EXHIBIT 99
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (the "AGREEMENT") is dated as of the "Effective
Date" (defined below) between GIBRALTAR 1031 RESTAURANTS, LLC, a Delaware
limited liability company, of P.O. Box 235169, Encinitas, California 92023
("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 48106 ("SELLER").
RECITALS
Seller is the owner of certain real property and improvements thereon
located at the address set forth in the Fundamental Sale Provisions below.
Purchaser desires to purchase, and Seller is willing to sell said
property upon the terms and conditions set out hereinafter.
NOW, THEREFORE, in consideration of the terms, covenants and conditions
set forth in this Agreement, Seller and Purchaser hereby agree as follows:
1. FUNDAMENTAL SALE PROVISIONS. Unless otherwise defined herein,
capitalized terms used in this Agreement shall have the meanings listed in the
following Fundamental Sale Provisions.
LAND: Collectively, those ten (10) parcels of real property
commonly known under the addresses set forth in attached and
incorporated Exhibit "A" and legally described in attached and
incorporated Exhibits "B-1 through B-10".
LEASE: Collectively, those ten (10) Leases described in attached and
incorporated Exhibit "C" (collectively, the "LEASES" and
individually, a "LEASE"), between Seller, as landlord, and
each "Tenant" (as defined in Exhibit "C"), as guaranteed by a
guarantor pursuant to a "Guaranty" (as defined in Exhibit
"C").
RENT ROLL: The rent roll set forth on attached and incorporated Exhibit
"C-1" setting forth the salient terms of the Leases.
DEPOSIT: An aggregate of $200,000.00, payable as set forth in Section 3
below.
SUBJECT STATE: The state in which each "Property" (defined below) is located,
as the context may provide.
PURCHASE PRICE: $17,125,000.00, payable as set forth in Section 3 below. The
allocation of the Purchase Price among the "Properties"
(defined below) is set forth in Exhibit "A".
TITLE COMPANY: LandAmerica Commercial Services - New York City Office
655 Third Avenue New York, New York 10017
Attention: Craig S.Feder, Vice President
Phone: (212) 949-0100
Fax:(212) 949-2438
Email: cfeder@landam.com
Liane Carpenter, CS Title Officer
Phone: (212) 973-4802
Fax: (212) 949-2438
Email: lianecarpenter@landam.com
INSPECTION Sixty (60) days after the Effective Date.
PERIOD:
CLOSING: The sixtieth (60th) day (if not a business day, then the
immediately succeeding business day) following the expiration
or Purchaser's earlier waiver of the Inspection Period.
BROKER: CB Richard Ellis
EXPIRATION DATE
OF THE OFFER: If Seller fails to return a fully executed and dated original
of this Agreement to Purchaser by February 17, 2005, then
Purchaser's offer under this Agreement will be deemed void and
of no further force and effect.
EFFECTIVE DATE: The date that the last of the parties signing this Agreement
executes the same and delivers its executed counterpart to the
other party.
2. AGREEMENT TO SELL AND CONVEY. Seller hereby agrees to sell and
convey to Purchaser, and Purchaser hereby agrees to purchase from Seller,
subject to the terms and conditions hereinafter set forth, all of Seller's
right, title and interest in and to the Property, together with all of Seller's
right, title and interest, if any, in and to:
A. all buildings, structures and improvements on the Land (the
"IMPROVEMENTS"; together with the Land, the "PROJECT");
B. all of the easements benefiting, and rights of access
appurtenant to, the Land;
C. all and singular, the rights and appurtenances pertaining to
the Land, including any adjacent streets, roads, alleys, accesses, and
rights-of-way; and
D. the Leases together with all prepaid rentals (to the extent
applicable) to a period beyond the date of Closing, any security deposits held
by Seller as of the date of Closing and Seller's interest in the Guaranty, if
any.
All of the foregoing set forth under subparagraphs (A) through (D) are
collectively referred to as the "PROPERTY" or "PROPERTIES".
3. PURCHASE PRICE; DEPOSIT. The Purchase Price shall be payable as
follows:
A. Deposit. Within three (3) business days after the Effective
Date, Purchaser shall deposit with the Title Company $100,000.00 of the Deposit
to be held pursuant to the terms of the Earnest Money Escrow Agreement set forth
on attached and incorporated Exhibit "D". Within three (3) business days after
the expiration or Purchaser's earlier waiver of the Inspection Period, Purchaser
will deposit the remaining $100,000.00 of the Deposit with the Title Company
under the terms of the Earnest Money Escrow Agreement thereby increasing the
total deposits to $200,000.00.
2
B. If the Closing occurs, the Deposit shall be paid to Seller and
credited against the Purchase Price at Closing. If the Closing does not occur in
accordance with the terms of this Agreement, the Deposit shall be held and
delivered as provided this Agreement.
C. The Deposit shall: (i) be held in an interest-bearing escrow
account by the Title Company in an institution as directed by Purchaser and
reasonably acceptable to Seller; and (ii) include any interest earned thereon.
To allow the interest bearing account to be opened, Purchaser will provide the
Title Company with its tax identification or social security numbers.
D. Upon the expiration of the Inspection Period, assuming
Purchaser has not otherwise elected to terminate this Agreement, the Deposit
shall be deemed non-refundable but for Seller's default.
E. Balance of Purchase Price. The balance of the Purchase Price,
plus or minus closing adjustments, as the case may be, less the Deposit, shall
be deposited by Purchaser with the Title Company not later than three (3)
business days prior to Closing by wire transfer of immediately available U.S.
funds in exchange for deeds in form required by the jurisdiction in which the
Properties are located whereby Seller only warrants against its own acts and/or
omissions substantially in the form set forth as Exhibits "E-1 through E-10"
attached hereto (collectively, the "DEEDS"), conveying title to Purchaser
subject to the "Permitted Exceptions" (defined below).
4. DUE DILIGENCE ITEMS. Within three (3) business days (unless
otherwise provided) after the Effective Date, and at its sole cost and expense,
Seller shall furnish (to the extent in its possession) or cause the Broker to
furnish to Purchaser the following items (collectively, the "DUE DILIGENCE
ITEMS"):
A. Within fourteen (14) days after the Effective Date, and
provided Purchaser has delivered to Seller evidence that the initial $100,000.00
of the Deposit has been tendered to the Title Company, Seller shall provide
commitments for owner's policies of title insurance on the Project
(collectively, the "TITLE COMMITMENTS", and individually, each a "TITLE
COMMITMENT"), each of which shall (i) be issued by Title Company in favor of
Purchaser, (ii) provide for aggregate coverage in an amount equal to the
Purchase Price, (iii) show the state and quality of title to the Property
together with all liens, encumbrances and other charges and items affecting the
Property, and (iv) be accompanied by legible copies of all documents referenced
in the Title Commitments. Any endorsements to the Title Commitments shall be
obtained by Purchaser at Purchaser's sole cost and expense;
B. copies of the existing ALTA as-built surveys of the Land
(collectively, the "SURVEYS", and individually, each a "SURVEY"). In addition,
during the Inspection Period, Seller will deliver updated versions of the
Surveys to Purchaser, the costs of such updated Surveys to be paid for by
Purchaser;
C. copies of the existing "Phase I" environmental assessments of
the Project. In addition, during the Inspection Period, Seller will deliver
updated versions of the environmental assessments to Purchaser, the costs of
such updated environmental assessments to be paid for by Purchaser;
D. copies of certificates of insurance provided by each Tenant;
E. certificates of occupancy for the Properties located in Mt.
Vernon, IL, Plano, TX, San Antonio, TX, Virginia Beach, VA, Hurst, TX and
Macomb, MI; and
F. complete copies of the Leases, along with any Guaranty.
3
Purchaser shall acknowledge in writing its receipt of each Due
Diligence Item and immediately deliver such acknowledgement to Seller. Within
fourteen (14) days after the Effective Date, Purchaser shall notify Seller in
writing in the event that Purchaser has not yet received any Due Diligence Item
(which notice shall specify any Due Diligence Item not yet received) or
Purchaser shall be deemed to have received all of the Due Diligence Items.
Purchaser acknowledges and agrees that except for such items which
are in the public records, the Due Diligence Items are proprietary and
confidential in nature and have been or will be made available to Purchaser
solely to assist Purchaser in determining the feasibility of purchasing the
Property. Purchaser agrees not to disclose the Due Diligence Items or any of the
provisions, terms or conditions thereof to any party outside of Purchaser's
organization except: (i) to Purchaser's accountants, attorneys, lenders,
prospective lenders, investors and/or prospective investors (collectively, the
"PERMITTED OUTSIDE PARTIES") in connection with the transactions contemplated by
this Agreement, or (ii) as may be required by law. In permitting Purchaser and
the Permitted Outside Parties to review the Due Diligence Items to assist
Purchaser, Seller has not waived any privilege or claim of confidentiality with
respect thereto and no third party benefits of any kind, either expressed or
implied, have been offered, intended or created by Seller and any such claims
are expressly rejected by Seller and waived by Purchaser.
At such time as this Agreement is terminated for any reason other
than Seller's default, Purchaser shall return to Seller all of the Due Diligence
Items and any and all copies Purchaser has made of the Due Diligence Items,
along with copies of any and all reports, tests or studies relating to the
Property that Purchaser has obtained. In the event this Agreement is terminated
as a result of Seller's default, Purchaser shall return all the Due Diligence
Items and any and all copies Purchaser has made of the Due Diligence Items,
except for copies of such Due Diligence Items that are directly related to or
evidence such Seller default. Purchaser's obligations under this Section 4 shall
survive the termination of this Agreement.
Purchaser acknowledges that most of the Due Diligence Items were
prepared by third parties other than Seller and in most instances, were prepared
prior to Seller's ownership of the Property. Purchaser further acknowledges and
agrees that except as specifically set forth herein: (i) neither Seller nor any
of its partners, agents, employees or contractors have made any warranty or
representation regarding the truth, accuracy or completeness of the Due
Diligence Items or the sources thereof and Purchaser has not relied on the truth
or completeness of the Due Diligence Items; and (ii) Seller has not undertaken
any independent investigation as to the truth, accuracy and completeness of the
Due Diligence Items and is providing the Due Diligence Items or making the Due
Diligence Items available to Purchaser solely as an accommodation to Purchaser.
5. CONDITIONS PRECEDENT.
A. Conditions Precedent to Purchaser's Obligations.
(i) During, but in no event later than the expiration
of, the Inspection Period, Purchaser shall give Seller written notice indicating
whether the Due Diligence Items, the condition of the Property, or title thereto
is unsatisfactory and specifying any matters disclosed therein which are not
satisfactory or to which Purchaser otherwise objects (the "OBJECTION NOTICE").
In the event Seller fails to receive the Objection Notice timely, Purchaser
shall be deemed to have accepted the condition of the Property as disclosed in
the Due Diligence Items, at which time, Purchaser's Deposit shall become
non-refundable but for Seller's default. Seller acknowledges that during the
Inspection Period Purchaser will be trying to create a master lease covering all
of the Properties.
4
(ii) In the event that either: (i) Purchaser indicates
in the Objection Notice that the Property or the Due Diligence Items are not
satisfactory in any respect; or (ii) Purchaser discovers and informs Seller in
writing of or Seller informs Purchaser of any change in the status of title to
the Property occurring after the Effective Date and resulting in an encumbrance
thereon in addition to the Leases and the Permitted Exceptions (each a "TITLE
DEFECT"), Seller may promptly undertake to cure the items specified in the
Objection Notice or eliminate any such Title Defect to the reasonable
satisfaction of Purchaser and/or, to the extent possible, cause the Title
Company to insure over any of such items or Title Defect to the satisfaction of
Purchaser and accordingly modify the Title Commitments. In the event Seller
elects not to effect such cure or is either unable to do so or have the Title
Company so insure over Purchaser's objections within ten (10) days after receipt
by Seller of the Objection Notice or notice of any Title Defect, Purchaser may,
at its option: (1) waive any of its objections to the condition of the Property
described in the Due Diligence Items and set forth in the Objection Notice or
relating to the Title Defect, without any adjustment in the Purchase Price; or
(2) terminate this Agreement, in either event by giving prompt written notice
thereof to Seller. In the event Purchaser elects to terminate this Agreement,
the Deposit shall be returned to Purchaser and neither Seller nor Purchaser
shall have any further obligations under this Agreement, except as expressly set
forth herein.
(iii) If any new Title Defects arise after the
expiration or waiver of the Inspection Period and prior to Closing, Seller may
promptly undertake to eliminate such new Title Defects to the reasonable
satisfaction of Purchaser and/or, to the extent possible, cause the Title
Company to insure over any of such new Title Defects to the satisfaction of
Purchaser. In the event Seller elects not to effect such cure or is either
unable to do so or have the Title Company so insure over such new Title Defects
by the Closing (which Seller may extend by up to ten (10) business days in order
to cure and remove (or procure title insurance over) the same), Purchaser may,
at its option: (1) waive any of its objections to the new Title Defects, without
any adjustment in the Purchase Price; or (2) terminate this Agreement, in either
event by giving prompt written notice thereof to Seller by the Closing Date (as
the same may have been extended by Seller under this subparagraph (iii)). In the
event Purchaser elects to terminate this Agreement, the Deposit shall be
returned to Purchaser and neither Seller nor Purchaser shall have any further
obligations under this Agreement, except as expressly set forth herein.
