PURCHASE CONTRACT
THIS PURCHASE CONTRACT (the "Contract") is made and entered into as of the
12th day of September, 2006, by and between O'REILLY AUTOMOTIVE, INC. (the
"Buyer"), having its principal office at 233 S. Patterson, Springfield,
Missouri, and CAPTEC FRANCHISE, CAPITAL PARTNERS, LP IV (the "Seller"); whose
address is 24 Frank Lloyd Wright Drive, Lobby L, 4th Floor, Ann Arbor, MI 48106.
This Contract supersedes any and all previous agreements or contracts which, if
any, are hereby rescinded.
WITNESSETH THAT:
1. AGREEMENT OF SALE. Specifically, Buyer agrees to purchase and the
Seller agrees to sell, subject to the terms and conditions set forth in this
Contract, the following property (the Property) described as 8529 Hwy 85,
Riverdale, Clayton County, Georgia, as crosshatched on EXHIBIT A attached hereto
and incorporated herein, the exact legal description to be determined by the
survey.
2. PURCHASE PRICE. The purchase price ("Purchase Price") to be paid by
Buyer to Seller, subject to modifications contained herein, shall be the sum of
$900,000.00, which shall be paid as follows:
(a) Within seven (7) business days after the Effective Date, as
hereinafter defined, Buyer shall deposit with Fidelity National Title Insurance
Company of New York, 22 Century Blvd, Suite 200, 3 Lakeview Place, Nashville, TN
37214, Attn: Lynn Hammond, 615-259-1677 (the "Title Company" or "Escrow Agent"),
an earnest deposit of twenty five thousand and 00/100 dollars ($25,000.00)
("Earnest Deposit") to be held, applied and disbursed according to this
Contract. The Earnest Deposit shall be held in an interest bearing account by
the Title Company and any interest shall be paid to the party entitled to the
Earnest Deposit. Upon the expiration of the Inspection Period, assuming buyer
has not otherwise elected to terminate this Contract the Earnest Deposit shall
be deemed non-refundable but for Seller's default.
(b) The balance of the Purchase Price shall be paid, plus or minus
closing adjustments, as the case may be, less the Earnest Deposit and any
interest earned thereon, to Seller upon Closing by wire transfer of immediately
available U.S. funds to the Title Company in exchange for a deed in form
required by the jurisdiction in which the Property is located whereby Seller
only warrants against its own acts and/or omissions substantially in the form
set forth as EXHIBIT B attached hereto (the "Deed"), conveying title to Buyer
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 Buyer consents in writing or waives its objection thereto pursuant
to this Contract.
3. CLOSING DATE. Closing shall be a date agreed upon by Buyer and Seller
and be on or before ten (10) days after the end of the Inspection Period, as
hereinafter defined, whichever occurs sooner.
4. ACCESS/REPORTS AND DELIVERY OF DOCUMENTS. From and after the Effective
Date and until the expiration of the Inspection Period (and thereafter so long
as this Contract remains in effect if required by Buyer's lender), Seller agrees
that Buyer and its agents and representatives shall, subject to arranging all
onsite visits with Seller, be entitled to enter upon the Property for
inspection, soil tests, examination, land-use planning and for any due diligence
investigation relating to Buyer's proposed ownership of the Property. As to any
such investigation, Buyer 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)
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interfere with the possessory rights of Blockbuster Videos, Inc. ("Tenant" under
Lease Agreement dated April 10, 1997, as amended ("Lease") between Seller as
Landlord and Tenant). Buyer shall indemnify and hold harmless Seller from and
against, and to 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
Contract.
Within four (4) days after the Effective Date and Buyer has provided
evidence of the Earnest Deposit, Seller shall deliver the following to Buyer (to
the extent that the same are in the possession of Seller) collectively, the "Due
Diligence Items":
(a) A copy of the most recent survey of the Property;
(b) A copy of the most recent title policy or commitment covering the
Property;
(c) A copy of the most recent environmental reports on the Property.
Buyer shall return to Seller all of the Due Diligence Items and any
and all copies Buyer has made of the Due Diligence Items at such time as this
Contract is terminated for any reason other than Seller's default. In the event
this Contract is terminated as a result of Seller's default, Buyer shall return
all the Due Diligence Items and any and all copies Buyer has made of the Due
Diligence Items, except for copies of such Due Diligence Items that are in
Buyer's sole and absolute discretion directly related to or evidence such Seller
default. Buyer's obligations under this Section 4 shall survive the termination
of this Contract.
