a series of assignments to Captec Franchise
Capital Partners L.P. III, a Delaware limited partnership. The undersigned
hereby endorses the Note described in the preceding sentence payable to the
order of GE Capital Franchise Finance Corporation, a Delaware corporation
("Buyer"), without express or implied warranty, representation or recourse
except only as specifically provided in the Agreement of Sale, dated November
___, 2004, by and among the Seller and the Buyer.
Dated: [Closing Date]
CAPTEC FRANCHISE CAPITAL
PARTNERS, L.P. III,
a Delaware limited partnership
By:
--------------------------------
Name:
Title:
F-1 -- 7
EXHIBIT G
FORM OF NON-FOREIGN PERSONS AFFIDAVIT
NON-FOREIGN PERSONS AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a transferee
(purchaser) of a United States real property interest must withhold tax if the
transferor (seller) is a foreign person. To inform GE CAPITAL FRANCHISE FINANCE
CORPORATION, a Delaware corporation ("TRANSFEREE"), that withholding of tax is
not required upon the disposition of a United States real property interest by
CAPTEC FRANCHISE CAPITAL PARTNERS L.P. III, a Delaware limited partnership
("Transferor"), the undersigned certifies the following on behalf of Transferor:
1. Transferor is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations);
2. Transferor's United States Employer Identification Number is
38-3160141;
3. Transferor's office address is 24 Frank Lloyd Wright Drive, Lobby L,
Fourth Floor, Ann Arbor, Michigan 48105.
Transferor understands that this certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct,
and complete, and I further declare that I have authority to sign this document
on behalf of Transferor.
CAPTEC FRANCHISE CAPITAL
PARTNERS L.P. III
By: GP3 Asset Acquisition, LLC
Its: General Partner
By:
-------------------------------
Print Name:
Its:
------------------------------
Dated as of , 200 .
---------- -
G-1
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this __ day of
______________, 200_, by ___________________________, who is personally known to
me, as Vice President of GP3 Asset Acquisition LLC, a Michigan limited liability
company and the general partner of Captec Franchise Capital Partners L.P. III, a
Delaware limited partnership, on behalf of the limited partnership.
--------------------------------
Name:
---------------------------
State of Michigan, County of Washtenaw
My Commission Expires:
----------
Acting in the County of Washtenaw
G-2
EXHIBIT H
FORM OF NOTICE TO TENANT/LESSEE/BORROWER
, 200
------------- -
[TENANT/LESSEE/BORROWER NAME]
[TENANT/LESSEE/BORROWER ADDRESS]
Ladies and Gentlemen:
This is to inform you that on __________________, 200_ the interest of
Captec Franchise Capital Partners L.P. III ("Seller") in that certain
[LEASE/LOAN], dated as of ____________________, ______ [("LEASE")/("LOAN")],
between [SELLER][SELLER'S PREDECESSOR IN INTEREST, ________________________], as
[LANDLORD/LESSOR/LENDER], and [TENANT/LESSEE/BORROWER
NAME][TENANT/LESSEE/BORROWER ENTITY], as [TENANT] [LESSEE] [BORROWER], for the
[REAL] [PERSONAL] property located at [PROPERTY ADDRESS], has been assigned to
GE CAPITAL FRANCHISE FINANCE CORPORATION. Accordingly, all future payments owed,
and notices to be given, to the [LANDLORD/LESSOR/LENDER] under the [LEASE/LOAN]
should be delivered to GE CAPITAL FRANCHISE FINANCE CORPORATION at the following
address: 17207 North Perimeter Drive, Scottsdale, Arizona 85255-5402.
Very truly yours,
CAPTEC FRANCHISE CAPITAL
PARTNERS L.P. III
By: GP3 Asset Acquisition LLC
Its: General Partner
By
---------------------------
Print Name:
Its Vice President
H-1
EXHIBIT I
FORM OF INTERIM SERVICING AGREEMENT
Captec Franchise Capital Partners L.P. III
24 Frank Lloyd Wright Drive
Lobby L, 4th Floor
Ann Arbor, MI 48105
, 200
- ----------------------- --
GE Capital Franchise Finance Corporation
44 Old Ridgebury Road
Danbury, CT 06810
Captec Financial Group, Inc.