Notwithstanding the foregoing terms of this subparagraph (iii) to the contrary,
if the new Title Defect was the result of a Tenant's acts or omission to act and
is required to be removed by such Tenant pursuant to the terms of its Lease,
then Purchaser shall have automatically elected to proceed in accordance with
option (1) under this subparagraph (iii).
(iv) Upon expiration or Purchaser's earlier waiver of
the Inspection Period, Seller will make a one time request from each Tenant for
a current estoppel certificate and a subordination, non-disturbance and
attornment agreement ("SNDA") in the form contemplated by the Leases, if any. If
the form of Tenant estoppel certificate and SNDA is not prescribed by the Leases
and Purchaser submits to Seller the form of estoppel and SNDA either preferred
by it or required by its lender, if any, prior to the expiration of the
Inspection Period, Seller will submit such form of estoppel and SNDA to each
Tenant if such form is reasonable as determined by Seller. Notwithstanding
anything contained herein to the contrary, in the event that Seller is unable to
provide the estoppel and SNDA required by at least eighty percent (80%)
("THRESHOLD") of the Leases or any Tenant alleges that there are outstanding
material events of default under the Leases which cannot be resolved to
Purchaser's reasonable satisfaction by the Closing Date, then Purchaser's sole
remedy shall be to terminate this Agreement and receive the prompt return of the
Deposit. Seller shall be under no obligation to update such estoppel certificate
and/or SNDA received from any Tenant. Purchaser acknowledges and agrees that the
Threshold is comprised of the Leases and those other "Leases" (as defined in the
"Separate Agreement" (defined below)).
5
(v) Purchaser acknowledges that certain of the Leases
provide the Tenant with a right of first refusal (as disclosed on Exhibit "C")
to purchase the Property subject to the terms of such Lease ("RIGHT OF FIRST
REFUSAL"). Promptly following the Effective Date, Seller will use commercially
reasonable efforts to cause any Tenant that has a Right of First Refusal to, on
or before the expiration of the Inspection Period, either waive or elect to
purchase such Property. If any such Tenant: (a) fails to respond to Seller's
notice within the time period specified in such Lease, then such Tenant will be
deemed to have waived its Right of First Refusal; and (b) elects to exercise its
Right of First Refusal for a Property (1) such Property will be removed from
this Agreement, (2) the Purchase Price will be reduced by the amount allocated
to such Property as reflected in Exhibit "C", and (3) Seller will reimburse
Purchaser for all due diligence costs incurred by Purchaser in performing its
due diligence investigations with respect to such Property, by providing
Purchaser with a credit against the Purchase Price at Closing.
B. Conditions Precedent to Seller's Obligations. If, prior to the
expiration of the Inspection Period, Seller is unable to arrange, upon terms and
conditions satisfactory to Seller, in its sole and absolute discretion, to
payoff Seller's existing loan secured by the Properties, Seller may, at its
option, terminate this Agreement by written notice to Purchaser in which event,
the Deposit will be returned to Purchaser.
6. PERMITTED EXCEPTIONS. Seller shall convey the Property to Purchaser
subject to: (i) all property taxes and assessments not yet due and payable; (ii)
all matters created by or on behalf of Purchaser, including, without limitation,
any documents or instruments to be recorded as part of any financing of the
Property by Purchaser; and (iii) any easements, liens, exceptions and other
encumbrances noted in the Title Commitments, the Surveys and the Leases
(collectively, the "PERMITTED EXCEPTIONS").
7. REPRESENTATIONS AND WARRANTIES.
A. Seller. Seller represents and warrants to Purchaser as to the
following matters, each of which is true and correct as of the Effective Date,
and each of which shall be true and correct as of the date of Closing. As used
in this Section, the phrase "to Seller's knowledge" means Seller's actual,
conscious knowledge, without duty of inquiry:
(i) Seller is a limited partnership, duly organized, validly
existing and in good standing under the laws of the State of Delaware and, to
the extent necessary, is qualified to conduct business in Delaware and the
States in which the Properties are located. This Agreement has been duly
authorized, executed and delivered by Seller, is the legal, valid and binding
obligation of Seller, and does not, to Seller's knowledge, violate any provision
of any agreement or judicial order to which Seller is a party or to which Seller
is subject;
(ii) Except as otherwise disclosed on attached and
incorporated Schedule "1", Seller has received no written notice from any
governmental agency alleging a violation of any statute, ordinance, regulation
or code with respect to the Property which violation has not been cured;
(iii) Except as otherwise disclosed on attached and
incorporated Schedule "2", there are no pending nor, to Seller's knowledge,
threatened matters of litigation, administrative action or examination, claim or
demand relating to the Property or Seller's interest in the Property;
(iv) Except as otherwise disclosed on attached and
incorporated Schedule "3", there is no pending nor, to Seller's knowledge,
contemplated or threatened eminent domain, condemnation or other governmental
taking or proceeding relating to the Property or any part thereof;
6
(v) The Rent Roll is true, correct and complete in all
material respects;
(vi) Seller has delivered to Purchaser true, correct and
complete copies of the Leases, including any amendments, extensions or
modifications;
(vii) To Seller's knowledge, there are no commissions or other
fees payable with regard to the execution of any of the Leases or with regard to
any renewals, extensions or expansions (whether due to options previously or
hereafter exercised or separate negotiations);
(viii) To Seller's knowledge, there are no service or
maintenance contracts affecting the Properties which Purchaser, as prospective
owner of the Properties, will be required to assume or pay; and
(ix) Seller is not a foreign person or entity under the
Foreign Investment in Real Property Tax Act of 1980, as amended, and no taxes or
withholding under the such act shall be assessed against or imposed upon
Purchaser in connection with the transaction contemplated by this Agreement.
Seller acknowledges and agrees that the warranties and
representations set forth above shall survive the Closing for a period of one
(1) year. If, prior to Closing, Purchaser received written notice from Seller or
from any other source that any material representation or warranty of Seller is
untrue and cannot be remedied or Purchaser becomes aware that any material
representation or warranty of Seller is untrue and can not be remedied,
Purchaser shall, as Purchaser's sole and exclusive remedy, be entitled to
terminate this Agreement by written notice delivered to Seller on or before the
Closing, in which event the Deposit shall be refunded to Purchaser, and except
for the terms and provisions of this Agreement which specifically survive the
termination of this Agreement, the parties shall have no further obligations
hereunder. If Purchaser is so advised and Purchaser fails to terminate this
Agreement within five (5) days after having knowledge of such the existence of
any untrue material representation or warranty, Purchaser shall be deemed to
have waived the breach of such representation or warranty and shall have no
further rights or remedies as a result of the same. Seller does not, by this
Agreement, represent or warrant that there will be no changes in any of the
matters referred to in Seller's representations or warranties after the
Effective Date through the acts and/or omissions of persons other than Seller,
and shall have no liability or responsibility in the event that any
representation or warranty becomes false or misleading as a result of any change
in circumstances after the Effective Date.
B. Purchaser. Purchaser represents and warrants to Seller (which
is true and correct as of the Effective Date, and shall be true and correct as
of the date of Closing) that Purchaser is a limited liability company, duly
organized, validly existing and in good standing under the laws of the State of
Delaware and, to the extent necessary, is qualified to conduct business in
Delaware and the States in which the Properties are located. This Agreement has
been duly authorized, executed and delivered by Purchaser, is the legal, valid
and binding obligation of Purchaser, and does not, to Purchaser's knowledge,
violate any provision of any agreement or judicial order to which Purchaser is a
party or to which Purchaser is subject.
8. COVENANTS OF SELLER.
A. From and after the Effective Date and until the date of
Closing, Seller shall: (i) keep (or cause to be kept) the Property fully insured
in accordance with prudent and customary practice and as required by the Leases;
(ii) not alienate, encumber or transfer the Property or any part thereof in
favor of or to any other person or entity unless required by law; and (iii) not
amend any Lease without the
7
prior written consent of Purchaser, which consent shall not be unreasonably
withheld, conditioned or delayed.
B. From and after the Effective Date and until the date of
Closing, Seller shall promptly give Purchaser written notice of any change in
the status of title to the Property, which either changes the nature of any
Permitted Exceptions or represents an additional encumbrance on the Property.
9. CLOSING. Seller and Purchaser shall consummate the transactions
contemplated by this Agreement at Closing through an escrow with the Title
Company and pursuant to escrow instructions acceptable to the Title Company,
Seller and Purchaser. The attorneys for Seller and Purchaser are authorized to
execute such letter of escrow instructions, any amendments thereto and all
directions or communications thereunder.
10. SELLER'S OBLIGATIONS AT THE CLOSING. No later than three (3)
business days prior to Closing, Seller shall:
A. execute and deliver to Purchaser the Deeds conveying the
Property;
B. execute and deliver to Purchaser a bill of sale conveying any
personal property owned by Seller and located on any Property, without warranty,
express or implied, as to merchantability, title, use and fitness for any
purpose;
C. cause the Title Company to furnish to Purchaser owner's
policies of title insurance pursuant to the Title Commitments (collectively, the
"TITLE POLICIES", and individually, each a "TITLE POLICY");
D. execute and deliver to Purchaser a closing statement itemizing
the Purchase Price and all adjustments thereto as provided herein;
E. execute and deliver to Purchaser an assignment of all of
Seller's right, title and interest in and to the Leases in substantially the
form attached hereto as Exhibit "F" (the "ASSIGNMENT"), together with such
consents to and notices of such assignment as may be required under the Leases;
F. execute and deliver to Purchaser a Non-Foreign Persons
Affidavit in the form attached hereto as Exhibit "G";
G. deliver to Purchaser an original of each estoppel certificate
and SNDA, in accordance with the terms of Section 5A(iv) of this Agreement, from
each Tenant in the form required by the Leases;
H. execute and deliver to Purchaser a "Notice to Tenant"
substantially in the form attached hereto as Exhibit "H"; and
I. execute and deliver to Purchaser such other documents or
instruments (including, without limitation, transfer tax declarations) as may be
required under this Agreement, or as otherwise required by the Title Company or
by Purchaser (using its reasonable opinion) to effectuate the Closing.
11. PURCHASER'S OBLIGATIONS AT CLOSING. Subject to the terms,
conditions, and provisions hereof, and contemporaneously with the performance by
Seller of its obligations under Section 10 above, no later than three (3)
business days prior to Closing (unless otherwise provided below), Purchaser
shall:
8
A. concurrently with Closing, cause the Title Company to pay
Seller the Purchase Price;
B. execute and deliver to Seller a closing statement itemizing
the Purchase Price and all adjustments thereto as provided herein;
C. acknowledge the Assignment for the purpose of assuming
Seller's obligations under the Leases; and
D. execute and deliver to Seller such other documents or
instruments (including, without limitation, transfer tax declarations) as may be
required under this Agreement or as otherwise required by the Title Company or
by Seller (using its reasonable opinion) to effectuate the Closing.
Purchaser's obligation to close shall be specifically contingent
upon the Title Company furnishing to Purchaser the Title Policies (or executed
mark-ups of the same) and each Tenant executing and delivering to Purchaser an
estoppel certificate in accordance with the provisions of the Leases. Purchaser
specifically acknowledges that Seller's failure to deliver the foregoing items
shall not constitute a default by Seller hereunder nor expose Seller to damages
but, in such circumstances, Purchaser may, as its sole remedy at law or in
equity, terminate this Agreement and receive the immediate return of its
Deposit.
12. CLOSING COSTS. At the Closing, except for Seller's attorneys' fees
and costs and the Broker's fee, Purchaser will pay for all closing costs,
including, without limitation: (a) the cost of preparation of the Deeds; (b) all
premiums and fees related to the Title Policies; (c) escrow charges; (d) real
estate transfer taxes and fees payable upon recordation of the Deeds; (e) the
costs and expenses of any endorsements and/or additional title insurance
coverage requests by Purchaser; and (f) any other expenses, taxes and fees
related to Purchaser's loan, including any mortgage taxes.
13. PRORATIONS.
A. Taxes. Purchaser acknowledges that the Leases obligate each
Tenant to pay the taxes directly to the taxing authority. Accordingly, the
parties shall not prorate taxes between Purchaser and Seller, it being
acknowledged that each Tenant shall be responsible for same. In no event shall
Seller be responsible for the payment of any real estate taxes and/or
assessments applicable during its period of ownership in the event any Tenant
has defaulted in the prompt payment of same.