Buyer acknowledges that the Due Diligence Items were prepared by third
parties other than Seller. Buyer 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 which
were prepared by third parties ("Third Party Due Diligence Items") or the
sources thereof and Buyer has not relied on the truth or completeness of the
Third Party Due Diligence Items and (ii) Seller has not undertaken any
independent investigation as to the truth, accuracy and completeness of the
Third Party Due Diligence Items and is providing the Third Party Due Diligence
Items or making the Third Party Due Diligence Items available to Buyer solely as
an accommodation to Buyer.
5. BUYER CONDITIONS AND INSPECTION PERIOD. All of Buyer's duties and
obligations under this Contract shall be conditioned upon and subject to the
complete satisfaction of the following conditions precedent, each of which is
for the sole benefit of Buyer, and any of which may be waived by Buyer at
Buyer's sole discretion. Buyer shall have one hundred twenty (120) days (the
"Inspection Period") from the Effective Date to complete its investigation of
the Property. If each and every one of the conditions precedent are not
completely satisfied or waived by Buyer on and as of the respective time frames
set forth for each condition, Buyer may terminate this Contract as set forth
below, prior to the expiration of the Inspection Period. If Buyer fails to
notify Seller of its waiver of satisfaction of each of the conditions listed
below within the designated Inspection Period, such conditions shall be deemed
waived. During the Inspection Period, Buyer shall complete the following to its
satisfaction:
(a) TITLE. Buyer shall complete its examination of the title to the
Property during the Inspection Period. As part of this examination, Buyer shall
obtain and provide copies to Seller, and Seller shall pay for at closing, a
title insurance certificate and commitment issued by the Title Company's
approved attorney showing Seller's title to the Property to be marketable in
fact, as defined by the Title Examination Standards of the Georgia Bar. Buyer
shall notify Seller in writing of any objections or defects to the title. If
Buyer delivers notice of any such
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objections or defects, then Seller, within ten (10) days after receipt of such
notice, shall either elect: (i) not to cure any such defects or (ii) to promptly
attempt to cure any such defects before Closing. Seller's failure to send
written notice to Buyer within such ten (10) day period electing to either not
cure or attempt to cure such defects shall be deemed an election by Seller not
to cure such defects. If Seller refuses to cure such defects, then, no later
than ten (10) days after receipt of Seller's notice refusing to cure, or the
deemed refusal to cure, Buyer shall elect as its sole remedy to either: (i)
terminate this Contract by giving written notice thereof to Seller, in which
event: (a) this Contract shall thereupon be of no further force and effect; (b)
no party hereto shall have any further rights, duties or obligations hereunder,
except as otherwise noted in this Contract; and (c) Seller shall instruct the
Title Company to return the Earnest Deposit to Buyer; or (ii) accept the title
to the Property subject to the defects without adjustment to the Purchase Price
and proceed to Closing as set forth herein. At closing, the Buyer is to pay all
premiums necessary to convert the title insurance commitment to a Buyer's title
insurance policy in the full amount of the purchase price.
(b) SURVEY. Buyer shall obtain an ALTA/ACSM Survey according to Buyer's
specifications and provide a copy to Seller, complete with topographic features,
elevations, and utilities, and showing the Property to be the same as shown on
Exhibit A. Seller shall pay one half the cost of the ALTA/ACSM Survey, up to
$1,000.00, out of proceeds at closing. Buyer shall notify Seller in writing of
any objections or defects to the Property revealed by the Survey. If Buyer
delivers notice of any such objections or defects, then Seller, within ten (10)
days after receipt of such notice, shall either elect: (i) not to cure any such
defects or (ii) to promptly attempt to cure any such defects before Closing.
Seller's failure to send written notice to Buyer within such ten (10) day period
electing to either not cure or attempt to cure such defects shall be deemed an
election by Seller not to cure such defects. If Seller refuses to cure such
defects Buyer shall elect as its sole remedy to either: (i) terminate this
Contract by giving written notice thereof to Seller, in which event: (a) this
Contract shall thereupon be of no further force and effect; (b) no party hereto
shall have any further rights, duties or obligations hereunder, except as
otherwise noted in this Contract; and (c) Seller shall instruct the Title
Company to return the Earnest Deposit to Buyer; or (ii) accept the survey to the
Property subject to the defects without adjustment to the Purchase Price and
proceed to Closing as set forth herein.
