EXHIBIT 99
AGREEMENT OF SALE
THIS AGREEMENT OF SALE ("Agreement") is dated as of the 15th day of June,
2006 between RUBEN MANAGEMENT LLC, of 1A Ramsey Rd., Great Neck, NY 11023,
together with all successors and assigns ("Purchaser"), and CAPTEC FRANCHISE
CAPITAL PARTNERS L.P. IV, a Delaware limited partnership, of 24 Frank Lloyd
Wright Drive, Lobby L, Fourth Floor, Ann Arbor, Michigan 48105 ("Seller").
RECITALS:
Seller is the owner of certain real property and improvements located at
the address set forth in the Fundamental Sale Provisions below.
Purchaser desires to purchase, and Seller is willing to sell the real
property and improvements upon the terms and conditions set out below.
In consideration of the terms, covenants and conditions set forth in this
Agreement, Seller and Purchaser agree as follows:
1. FUNDAMENTAL SALE PROVISIONS. Unless otherwise defined herein,
capitalized terms used in this Agreement shall have the meanings listed in the
following Fundamental Sale Provisions.
Land: That certain real property commonly known as 1479
Main Street, located in the City of Hamilton, State
of Ohio and more particularly described in the
attached Exhibit "A".
Lease: That certain Lease, dated February 28, 1997, as
amended, ("Lease"), between Seller and Hollywood
Entertainment Corporation an Oregon corporation
("Tenant").
Deposit: $25,000, payable as set forth in Section 3 below and
shall become a lien on the Property in the event of
Seller's default.
Subject State: State of Ohio
Purchase Price: $1,450,000, payable as set forth in Section 3 below.
Title Company: Lawyer's Title Insurance Corporation
140 E. 45th Street
New York, NY 10017
Phone: (212) 949-0100
Fax: (212) 949-2438
Due Diligence Period: Forty-Five (45) days after the Effective Date.
Financing Period: Forty-Five (45) days after the expiration of the Due
Diligence Period.
Closing: To occur on or about thirty (30) days following the
expiration of the Financing Period or such other
date as mutually agreed upon in writing between
Seller and Purchaser. The closing shall take place
via mail
Seller's Broker: CB Richard Ellis, Inc., a Delaware corporation, with
an address at 505 N. Brand Ave., Suite 100,
Glendale, CA 91203; attn: Sterling Champ.
Purchaser's Broker: American Investment Properties, Inc., a corporation,
with an address of 600 Old Country Road, Ste. 425,
Garden City, NY 11530; attn: Ron Koenigsberg
Effective Date: The date on which the original Agreement is received
by Elie Aryeh at 110-20 71st Road - Suite 110,
Forest Hills, New York 11375
2. AGREEMENT TO SELL AND CONVEY. Seller agrees to sell and convey to
Purchaser, and Purchaser agrees to purchase from Seller, subject to the terms
and conditions set forth in this Agreement, all of Seller's right, title and
interest in and to:
(a) Project. All buildings, structures, and improvements
(collectively, "Improvements") on the Land (collectively, "Project");
(b) Easements. All of the recorded easements benefiting, and
recorded rights of access appurtenant to, the Land;
(c) Rights and Appurtenances. All and singular, the rights and
appurtenances pertaining to the Land, including any adjacent streets, roads,
alleys, accesses, and rights-of-way; and
(d) Lease. The Lease, together with all prepaid rentals (to the
extent applicable) to a period beyond the date of Closing.
All of the foregoing is collectively referred to as "Property".
3. PURCHASE PRICE; DEPOSIT. The Purchase Price for the Property shall be
payable as follows:
(a) Deposit. Within three (3) days of the date of this Agreement,
Purchaser shall place the Deposit in escrow with the Title Company. The Deposit
shall be held in accordance with the terms of the Earnest Money Escrow Agreement
attached hereto as Exhibit B and the laws of the Subject State and applied to
the Purchase Price at Closing (if the transaction is consummated). The Deposit
shall be held in a money market account reasonably acceptable to Purchaser and
Seller and all interest shall be paid to the party entitled to the Deposit. Upon
the expiration of the Due Diligence Period, assuming Purchaser has not otherwise
elected to terminate this Agreement, the Deposit shall be deemed non-refundable
(except in the event of Seller's failure to consummate the transaction described
herein as a result of Seller's default hereunder or in the event that the
Financing Contingency (described in Section 5(c) below) is not satisfied or
waived); and
(b) Balance of Purchase Price. The balance of the Purchase Price
(plus or minus closing adjustments, as the case may be), together with the
Deposit, shall be paid to Seller at the Closing. Payment shall be by wire
transfer of immediately available U.S. funds in accordance with wire transfer
instructions provided by Seller prior to the Closing. In exchange for such
payment, Seller shall deliver to Purchaser a deed (in form required by the
Subject State) whereby Seller only warrants against its own acts and/or
omissions ("Deed"). The Deed shall be substantially in the form attached as
Exhibit "C" and shall convey title to Purchaser, subject to the lien for taxes
which are not yet due and payable and such other exceptions to title which are
disclosed in the Title Commitment (defined below) and to which Purchaser
consents in writing or waives its objection thereto pursuant to this Agreement.
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4. DUE DILIGENCE ITEMS. Unless a longer time period is specifically
identified below, within five (5) days of the date of this Agreement, and at its
sole cost and expense, Seller shall furnish or cause Broker to furnish to
Purchaser the following items (collectively, "Due Diligence Items"):
(a) Title Work. A copy of the owner's policy of title insurance
issued to Seller at the time it acquired the Project. Within fifteen (15) days
of the date of this Agreement, and provided Purchaser has delivered evidence to
Seller that the Deposit has been tendered to the Title Company, Seller shall
provide a commitment for an owner's policy of title insurance on the Project
("Title Commitment"), which shall: (i) be issued by Title Company in favor of
Purchaser without so called "Standard Exceptions", (ii) be dated after the date
of this Agreement, (iii) provide for coverage in an amount equal to the Purchase
Price, (iv) show the state and quality of title to the Property, together with
all liens, encumbrances and other charges and items affecting the Property; and
(v) be accompanied by legible copies of all documents referenced in the Title
Commitment. Any endorsements to the Title Commitment shall be obtained by
Purchaser at Purchaser's sole cost and expense;
(b) Survey. A copy of the existing ALTA as-built survey of the Land,
if any, in Seller's possession ("Survey");
(c) Certificate of Occupancy. A copy of the existing certificate of
occupancy, if any, in Seller's possession;
(d) Phase I. A copy of the existing "Phase I" environmental
assessment of the Project, if any, in Seller's possession; and
(e) Lease Documents. A complete copy of the Lease, as amended.
Seller agrees to use his best efforts to work with Tenant to obtain
copies of any permits and/or approvals, if applicable, as reasonably requested
by Purchaser that may have been issued to comply with local ordinances.
Purchaser shall promptly deliver to Seller written acknowledgement
of Purchaser's receipt of each Due Diligence Item. Within seven (7) days after
the date of this Agreement, Purchaser shall notify Seller in writing in the
event that Purchaser has not yet received any Due Diligence Item (which notice
shall specify any Due Diligence Item not yet received); otherwise, Purchaser
shall be deemed to have received all of the Due Diligence Items.