B. Rent. Rent actually paid for the month in which the Closing
occurs shall be prorated between Seller and Purchaser as of the close of
business on the date of Closing, with Purchaser receiving a credit for amounts
attributable to time periods following such date. To the extent either party
receives rent after the Closing to which the other has a claim, such party shall
remit same to the party entitled thereto within ten (10) days of receipt. If at
the time of the Closing any rent arrearages exist under any Lease: (i) Seller
shall have the right, to the extent it is holding a security deposit under such
Lease, to set-off against such security deposit for such arrearages; (ii) for
the month in which the Closing occurs, Purchaser agrees that the first monies
received by Purchaser from said Tenant shall be received on account of rent due
for the month of Closing; and (iii) for any period prior to the month in which
the Closing occurs, all monies received by Purchaser from said Tenant shall
first be applied to rents owed to Purchaser and the balance, if any, will be
remitted to Seller. Purchaser agrees that Seller may attempt to collect any
delinquent rents owed Seller for any period prior to the month in which the
Closing occurs and may institute any lawsuit or collection procedures, but may
not: (x) evict or bring any proceeding to evict any Tenant; (ii) terminate any
Lease; or (iii) terminate a Tenant's right to possession.
9
C. Security Deposits. Seller will provide Purchaser with a credit
in the amount of all unapplied security deposits being held by Seller pursuant
to the terms of the Leases.
14. POSSESSION. Subject to the Leases, Seller shall deliver exclusive
possession of the Property to Purchaser at Closing.
15. INSPECTION. During the Inspection Period, Seller agrees that
Purchaser, its representatives, agents, employees, lenders, contractors,
appraisers, architects and engineers designated by Purchaser (collectively
"PERMITTEES") shall, subject to arranging all onsite visits with Seller and/or
Seller's Broker, be entitled to enter upon the Property for inspection, soil
tests, examination, land-use planning and for any due diligence investigation
relating to Purchaser's proposed ownership of the Property. As to any such
investigation, Purchaser shall restore the Property to the same condition as
existed prior to any such investigation, and shall not: (i) perform any invasive
tests without Seller's prior consent, which may be withheld in Seller's sole and
absolute discretion; or (ii) interfere with the possessory rights of any Tenant.
Purchaser shall indemnify, defend and hold harmless Seller, its partners,
officers, directors, members, shareholders, employees, agents, lenders,
contractors and each of their respective successors and assigns (collectively,
the "SELLER INDEMNIFIED PARTIES") harmless from any and all losses, liabilities,
fines, penalties and damages (including without limitation any damages or injury
to persons, property or to the environment as provided hereunder), or actions or
claims in respect thereof (including without limitation, amounts paid in
settlement, reasonable cost of investigation, reasonable attorneys' fees and
other legal expenses and reasonable fees of other professionals) (collectively
"LOSSES") which any of the Seller Indemnified Parties may suffer or sustain as a
result of the exercise by Purchaser of its rights (and that of its Permittees)
to enter upon the Property pursuant to this Section. The terms of this Section
will survive the Closing and the termination of this Agreement.
16. ACKNOWLEDGEMENTS.
A. As-Is. PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS
EXPRESSLY PROVIDED IN THIS AGREEMENT, AND AS A MATERIAL INDUCEMENT TO SELLER'S
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE SALE OF THE PROPERTY AS PROVIDED
FOR HEREIN IS MADE ON AN "AS IS, WHERE IS" CONDITION AND BASIS "WITH ALL
FAULTS." Purchaser acknowledges, represents and warrants that Purchaser is not
in a significantly disparate bargaining position with respect to Seller in
connection with the transaction contemplated by this Agreement; that Purchaser
freely and fairly agreed to this acknowledgment as part of the negotiations for
the transaction contemplated by this Agreement; that Purchaser is represented by
legal counsel in connection with this transaction and Purchaser has conferred
with such legal counsel concerning this waiver. Except for the representations
and warranties expressly set forth in this Agreement, no representations or
warranties have been made or are made and no responsibility has been or is
assumed by any of the Seller Indemnified Parties or anyone acting or purporting
to act on behalf of the Seller Indemnified Parties as to the condition or repair
of the Property or the value, expense of operation, or income potential thereof
or as to any other fact or condition which has or might affect the Property or
the condition, repair, value, expense of operation or income potential of the
Property or any portion thereof. The parties agree that all understandings and
agreements made between them or their respective agents or representatives prior
to the Effective Date are merged in this Agreement and the attached Exhibits,
which alone fully and completely express their agreement, and that this
Agreement has been entered into with Purchaser being provided ample opportunity
to investigate all aspects of the Property, with neither party relying upon any
statement or representation by the other unless such statement or representation
is specifically embodied in this Agreement or the attached Exhibits. Except as
set forth in this Agreement, Seller makes no representations or warranties as to
whether the Property contains asbestos or any hazardous materials or harmful or
toxic substances, or pertaining to the extent, location or nature of same, if
any. Further, to the extent that Seller has provided to Purchaser information
from any inspection, engineering or environmental reports concerning asbestos
10
or any hazardous materials or harmful or toxic substances, Seller makes no
representations or warranties with respect to the accuracy or completeness,
methodology of preparation or otherwise concerning the contents of such reports.
Purchaser acknowledges that Seller has requested that Purchaser inspect the
Property fully and carefully and investigate all matters relevant thereto and
that Purchaser rely solely upon the results of Purchaser's own inspections or
other information obtained or otherwise available to Purchaser, rather than any
information that may have been provided by Seller to Purchaser.
B. Release of Seller. Purchaser for itself and each of its
present and future directors, members, shareholders, officers, employees,
agents, parties, affiliates, representatives, attorneys, subsidiaries, parent
and affiliated corporations, predecessors, successors, and assigns
(collectively, "PURCHASER-RELATED ENTITIES"), hereby fully and irrevocably
releases, acquits and discharges the Seller Indemnified Parties from any and all
Losses, whether known or unknown, existing or potential, which Purchaser or the
Purchaser-Related Entities have or assert or hereafter may have or assert,
against any of the Seller Indemnified Parties by reason of any purported act or
omission on the part of any of the Seller Indemnified Parties occurring prior to
the Closing, which Losses are based upon, arise out of, or are in any way
connected with any of the following (each, a "CLAIM" and collectively, the
"CLAIMS"): (i) the condition, status, quality, nature, contamination or
environmental state of the Property; (ii) any violation of, noncompliance with,
or enforcement of applicable laws, regulations or ordinances with respect to the
Property; or (iii) any use, generation, storage, release, threatened release,
discharge, disposal, or presence of any "Hazardous Materials" (defined below)
on, under, or about the Property or, to the extent affecting the Property, any
property in the vicinity of the Property; provided however, nothing contained in
this Section shall release Seller from Seller's representations and warranties
set forth in this Agreement, or Seller's fraud. The term "HAZARDOUS MATERIALS"
means and includes flammable explosives, petroleum (including crude oil),
radioactive materials, hazardous wastes, toxic substances or related materials,
including, without limitation, any substances defined as or included in the
definition of toxic or hazardous substances, wastes or materials under any
federal or applicable state or local laws, ordinances or regulations dealing
with or otherwise pertaining to toxic or hazardous substances, wastes, or
materials (collectively, "HAZARDOUS SUBSTANCES LAWS").
C. Indemnification of Seller.
(i) Notwithstanding anything to the contrary contained
herein, Purchaser, to the maximum extent permitted by law, shall be solely
responsible for, and shall indemnify, hold harmless and defend with counsel
acceptable to Seller in its reasonable discretion, the Seller Indemnified
Parties from and against any and all Losses arising out of, or resulting from or
claimed to arise out of or result from, in whole or in part, but only to the
extent of, any of the following (collectively, the "INDEMNIFIED ACTS"): (i) any
violation of, noncompliance with, or enforcement of, any Hazardous Substances
Laws with respect to the Property; or (ii) the release, discharge, disposal, or
presence of Hazardous Materials, on, under or about the Property. The Losses
referred to herein shall include, without limitation, all foreseeable
consequential damages and the cost of any required or necessary repair, cleanup,
or detoxification of the Property or any property in the vicinity of the
Property, and the preparation and implementation of any closure, remedial, or
other required plans in connection therewith.
(ii) In the event that any suit or other proceeding is
brought against any of the Seller Indemnified Parties at any time on account of
any of the Losses, Purchaser shall, upon the request of Seller and the Seller
Indemnified Parties: (i) assume the defense of Seller and the Seller Indemnified
Parties, as the case may be; (ii) defend Seller and the Seller Indemnified
Parties, at Purchaser's own expense with counsel acceptable to Seller or the
Seller Indemnified Parties, as applicable, in their reasonable discretion; and
(iii) pay all judgments, fines, penalties and other fees and expenses in
connection therewith.
11
(iii) In the event that: (i) a final adjudication determines
that Seller took one of the Indemnified Acts prior to the Closing Date that
directly and proximately caused the Losses, and (ii) Seller failed to inform
Purchaser of such Indemnified Act prior to the Closing Date, then Seller shall
reimburse Purchaser for all amounts previously paid by Purchaser pursuant to
Section 16(C)(ii), and Purchaser's obligation to indemnify Seller with respect
to such Indemnified Act pursuant to this Section 16(C)(iii) shall terminate.
D. Survival of Indemnity and Release. The obligations of
Purchaser pursuant to Section 16(B) and Section 16(C) shall survive the Closing.
17. FURTHER ASSURANCES. Seller and Purchaser agree to use commercially
reasonable efforts to perform such other acts, and to execute, acknowledge,
and/or deliver subsequent to the Closing such other instruments, documents and
other materials as Seller or Purchaser may reasonably request in order to
effectuate the consummation of the transactions contemplated herein and to vest
title to the Property in Purchaser.
18. DEFAULT BY SELLER. In the event that Seller should fail to
consummate the transactions contemplated by this Agreement for any reason,
excepting Purchaser's default or the failure of any of the conditions to
Seller's obligations hereunder to be satisfied or waived, Purchaser may, as its
sole remedy at law or in equity, elect to either: (i) terminate this Agreement
by giving prompt written notice thereof to Seller, in which event the Deposit
will be returned to Purchaser; or (ii) specifically enforce this Agreement.
Furthermore, if Purchaser elects to specifically enforce this Agreement it must
institute such action within forty-five (45) days following Seller's default,
failing which Purchaser shall be deemed to have waived the right to pursue
specific performance.
19. DEFAULT BY PURCHASER. In the event Purchaser should fail to
consummate the transaction contemplated herein for any reason, except default by
Seller or the failure of any of the conditions to Purchaser's obligations
hereunder to be satisfied or waived, Seller may either: (i) grant Purchaser
additional time to cure such default; or (ii) terminate the Agreement, in which
event Seller shall retain the Deposit as liquidated damages in lieu of all other
remedies available to Seller and this Agreement shall become null and void with
neither party having any further rights or liabilities hereunder, except as
provided for in this Agreement. Seller and Purchaser acknowledge and agree that:
(x) it would be extremely difficult to accurately determine the amount of
damages suffered by Seller as a result of Purchaser's default hereunder; (y) the
Deposit is a fair and reasonable amount to be retained by Seller as agreed and
liquidated damages for Purchaser's default under this Agreement; and (z)
retention by Seller of the Deposit upon Purchaser's default hereunder shall not
constitute a penalty or forfeiture.
However, the liquidated damages provision does not preclude Seller from
pursuing any: (i) claims for the return or delivery of Due Diligence Items; (ii)
actions to expunge a lis pendens or other clouds on title caused by Purchaser;
(iii) claims on account of Purchaser's indemnity obligations under this
Agreement; and (iv) attorneys' fees and costs incurred by Seller incident to
subparagraphs (i) through (iii).
20. ATTORNEY'S FEES. In the event of any legal action or other
proceeding between the parties regarding this Agreement or the Property (an
"ACTION"), the prevailing party shall be entitled to the payment by the losing
party of its reasonable attorneys' fees, court costs and litigation expenses, as
determined by the court. The term "prevailing party" as used herein includes,
without limitation, a party: (i) who agrees to dismiss an Action on the other
party's performance of the covenants allegedly breached, (ii) who obtains
substantially the relief it has sought; or (iii) against whom an Action is
dismissed (with or without prejudice). In addition, the prevailing party in any
Action shall be entitled, in addition to and separately from the amounts
recoverable under this Section, to the payment by the losing party of the
12
prevailing party's reasonable attorneys' fees, court costs and litigation
expenses incurred in connection with: (y) any appellate review of the judgment
rendered in such Action or of any other ruling in such Action; and (z) any
proceeding to enforce a judgment in such Action. It is the intent of the parties
that the provisions of this Section be distinct and severable from the other
rights of the parties under this Agreement, shall survive the entry of judgment
in any Action and shall not be merged into such judgment.
21. BROKERAGE COMMISSIONS. Each party represents to the other that no
brokers other than Broker has been involved in this transaction, and Broker has
represented Seller. In the event that this transaction is consummated and
closing occurs, Seller shall pay Broker a real estate commission as set forth in
a separate written agreement. Seller and Purchaser agree that if any other
claims for brokerage commissions are ever made against Seller or Purchaser in
connection with this transaction, all claims shall be handled and paid by the
party whose actions or alleged commitments form the basis of such claim. Seller
agrees to indemnify and hold Purchaser harmless from any Losses paid or incurred
by Purchaser by reason of any claim to any broker's, finder's, or other fee in
connection with this transaction by any party claiming by, through, or under
Seller. Except as provided in the foregoing sentence, Purchaser agrees to
indemnify and hold Seller harmless from any Losses paid or incurred by Seller by
reason of any claim to any broker's, finder's, or other fee in connection with
this transaction by any party claiming by, through, or under Purchaser, which
obligation of each party shall survive the Closing.