(c) ENVIRONMENTAL INVESTIGATION. Buyer shall, at its own expense,
perform such environmental audits, testing and sampling of the Property as it,
in its sole discretion, deems necessary to determine the environmental condition
of the Property. Buyer shall conclude that the environmental condition of the
Property shall not subject Buyer to potential claims because of the
environmental condition of the Property, or require that Buyer incur expense to
remediate, or abate any contamination of the Property, or remove any underground
storage tanks, petroleum product lines, asbestos or asbestos containing
materials, septic tanks or other like containers or pipes from the Property.
(d) ZONING VERIFICATION. Buyer shall confirm that the zoning
classification of the Property will permit the construction of Buyer's proposed
improvements and use by Buyer as a location for the sale of auto parts.
(e) UTILITIES. Buyer shall confirm the availability of any and all
utilities servicing the Property, including, without limitation, municipal
water, sanitary sewer, storm sewer, electric, natural gas, and telephone and
that each such utility service has sufficient capacity to serve the intended use
by Buyer for the Property as a retail outlet.
(f) FLOOD PLAIN. Buyer shall confirm that the Property is not within
the 100- year flood plain as established by FEMA.
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(g) GEOLOGICAL BORINGS. Buyer and Seller do hereby acknowledge and
agree that Buyer shall have the right to conduct geological borings to determine
the acceptability of the soil compaction of the Property for Buyer's use.
(h) DEVELOPMENT PLAN. During the Inspection Period Buyer shall have
issued to it by the City of Riverdale, Georgia, approval of its renovation plan
for development of the existing building.
(i) EASEMENTS. Buyer shall determine if an ingress and egress easement
exists across the real estate that adjoins the Property as crosshatched on the
attached EXHIBIT C. If an ingress/egress easement does not already exist across
the real estate that adjoins the Property as crosshatched on the attached
EXHIBIT C, then Buyer shall work to obtain said ingress and egress easement.
(j) PLATTING. If platting is required by the local governing entity,
then during the Inspection Period the Buyer is solely responsible for platting
the Property to create the Property purchased herein by Buyer, and the new plat
shall be recorded prior to closing. Seller shall convey to Buyer, a lot as shown
on EXHIBIT A, and such lot shall be identified on such plat. Buyer shall have
the right to review and approve any plat for which recording is sought and to
approve or disapprove of any restrictions, easements, dedications, building
setbacks, and other conditions, which are included in, or a part of such
platting. Seller shall cooperate with and assist Buyer in obtaining any
approvals required for the plat and shall execute any applications or documents
as required. At closing the cost of the platting shall be paid by the Buyer.
(k) APPROVAL. Buyer and Seller acknowledge that this Contract is
contingent upon approval of the site location by Buyer's Expansion Committee.
Such approval or disapproval shall be provided to the Seller in written
notification within 45 days of the Effective Date, prior to 5:00 p.m. ET, and,
if Buyer's Expansion Committee disapproves of this site by such date, then this
Contract shall be null and void. Should Buyer fail to provide Seller such
notification, then Buyer has accepted this condition and will proceed with the
satisfaction of all of the other terms and conditions set forth in this
Contract.
6. PARAGRAPH INTENTIONALLY OMITTED.
7. CONDEMNATION. If, at any time prior to the Closing, any proceeding
shall be commenced, consummated or threatened for the taking of all or any part
of the Property for public or quasi-public use pursuant to the power of eminent
domain or otherwise, Seller shall immediately give written notice thereof to
Buyer. If Seller receives such notice within thirty (30) days of the scheduled
date of the Closing, the date for the Closing shall be extended for an
additional thirty (30) days following receipt by Buyer of the notice. Seller
shall assign to Buyer at the Closing all of its interest in the condemnation
award, unless Buyer elects, within thirty (30) days after receipt of Seller's
notice, to cancel this Contract by giving written notice of cancellation to
Seller. Thereupon, this Contract shall terminate, and the Earnest Deposit shall
be returned to Buyer, with neither party having any further rights or
liabilities hereunder, except as otherwise noted in this Contract.