Purchaser acknowledges and agrees that, except for such items which
are in the public records, the Due Diligence Items are proprietary and
confidential in nature and have been and/or will be made available to Purchaser
solely to assist Purchaser in determining the feasibility of purchasing the
Property. Purchaser agrees not to disclose the Due Diligence Items, or any of
the provisions, terms or conditions thereof to any party outside of Purchaser's
organization except: (i) to Purchaser's accountants, attorneys, lenders,
prospective lenders, environmental consultants, investors and/or prospective
investors (collectively, "Permitted Outside Parties") in connection with the
transactions contemplated by this Agreement, or (ii) as may be required by law.
Purchaser shall take such actions as are necessary so as to ensure that the
Permitted Outside Parties also protect the confidential nature of the Due
Diligence Items to the same extent as Purchaser is obligated to do so hereunder.
In permitting Purchaser and the Permitted Outside Parties to review the Due
Diligence Items, Seller has not waived any privilege or claim of confidentiality
with respect thereto and no third party benefits of any kind, either expressed
or implied, have been offered, intended or created by Seller and any such claims
are expressly rejected by Seller and waived by Purchaser on its own behalf and
on behalf of the Permitted Outside Parties.
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Purchaser shall return to Seller all of the Due Diligence Items
(including all copies Purchaser has made of the Due Diligence Items) at such
time as this Agreement is terminated for any reason. Purchaser's obligations
under this Section 4 shall survive the termination of this Agreement.
Purchaser acknowledges that most of the Due Diligence Items were
prepared by third parties and, in many instances, were prepared prior to
Seller's ownership of the Property. As to items 4a through and included 4d
above, Purchaser further acknowledges and agrees that, except as specifically
set forth herein: (i) neither Seller nor any of its directors, officers,
partners, members, agents, employees or contractors have made any warranty or
representation regarding the truth, accuracy or completeness of the Due
Diligence Items or the sources thereof, (ii) Seller has not undertaken any
independent investigation as to the truth, accuracy and completeness of the Due
Diligence Items, (iii) neither Seller nor any director, partner, member,
officer, employee or agent acting on Seller's behalf is authorized to make any
representations or warranties of whatsoever kind or nature regarding either the
truth, accuracy or completeness of the Due Diligence Items or the Property
(other than as described herein) and (iv) Seller is providing the Due Diligence
Items to Purchaser (or making the Due Diligence Items available to Purchaser)
solely as an accommodation to Purchaser. Purchaser further acknowledges and
agrees that Purchaser shall be solely responsible for reviewing, analyzing and
determining the truth, completeness, accuracy and adequacy of the Due Diligence
Items.
5. CONDITIONS TO PURCHASER'S OBLIGATIONS.
(a) Objection Notice. Purchaser shall have until the close of
Seller's business on the date the Due Diligence Period expires to deliver
written notice to Seller indicating whether any of the Due Diligence Items, the
condition of the Property, or title thereto is unsatisfactory to Purchaser and
specifying the matters which are not satisfactory or to which Purchaser
otherwise objects ("Objection Notice") or simply stating they do not wish to
purchase the property in which event the Seller shall immediately return the
deposit herein to Purchaser. In the event Seller does not receive an Objection
Notice within the time period set forth in the preceding sentence, Purchaser
shall be deemed to have accepted the Due Diligence Items, the condition of the
Property, and title thereto, as disclosed in the Due Diligence Items, at which
time the Deposit shall, except as provided in the following sentence, become
non-refundable. The Deposit shall be refundable in the event of Seller's failure
to consummate the transaction described herein as a result of Seller's default
hereunder.
(b) Responses to Objection Notice. In the event that either: (i)
Purchaser indicates in the Objection Notice that the Property or the Due
Diligence Items are not satisfactory in any material respect, or (ii) Purchaser
discovers and informs Seller in writing of, or Seller informs Purchaser of, any
change in the status of title to the Property occurring after the date of this
Agreement and resulting in an encumbrance on the Property in addition to the
Lease and the Permitted Exceptions (as defined below) (each a "Title Defect"),
Seller may promptly undertake to cure the items specified in the Objection
Notice or eliminate any such Title Defect to the reasonable satisfaction of
Purchaser and/or, to the extent possible, cause the Title Company to insure over
any Title Defect to the reasonable satisfaction of Purchaser and accordingly
modify the Title Commitment. In the event Seller elects not to effect such cure
or is either unable to do so or have the Title Company so insure over
Purchaser's objections within ten (10) days after receipt by Seller of the
Objection Notice or notice of any Title Defect, Purchaser may, at its option:
(1) waive any of its objections set forth in the Objection Notice or relating to
the Title Defect, without any adjustment in the Purchase Price, or (2) terminate
this Agreement, in either event by giving prompt written notice thereof to
Seller. In the event Purchaser elects to terminate this Agreement, the Deposit
shall be returned to Purchaser and, except as expressly set forth in this
Agreement, neither Seller nor Purchaser shall have any further obligations under
this Agreement.
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(c) Financing Contingency. If the Purchaser and Seller have
initialed that "Financing Contingency Applies" below, Purchaser's obligations
hereunder are contingent upon Purchaser's ability to obtain a loan ("Loan") to
finance its purchase obligation hereunder. Purchaser shall: (i) apply for such
Loan within ten (10 days after the expiration of the Due Diligence Period, and
(ii) shall have the Financing Period in which to obtain a commitment for
financing ("Commitment"). In the event Purchaser is unable to obtain the
Commitment prior to the expiration of the Financing Period, Purchaser shall have
the right to terminate this Agreement by delivering written notice thereof to
Seller and the Escrow Agent prior to the expiration of the Financing Period. The
failure by Purchaser to deliver such notice of termination prior to the
expiration of the Financing Period shall be an election by Purchaser to waive
such financing contingency, thereby causing the Deposit to become
non-refundable. In the event of Purchaser's timely election to terminate this
Agreement, the entire portion of the Deposit then held by the Escrow Agent shall
be delivered to Purchaser, subject to Purchaser's continuing obligations to
return the Due Diligence Items and Purchaser's indemnity obligations under
Section 15.
Financing Contingency Applies: Seller's Initials x Purchaser's Initials: x
Financing Contingency Does Not Apply: Seller's Initials _______ Purchaser's Initials: _______
(d) SNDA and Estoppel Certificate. Upon expiration or waiver of the
Due Diligence Period set forth above, Seller will make a one time request from
Tenant for a current estoppel certificate and a subordination, non-disturbance
and attornment agreement ("SNDA"), each in the form (if any) contemplated by the
Lease. If the form of Tenant estoppel certificate and/or SNDA is not prescribed
by the Lease and Purchaser submits to Seller the form of estoppel certificate
and/or SNDA (as the case may be) preferred by Purchaser or required by
Purchaser's Lender (if any) prior to the expiration of the Due Diligence Period,
Seller will submit such form of estoppel certificate and SNDA to Tenant if such
form is reasonable. Notwithstanding anything contained herein to the contrary,
in the event Tenant fails to provide the estoppel certificate and/or SNDA
required by the Lease or alleges that there are outstanding material events of
default under the Lease which cannot be resolved to Purchaser's reasonable
satisfaction by the Closing, then, in such event, Purchaser's sole remedy shall
be to waive the requirement or to terminate this Agreement and receive the
prompt return of its Deposit. Seller shall be under no obligation to obtain any
updates to the estoppel certificate and/or SNDA received from Tenant.