24 Frank Lloyd Wright Drive
Lobby L, 4th Floor
Ann Arbor, MI 48105
Re: Interim Servicing of Portfolio of Properties
Ladies and Gentlemen:
On even date herewith, GE Capital Franchise Finance Corporation ("Purchaser")
acquired twelve (12) parcels of real estate and three (3) equipment lease/loan
packages from Captec Franchise Capital Partners L.P. III ("Seller"). The real
estate and equipment lease/loan packages were acquired in accordance with the
terms and conditions of that certain Agreement of Sale, dated November __, 2004,
between Seller and Purchaser ("Agreement"). Unless the context clearly requires
otherwise, capitalized terms in this letter agreement shall have the same
meaning as set forth in the Agreement.
Pursuant to Section 17 of the Agreement, Purchaser has requested and Seller has
agreed to cause Captec Financial Group, Inc. ("Captec"), an affiliate of Seller,
to assist Purchaser in the servicing of the Property for a period of up to
thirty (30) days following the Closing ("Interim Period"). Seller, Purchaser and
Captec desire to set forth the duties and responsibilities that Captec will
undertake in the servicing of the Properties during the Interim Period.
Captec shall use commercially reasonable efforts in cooperating with Purchaser
to facilitate the transition of servicing, information and files for the
Properties as follows:
1. Captec shall mail to the Tenants, Lessees and borrower under the Equipment
Loan within one (1) business day following the Closing the Notice to Tenant or
the Notice to Lessee (as the case may be) as executed by Purchaser and Seller,
notifying the Tenants, Lessees and such borrower of the transfer of the
Properties to Purchaser and directing future payments on the Real Estate Leases,
the Equipment Leases and the Equipment Loan to Purchaser.
2. At the Closing, Captec shall deliver to Purchaser the acquisition and
servicing files of Seller pertaining to the Properties. Delivery of the records
to Purchaser shall occur at the offices of Captec. Purchaser shall be
responsible for shipping the records from the offices of Captec to the location
of Purchaser's choice. Captec shall have the right, in its sole discretion, to
keep copies of all such materials.
3. Captec shall initiate the ACH payments to be made by the Tenants, Lessees and
borrower under the Equipment Loan on the Real Estate Leases, Equipment Leases
and Equipment Loan for the rental/loan payments due on _______________, 200__
and shall promptly remit to Purchaser by wire transfer (in accordance with wire
transfer
I-1
instruction provided to Captec by Purchaser) all funds actually collected by
Captec as a result of the ACH payments. Captec shall submit to Purchaser a
written report detailing the amounts collected pursuant to the preceding
sentence prior to the expiration of the Interim Period. After the expiration of
the Interim Period, Purchaser shall be responsible for initiating any subsequent
ACH payments and monitoring the collection of payments on the Real Estate
Leases, Equipment Leases and Equipment Loan.
4. After the Closing, Captec shall promptly remit to Purchaser by wire transfer
(in accordance with wire transfer instruction provided to Captec by Purchaser)
any payments on any Real Estate Leases, Equipment Leases or Equipment Loan
actually received by Captec, and promptly forward to Purchaser any documents or
correspondence received by Captec pertaining to the Real Estate Leases,
Equipment Leases or Equipment Loan. All documents and correspondence shall be
delivered to Purchaser at the address set forth in Section 24 of the Agreement
or such other address as may be designated in accordance with the terms and
provisions of Section 24 of the Agreement.
5. Except as specifically detailed in the first sentence of Section 3 of this
letter agreement, Captec shall not be responsible for taking any collection or
remedial actions relating to the Real Estate Leases, Equipment Leases or
Equipment Loan.
6. Purchaser shall indemnify and hold Captec, its shareholders, directors,
officers and employees harmless from any loss, liability, damage, cost or
expense (including, without limitation, reasonable attorneys' fees) incurred or
suffered by Captec, its shareholders, directors, officers and/or employees by
reason of the performance of Captec's duties and obligations under this letter
agreement; provided, however, the foregoing duty to indemnify and hold harmless
Captec, its shareholders, directors, officers and employees shall not apply to
any loss, liability, damage, cost or expense that is the direct result or
consequence of the gross negligence or willful misconduct of Captec, its
shareholders, directors, officers and employees.
Please execute this letter agreement in the space provided below to acknowledge
your agreement to the terms and conditions set forth in this letter agreement
and return the executed counterpart to the undersigned.