22. RISK OF LOSS.
A. Condemnation and Casualty. If, prior to the Closing Date, all
or any portion of the Property is taken by condemnation or eminent domain, or is
the subject of a pending taking which has not been consummated, or is destroyed
or damaged by fire or other casualty, Seller shall notify Purchaser of such fact
promptly after Seller obtains knowledge thereof. If such condemnation or
casualty is "Material" (defined below), Purchaser shall have the option to
terminate this Agreement upon notice to Seller given not later than fifteen (15)
days after receipt of Seller's notice, or the date of the Closing, whichever is
earlier. If this Agreement is terminated, the Deposit shall be returned to
Purchaser and thereafter neither Seller nor Purchaser shall have any further
rights or obligations to the other hereunder except as otherwise provided in
this Agreement. If this Agreement is not terminated, Seller shall not be
obligated to repair any damage or destruction but: (x) Seller shall assign,
without recourse, and turn over to Purchaser all of the insurance proceeds or
condemnation proceeds, as applicable, net of any costs of repairs and net of
reasonable collection costs (or, if such have not been awarded, all of its
right, title and interest therein) payable with respect to such fire or other
casualty or condemnation including any rent abatement insurance for such
casualty or condemnation; and (y) the parties shall proceed to Closing pursuant
to the terms hereof without abatement of the Purchase Price.
B. Condemnation Not Material. If the condemnation is not
Material, then the Closing shall occur without abatement of the Purchase Price
and, after deducting Seller's reasonable costs and expenses incurred in
collecting any award, Seller shall assign, without recourse, all remaining
awards or any rights to collect awards to Purchaser on the date of the Closing.
C. Casualty Not Material. If the Casualty is not Material, then
the Closing shall occur without abatement of the Purchase Price except for a
credit in the amount of the applicable deductible and Seller shall not be
obligated to repair such damage or destruction and Seller shall assign, without
recourse, and turn over to Purchaser all of the insurance proceeds net of any
costs of repairs and net of reasonable collection costs (or, if such have not
been awarded, all of its right, title and interest therein) payable with respect
to such fire or such casualty including any rent abatement insurance for such
casualty.
13
D. Materiality. For purposes of this Section 22: (i) with respect
to a taking by eminent domain, the term "MATERIAL" means any taking whatsoever,
regardless of the amount of the award or the amount of the Property taken,
excluding, however, any taking solely of subsurface rights or takings for
utility easements or right of way easements, if the surface of the Property,
after such taking, may be used in substantially the same manner as though such
rights had not been taken or any taking which does not permit a Tenant from
terminating the Lease affected by the taking; and (ii) with respect to a
casualty, the term "MATERIAL" means any casualty such that the cost of repair,
as reasonably estimated by Seller's engineer, is in excess of 10% of the
Purchase Price allocated to Property sustaining the casualty, excluding,
however, any casualty which does not permit a Tenant from terminating the Lease
affected by the casualty.
23. ASSIGNABILITY. Except as set forth in Section 34 below, neither
Purchaser nor Seller may assign its respective obligations hereunder without the
consent of the other; provided, however, that Purchaser shall have the right to
assign its interest in this Agreement, in whole or part, without Seller's
consent to a Delaware Statutory Trust, an affiliate entity or any entity that is
owned, managed or controlled by Purchaser or its managing member subject to the
following: (i) notice of such assignment is delivered to Seller; and (ii)
Purchaser shall not be released from any liability under this Agreement as a
result of any such assignment. No transfer or assignment by Purchaser or Seller
in violation of the provisions hereof shall be valid or enforceable.
24. NOTICES. Any notice to be given or to be served upon either party
hereto in connection with this Agreement must be in writing and shall be given
by certified or registered mail (return receipt requested), by overnight express
delivery or facsimile (followed by hard copy by either of the two preceding
methods of delivery) and shall be deemed to have been given upon receipt. Such
notice shall be given the parties hereto at the addresses set forth on the
signature page of this Agreement and be deemed delivered upon delivery or on the
date when the receiving party first refuses to accept such delivery. Either
party may at any time, by giving five (5) days written notice to the other,
designate any other address in substitution of any of the foregoing addresses to
which such notice shall be given and other parties to whom copies of all notices
hereunder shall be sent.
25. BINDING EFFECT. Subject to the terms of Section 23 of this
Agreement, this Agreement shall be binding upon and shall inure to the benefit
of the Seller and Purchaser and their respective successors and assigns.
26. ENTIRE AGREEMENT. This Agreement represents the entire agreement
between Seller and Purchaser with respect to the subject matter hereof, and all
prior agreements between Seller and Purchaser with respect to such subject
matter shall have no further force or effect, including, without limitation, any
proposal letters.
27. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the Subject State, without giving effect to
principals of conflicts of law.
28. MODIFICATION. This Agreement may only be modified or otherwise
amended by a written instrument executed by duly authorized representatives of
Seller and Purchaser.
29. TIME OF ESSENCE. Time is of the essence of this Agreement. In the
event this Agreement is not accepted by Seller on or before the Expiration Date
of the Offer, and a copy thereof delivered to Purchaser, then this Agreement
shall be null and void, and all offers set forth herein shall be deemed
withdrawn.
14
30. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original, and all of which
together shall constitute one and the same instrument.
31. FACSIMILE. A facsimile copy of this Agreement and any signatures
thereon will be considered for all purposes as originals.
32. INDEPENDENT COUNSEL AND INTERPRETATION. Each party acknowledges that
its legal counsel participated in the preparation and drafting of this
Agreement, and that each has been or has had the opportunity to be represented
by counsel of its own choice throughout all negotiations which preceded the
execution of this Agreement, and that they have executed this Agreement with the
consent and upon the advice of said counsel. Accordingly, it is agreed that any
legal rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not apply to the interpretation of this
Agreement or any addenda, amendments or exhibits thereto to favor any party
against the other.
33. BUSINESS DAYS. All references to "business days" contained in this
Agreement are references to normal working business days, i.e., Monday through
Friday of each calendar week, exclusive of federal and national bank holidays.
If any event hereunder is to occur, or a time period is to expire, on a date
which is not a business day, such event will occur or time period shall expire
on the next succeeding business day.
34. 1031 EXCHANGE. The parties acknowledge that each may be consummating
the transaction as part of a deferred tax-free exchange ("EXCHANGE") pursuant to
Section 1031 of the Internal Revenue Code (the "CODE"). Therefore, either party
may assign its right, but not its obligations, to a qualified third party
intermediary. Each party agrees to cooperate with the other in connection with
such tax deferred exchange; provided, however, that in no event will: (i) Seller
be obligated to (a) take title to any relinquished property that Purchaser
desires to relinquish, or (b) act as a qualified intermediary; (ii) either party
incur any obligation, indebtedness, liability, cost or expense as a result of
cooperating with the other to effect such exchange.
EACH PARTY HEREBY ACKNOWLEDGES THAT IT IS AND WILL BE SOLELY
RESPONSIBLE FOR COMPLIANCE WITH ALL LAWS, RULES AND REGULATIONS
RELATED TO ITS EXCHANGE, IF ANY. FURTHER, A PARTY CAUSING AN
EXCHANGE ACKNOWLEDGES THAT NEITHER THE NON-EXCHANGING PARTY NOR ANY
OF ITS AGENTS, REPRESENTATIVES OR AFFILIATES HAS ADVISED THE
EXCHANGING PARTY, AND NO SUCH PERSON OR ENTITY HAS ANY OBLIGATION OR
DUTY TO ADVISE THE EXCHANGING PARTY, WITH RESPECT TO WHETHER THE
TRANSACTION CONTEMPLATED BY THIS AGREEMENT COMPLIES WITH THE LAWS,
RULES AND REGULATIONS APPLICABLE TO THE EXCHANGE. FURTHER, EACH
PARTY REPRESENTS, WARRANTS AND ACKNOWLEDGES TO THE OTHER THAT IT HAS
RELIED UPON ITS OWN TAX AND LEGAL COUNSEL IN DETERMINING COMPLIANCE
WITH ALL LAWS, RULES AND REGULATIONS APPLICABLE TO ITS EXCHANGE, IF
ANY. THE PROVISIONS OF THIS SECTION WILL SURVIVE THE CLOSING OR
TERMINATION OF THIS AGREEMENT.
35. CONTEMPORANEOUS CLOSING OF SEPARATE AGREEMENT. Purchaser and Captec
Franchise Capital Partners L.P. IV, a Delaware limited partnership (a related
entity of Seller) ("RELATED SELLER") are parties to a separate Sale Agreement
dated on or about the Effective Date (the "SEPARATE AGREEMENT") pursuant to
which Related Seller has agreed to sell, and Purchaser has agreed to buy twelve
(12) parcels of real property. As a condition to the parties' obligation to
consummate the sale and purchase of the
15
Property under this Agreement, the closing contemplated under the Separate
Agreement must occur contemporaneously with the Closing under this Agreement.
36. REPRESENTATIONS, WARRANTIES AND COVENANTS WITH RESPECT TO THE USA
PATRIOT ACT.
A. All capitalized words and phrases and all defined terms used
in the USA Patriot Act of 2001, 107 Public Law 56 (October 26, 2001) (the
"PATRIOT ACT") and in other statutes and all orders, rules and regulations of
the United States government and its various executive departments, agencies and
offices related to the subject matter of the Patriot Act, including, but not
limited to, Executive Order 13224 effective September 24, 2001, are hereinafter
collectively referred to as the "PATRIOT RULES" and are incorporated into this
Section.
B. Purchaser and Seller hereby represent and warrant, each to the
other, that each and every "person" or "entity" affiliated with each respective
party or that has an economic interest in each respective party or that has or
will have an interest in the transaction contemplated by this Agreement or in
any Property that is the subject matter of this Agreement or will participate,
in any manner whatsoever, in the purchase and sale of the Properties is, to the
best of Purchaser's or Seller's knowledge:
(i) not a "blocked" person listed in the Annex to Executive
Order Nos. 12947, 13099 and 13224;
(ii) in full compliance with the requirements of the Patriot
Rules and all other requirements contained in the rules and regulations of the
Office of Foreign Assets Control, Department of the Treasury ("OFAC");
(iii) operated under policies, procedures and practices, if
any, that are in compliance with the Patriot Rules and available to each other
for review and inspection during normal business hours and upon reasonable prior
notice;
(iv) not in receipt of any notice from the Secretary of State
or the Attorney General of the United States or any other department, agency or
office of the United States claiming a violation or possible violation of the
Patriot Rules;
(v) not listed as a Specially Designated Terrorist or as a
blocked person on any lists maintained by the OFAC pursuant to the Patriot Rules
or any other list of terrorists or terrorist organizations maintained pursuant
to any of the rules and regulations of the OFAC issued pursuant to the Patriot
Rules or on any other list of terrorists or terrorist organizations maintained
pursuant to the Patriot Rules;
(vi) not a person who has been determined by competent
authority to be subject to any of the prohibitions contained in the Patriot
Rules; and
(vii) not owned or controlled by or now acting and or will in
the future act for or on behalf of any person or entity named in the Annex or
any other list promulgated under the Patriot Rules or any other person who has
been determined to be subject to the prohibitions contained in the Patriot
Rules.
C. Each party covenants and agrees that in the event it receives
any notice that it or any of its beneficial owners or affiliates or participants
become listed on the Annex or any other list promulgated under the Patriot Rules
or indicted, arraigned, or custodially detained on charges involving
16
money laundering or predicate crimes to money laundering, the party that
receives such notice shall immediately notify the other and the effect of the
issuance of a notice pursuant to the Patriot Rules is that this Agreement shall
automatically be deemed terminated, in which event the Deposit shall be returned
to Purchaser and the parties shall have no further rights or obligations under
this Agreement, except for those rights, liabilities or obligations that survive
a termination of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK - SIGNATURE PAGE FOLLOWS]
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Sale, effective as of the Effective Date.
PURCHASER: SELLER:
GIBRALTAR 1031 RESTAURANTS, LLC, CAPTEC FRANCHISE CAPITAL
A DELAWARE LIMITED LIABILITY COMPANY PARTNERS L.P. III,
A DELAWARE LIMITED PARTNERSHIP
By: LMA Holdings, LLC, By: GP3 Asset Acquisition, LLC,
Its Sole Member a Delaware limited liability
company,
By: /s/ Russell Geyser Its General Partner
-------------------------------
Russell Geyser, its Sole Member
By: /s/ W. Ross Martin
----------------------
DATED: FEBRUARY /s/ 15 , 2005 Name: W. Ross Martin
Title: Vice President
Send Notices To: DATED: FEBRUARY /s/ 15, 2005
Russell Geyser Send Notices To:
P.O. Box 235169
Encinitas, CA 92023 Joanna Zabriskie
Telephone: 760.633.1314 Vice President
Facsimile: 760.633.3723 24 Frank Lloyd Wright Drive
Lobby L, Fourth Floor, P.O. Box 544
With a Copy To: Ann Arbor, Michigan 48106-0544
Telephone: (734) 994-5505
Richard M. Lipton Facsimile: (734) 994-1376
Baker & McKenzie
One Prudential Plaza With a Copy To:
1031 East Randolph Drive
Chicago, Illinois 60601 Glenn D. Taxman, Esq.