6. PERMITTED EXCEPTIONS. Seller shall convey the Property to Purchaser
subject to any easements and exceptions noted in the Title Commitment, the
Survey, and the Lease (collectively, "Permitted Exceptions").
7. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to Purchaser as to the following matters, each of which is true and
correct as of the date of this Agreement, and each of which shall be true and
correct as of the date of Closing. As used in this Section, the phrase "to
Seller's knowledge" means Seller's actual knowledge, without duty of inquiry.
(a) Authority. Seller is duly formed in the appropriate state and
has obtained all necessary consents and approvals required by its formation
documents for the execution of this Agreement and the performance of its
obligations arising hereunder;
(b) Compliance. Seller has received no written notice from any
governmental agency alleging a violation of any statute, ordinance, regulation
or code with respect to the Property which violation has not been cured;
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(c) Litigation. There is no pending nor, to Seller's knowledge,
threatened matters of litigation, administrative action or examination, claim or
demand relating to the Property or Seller's interest in the Property;
(d) Eminent Domain. There is no pending nor, to Seller's knowledge,
contemplated or threatened eminent domain, condemnation or other governmental
takings or proceedings relating to the Property or any part thereof; and
(e) Foreign Entity. Seller is not a foreign person or entity under
the Foreign Investment in Real Property Tax Act of 1980, as amended, and no
taxes or withholding under the such act shall be assessed against or imposed
upon Purchaser in connection with the transaction contemplated by this
Agreement.
Seller acknowledges and agrees that the warranties and
representations set forth above shall survive the Closing for a period of six
(6) months. If, prior to Closing, Purchaser receives written notice from Seller
that any material representation or warranty of Seller is untrue and cannot be
remedied, or Purchaser becomes aware that any material representation or
warranty of Seller is untrue and can not be remedied, Purchaser shall, as
Purchaser's sole and exclusive remedy, be entitled to terminate this Agreement
by written notice delivered to Seller on or before the Closing, in which event,
the Deposit shall be refunded to Purchaser, and, except for the terms and
provisions of this Agreement which specifically survive the termination of this
Agreement, the parties shall have no further obligations hereunder. If Purchaser
is so advised and Purchaser fails to terminate this Agreement within thirty (30)
days after receipt of said notice via certified or registered mail (return
receipt requested), Purchaser shall be deemed to have waived the breach of such
representation or warranty and shall have no further rights or remedies as a
result of the breach of such representation or warranty. Seller does not, by
this Agreement, represent or warrant that there will be no changes in any of the
matters referred to in Seller's representations or warranties after the date
same are made through the acts and/or omissions of Tenant, and shall have no
liability or responsibility in the event that any representation or warranty
becomes false or misleading as a result of any change in circumstances after the
date such representations or warranties are made.
8. COVENANTS OF SELLER.
(a) Actions. From and after the date of this Agreement and until the
date of Closing, Seller shall: (i) use commercially reasonable efforts to keep
(or cause to be kept) the Property fully insured in accordance with prudent and
customary practice and as required by the Lease; (ii) not alienate, encumber or
transfer the Property or any part thereof in favor of or to any other person or
entity unless required by law; (iii) not amend the Lease without the prior
written consent of Purchaser (which consent shall not be unreasonably withheld,
conditioned or delayed); and (iv) not commence any eviction proceedings against
the tenant without purchaser's prior written consent (which consent shall not be
unreasonably withheld, conditioned or delayed); and
(b) Change in Status. From and after the date of this Agreement and
until the date of Closing, Seller shall promptly give Purchaser written notice
of any change in the status of title to the Property, which either changes the
nature of any Permitted Exceptions or represents an additional encumbrance on
the Property.
9. CLOSING. Seller and Purchaser shall consummate the transactions
contemplated by this Agreement at Closing through an escrow with the Title
Company and pursuant to escrow instructions
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acceptable to the Title Company, Seller and Purchaser. The attorneys for Seller
and Purchaser are authorized to execute the escrow instructions letter, any
amendments thereto and all directions or communications thereunder.
10. SELLER'S OBLIGATIONS AT THE CLOSING. At the Closing, Seller shall:
(a) Deed. Execute and deliver the Deed for each Property in the form
attached hereto as Exhibit C to Purchaser;
(b) Title Policy. Cause the Title Company to furnish to Purchaser an
owner's policy of title insurance pursuant to the Title Commitment ("Title
Policy");
(c) Closing Statement. Execute and deliver to Purchaser a closing
statement itemizing the Purchase Price and all adjustments thereto as provided
in this Agreement;
(d) Assignment of Lease. Execute and deliver to Purchaser an
assignment of all of Seller's right, title and interest in and to the Lease in
substantially the form attached as Exhibit "D" ("Assignment"), together with
such consents to and notices of such assignment as may be required under the
Lease;
(e) Affidavit. Execute and deliver to Purchaser a Non-Foreign
Persons Affidavit in substantially the form attached as Exhibit "E";
(f) Estoppel Certificate and SNDA. Deliver to Purchaser an original
of the estoppel certificate and SNDA (if any) from the Tenant for the Lease and
all subsequent amendments and assignments in the form required by Section 5(d)
above;
(g) Notice to Tenant. Execute and deliver to Purchaser a "Notice to
Tenant" substantially in the form attached as Exhibit "F"; and
(h) Additional Documents. Execute and deliver to Purchaser such
other documents or instruments as may be required under this Agreement, or as
otherwise required in Purchaser's reasonable judgment to effectuate the Closing.
11. PURCHASER'S OBLIGATIONS AT CLOSING. Subject to the terms, conditions,
and provisions hereof, and contemporaneously with the performance by Seller of
its obligations under Section 10 above, Purchaser shall:
(a) Purchase Price. Pay Seller the Purchase Price;
(b) Closing Statement. Execute and deliver to Seller a closing
statement itemizing the Purchase Price and all adjustments thereto as provided
in this Agreement;
(c) Assignment of Lease. Acknowledge the Assignment for the purpose
of assuming the obligations of Seller under the Lease; and
(d) Additional Documents. Execute and deliver to Seller such other
documents or instruments as may be required under this Agreement, or as
otherwise required in Seller's reasonable opinion to effectuate the Closing.
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Purchaser's obligation to close shall be specifically contingent
upon the Title Company furnishing to Purchaser the Title Policy and the Tenant
executing and delivering to Purchaser an estoppel certificate in accordance with
the provisions of the Lease. Purchaser acknowledges that Seller's failure to
deliver items 10 (b) and 10 (f) shall not constitute a default by Seller
hereunder, nor expose Seller to damages, but, in such circumstances, Purchaser
shall nonetheless be able to terminate this Agreement and receive the immediate
return of the Deposit.