Sincerely,
Captec Franchise Capital Partners L.P. III
By: GP3 Asset Acquisition, LLC
Its: General Partner
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Acknowledged and agreed:
GE Capital Franchise Finance Corporation
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
Captec Financial Group, Inc.
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
I-2
RIGHT OF FIRST REFUSAL RIDER
This Right of First Refusal Rider ("Rider") shall be attached to and
become part of that certain Agreement of Sale ("Agreement") dated
___________________, 200_, between [GE CAPITAL FRANCHISE FINANCE CORPORATION, a
Delaware corporation of 17207 North Perimeter Drive, Scottsdale, Arizona
85255-5402 ("Purchaser"), and CAPTEC FRANCHISE CAPITAL PARTNERS L.P. III, a
Delaware limited partnership, of 24 Frank Lloyd Wright Drive, Lobby L, Fourth
Floor, Ann Arbor, Michigan 48105 ("Seller").
Capitalized terms used herein shall have the meanings given them in the
Agreement.
WAIVER OF RIGHT OF FIRST REFUSAL:
Purchaser acknowledges that:
(a) Tenant 4 under Real Estate Lease 4 (and certain other related
documents) has a right of first refusal to purchase Real Property 4;
(b) Tenant 5 under Real Estate Lease 5 has a right of first refusal to
purchase Real Property 5;
(c) Tenant 9 under Real Estate Lease 9 has a right of first refusal to
purchase Real Property 9; and
(d) Tenant 10 under Real Estate Lease 10 has a right of first refusal
to purchase Real Property 10.
Promptly following Seller's and Purchaser's acceptance hereof, Seller shall
advise each such Tenant of this offer as it relates to such Tenant's Real
Property pursuant to the terms of the applicable right of first refusal.
Seller's obligations hereunder are and shall be contingent upon the applicable
Tenant waiving in writing (or failing to exercise) its right of first refusal,
failing which, such Real Property shall be removed from the terms and provisions
of the Agreement and the Purchase Price shall be reduced by the amount allocated
to such Real Property as set forth on Exhibit "C."
IN WITNESS WHEREOF, the parties hereto have executed this Rider,
effective as of the date of the Agreement.
PURCHASER: SELLER:
GE CAPITAL FRANCHISE FINANCE CAPTEC FRANCHISE CAPITAL
CORPORATION, PARTNERS L.P. III
A Delaware corporation
By: GP3 Asset Acquisition, LLC
By Its: General Partner
-----------------------------------
Print Name:
By
---------------------------------
Its Print Name:
----------------------------------
Date of Execution: Its
------------------- --------------------------------
Date of Execution:
-----------------
R-1
SCHEDULE 7(b)
NOTICES OF NON-COMPLIANCE
1. The City of Hurst attached a labor lien for $25.00 against Parcel 9 in
response to an alleged failure by Tenant 9 to promptly pay a $350
invoice form the City of Hurst for mowing and/or rubbish removal.
Tenant 9 has advised Seller that the $350 invoice was paid promptly and
that Tenant 9 has reached agreement with the City of Hurst to discharge
the labor lien. Seller has requested that Tenant 9 submit evidence of
the discharge of the labor lien.
Schedule 7(b) - 1
SCHEDULE 7(c)
PENDING LITIGATION
None
Schedule 7(c) - 1
SCHEDULE 7(d)
EMINENT DOMAIN
None
Schedule 7(d) - 1
SCHEDULE 7(f)
LEASE/LOAN DEFAULTS
1. Seller has historically not enforced remedies for the failure by the Tenants,
the Lessees and/or the borrower under the Equipment Loan to be in compliance
with the financial reporting requirements set forth in the Real Estate Leases,
the Equipment Leases and/or the Equipment Loan. Accordingly, Seller makes no
warranties or representations concerning the Tenants, the Lessees and/or the
borrower under the Equipment Loan being in or out of compliance with any
financial reporting requirements and/or financial covenants set forth in the
Real Estate Leases, the Equipment Leases and/or the Equipment Loan. Seller has,
and will continue up to Closing (or the termination of the Agreement) to make
available to Purchaser for its review all financial reports received by Seller
from the Tenants, the Lessees and/or the borrower under the Equipment Loan.
Schedule 7(f) - 1