Telephone: 312.861.7590 Much Shelist
Facsimile: 312.861.2899 2030 Main Street, Suite 1200
Irvine, California 92614
And Telephone: (949) 851-7475
Facsimile: (312) 521-2100
John R. Nyweide
Holland & Knight LLP
131 South Dearborn Street, 30th Floor
Chicago, Illinois 60603
Telephone: 312.715.5740
Facsimile: 312.715.5740
*JOHN GETS A DUPLICATE SET OF THE TITLE
COMMITMENTS, SURVEYS AND LEASES
18
LIST OF EXHIBITS AND SCHEDULES
EXHIBITS
A: Addresses of the Land
B-1 through B-10: Legal Descriptions of the Land
C: Schedule of Leases
C-1: Rent Roll
D: Earnest Money Escrow Agreement
E-1 through E-10: Form of Deed(s)
F: Form of Assignment of Leases
G: Form of Non-Foreign Persons Affidavit
H: Form of Notice to Tenant
SCHEDULES
1: List of Violations
2: List of Litigation
3: List of Condemnation
19
EXHIBIT A
ADDRESSES OF THE LAND
ADDRESS CITY STATE COUNTY ZIP
- ----------------------------------- -------------- ----- ---------- -----
105 Potomic Blvd. Mt. Vernon IL Jefferson 62864
4521 Southside Blvd. Jacksonville FL Duval 32216
West Adams Dr. and South Florida Ave. Lakeland FL Polk 33813
45590 Gratiot Ave. Macomb MI Macomb 48042
320 Grapevine Hwy. Hurst TX Tarrant 76054
1905 Preston Park Plano TX Collin 75093
1003 SE Military San Antonio TX Bexar 78214
Virginia
5720 Northampton Rd. Virginia Beach VA Beach City 23455
1729 Olden Ave. Ewing Twp NJ Mercer 08638
1705 Red Robin Lane New Bern NC Craven 28560
A-1
EXHIBIT B-1
LEGAL DESCRIPTION OF 1003 SE MILITARY., SAN ANTONIO TEXAS
Land situated in the CITY OF SAN ANTONIO, County of BEXAR, State of TEXAS,
particularly described as:
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.
B-1
EXHIBIT B-2
LEGAL DESCRIPTION OF 105 POTOMOC BLVD., MOUNT VERNON, ILLINOIS
Land situated in the CITY MT VERNON, County of JEFFERSON, State of ILLINOIS,
particularly described as:
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.
B-2
EXHIBIT B-3
LEGAL DESCRIPTION OF 5072 NORTHAMPTON RD., VIRGINIA BEACH, VIRGINIA
Land situated in the CITY OF VIRGINIA BEACH, County of VIRGINIA BEACH CITY,
State of VIRGINIA, particularly described as:
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.
B-3
EXHIBIT B-4
LEGAL DESCRIPTION OF 1729 OLDEN AVE., EWING TOWNSHIP, NEW JERSEY
Land situated in the TOWNSHIP OF EWING, County of MERCER, State of NEW JERSEY,
particularly described as:
Land in the Township of Ewing, County of Mercer, State of New Jersey, and more
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.
B-4
EXHIBIT B-5
LEGAL DESCRIPTION OF 320 GRAPEVINE HWY, HURST, TEXAS
Land situated in the CITY OF HURST, County of TARRANT, State of TEXAS,
particularly described as:
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.
B-5
EXHIBIT B-6
LEGAL DESCRIPTION OF
WEST ADAMS DR. AND SOUTH FLORIDA AVE., LAKELAND, FLORIDA
Land situated in the CITY OF LAKELAND, County of POLK, State of FLORIDA,
particularly described as:
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.
B-6
EXHIBIT B-7
LEGAL DESCRIPTION OF 1905 PRESTON AVE., PLANO, TEXAS
Land situated in the CITY OF PLANO, County of COLLIN, State of TEXAS,
particularly described as:
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.
B-7
EXHIBIT B-8
LEGAL DESCRIPTION OF 45590 GRATIOT AVE., MACOMB, MICHIGAN
Land situated in the CITY OF WARREN, County of MACOMB, State of MICHIGAN,
particularly described as:
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
B-8
EXHIBIT B-9
LEGAL DESCRIPTION OF 4521 SOUTHSIDE, JACKSONVILLE, FLORIDA
Land situated in the CITY OF JACKSONVILLE, County of DUVAL, State of FLORIDA,
particularly described as:
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.
B-9
EXHIBIT B-10
LEGAL DESCRIPTION OF 1705 RED ROBIN, NEW BERN, NORTH CAROLINA
Land situated in the CITY OF NEW BERN, County of CRAVEN, State of NORTH
CAROLINA, particularly described as:
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.
B-10
EXHIBIT C
LEASE SCHEDULE
SEE NEXT PAGE
C-1
LEASE ORIGINAL
NO. TENANT NAME PROPERTY ADDRESS CITY STATE COUNTY ZIP LEASE DATE
- ------- --------------------- -------------------- ------------ ----- ---------- ----- ----------
33-5870 Gourmet Systems, Inc. 105 Potomic Blvd. Mt. Vernon IL Jefferson 62864 7/24/1995
33-8580 Romacorp, Inc. 4521 Southside Blvd. Jacksonville FL Duval 32216 12/9/1998
West Adams Dr. and
33-6112 ADL Investments, LLC South Florida Ave. Lakeland FL Polk 33813 8/6/1996
33-7949 Tec Foods 45590 Gratiot Ave. Macomb MI Macomb 48042 12/10/1998
33-6103 Jack in the Box, Inc. 320 Grapevine Hwy. Hurst TX Tarrant 76054 9/27/1996
33-6151 Black-Eyed Pea 1905 Preston Park Plano TX Collin 75093 9/30/1996
America's Favorite
33-5863 Chicken Co. 1003 SE Military San Antonio TX Bexar 78214 10/20/1995
Virginia Virginia
33-5897 Denny's, Inc. 5720 Northampton Rd. Beach VA Beach City 23455 8/25/1995
Golden Restaurant
33-6078 Operations, Inc. 1729 Olden Ave. Ewing Twp NJ Mercer 08638 6/6/1996
33-8030 RTM, Inc. 1705 Red Robin Lane New Bern NC Craven 28560 7/9/1999
LEASE TERMINATION SECURITY PURCHASE
NO. TENANT NAME COMM. DATE DATE DEPOSIT ROFR PRICE
- ------- --------------------- ---------- ----------- ---------- ---- ----------
33-5870 Gourmet Systems, Inc. 8/1/1995 9/1/2014 $ 0.00 N $3,075,000
33-8580 Romacorp, Inc. 1/1/1999 1/1/2017 $ 0.00 N $1,750,000
33-6112 ADL Investments, LLC 6/1/1997 6/1/2012 $ 0.00 N $2,325,000
33-7949 Tec Foods 1/1/1999 1/1/2019 $ 0.00 N $1,000,000
33-6103 Jack in the Box, Inc. 10/1/1996 10/1/2014 $ 0.00 Y $1,525,000
33-6151 Black-Eyed Pea 10/1/1996 10/1/2016 $ 0.00 N $2,225,000
America's Favorite
33-5863 Chicken Co. 11/1/1995 11/1/2015 $ 0.00 Y $1,075,000
33-5897 Denny's, Inc. 10/1/1996 9/1/2015 $ 7,106.00 N $1,400,000
Golden Restaurant
33-6078 Operations, Inc. 7/1/1996 11/1/2011 $ 0.00 Y $1,950,000
33-8030 RTM, Inc. 8/1/1999 8/1/2019 $ 0.00 N $ 800,000
C-2
EXHIBIT C-1
RENT ROLL
TENANT CONCEPT CITY STATE ANNUAL RENT MONTHLY RENT
------ -------------- -------------- ----- ----------- ------------
America's Favorite Chicken Co. Church's San Antonio TX $ 77,506 $ 6,458.83
Gourmet Systems, Inc. Applebee's Mount Vernon IL $ 238,325 $ 19,860.42
Denny's, Inc. Denny's Virginia Beach VA $ 120,772 $ 10,064.34
Golden Restaurant Operations, Inc. Boston Market Ewing Township NJ $ 138,618 $ 11,551.50
Jack in the Box, Inc. Jack in Box Hurst TX $ 110,671 $ 9,222.58
ADL Investments, LLC Golden Corral Lakeland FL $ 188,352 $ 15,696.00
Phoenix Restaurant Group, Inc. Black Eyed Pea Plano TX $ 173,766 $ 14,480.50
Tec-Foods, Inc. Taco Bell Macomb MI $ 85,313 $ 7,109.42
Romacorp, Inc. Tony Roma's Jacksonville FL $ 154,931 $ 112,910.92
RTM, Inc. Arby's New Bern NC $ 68,202 $ 5,683.50
C-1, Page-1
EXHIBIT D
FORM OF EARNEST MONEY ESCROW AGREEMENT
RE: Escrow Trust No. NYN05-000256-L
DATE: February __ 2005
1. PARTIES
A. Purchaser: Gibraltar 1031 Restaurants, LLC
P.O. Box 235169
Encinitas, CA 92023
Attention: Russell Geyser
Telephone: 760.633.1314
Facsimile: 760.633.3723
With copies to: Richard M. Lipton
Baker & McKenzie
One Prudential Plaza
1031 East Randolph Drive
Chicago, Illinois 60601
Telephone: 312.861.7590
Facsimile: 312.861.2899
And
John R. Nyweide
Holland & Knight LLP
131 South Dearborn Street, 30th Floor
Chicago, Illinois 60603
Telephone: 312.715.5740
Facsimile: 312.715.5740
B. Seller: Captec Franchise Capital Partners L.P. III
24 Frank Lloyd Wright Drive
Lobby L, Fourth Floor, P.O. Box 544
Ann Arbor, Michigan 48106-0544
Attention: Joanna Zabriskie, Vice President
Telephone: (734) 994-5505
Facsimile: (734) 994-1376
With copies to: Much Shelist
2030 Main Street, Suite 1200
Irvine, California 92614
Attention: Glenn D. Taxman
Telephone No.: (949) 851-7475
Fax No.: (312) 521-2100
D-1
C. Escrow Holder: LandAmerica Commercial Services - New York City Office
655 Third Avenue
New York, New York 10017
Attention: Craig S. Feder, Vice President
Phone: (212) 949-0100
Fax: (212) 949-2438
Email: cfeder@landam.com
Liane Carpenter, CS Title Officer
Phone: (212) 973-4802
Fax: (212) 949-2438
Email: lianecarpenter@landam.com
2. PRELIMINARY STATEMENTS
A. Prior to the execution and delivery of this Earnest Money Escrow
Agreement ("ESCROW AGREEMENT"), Seller and Purchaser executed and delivered a
certain Agreement of Sale with an "Effective Date" of February ___, 2005 ("SALE
AGREEMENT"). Under the terms of the Sale Agreement, Seller agreed to sell to
Purchaser certain parcels of land and improvements commonly referred to in
Exhibit A attached to the Sale Agreement.
B. Pursuant to the Sale Agreement, Purchaser is required to deposit with
the Escrow Holder the initial sum of $100,00.00, with an additional $100,000.00
to be deposited pursuant to the terms of the Sale Agreement (the "EARNEST
MONEY") to be held by Escrow Holder under the terms and provisions of this
Escrow Agreement.
3. DEPOSIT OF EARNEST MONEY; INVESTMENT DIRECTIONS
A. Concurrently with the execution of this Escrow Agreement, Purchaser
deposited the Earnest Money with the Escrow Holder in accordance with the Sale
Agreement.
B. The Earnest Money IS/IS NOT (Purchaser to select) to be invested.
4. INSTRUCTIONS
A. Escrow Holder is to hold the Earnest Money until: (a) Escrow Holder is
in receipt of a joint order by Seller and Purchaser as to the disposition of the
Earnest Money; or (b) Escrow Holder is in receipt of a written demand (the
"DEMAND") from either Seller or Purchaser for the payment of the Earnest Money
or any portion thereof. Any Demand under subparagraph 4.A must include proof of
delivery of a copy of the same to the non-demanding party. If within five (5)
business days after Escrow Holder's receipt of any Demand under subparagraph
4A(b), Escrow Holder has not received from the non-demanding party written
notice of its objection to the Demand, then Escrow Holder will be authorized to
disburse the Earnest Money as requested by the Demand. If within said 5-business
day period Escrow Holder receives from the non-demanding party its notice of
objection to the Demand, then Escrow Holder will continue to hold the Earnest
Money until it is in receipt of a joint order as aforesaid, but after sixty (60)
days Escrow Holder may deposit the Earnest Money with a court of competent
jurisdiction.