12. CLOSING COSTS. At the Closing, Seller shall pay: (a) the cost of
preparation of the Deed, (b) all premiums and fees related to the Title Policy,
but excluding endorsement premiums or any charges for extended coverage
endorsements, (c) real estate transfer taxes and fees payable upon recordation
of the Deed; and (d) subject to Section 21 below, the real estate brokerage
commissions payable to Broker by reason of the transaction contemplated by this
Agreement. Seller and Purchaser shall each pay half of any title closer charges
and shall further pay their own attorneys' fees. Purchaser shall be responsible
for all other costs and expenses of the Closing including, but not limited to
(a) the costs and expenses of any additional endorsements and/or additional
title insurance coverage requests by Purchaser and (b) any other expenses, taxes
and fees related to Purchaser's Loan, including any mortgage taxes and any
lender's policy of title insurance. Seller and Purchaser further agree to each
be responsible for any additional fees reasonable and customary as determined by
the Title Company for the applicable State and County.
13. PRO-RATIONS.
(a) Taxes. Purchaser acknowledges that the Lease obligates the
Tenant to pay the taxes directly to the taxing authority. Accordingly, the
parties shall not prorate taxes between Purchaser and Seller, it being
acknowledged that Tenant shall be responsible for same. In no event shall Seller
be responsible for the payment of any real estate taxes and/or assessments
applicable during its period of ownership in the event the Tenant has defaulted
in the prompt payment of same.
(b) Rent. Rent actually paid for the month in which the Closing
occurs shall be prorated between Seller and Purchaser as of the close of
business on the date of Closing, with Purchaser receiving a credit for amounts
attributable to time periods following such date. To the extent either party
hereto receives rent after Closing to which the other has a claim, such party
shall remit same to the party entitled thereto within ten (10) days of receipt.
To the extent any rent arrearages exist under the Lease, Seller shall have the
right, to pursue Tenant for such arrearages since there is no security deposit.
14. POSSESSION. Subject to the rights of Tenant under the Lease, Seller
shall deliver possession of the Property to Purchaser at Closing.
15. INSPECTION. From and after the date of this Agreement and until the
expiration of the Due Diligence Period, Seller agrees that Purchaser and its
agents and representatives shall, subject to arranging all onsite visits with
Seller and Broker, be entitled to enter upon the Property for inspection, soil
tests, examination, land-use planning and for any due diligence investigation
relating to Purchaser's proposed ownership of the Property, subject to the
rights of the Tenant under the Lease. As to any such investigation, Purchaser
shall restore the Property to the same condition as existed prior to any such
investigation, and shall not: (i) perform any invasive tests without Seller's
prior consent, or (ii) interfere with the possessory rights of the Tenant.
Purchaser shall indemnify and hold harmless Seller from and against, and shall
reimburse Seller with respect to, any and all claims, demands, causes of action,
loss, damage, liabilities, costs and expenses (including reasonable attorneys'
fees and disbursements) asserted against or incurred by Seller by reason of or
arising out of any such on-site investigation, it being acknowledged that all
such obligations shall survive the termination of this Agreement.
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16. ACKNOWLEDGEMENT. Purchaser understands and acknowledges that Seller
has not made and does not make any representation or warranties whatsoever, oral
or written, express or implied, to Purchaser with respect to the condition,
state of repair or operability of the Property (including but not limited to
environmental protection, pollution or land use laws, rules, regulations, orders
or requirements, including the existence in, on, or under the Property of any
hazardous materials or substances, soil or sub-soil conditions, all improvements
thereon, the structural portions thereof, and the personal property, mechanical,
plumbing, electrical, sewer, sanitary disposal, heating, ventilating and air
conditioning systems and other building service equipment therein), with respect
to the suitability or fitness for the Purchaser's intended use or purpose or
with respect to the appreciation or income potential of the Property, the zoning
of the Property, the platting of the Property, the availability or adequacy of
utilities to the Property, access to the Property, requirements in connection
with any development of the Property or any other matter whatsoever. Purchaser
further acknowledges and agrees that Purchaser has investigated or will
investigate all matters of concern to Purchaser with respect to the Property and
that Purchaser is not relying and hereby expressly waives any reliance on any
representation or warranty, oral or written, express or implied, of Seller with
respect to such matters. Purchaser agrees to purchase the Property and all
improvements thereon and mechanical systems therein delivered to Purchaser, as
is, where is, with all faults. Notwithstanding any provision of this Agreement
to the contrary, Purchaser releases Seller from any liability, claims, damages,
expenses of any kind or nature, or any other claim resulting from the presence,
removal or other remediation of hazardous materials or substances in, on, under
or about the Property or which has migrated from adjacent lands onto the
Property or from the Property to adjacent land. Purchaser further acknowledges
that Seller is not aware of any environmental issues on the subject property
other than those, if any, noted in the Phase I dated February 20, 1997. The
Phase I dated February 20, 1997 has been or will be provided to the Purchaser
for review during the Due Diligence period. The provisions of this Section 16
shall survive the Closing.
17. FURTHER ASSURANCES. Seller and Purchaser agree to perform such other
acts, and to execute, acknowledge, and/or deliver subsequent to the Closing such
other instruments, documents and other materials as Seller or Purchaser may
reasonably request in order to effectuate the consummation of the transactions
contemplated in this Agreement and to vest title to the Property in Purchaser.
The provisions of this Section 17 shall survive the Closing.
18. DEFAULT BY SELLER. In the event that Seller should fail to consummate
the transactions contemplated by this Agreement for any reason, excepting
Purchaser's default or the failure of any of the conditions to Seller's
obligations hereunder to be satisfied or waived, Purchaser may use remedies
available under the laws, terminate this Agreement by giving prompt written
notice thereof to Seller, or specifically enforce this Agreement; provided,
however, that in the event that such failure of Seller was beyond Seller's
reasonable control, Purchaser's sole remedy shall be to terminate this
Agreement; provided, further, in the event Purchaser elects to specifically
enforce this Agreement, it must institute such action within thirty (30) days
following Seller's default, failing which, Purchaser shall be deemed to have
waived the right to pursue specific performance.
19. DEFAULT BY PURCHASER. In the event Purchaser should fail to consummate
the transactions contemplated in this Agreement for any reason, except default
by Seller or the failure of any of the conditions to Purchaser's obligations
hereunder to be satisfied or waived, Seller's sole remedy shall be to retain the
Deposit and terminate this Agreement by giving prompt written notice thereof to
Purchaser and, except as expressly set forth in this Agreement, neither Seller
nor Purchaser shall have any further obligations under this Agreement.
20. ATTORNEY'S FEES. Should either Seller or Purchaser employ an attorney
or attorneys to enforce any of the provisions of this Agreement or to protect
its interest in any matter arising under this Agreement or to recover damages
for the breach of this Agreement, the losing party in any final judgment
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agrees to pay the prevailing party all reasonable costs, charges, and expenses,
including reasonable attorney's fees, expended or incurred by it in connection
therewith.
21. BROKERAGE COMMISSIONS. Each party represents to the other that no
brokers other than Seller's Broker and Purchaser's Broker have been involved in
this transaction. In the event that this transaction is consummated and Closing
occurs, Seller shall pay Seller's Broker a real estate commission as set forth
in a separate written agreement between Seller and Seller's Broker and shall
also pay Purchaser's Broker two percent (2%) of the Purchase Price, which sum is
the total fee agreed to by Purchaser's Broker. Seller and Purchaser agree that
if any other claims for brokerage commissions are ever made against Seller or
Purchaser in connection with this transaction, all claims shall be handled and
paid by the party whose actions or alleged commitments form the basis of such
claim. Seller agrees to indemnify and hold Purchaser harmless from any loss,
liability, damage, cost, or expense (including, without limitation, reasonable
attorney's fees) paid or incurred by Purchaser by reason of any claim to any
broker's, finder's, or other fee in connection with this transaction by any
party claiming by, through, or under Seller. Except as provided in the foregoing
sentence, Purchaser agrees to indemnify and hold Seller harmless from any loss,
liability, damage, cost or expense (including, without limitation, reasonable
attorney's fees) paid or incurred by Seller by reason of any claim to any
broker's, finder's, or other fee in connection with this transaction by any
party claiming by, through, or under Purchaser, which obligation of each party
shall survive the Closing.
22. RISK OF LOSS. All risk of loss or damage to the Property prior to
Closing, including, without limitation, loss by reason of eminent domain or
condemnation proceedings or by reason of fire, windstorm, or other casualty,
shall rest with Seller. If, prior to the Closing, the Property is subject to
eminent domain or condemnation proceedings or is damaged as a result of fire or
other casualty, Seller shall give Purchaser written notice thereof and Purchaser
shall have the option, exercisable by written notice to Seller within fifteen
(15) days after the date of Seller's notice, to either:
(a) Accept Title. Accept title to the Property without any reduction
of the Purchase Price, in which event, at the Closing and subject to the rights
of Tenant, Seller shall assign to Purchaser any eminent domain or condemnation
award or insurance proceeds payable to Seller or its successors or assigns by
reason of such eminent domain or condemnation proceeding or damage or casualty,
and pay over to Purchaser any monies theretofore received by Seller in
connection with such eminent domain or condemnation proceeding or fire or other
casualty; or
(b) Terminate. Terminate this Agreement, in which event neither
Seller nor Purchaser shall have any further obligations under this Agreement and
the Purchaser shall receive the prompt return of the Deposit, and all reasonable
costs incurred. Purchaser shall supply copies of invoices to Seller for all
costs incurred before reimbursement.
In the event Purchaser shall fail to exercise either such option
within such fifteen (15) day period, Purchaser shall be deemed to have elected
the option set forth in Section 22(a).
23. ASSIGNMENT. Except as set forth in Section 31 below, neither Purchaser
nor Seller may assign its respective rights or obligations under this Agreement
without the consent of the other.
24. NOTICES. Any notice to be given or to be served upon either party in
connection with this Agreement must be in writing and shall be given by
certified or registered mail (return receipt requested), by overnight express
delivery or by facsimile (followed by hard copy by either of the two preceding
methods of delivery) and shall be deemed to have been given upon receipt.
Notices shall be sent to the addresses set forth on the signature page of this
Agreement and shall be deemed delivered upon delivery or on the date when the
receiving party first refuses to accept such delivery. Either party may at any
time,
10
by giving five (5) days written notice to the other, designate any other address
in substitution of any of the foregoing addresses to which such notice shall be
given and other parties to whom copies of all notices under this Agreement shall
be sent.
25. BINDING EFFECT. This Agreement shall be binding upon and shall inure
to the benefit of the Seller and Purchaser and their respective permitted
successors and assigns.
26. ENTIRE AGREEMENT. This Agreement represents the entire agreement
between Seller and Purchaser with respect to the subject matter hereof, and all
prior agreements between Seller and Purchaser with respect to such subject
matter shall have no further force or effect, including, without limitation, any
proposal letters.
27. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the Subject State, without giving effect to
principles of conflicts of law.
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. INTENTIONALLY LEFT BLANK
30. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original, and all of which
together shall constitute one and the same instrument.
31. 1031 EXCHANGE. In the event, prior to Closing, Purchaser shall desire
to structure this transaction as a part of a tax deferred exchange, pursuant to
Section 1031 of the Internal Revenue Code, Purchaser may assign its rights, but
not its obligations, to a Qualified Intermediary under Treasury Regulation
1.103(k)-(1)(g)(4) and Seller, as an accommodation to Purchaser, shall enter
into and execute any such amendatory documentation as Purchaser may reasonably
request; provided, however, that Seller shall not incur any additional cost,
expense, risk or potential liability whatsoever on account thereof. Seller shall
have no liability to Purchaser whatsoever in the event the subject transaction
is found, held or adjudicated not to qualify as or as a part of a tax deferred
exchange pursuant to Section 1031 of the Internal Revenue Code.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
effective as of the date first written above.
11
PURCHASER: SELLER:
RUBEN MANAGEMENT LLC
CAPTEC FRANCHISE CAPITAL PARTNERS L.P. IV
By: /s/ Mousa Nouriyelian By: GP 4 Asset Acquisition, LLC
----------------------- Its: General Partner
Print Name: Mousa Nouriyelian
Its: President By: /s/ Daniel J. Kelly
--------------------------
Print Name: Daniel J. Kelly
Send Notices To: Its: Vice President
One A Ramsey Road Send Notices To:
Great Neck, NY 11023
__________________________ Joanna Zabriskie
__________________________ Vice President
Telephone: 516 312-4560 24 Frank Lloyd Wright Drive
Facsimile: _______________ Lobby L, Fourth Floor, P.O. Box 544
Ann Arbor, Michigan 48106-0544
Telephone: (734) 994-5505
Facsimile: (734) 994-1376
With a Copy To:
Elie Aryeh, Esq. With a copy to:
Elazar Aryeh PC
110-20 71st Road - Suite 110 Jennifer Tingley
Forest Hills, New York 11375 Documentation Manager
6444 Meadow Ridge Ct.
Telephone: (718) 261-0210 Dexter, MI 48130
Telephone: 734-426-2901
Facsimile: (718) 261-2981 Facsimile: 734-913-0584
12
SCHEDULE OF EXHIBITS
A - Legal Description of the Land
B - Form of Earnest Money Escrow Agreement
C - Form of Deed
D - Form of Assignment of Lease
E - Form of Non-Foreign Persons Affidavit
F - Form of Notice to Tenant
13
EXHIBIT A
LEGAL DESCRIPTION
LOCATED IN THE CITY OF HAMILTON, COUNTY OF BUTLER, STATE OF OHIO AND BEING PART
OF CITY LOT NUMBER 29835 AND BEING DESCRIBED MORE PARTICULARLY AS FOLLOWS:
BEGINNING AT THE SOUTHERN MOST POINT OF SAID LOT 29835, SAID POINT ALSO LYING ON
THE WEST RIGHT-OF-WAY LINE OF STATE ROUTE 177; THENCE WITH A NORTHWESTERLY LINE
OF SAID LOT 29835 NORTH 89 DEGREES 42 MINUTES 00 SECONDS WEST, 416.42 FEET TO A
POINT ON THE CURVE OF A FUTURE EAST RIGHT-OF-WAY LINE OF CARLISLE AVENUE; THENCE
WITH THE FUTURE EAST RIGHT-OF-WAY LINE OF CARLISLE AVENUE THE FOLLOWING TWO (2)
COURSES:
ON A CURVE TO THE LEFT WITH A RADIUS OF 260.00 FEET INTERNAL ANGLE OF 09 DEGREES
05 MINUTES 12 SECONDS (LONG CHORD BEARING NORTH 20 DEGREES 56 MINUTES 28 SECONDS
WEST, 41.19 FEET) ALONG THE ARC 41.23 FEET TO A POINT; THENCE NORTH 25 DEGREES
29 MINUTES 04 SECONDS WEST, 3.23 FEET TO A POINT; THENCE LEAVING THE FUTURE EAST
RIGHT-OF-WAY LINE OF CARLISLE AVENUE NORTH 52 DEGREES 49 MINUTES 15 SECONDS
EAST, 312.88 FEET TO THE NORTHEAST CORNER OF SAID LOT 29835 AND A POINT ON THE
WEST RIGHT-OF-WAY LINE OF SAID STATE ROUTE 177; THENCE WITH THE WEST
RIGHT-OF-WAY LINE OF STATE ROUTE 177 SOUTH 38 DEGREES 13 MINUTES 38 SECONDS
EAST, 296.14 FEET TO THE TRUE POINT OF BEGINNING CONTAINING 1.2601 ACRES MORE OR
LESS SUBJECT HOWEVER TO ALL LEGAL HIGHWAYS, EASEMENTS AND RESTRICTIONS OF
RECORD.