D-2
B. Except as set forth in Paragraph 4.A. above, the Escrow Holder is
instructed to hold the Earnest Money until the Escrow Holder is in receipt of:
(i) a joint written direction from Seller (or Seller's Counsel) and Purchaser
(or Purchaser's Counsel); or (ii) an order, judgment or decree addressed to
Escrow Holder which is entered or issued by any court and which determines the
disposition of the Earnest Money and all interest earned.
C. Any party delivering a notice required or permitted under this Escrow
Agreement must simultaneously deliver copies of such notice to all parties
listed in Section 1 of this Escrow Agreement. All required notices must be
either personally delivered, sent by certified or registered mail, postage
prepaid, return receipt requested, or sent by overnight courier and, in all
instances, will be deemed to have been received upon delivery.
D. Except as otherwise expressly set forth in this Escrow Agreement,
Escrow Holder may disregard any and all notices or warnings given by any of the
parties.
E. If Escrow Holder obeys or complies with any order, judgment or decree
of any court with respect to the Earnest Money, Escrow Holder may not be liable
to any of the parties or any other person, firm or corporation by reason of such
compliance, notwithstanding any such order, judgment or decree be entered
without jurisdiction or be subsequently reversed, modified, annulled, set aside
or vacated. In case of any suit or proceeding regarding this Escrow Agreement to
which Escrow Holder is or may be at any time a party, Seller and Purchaser each
will be liable for one-half of all such costs, fees and expenses incurred or
sustained by Escrow Holder and must promptly pay the same to Escrow Holder upon
demand; provided, however, that in the event Escrow Holder is made a party to
any suit or proceeding between Seller and Purchaser, the prevailing party in
such suit or proceeding will have no liability for the payment of Escrow
Holder's costs, fees and expenses.
F. In no case may the above mentioned deposits be surrendered except in
the manner specifically described in this Escrow Agreement.
G. All fees of Escrow Holder will be charged one-half to Seller and
one-half to Purchaser. However, Purchaser is solely responsible for the payment
of any investment fees.
H. Except as to deposits of funds for which Escrow Holder has received
express written direction from Purchaser (or Purchaser's Counsel) concerning
investment or other handling, the parties agree that Escrow Holder is under no
duty to invest or reinvest any deposits at any time held by it; and, further,
that Escrow Holder may commingle such deposits with other deposits or with its
own funds and may use any part or all such funds for its own benefit without
obligation to any party for interest or earnings derived thereby, if any,
provided, however, nothing herein shall diminish Escrow Holder's obligation to
apply the full amount of the deposits in accordance with the terms of this
Escrow Agreement.
I. Any order, judgment or decree requiring the Escrow Holder to disburse
the Earnest Money will not be binding upon Purchaser or Seller as to the
ultimate disposition of the Earnest Money unless and until a final, order,
judgment or decree (not subject to appeal) is entered by a court having
jurisdiction.
J. This Escrow Agreement is binding upon and will inure to the benefit of
the parties and their respective legal representatives, successors and permitted
assigns.
K. In the event that the Escrow Holder receives conflicting instructions
from the parties or determines in good faith that a bonafide dispute exists as
to whether the Escrow Holder is obligated to deliver the Earnest Money, or as to
whom said Earnest Money is to be delivered, the Escrow Holder, at its option,
(a) may refuse to comply with any claims or demands on it and continue to hold
the Earnest
D-3
Money until (I) the Escrow Holder receives written notice signed by the Seller
and the Purchaser directing the release and delivery of the Earnest Money, in
which event the Escrow Holder shall then release and deliver the Earnest Money
in accordance with said direction, or (ii) the Escrow Holder receives a
certified copy of a final non-appealable judgment of a court of competent
jurisdiction directing the release and delivery of the Earnest Money, in which
event the Escrow Holder shall then release and deliver the Earnest Money in
accordance with said direction, or (b) may deliver the Earnest Money to the
Clerk of the Superior Court of the State of New York, for the County of New
York, or (c) may take such affirmative steps as the Escrow Holder may elect in
order to substitute another impartial party reasonably satisfactory to the
Seller and the Purchaser (whose consents to such substitution shall not be
unreasonably withheld), to hold the Earnest Money, including, without
limitation, the deposit thereof in a court of competent jurisdiction and the
commencement of an action for interpleader, the costs thereof to be the joint
and several obligation of the Seller and the Purchaser (but, as between the
Seller and the Purchaser, such costs shall be borne by whichever of the Seller
or the Purchaser is the losing party, or in accordance with any mutual agreement
of the Seller and the Purchaser if neither party is the losing party).
The Escrow Holder is acting as a stakeholder only with respect to
the Earnest Money. It is agreed that the duties of the Escrow Holder are only as
herein specifically provided, and are purely ministerial in nature, and that the
Escrow Holder shall incur no liability whatsoever except for willful misconduct
or gross negligence. The Seller and the Purchaser each release the Escrow Holder
from any act done or omitted to be done by the Escrow Holder in good faith in
the performance of its duties hereunder.
The Seller and the Purchaser shall jointly and severally indemnify,
defend (with counsel acceptable to the Escrow Holder) and save harmless the
Escrow Holder from and against all loss, cost, claim, liability, damage and
expense, including reasonable attorneys' fees and disbursements incurred in
connection with the performance of the Escrow Holder's duties hereunder, except
with respect to actions or omissions taken or suffered by the Escrow Holder in
bad faith, in willful disregard of this Escrow Agreement, or involving gross
negligence on the part of the Escrow Holder (the "INDEMNIFIED MATTERS") (but, as
between the Seller and the Purchaser, the cost of such Indemnified Matters shall
be shared equally, except to the extent that such Indemnified Matters are
attributable to the breach by the Seller or the Purchaser of the Agreement or
this Escrow Agreement, in which event the cost shall be borne by whichever of
the Seller or the Purchaser is the breaching party.
The parties agree and acknowledge that the Escrow Holder has no
liability in connection with Earnest Money in the event of failure or insolvency
of the financial institution in which the Earnest Money is deposited.
Escrow Holder hereunder may resign at any time giving ten (10)
business days prior written notice to that effect to each of the Seller and
Purchaser. In such event, the successor Escrow Holder shall be selected by the
Purchaser and approved by Seller, such approval not to be unreasonably withheld
or delayed. Escrow Holder shall then deliver to successor Escrow Holder the
Earnest Money, to be held by successor Escrow Holder pursuant to the terms of
this Escrow Agreement and the Agreement.
In its capacity as Escrow Holder, Escrow Holder shall not be
responsible for the genuineness or validity of any security, instrument,
document or item deposited with it, and shall have no responsibility other than
to faithfully follow the instructions contained herein, and it is fully
protected in acting in accordance with any written instrument given to it
hereunder by any of the parties hereto and believed by Escrow Holder to have
been signed by the proper person. Escrow Holder may assume that any person
purporting to give any notice hereunder and representing that they have
authority to do so has been duly authorized to do so.
D-4
Escrow Holder shall have no duties or responsibilities other than
those expressly set forth herein. Escrow Holder shall have no duty to enforce
any obligation of any person to make any payment or delivery or to enforce any
obligation of any person to perform any other act. Escrow Holder shall be under
no liability to the other parties hereto or to anyone else by reason of any
failure on the part of any party hereto or any maker, guarantor, endorser or
other signatory of any document or any other person to perform such person's
obligations under any such document.
Escrow Holder shall be entitled to approve (not to be unreasonably
withheld or delayed) any and all counsel who may be retained to defend or
prosecute any action on behalf of Escrow Holder under or arising out of this
Escrow Agreement.
This Escrow Agreement and the obligations of the parties hereunder
shall be interpreted, construed and enforced in accordance with the laws of the
State of New York.
[SIGNATURE PAGE FOLLOWS]
D-5
IN WITNESS WHEREOF, the parties have executed this Earnest Money Escrow
Agreement as of the Effective Date.
FOR PURCHASER:
By:___________________________________________
RICHARD M. LIPTON, BAKER & MCKENZIE
OR
JOHN R. NYWEIDE, HOLLAND & KNIGHT LLP,
ITS ATTORNEYS
FOR SELLER:
By:______________________________________________
GLENN TAXMAN, MUCH SHELIST, ITS ATTORNEYS
Accepted as of February ___, 2005
LANDAMERICA,
Escrow Holder
By:___________________________________________
MS. LIANE CARPENTER, ESCROW OFFICER
D-6
EXHIBIT E-1
RECORDING REQUESTED BY,
AND WHEN RECORDED RETURN TO:
GRANTEE
Recorder's Use
LIMITED WARRANTY DEED
STATE OF TEXAS
COUNTY OF BEXAR
KNOW ALL MEN BY THESE PRESENTS:
That 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, hereinafter referred to as Grantor, for and in
the consideration of the sum of Ten and no/100 Dollars ($10.00), and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, to Grantor in hand paid by GIBRALTAR 1031 RESTAURANTS, LLC, a
Delaware limited liability company, whose address is P.O. Box 235169, Encinitas,
CA 92023, hereinafter referred to as Grantee, has Granted, Sold, and Conveyed,
and by these presents does Grant, Sell, and Convey, unto the said Grantee that
certain real property located in San Antonio, Bexar County, Texas, more
particularly described in Exhibit "A" attached hereto and made a part hereof,
together with all improvements located thereon and appurtenances thereto
(collectively, the "Premises"), subject to a restrictive covenant restricting
the Premises for twenty-five (25) years from and after October 20, 1995 (or, if
applicable law will not permit a restrictive covenant against the land for this
duration, then this covenant shall last for as long as permitted by such law)
from being used as a "Kentucky Fried Chicken" or "KFC" restaurant (or any
restaurant that may now or hereafter be affiliated with Kentucky Fried Chicken,
KFC, or their successors, and has a substantially similar concept); provided,
however, that this covenant shall not apply to AMERICA'S FAVORITE CHICKEN
COMPANY, a Minnesota corporation ("AFC") or its related entities, or to
franchisee or licensee operating under a valid agreement with the AFC, and any
covenants, restrictions, easements or other matters in the records of Bexar
County, Texas, and any matters that would be revealed by an accurate survey of
the Premises.
TO HAVE AND TO HOLD the above described premises, together with all and singular
the rights and appurtenances thereto in anywise belonging unto the said Grantee,
its successors and assigns forever and Grantor does hereby bind itself, its
successors, assigns, executors and administrators, to Warrant and Forever
Defend, the right and title to the Premises unto the said Grantee against the
claims of all persons claiming by, through or under Grantor; but not otherwise.
WITNESS the hand of Grantor as of the ___ day of _____________200__.
CAPTEC FRANCHISE CAPITAL
PARTNERS L.P. III
By: GP 3 Asset Acquisition, LLC
Its: General Partner
E-1,Page-1
By: ________________________
Its: ________________________
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this ___ day of ___________,
2005, by ________________, who is personally known to me, as Vice President of
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
This instrument was prepared by CAPTEC FRANCHISE CAPITAL PARTNERS L.P. III, 24
Frank Lloyd Wright Drive, Lobby L, 4th Floor, Ann Arbor, MI 48106-0544.
E-1,Page-2
EXHIBIT "A"
Land situated in the City of San Antonio, County of Bexar, State of Texas,
and more particularly described as follows:
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.
E-1,Page-3
EXHIBIT E-2
Prepared by:
Captec Franchise Capital Partners LP III
24 Frank Lloyd Wright Dr., Lobby L, 4th Floor
Ann Arbor, MI 48106
When recorded, return to:
GRANTEE
WARRANTY DEED
KNOW ALL PERSONS BY THESE PRESENTS: that 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"), CONVEYS AND WARRANTS, to GIBRALTAR 1031 RESTAURANTS, LLC, a
Delaware limited liability company, whose address is PO Box 235169, Encinitas,
CA 92023 ("Grantee"), the following described premises situated in Jefferson
County, Illinois:
See legal description attached hereto as Exhibit "A"
Permanent Parcel #77-2-144-22.
P.I.N. #06-38-102-004. Address: 105
Potomac, Mt. Vernon, IL
For the full consideration of One and 00/100 Dollars ($1.00) and other good and
valuable consideration.
Dated as of the ___ day of ___________, 200__.
CAPTEC FRANCHISE CAPITAL
PARTNERS L.P. III
By: GP 3 Asset Acquisition, LLC
Its: General Partner
By: _________________________
Its: _________________________
E-2,Page-1
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this ___ day of _________,
2005, by ________________, who is personally known to me, as Vice President of
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,Page-2
Exhibit A
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.
Common Address: 105 Potomac Blvd., Mt. Vernon, IL
Permanent Tax ID No.: 06-38-102-004
E-2,Page-3
EXHIBIT E-3
DEED OF BARGAIN AND SALE
THIS DEED is made December ___, 2005 by and between CAPTEC FRANCHISE
CAPITAL PARTNERS L.P. III, a Delaware limited liability company, whose address
is 24 Frank Lloyd Wright Drive, Lobby L, 4th Floor, Ann Arbor, P.O. Box 544,
Michigan 48106-0544 ("Grantor"), and GIBRALTAR 1031 RESTAURANTS, LLC, a Delaware
limited liability company, whose address is P.O. Box 235169, Encinitas, CA 92023
("Grantee").