D-1
EXHIBIT B
FORM OF EARNEST MONEY
ESCROW AGREEMENT
Earnest Money Escrow Agreement made as of this 15th day of June, 2006 by
and between CAPTEC FRANCHISE CAPITAL PARTNERS LP IV., having an address of 24
Frank Lloyd Wright Dr., Lobby L, 4th Floor, Ann Arbor, MI 48106 ("Seller") and
RUBEN MANAGEMENT LLC., having an address of 1A Ramsey Rd., Great Neck, NY, 11023
("Purchaser") and LAWYERS TITLE INSURANCE CORPORATION, having an address at 140
E 45th Street, New York, New York 10017 ("Escrow Agent").
WITNESSETH:
WHEREAS, Seller and Purchaser have entered into an Agreement of Sale
("Agreement") dated June 15, 2006 for the sale of those certain premises
("Transaction") known as Hollywood Video located at 1479 Main, Hamilton, OH. A
copy of the Agreement has been received by Escrow Agent.
WHEREAS, Purchaser is obligated to make a deposit in the amount of $25,000
as provided in the Agreement (such sum, together with any interest thereon, is
hereinafter referred to as the "Deposit") and
WHEREAS, in furtherance of such Transaction, the parties desire and the
Escrow Agent is willing to hold the Deposit in escrow on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable considerations, the receipt of and
sufficiency thereof, is duly acknowledged, the parties hereto agree as follows:
1. The terms of the Agreement are incorporated herein by reference, and
Escrow Agent agrees to abide by such terms as they may be applicable to Escrow
Agent. All capitalized items not otherwise defined therein shall have the
meanings ascribed to them in the Agreement.
2. The Deposit, upon delivery to the Escrow Agent, will be deposited by
Escrow Agent in an interest-bearing account at Chase Manhattan Bank, 241 E. 42nd
Street, New York, New York 10017 or a Dreyfus Cash Management Fund (see attached
investment instructions) 200 Park Avenue, New York, New York 10166.
3. When the closing of the Transaction takes place, the Escrow Agent shall
deliver the Deposit to or upon the Seller, provided the Purchaser has executed
and delivered to the Escrow Agent a letter certifying that all of the conditions
precedent to be performed by Seller set forth in the Agreement between the
Seller and the Purchaser have been duly satisfied or have been expressly waived
by Purchaser, which letter shall be delivered by telecopier, e-mail or Certified
return receipt or overnight mailto the Escrow Agent.
D-2
4. Pursuant to the Agreement, Purchaser may, prior to (due diligence date
of ______________________, 200__), elect to terminate this Agreement by giving
written notice thereof to Seller and to Escrow Agent, and, in such event, the
Deposit shall be returned to the Purchaser by the Escrow Agent, whereupon the
Agreement and this escrow agreement shall be cancelled and none of the parties
hereto shall have any further rights and obligations hereunder, except as
provided in the Agreement.
5. If the Purchaser does not terminate the Agreement in the manner
described in the Agreement, but the closing of the sale does not take place, the
Escrow Agent shall pay the Deposit to, or upon the instruction of, the party
entitled thereto in accordance with the provisions of the Agreement; provided,
however, that the Escrow Agent shall not pay the Deposit in such event unless
and until (a) it delivers written notice to the other party notifying such other
party of its intention to deliver the Deposit, and (b) such other party or its
attorney as designated below shall not deliver to the Escrow Agent a written
notice objecting to such delivery of the Deposit within fifteen (15) days after
delivery of the Escrow Agent's notice.
6. With respect to delivering the Deposit in accordance with Paragraphs 3
or 5, in the event that the Escrow Agent receives conflicting instructions from
the parties or determines in good faith that a bonafide dispute exists as to
whether the Escrow Agent is obligated to deliver the Deposit, or as to whom said
Deposit is to be delivered, the Escrow Agent, at its option, (a) may refuse to
comply with any claims or demands on it and continue to hold the Deposit until
(I) the Escrow Agent receives written notice signed by the Seller and the
Purchaser directing the release and delivery of the Deposit, in which event the
Escrow Agent shall then release and deliver the Deposit in accordance with said
direction, or (ii) the Escrow Agent receives a certified copy of a final
nonappealable judgment of a court of competent jurisdiction directing the
release and delivery of the Deposit, in which event the Escrow Agent shall then
release and deliver the Deposit in accordance with said direction, or (b) may
deliver the Deposit 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
Agent 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 Deposit,
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).
7. The Escrow Agent is acting as a stakeholder only with respect to the
Deposit. It is agreed that the duties of the Escrow Agent are only as herein
specifically provided, and are purely ministerial in nature, and that the Escrow
Agent shall incur no liability whatsoever except for willful misconduct or gross
negligence. The Seller and the Purchaser each release the Escrow Agent from any
act done or omitted to be done by the Escrow Agent in good faith in the
performance of its duties hereunder.
D-3
8. The Seller and the Purchaser shall jointly and severally indemnify,
defend (with counsel acceptable to the Escrow Agent) and save harmless the
Escrow Agent 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 Agent's duties hereunder, except
with respect to actions or omissions taken or suffered by the Escrow Agent in
bad faith, in willful disregard of this Escrow Agreement, or involving gross
negligence on the part of the Escrow Agent (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.
9. Intentionally omitted.
10. All notices, demands, offers, elections or other communications
required or permitted by this Escrow Agreement shall be in writing and shall be
personally delivered, either by express mail or by reputable overnight courier
which delivers only upon receipt of addresses, and addressed to the party at its
address set forth below by either of the aforesaid methods, or by registered or
certified mail, postage prepaid, with a return receipt requested, with copies as
follows:
TO THE SELLER:
Captec Franchise Capital Partners, LP IV.
24 Frank Lloyd Wright Drive
Lobby L, 4th Floor PO Box 544
Ann Arbor, MI 48106
Attention: Joanna Zabriskie
Facsimile: (734) 994-7324
With a Copy to:
Jennifer Tingley
Documentation Manager
6444 Meadow Ridge Ct.
Dexter, MI 48130
Facsimile: (734) 913-0584
D-4
TO THE PURCHASER:
Ruben Management LLC
1A Ramsey Rd
Great Neck, NY 11023
Facsimile: 212 - 972 -9401
With a Copy To:
Elie Aryeh, Esq.
Elazar Aryeh PC
110-20 71st Road - Suite 110
Forest Hills, New York 11375
Facsimile: (718) 261-2981
TO THE ESCROW AGENT:
LAWYERS TITLE INSURANCE CORPORATION
140 E 45th Street
New York, NY 10017
Attention: ___________________
Facsimile _________________
or at such other address as, from time to time, shall be supplied by a party to
the others by like notice, and shall be deemed to have been given or sent, if
sent by express mail or by registered or by certified mail, when properly
deposited with the United States Postal Services with the proper address and
postage paid therewith, and shall be deemed to have been received when actually
delivered to or refused receipt at the specified address, or if sent by
overnight courier, when delivered to said courier service with the proper
address and delivery charges either prepaid or charged to a proper account, and
deemed to have been received when actually delivered to the specified address.
Notwithstanding with preceding sentence to the contrary, and solely with respect
to the Escrow Agent, notice shall be deemed to have been given or delivered to
the Escrow Agent on the date of the Escrow Agent's actual receipt or refusal of
such notice. Each party shall be entitled to rely on all communications which
purport to be on behalf of the party and purport to be signed by an authorized
party or the above-indicated attorneys or such other attorney as may be
designated from time to time by any of the parties hereto.
11. Escrow Agent 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 Agent shall be selected by the Purchaser and
approved by Seller, such approval not to be unreasonably withheld or delayed.
Escrow Agent shall then deliver to successor Escrow Agent the Deposit, to be
held by successor Escrow Agent pursuant to the terms of this Escrow Agreement
and the Agreement.
12. In its capacity as Escrow Agent, Escrow Agent shall not be responsible
for the genuineness or validity of any security, instrument, document or item
deposited with it, and shall
D-5
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 Agent to have been signed by the proper person. Escrow Agent
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.
13. Escrow Agent shall have no duties or responsibilities other than those
expressly set forth herein. Escrow Agent 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 Agent 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.
14. Escrow Agent 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 Agent under or arising out of this
Escrow Agreement.
15. It is expressly agreed that this Escrow Agreement is for the sole
benefit of the parties hereto and shall not be construed or deemed to be made
for the benefit of any third party or parties.
16. 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.
17. If any provision of this Escrow Agreement or the application thereof
to any entity, person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Escrow Agreement and the application of such
provisions to other entities, persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
18. This Escrow Agreement contains the entire understanding between the
parties hereto. No variations, modifications or changes hereof shall be binding
upon any party hereto unless set forth in a document duly executed by all
parties hereto.
19. Whenever used herein, the singular number shall include the plural,
and the use of any gender shall include all genders. Obligations under this
Escrow Agreement shall be binding upon the Seller and the Purchaser, jointly and
severally. This Escrow Agreement shall be binding upon and enforceable between
the Seller and the Purchaser, their heirs, executors, administrators, legal
representatives, successors, assigns or trustees.
20. This Escrow Agreement may be executed in multiple original
counterparts, all of which shall be deemed originals and with the same effect as
if all parties hereto had signed the same document. All such counterparts shall
be construed together and shall constitute one and the same instrument.
D-6
21. Each party waives the right to a jury trial of any dispute relating to
this Escrow Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Escrow
Agreement as of the date first above-written.
PURCHASER: SELLER:
RUBEN MANAGEMENT LLC CAPTEC FRANCHISE CAPITAL PARTNERS L.P. IV
By: /s/ Mousa Nouriyelian By: GP 4 Asset Acquisition, LLC
------------------------------- Its: General Partner
Print Name: Mousa Nouriyelian
Its: President By: /s/ Daniel J. Kelly
---------------------------------
Print Name: Daniel J. Kelly
Its: Vice President
ESCROW AGENT
LAWYERS TITLE INSURANCE CORPORATION
BY: _________________________________
D-7
EXHIBIT C
FORM OF DEED
[Note: To be modified to conform to recording and other requirements of the
Subject State.]
GENERAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS, that CAPTEC FRANCHISE CAPITAL PARTNERS L.P. IV,
a Delaware limited partnership, whose tax mailing address is 24 Frank Lloyd
Wright Drive, Lobby L, 4th Floor, Ann Arbor, MI 48106-0544 ("Grantor"), for
valuable consideration paid, grants with general warranty covenants/bargain and
sale deed against grantors act to RUBEN MANAGEMENT LLC, of
______________________________ ("Grantee"), the real property described on
Exhibit A attached hereto and made a part hereof (the "Property"), intended to
be the same as property located at 1479 Main Street, Hamilton Ohio 45013 as
recorder in page _____, Libor ______, Section ______".
This conveyance is made subject to all legal highways and easements, all
restrictions, conditions and covenants of record, all zoning restrictions, lease
with Hollywood Entertainment Corporation dated February 28, 1997, as amended,
and all taxes and assessments not yet payable.
Executed this ___ day of __________________ 2006.
CAPTEC FRANCHISE CAPITAL PARTNERS L.P. IV
By: GP4 Asset Acquisition, LLC
Its: General Partner
By: __________________________________
Print Name:
Its: _________________________________
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this __ day of
______________, 2006, by ___________________________, who is personally known to
me, as Vice President of GP4 Asset Acquisition LLC, a Michigan limited liability
company and the general partner of Captec Franchise Capital Partners L.P. IV, a
Delaware limited partnership, on behalf of the limited partnership.
______________________________________
Name: ________________________________
State of Michigan, County of Washtenaw
My Commission Expires: _______________
Acting in the County of Washtenaw
D-8
EXHIBIT A TO DEED
Legal Description of Property
LOCATED IN THE CITY OF HAMILTON, COUNTY OF BUTLER, STATE OF OHIO AND BEING
PART OF CITY LOT NUMBER 29835 AND BEING DESCRIBED MORE PARTICULARLY AS FOLLOWS:
BEGINNING AT THE SOUTHERN MOST POINT OF SAID LOT 29835, SAID POINT ALSO LYING ON
THE WEST RIGHT-OF-WAY LINE OF STATE ROUTE 177; THENCE WITH A NORTHWESTERLY LINE
OF SAID LOT 29835 NORTH 89 DEGREES 42 MINUTES 00 SECONDS WEST, 416.42 FEET TO A
POINT ON THE CURVE OF A FUTURE EAST RIGHT-OF-WAY LINE OF CARLISLE AVENUE; THENCE
WITH THE FUTURE EAST RIGHT-OF-WAY LINE OF CARLISLE AVENUE THE FOLLOWING TWO (2)
COURSES:
ON A CURVE TO THE LEFT WITH A RADIUS OF 260.00 FEET INTERNAL ANGLE OF 09 DEGREES
05 MINUTES 12 SECONDS (LONG CHORD BEARING NORTH 20 DEGREES 56 MINUTES 28 SECONDS
WEST, 41.19 FEET) ALONG THE ARC 41.23 FEET TO A POINT; THENCE NORTH 25 DEGREES
29 MINUTES 04 SECONDS WEST, 3.23 FEET TO A POINT; THENCE LEAVING THE FUTURE EAST
RIGHT-OF-WAY LINE OF CARLISLE AVENUE NORTH 52 DEGREES 49 MINUTES 15 SECONDS
EAST, 312.88 FEET TO THE NORTHEAST CORNER OF SAID LOT 29835 AND A POINT ON THE
WEST RIGHT-OF-WAY LINE OF SAID STATE ROUTE 177; THENCE WITH THE WEST
RIGHT-OF-WAY LINE OF STATE ROUTE 177 SOUTH 38 DEGREES 13 MINUTES 38 SECONDS
EAST, 296.14 FEET TO THE TRUE POINT OF BEGINNING CONTAINING 1.2601 ACRES MORE OR
LESS SUBJECT HOWEVER TO ALL LEGAL HIGHWAYS, EASEMENTS AND RESTRICTIONS OF
RECORD.