WITNESSETH:
That for and in consideration of the sum of Ten Dollars ($10.00), cash in
hand paid, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Grantor does hereby grant and
convey, with Special Warranty, unto the said Grantee, the following described
property, located in the City of Virginia Beach, Virginia (the "Property"):
Land situated in the City of Virginia Beach, Bayside Borough County,
Virginia, and more particularly described as follows:
See legal description attached hereto as Exhibit "A"
This conveyance is made subject to easements, conditions and restrictions
of record insofar as they may lawfully affect the Property. This conveyance is
also made expressly subject to the following restrictions which shall run with
the land and shall bind the Grantee, its successors, assigns, legal
representatives, lessees, or sublessees:
See Exhibit "B" attached hereto
WITNESS the hand of Grantor as of the ___ day of ___________2005.
CAPTEC FRANCHISE CAPITAL
PARTNERS L.P. III
By: GP 3 Asset Acquisition, LLC
Its: General Partner
By: ________________________
Its: ________________________
E-3,Page-1
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this ___ day of
_____________, 2005, by ________________, who is personally known to me, as Vice
President of 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
This instrument was prepared by CAPTEC FRANCHISE CAPITAL PARTNERS L.P. III, 24
Frank Lloyd Wright Drive, Lobby L, 4th Floor, Ann Arbor, MI 48106-0544.
RETURN TO:
GRANTEE
E-3,Page-2
EXHIBIT "A"
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.
E-3,Page-3
EXHIBIT E-4
DEED
This Deed is made on ____________________, 2005 between Captec Franchise
Capital Partners L.P. III, a Delaware limited partnership having a principal
office at 24 Frank Lloyd Wright Dr., Lobby L, 4th Floor, Ann Arbor, MI 48106
referred to as the Grantor, and Gibraltar 1031 Restaurants, LLC, a Delaware
limited liability company having a principal office at P.O. Box 235169,
Encinitas, CA 92023 referred to as the Grantee. The word "Grantee" shall mean
all Grantees listed above.
Transfer of Ownership. The Grantor grants and conveys (transfers ownership
of) the property described below to the Grantee. This transfer is made for the
sum of ______________________________________ dollars ($____________). The
Grantor acknowledges receipt of this money.
Tax Map Reference. (N.J.S.A. 46:15-2.1) Municipality of
________________________ Block No. ______________________ Lot No.
_____________________________ Account No. ____________________
[ ] No property tax identification number is available on the date of the Deed
(check box if applicable.)
Property. The property consists of the land and all the buildings and
structures on the land in the Township of Ewing, County of Mercer and State of
New Jersey. The legal description is:
ATTACHED AS EXHIBIT A
Signatures. This deed is signed and attested to by the Grantor's proper
corporate officers as of the date at the top of the first page. Its corporate
seal is affixed.
CAPTEC FRANCHISE CAPITAL PARTNERS L.P.
III
By: GP3 Asset Acquisition, LLC
Its: General Partner
By: ___________________________
Print Name:
Its: ___________________________
E-4,Page-1
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this __ day of
______________, 200_, by ___________________________, who is personally known to
me, as Vice President of 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-4,Page-2
EXHIBIT A
Land in the Township of Ewing, County of Mercer, State of New Jersey, and more
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:
5. 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;
6. 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;
7. 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
8. 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.
E-4,Page-3
EXHIBIT E-5
RECORDING REQUESTED BY,
AND WHEN RECORDED, RETURN TO:
GRANTEE
SPECIAL WARRANTY DEED
THE STATE OF TEXAS
COUNTY OF TARRANT
THAT 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") for and in
consideration of the sum of Ten and No/100 Dollars cash and other good and
valuable consideration, the receipt and sufficiency of which are acknowledged by
Grantor, paid by GIBRALTAR 1031 RESTAURANTS, LLC, a Delaware limited liability
company, whose address is P.O. Box 235169, Encinitas, CA 92023 ("Grantee"); has
GRANTED, BARGAINED, SOLD and CONVEYED, and by these presents does GRANT,
BARGAIN, SELL and CONVEY unto Grantee all that certain land situated in Tarrant
County, Texas and described on Exhibit "A" which is attached hereto and
incorporated herein by reference for all purposes, together with all
appurtenances thereon or in anywise appertaining thereto and all buildings,
structures, fixtures and improvements located thereon (said land, improvements
and appurtenances being herein together referred to as the "Property").
TO HAVE AND TO HOLD Property unto Grantee, and Grantee's heirs, legal
representatives, successors and assigns forever, and Grantor does hereby bind
Grantor, and Grantor's heirs, legal representatives, successors and assigns to
WARRANT and FOREVER DEFEND, all and singular the Property unto Grantee and
Grantee's heirs, legal representatives, successors and assigns, against every
person whomsoever lawfully claiming or to claim the same or any part thereof,
by, through or under Grantor, but not otherwise.
This Deed is given by Grantor and accepted by Grantee subject to all
matters of record, including without limitation:
See Exhibit "B" attached hereto.
E-5,Page-1
This Special Warranty Deed may be executed in a number of identical
counterparts. If so executed, each of the counterparts shall be deemed to be an
original for all purposes and all the counterparts shall, collectively,
constitute but one agreement. In making proof of this Special Warranty Deed, it
shall not be necessary to produce or account for more than one counterpart.
WITNESS the hand of Grantor as of the ___ day of ____________ 200__.
CAPTEC FRANCHISE CAPITAL
PARTNERS L.P. III
By: GP 3 Asset Acquisition, LLC
Its: General Partner
By: ________________________
Its: ________________________
E-5,Page-2
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this ___ day of ___________,
2005, by ________________, who is personally known to me, as Vice President of
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 Count of Washtenaw
The Grantee has executed this Special Warranty Deed to evidence its acceptance
of same subject to the terms, conditions, restrictions and agreements contained
herein.
Gibraltar 1031 Restaurants, LLC, a Delaware limited
liability company
By: _________________________
Its: ________________________
STATE OF _________________ )
)ss.
COUNTY OF _______________ )
The foregoing instrument was acknowledged before me this ___ day of ___________,
2005, by ________________, who is personally known to me, as the ____________ of
Gibraltar 1031 Restaurants, LLC, a Delaware limited liability company.
_______________________________________
Name: ________________________________
State of ________, County of __________
My Commission Expires: _______________
Acting in the County of _______________
This instrument was prepared by CAPTEC FRANCHISE CAPITAL PARTNERS L.P. III, 24
Frank Lloyd Wright Drive, Lobby L, 4th Floor, Ann Arbor, MI 48106-0544.
E-5,Page-3
EXHIBIT "A"
Land situated in the City of Hurst, County of Tarrant, State of Texas, and
more particularly described as follows:
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.
E-5,Page-4
EXHIBIT E-6
Parcel Tax I.D. No. (s): 062924-000000-044050
Prepared by:
Captec Franchise Capital Partners, LP III
24 Frank Lloyd Wright Dr., Lobby L, 4th Floor
Ann Arbor, MI 48106
When recorded, return to:
GRANTEE
GRANTEE E.I.N.:
GRANTEE NAME: GIBRALTAR 1031 RESTAURANTS, LLC
WARRANTY DEED
(Wherever used herein, the term "Grantor" and "Grantee" shall
include the heirs, personal representatives, successors and/or
assigns of the respective parties hereto; the use of the singular
number shall include the plural, and the plural the singular; the
use of any gender shall include all genders.)
THIS INDENTURE, made this ___ day of ___________, 200__, between 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"), and GIBRALTAR 1031 RESTAURANTS, LLC, a
Delaware limited liability company, whose address is P.O. Box 235169, Encinitas,
CA 92023 ("Grantee").
WITNESSETH, that Grantor, for and in consideration of the sum of One
Dollar ($1.00) and other good and valuable consideration, to Grantor in hand
paid by Grantee, the receipt whereof is hereby acknowledged, has granted,
bargained and sold to Grantee, Grantee's heirs and assigns forever, the
following described land, situate, lying and being in the County of Polk, State
of Florida, to-wit:
See Exhibit "A" attached hereto.
The above described land is not the homestead or contiguous to the
homestead of the Grantor.
Subject to taxes for the year 2005 and thereafter, and the following matters of
record:
See Exhibit "B" attached hereto.
And Grantor does hereby fully warrant the title to said land, and will defend
the same against the lawful claims of all persons whomsoever.
WITNESS the hand of Grantor as of the ___ day of _____________ 200__.
WITNESS: CAPTEC FRANCHISE CAPITAL
PARTNERS L.P. III
E-6, Page-1
By: GP 3 Asset Acquisition, LLC
Its: General Partner
__________________________ By: ________________________
Its: ________________________
__________________________
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this ___ day of
________________, 2005, by ________________, who is personally known to me, as
Vice President of 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-6,Page-2
EXHIBIT "A"
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.
E-6,Page-3
Exhibit B
1. Drainage Pipe Line Easement in favor of Polk County, Florida set forth in
instrument recorded in Official Records Book 2148, Page 2001.
2. Easement in favor of the City of Lakeland, Florida set forth in instrument
recorded in Official Records Book 2650, Page 337.
3. Easement in favor of the City of Lakeland, Florida set forth in instrument
recorded in Official Records Book 3826, Page 423.
E-6,Page-4
EXHIBIT E-7
WHEN RECORDED RETURN TO:
GRANTEE
Recorder's Use
SPECIAL WARRANTY DEED
THE STATE OF TEXAS )
) KNOW ALL BY THESES PRESENTS:
COUNTY OF COLLIN )
THAT THE UNDERSIGNED, 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, herein
referred to as "GRANTOR", whether one or more, for and in consideration of the
sum of TEN DOLLARS ($10.00) cash, and other good and valuable consideration in
hand paid by the Grantee, herein named, the receipt and sufficiency of which is
hereby fully acknowledged and confessed, has GRANTED, SOLD and CONVEYED, and by
these presents does hereby GRANT, SELL and CONVEY unto GIBRALTAR 1031
RESTAURANTS, LLC, a Delaware limited liability company, located at P.O. Box
235169, Encinitas, CA 92023, herein referred to as "GRANTEE", whether one or
more, the real property described as follows:
See legal description attached hereto as Exhibit A and made a part hereof;
This conveyance, however, is made and accepted subject to the matters set
forth on Exhibit B attached hereto and made a part hereof.
TO HAVE AND TO HOLD the above described premises, together with all and
singular the rights and appurtenances thereto in anywise belonging unto the said
GRANTEE, GRANTEE'S heirs, executors, administrators, successors and/or assigns
forever, and GRANTOR does hereby bind GRANTOR'S heirs, executors,
administrators, successors and/or assigns, to WARRANT AND FOREVER DEFEND all and
singular the said premises unto the said GRANTEE, GRANTEE'S heirs, executors,
administrators, successors and/or assigns, against every person whomsoever
lawfully claiming or to claim the same or any part thereof, except as to the
reservations from and exceptions to conveyance and warranty as stated herein,
when the claim is by, through or under Grantor, but not otherwise.
Current ad valorem taxes on said property having been prorated, the
payment thereof is assumed by GRANTEE.
WITNESS the hand of Grantor as of the ___ day of _____________ 200__.
CAPTEC FRANCHISE CAPITAL
PARTNERS L.P. III
By: GP 3 Asset Acquisition, LLC
Its: General Partner
By: ________________________
E-7, Page-1
Its: ________________________
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this ___ day of ___________,
2005, by ________________, who is personally known to me, as Vice President of
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
This instrument was prepared by CAPTEC FRANCHISE CAPITAL PARTNERS L.P. III, 24
Frank Lloyd Wright Drive, Lobby L, 4th Floor, Ann Arbor, MI 48106-0544.
E-7, Page-2
EXHIBIT "A"
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.
E-7, Page-3
EXHIBIT E-8
CORPORATION DEED
KNOW ALL MEN BY THESE PRESENTS: That 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
Conveys and warrants to: Gibraltar 1031 Restaurants, LLC, a Delaware limited
liability company, whose address is P.O. Box 235169, Encinitas, CA 92023,
All the estate, right, title and interest of the following described premises
situated in the Township of Macomb, County of Macomb, and State of Michigan,
described as:
See legal description attached hereto as Exhibit "A"
Commonly known as: 45590 Gratiot
Parcel Identification Number 08-36-429-007
Together with all and singular the tenements, hereditaments and appurtenances
thereto belonging or otherwise appertaining for the sum of:
- ------------
The Grantor grants to the Grantee the right to make all available divisions
under Section 108 of the Land Division Act, Act No. 288 of the Public Acts of
1967. This property may be located within the vicinity of farmland or a farm
operation. Generally accepted agricultural and management practices which may
generate noise, dust, odors and other associated conditions may be used and are
protected by the Michigan Right to Farm Act.