D-9
EXHIBIT D
FORM OF ASSIGNMENT OF LEASE
[Note: To be modified to conform to recording and other requirements of the
Subject State.]
ASSIGNMENT OF LEASE
THIS ASSIGNMENT OF LEASE ("Assignment") is made as of ____________________
, 200_, by and between CAPTEC FRANCHISE CAPITAL PARTNERS, LP IV, whose address
is 24 Frank Lloyd Wright Drive, Lobby L, 4th Floor, P.O. Box 544, Ann Arbor,
Michigan 48106 ("Assignor") and RUBEN MANAGEMENT of
_________________________________ ("Assignee").
RECITALS:
Assignor leased to HOLLYWOOD ENTERTAINMENT CORPORATION, AN OREGON
CORPORATION ("Tenant"), the PREMISES* (as defined in the Lease described below),
located at 1479 Main Street, Hamilton, OH ("Premises"), pursuant to a Lease
dated as of February 28, 1997, as amended, a true and complete copy of which is
attached as Exhibit 1 ("Lease").
In connection with, and in consideration of, the acquisition of the
Premises by the Assignee, Assignor has agreed to assign, transfer and convey to
Assignee all of Assignor's right, title and interest in and to the Lease.
Assignee agrees to accept the assignment of those items described in
Section 1 above and Assignee further agrees to perform all of the Assignor's
obligations under or relating to the Lease arising from and after the date of
this Assignment.
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, Assignor
and Assignee agree as follows:
1. Assignment and Assumption. Assignor hereby assigns to Assignee all of
Assignor's right, title and interest in, to and under the Lease and all
subsequent amendments and assignments, and Assignee assumes all of Assignor's
duties and obligations under the Lease and agrees to perform and to be bound by
all of the terms and provisions of the Lease in the place and stead of Assignor
arising from and after the date of this Assignment. Assignee further agrees to
indemnify and hold harmless Assignor from and against all claims, awards,
liabilities or damages resulting from the acts and/or omissions of Assignee from
and after the date of this Assignment.
2. Representation. To Assignor's knowledge, the Lease and all subsequent
amendments and assignments, is in full force and effect and has not been
modified, amended or restated (except as identified in Exhibit 1).
3. Miscellaneous. This Assignment shall bind and inure to the benefit of
the parties hereto, their successors and assigns. This Assignment shall be
governed by and construed in accordance with the laws of the state where the
Premises is located, without giving effect to principles of conflicts of law.
This
D-10
Assignment may be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
This Assignment has been executed as of the day and year noted above.
CAPTEC FRANCHISE CAPITAL PARTNERS L.P. IV
By: GP 4 Asset Acquisition, LLC
Its: General Partner
By: __________________________________
Its: _________________________________
RUBEN MANAGEMENT LLC
By: _________________________________
Print Name: _____________________
Its: _______________________
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this ___ day of
____________, 2006, by ________________, who is personally known to me, as Vice
President of GP4 Asset Acquisition, LLC, a Michigan limited liability company
and the general partner of Captec Franchise Capital Partners L.P. IV, a Delaware
limited partnership, on behalf of the limited partnership.
___________________________________
Name: _____________________________
State of Michigan, County of Washtenaw
My Commission Expires: ____________
Acting in the County of Washtenaw
D-11
STATE OF ________________ )
) ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this ____ day of
______, 2006, by ___________________________ who is personally known to me as
______________________ of Ruben Management LLC, a ___________________ limited
liability company, on behalf of the company.
______________________________________
Notary Public
_______________ County, ______________
My Commission Expires: _______________
[Notary's Seal]
Prepared by and recorded
at the request of:
Captec Franchise Capital Partners LP IV
24 Frank Lloyd Wright Dr., Lobby L, 4th Floor
Ann Arbor, MI 48106
When recorded return to:
________________________
________________________
________________________
D-12
EXHIBIT 1
TO
ASSIGNMENT OF LEASE
[Attach copy of Lease]
D-13
EXHIBIT E
FORM OF 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 RUBEN MANAGEMENT LLC ("Transferee"),
that withholding of tax is not required upon the disposition of a United States
real property interest by CAPTEC FRANCHISE CAPITAL PARTNERS LP IV
("Transferor"), the undersigned certifies the following on behalf of Transferor:
1. Transferor is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate (as those terms are defined in the Internal Revenue
Code and Income Tax Regulations);
2. Transferor's United States Employer Identification Number is
38-3304096;
3. Transferor's office address is 24 Frank Lloyd Wright Drive, Lobby L,
Fourth Floor, Ann Arbor, Michigan 48105.
Transferor understands that this certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct,
and complete, and I further declare that I have authority to sign this document
on behalf of Transferor.
CAPTEC FRANCHISE CAPITAL PARTNERS L.P. IV
By: GP 4 Asset Acquisition, LLC
Its: General Partner
By: ________________________
Its: _______________________
Dated as of __________, 2006.
D-14
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this ___ day of
____________, 2006, by ________________, who is personally known to me, as Vice
President of GP4 Asset Acquisition, LLC, a Michigan limited liability company
and the general partner of Captec Franchise Capital Partners L.P. IV, a Delaware
limited partnership, on behalf of the limited partnership.
______________________________________
Name: _______________________________
State of Michigan, County of Washtenaw
My Commission Expires: _______________
Acting in the County of Washtenaw
D-15
EXHIBIT F
FORM OF NOTICE TO TENANT
_____________, 200_
[TENANT NAME]
[TENANT ADDRESS]
Ladies and Gentlemen:
This is to inform you that on __________________, 200_ the interest of
Captec Franchise Capital Partners, LP IV ("Seller") in that certain Lease, dated
as of ____________________, ______ ("Lease"), between Captec Franchise Capital
Partners, LP IV, as landlord, and Hollywood Entertainment Corporation, as
tenant, for the property located at 1491 Main Street., Hamilton, OH, has been
assigned to Ruben Management LLC. Accordingly, all future payments owed, and
notices to be given, to the landlord under the Lease should be delivered to
Ruben Management LLC at the following address:
______________________________________________________.
Very truly yours,
CAPTEC FRANCHISE CAPITAL PARTNERS L.P. IV
By: GP 4 Asset Acquisition, LLC
Its: General Partner
By: ________________________
Its: _______________________