Subject to existing building and use restrictions, easements and zoning
ordinances, if any.
The Grantor herein warrants title against its acts or omissions only and none
other.
E-8, Page-1
WITNESS the hand of Grantor as of the ___ day of ____________ 200__.
Signed in the presence of: CAPTEC FRANCHISE CAPITAL
PARTNERS L.P. III
____________________________
By: GP 3 Asset Acquisition, LLC
____________________________ Its: General Partner
By: _________________________
Its: ________________________
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this ___ day of ________,
2005, by ________________, who is personally known to me, as Vice President of
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-8, Page-2
EXHIBIT "A"
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
E-8, Page-3
EXHIBIT E-9
PREPARED BY:
Captec Franchise Capital Partners, LP III
24 Frank Lloyd Wright Dr., Lobby L, 4th Floor
Ann Arbor, MI 48106
AFTER RECORDING, SEND TO:
Grantee
GRANTEE E.I.N.:_____________
GRANTEE: GIBRALTAR 1031 RESTAURANTS, LLC
Parcel Tax I.D. No.: 146036-1080
SPECIAL WARRANTY DEED
THIS INDENTURE, made as of this ___ day of _____________ 2005, between
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, hereinafter "Grantor", and GIBRALTAR 1031
RESTAURANTS, LLC, a Delaware limited liability company, whose address is P.O.
Box 235169, Encinitas, CA 92023, hereinafter "Grantee".
WITNESSETH:
That Grantor, for and in consideration of the sum of Ten and No/100
Dollars ($10.00), to it in hand paid by Grantee, the receipt and sufficiency of
which are hereby acknowledged, has granted, bargained and sold to Grantee, its
successors and assigns forever, the following subscribed land, including all
improvements thereon, situated, lying and being in the County of Duval, Sate of
Florida, to-wit:
See Exhibit "A" hereto attached (hereinafter the "Property")
Subject to the Restrictive Covenant referenced in that certain Special Warranty
Deed dated November 29, 1998 and recorded December 31, 1998 in Book 9177, Page
210-214 and further subject to those matters listed on Exhibit "B" attached
thereto and by reference made a part hereof.
Together with 6,800 square feet of general commercial development rights
allocated to the Property pursuant to that certain Allocation of Development
Rights executed by NPC International, Inc., a Kansas Corporation and TSBI, Ltd.,
recorded March 11, 1998 in official Records Book 8876, at Page 102 of the Public
Records of Duval County, Florida
And, except for those matters set forth on Exhibit "B" attached hereto, Grantor
does hereby fully warrant the title to said land, and will defend the same
against the lawful claims of all persons claiming by, through or under Grantor,
but against none other.
WITNESS the hand of Grantor as of the ___ day of _________________200__.
Signed in the presence of: CAPTEC FRANCHISE CAPITAL
PARTNERS L.P. III
____________________________
E-9, Page-1
By: GP 3 Asset Acquisition, LLC
____________________________ Its: General Partner
By: ___________________________
Its: __________________________
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this ___ day of
____________, 2005, by ________________, who is personally known to me, as Vice
President of 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-9, Page-2
Exhibit "A"
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.
E-9, Page-3
EXHIBIT E-10
When recorded, return to:
Grantee
PARCEL ID: 8-208-139
STATE OF NORTH CAROLINA
COUNTY OF CRAVEN
THIS DEED, made and entered into this the _____ day of
_____________________, 2005, by and between CAPTEC FRANCHISE CAPITAL PARTNERS
L.P. III, a Delaware limited partnership, having an address of 24 Frank Lloyd
Wright Dr., Lobby L, 4th Floor, Ann Arbor, MI 48106, party of the first part;
and GIBRALTAR 1031 RESTAURANTS, LLC, a Delaware limited liability company,
having an address of P.O. Box 235169, Encinitas, CA 92023, party of the second
part;
WITNESSETH:
That the party of the first part in consideration of the sum of Ten
Dollars ($10.00) and other good and valuable considerations to said party paid
by the party of the second part, the receipt of which hereby is acknowledged,
has bargained and sold and by these presents does grant, bargain, sell and
convey unto the party of the second part, said party's successors and assigns,
the following described property, to wit:
See Exhibit "A" attached hereto
This conveyance is made subject to utility and drainage easements of
record and as shown on the map referenced in Exhibit "A" and subject to the
non-exclusive license to erect and maintain a sign or signs upon a portion of
said tract as shown on said map and as more fully set forth in those deeds
recorded in Book 1007, Page 251 and Book 1007, Page 245 in the office of the
Register of Deeds of Craven County.
This conveyance is made together with all right, title and interest of the
party of the first part in and to :
(a) All buildings, structures and improvements upon the aforesaid
property including without limitation all mechanical systems,
fixtures and equipment (including without limitation,
compressors, engines, elevators and escalators); electrical
systems, fixtures and equipment; heating, air conditioning and
ventilation fixtures, systems and equipment; and plumbing
fixtures, systems and equipment; and
(b) All of the easements benefiting, and rights of access
appurtenant to the aforesaid property; and
(c) All and singular the rights and appurtenances pertaining to
the aforesaid property, including any adjacent streets, roads,
alleys, accesses and rights of way; and
(d) That certain Lease dated April 20, 1998 as amended (the
"Lease"), between the party of the first part as landlord and
RTM Acquisition Company, LLC, a Georgia limited liability
company, as tenant, together with all prepaid rentals (to the
extent applicable to a period beyond the date of closing) and
security deposits under the Lease.
This conveyance is made subject :
E-10, Page-1
(a) The easements recorded in Book 1007, Page 251 and Book 1007,
Page 245; and Book 1007, Page 443;
TO HAVE AND TO HOLD said property and all privileges and appurtenances
thereunto belonging to the party of the second part, said party's successors and
assigns forever.
And the party of the first part does covenant that said party is seized of
said property in fee and has the right to convey same in fee simple; that the
same is free from encumbrances except any encumbrances or restrictions mentioned
above and that said party will warrant and defend the title to the same against
the lawful claims of all persons whomsoever.
(REMAINDER OF PAGE LEFT BLANK)
E-10, Page-2
IN TESTIMONY WHEREOF, the party of the first part has set said party's hand
hereto and has adopted as said party's seals the typewritten word "SEAL"
appearing beside said party's name, this the day and year first above written.
CAPTEC FRANCHISE CAPITAL PARTNERS L.P. III
By: GP3 Asset Acquisition, LLC
Its: General Partner
By: ___________________________(SEAL)
Print Name:
Its: ___________________________
STATE OF _________________ )
COUNTY OF _______________ )
I, Jennifer L. Tingley, Notary Public certify that Gary A. Bruder
personally came before me this day and acknowledged that he is Vice President of
GP3 Asset Acquisition, LLC, a Delaware limited liability company, which is the
general partner of Captec Franchise Capital Partners, LP III and that he, as
Vice President, by authority duly given and as the act of the limited liability
company, executed the foregoing Deed on behalf of said limited partnership.
Witness my hand and official seal, this the _______ day of _______________2005
Official Stamp or Seal
____________________________________________
(Signature of officer taking acknowledgment)
My commission expires ________________________ (Date of expiration of commission
as notary public)
E-10, Page-3
EXHIBIT "A"
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.
E-10, Page-4
EXHIBIT F
ASSIGNMENT OF LEASES
THIS ASSIGNMENT OF LEASES ("ASSIGNMENT") is made as of , 2005, by and
between 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 ("ASSIGNOR") and GIBRALTAR 1031
RESTAURANTS, LLC, a(n) ______________ limited liability company, whose address
is [ASSIGNEE ADDRESS] ("ASSIGNEE").
RECITALS:
1. Assignor leased to each "Tenant" (as defined in attached and
incorporated Exhibit "1") certain "Premises" (as defined in Exhibit "1"),
pursuant to those certain Leases described in Exhibit "1", a true and complete
copy of each which are attached as Exhibit 2 (collectively, the "LEASES" and
individually, a "LEASE").
2. In connection with, and in consideration of, the acquisition of the
Premises by Assignee, Assignor has agreed to assign, transfer and convey to
Assignee all of its right, title and interest in and to: (a) the Leases; (b) any
security deposit(s) paid by any Tenant thereunder (collectively, the "SECURITY
DEPOSITS"); and (c) any guaranty of any Lease.
3. Assignee agrees to accept such assignment and perform all of the
Assignor's obligations under the Leases arising from and after the date hereof.
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
(a) Assignor hereby assigns to Assignee all of Assignor's right,
title and interest to and under the Leases and the Security Deposits, and
Assignee assumes all of Assignor's duties and obligations under the Leases and
agrees to perform and to be bound by all of the terms and provisions of the
Leases in the place and stead of Assignor arising from and after the date hereof
and to indemnify Assignor from and against all claims, awards or damages
resulting from the acts and/or omissions of Assignee from and after the date
hereof.
(b) To Assignor's knowledge, each Lease is in full force and effect
and has not been modified, amended or restated.
(c) This Assignment shall bind and inure to the benefit of the
parties hereto, their successors and assigns.
(d) This Assignment shall be governed by and construed in accordance
with the laws of the state where the Premises is located, without giving effect
to principles of conflicts of law.
(e) This Assignment may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the
same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK - SIGNATURE PAGE FOLLOWS]
F-1
This Assignment of Leases has been executed as of the day and year noted
above.
WITNESSES: ASSIGNOR
CAPTEC FRANCHISE CAPITAL PARTNERS L.P. III,
_______________________________ A DELAWARE LIMITED PARTNERSHIP
Print Name:____________________
By: GP3 Asset Acquisition, LLC,
a Delaware limited liability company,
_______________________________ Its General Partner
Print Name:____________________
By:________________________
Name:______________________
Title:_____________________
ASSIGNEE:
WITNESSES: GIBRALTAR 1031 RESTAURANTS, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
_______________________________ By: LMA Holdings, LLC,
Print Name:____________________ Its Sole Member
By:__________________________________
Russell Geyser, its Sole Member
_______________________________
Print
Name:____________________
F-2
EXHIBIT 1
TO
ASSIGNMENT OF LEASES
LEASE SCHEDULE
F-3
EXHIBIT 2
TO
ASSIGNMENT OF LEASES
COPIES OF THE LEASES
[ATTACH LEASES]
F-4
EXHIBIT G
NON-FOREIGN PERSONS AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a transferee
(purchaser) of a United States real property interest must withhold tax if the
transferor (seller) is a foreign person. To inform GIBRALTAR 1031 RESTAURANTS,
LLC, a Delaware limited liability company, that withholding of tax is not
required upon the disposition of a United States real property interest by
CAPTEC FRANCHISE CAPITAL PARTNERS 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
______________;
3. Transferor's office address is 24 Frank Lloyd Wright Drive, Lobby L,
Fourth Floor, Ann Arbor, Michigan 48106.
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,
A DELAWARE LIMITED PARTNERSHIP
By: GP3 Asset Acquisition, LLC,
a Delaware limited liability company,
Its General Partner
By:________________________
Name:______________________
Title:_____________________
Dated as of __________, 2005.
G-1
EXHIBIT H
FORM OF NOTICE TO TENANT
_____________, 2005
[TENANT NAME]
[TENANT ADDRESS]
Ladies and Gentlemen:
This is to inform you that on __________________, 2005 the interest of
CAPTEC FRANCHISE CAPITAL PARTNERS L.P. III, a Delaware limited partnership (the
"SELLER") in that certain Lease, dated as of ____________________, ______ (the
"LEASE"), between [SELLER][SELLER'S PREDECESSOR IN INTEREST,
____________________________], as landlord, and [TENANT NAME][TENANT ENTITY], as
tenant, for the Property, located at [PROPERTY ADDRESS], has been assigned to
GIBRALTAR 1031 RESTAURANTS, LLC, a Delaware limited liability company
("PURCHASER"). Accordingly, all future payments owed, and notices to be given,
to the landlord under the Lease should be delivered to Purchaser at the
following address: [PURCHASER ADDRESS].
Very truly yours,
CAPTEC FRANCHISE CAPITAL PARTNERS L.P. III,
A DELAWARE LIMITED PARTNERSHIP
By: GP3 Asset Acquisition, LLC,
a Delaware limited liability company,
Its General Partner
By:________________________
Name:______________________
Title:_____________________
H-1
SCHEDULE 1
LIST OF VIOLATIONS
1. The City of Hurst attached a labor lien for $25.00 against the property
located at 320 Grapevine Hwy in response to an alleged failure by Jack In
The Box (the tenant) to promptly pay a $350 invoice form the City of Hurst
for mowing and/or rubbish removal. Jack in the Box has advised Seller that
the $350 invoice was paid promptly and that they have reached agreement
with the City of Hurst to discharge the labor lien. Seller is in
possession of a copy of the release and the City of Hurst has forwarded
the original to Kristin Brown to record with closing.
Schedule 1, Page-1
SCHEDULE 2
LIST OF LITIGATION
NONE
Schedule 2, Page-1
SCHEDULE 3
LIST OF CONDEMNATION
NONE
Schedule 3, Page-1