8. DESTRUCTION. Seller shall bear the risk of all loss, destruction or
damage to the Property or any portion thereof, from any and all causes
whatsoever until and including the Closing date. Seller agrees to notify Buyer
immediately in the event of any damage or destruction of the Property. If Seller
is unable to completely restore the Property to substantially the same condition
as it was immediately prior to the destruction within thirty (30) days of such
destruction, Buyer may: (i) terminate this Contract in which event the Earnest
Deposit shall be returned to Buyer and the rights and obligations of the parties
shall terminate, except as otherwise noted in this Contract; or (ii) close this
sale, subject to such destruction with no
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reduction in the purchase price, and be entitled to all insurance proceeds
payable as a result of any such destruction.
9. CONVEYANCE OF INTEREST PRIOR TO CLOSING. Seller expressly represents
and warrants that Seller will not convey any interest in the Property, including
but not limited to, all right, title and interest of Seller in and to all oil,
gas, timber and other minerals, mineral or timber fees, mineral or timber
rights, royalty interests, non-participating royalty interests, executive
leasing rights and all other mineral, timber and/or royalty interests in the
Property together with the right of ingress and egress for the purpose of
cutting, mining, drilling and exploring such mineral and timber interests, to
any third party prior to Closing or termination of this Contract, whichever
shall occur first.
10. ESCROW PROCEDURES. The Earnest Deposit shall be held in escrow by the
Title Company to be applied to the Purchase Price at Closing or if Closing does
not occur, to be disbursed as otherwise set forth herein. If the parties are in
disagreement, the Title Company shall give written notice to Seller and Buyer
indicating the Title Company's intended disposition of the Earnest Deposit.
Seller and Buyer hereby agree that if neither party objects in writing to the
proposed disposition of the Earnest Deposit within three (3) business days after
the date of mailing of such notice, the Title Company shall proceed to dispose
of the Earnest Deposit as it had previously indicated.
11. CLOSING PROCEDURES.
(a) At Closing, Seller shall deliver the following to Buyer:
(i) A Warranty Deed in recordable form (and set forth in
Exhibit B), which is acceptable to Buyer, conveying fee
simple title to the Property to Buyer, free and clear of
all liens, easements, leases, encumbrances, restrictions or
defects, except for those which are noted on the Title
Commitment and Buyer, has determined will not unreasonably
interfere with its intended use of the Property or diminish
the marketability or value of the Property;
(ii) An Affidavit stating Seller's United States taxpayer
identification numbers for federal income tax purposes, and
stating that Seller is not a "foreign person" within the
meaning of Section 1445, et seq., of the Internal Revenue
Code of 1986, as amended and any similar provisions of any
succeeding federal revenue laws (if applicable);
(iii) Such certificates, resolutions and other evidence of
authority of Seller to enter into and perform its
obligations under this Contract;
(iv) Termination of Lease, which will provide exclusive
possession of the Property;
(v) A closing statement reflecting the Purchase Price and all
adjustments thereto;
(vi) A properly executed Tax Proration Agreement; and
(vii) Any such other documents as might be reasonably requested
by the Title Company and Buyer to consummate the purchase
of the Property.
(b) At Closing, Buyer shall deliver to Seller the following:
(i) The balance due of the Purchase Price, by wire transfer,
subject to the adjustments and prorations set forth in this
Contract;
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(ii) A closing statement reflecting the Purchase Price and all
adjustments thereto; and
(iii) Any such other documents as might be reasonably requested
by the Title Company and Seller to consummate the purchase
of the Property.
(c) Pursuant to Gramm-Leach-Bliley Act (15 USC, Subchapter 1, Sec.
6801-6810), which became effective as of July 1, 2001, the Title Company must
have consent of any party prior to disclosing personal information. Seller and
Buyer will produce several such personal documents related to the Closing. Buyer
and Seller hereby agree to allow the Title Company to copy and disburse such
relevant closing documentation for each party to the other.
(d) All signed documents presented to the Title Company must include a
copy of the signer's driver's license and, if notarized, must include evidence
that the notary either:
(i) Is an authorized Title Company employee or agent;
(ii) Is a Bancserv notary;
(iii) Has Errors and Omissions insurance of at least $100,000; or
(iv) Acknowledged the document under an attorney's supervision.
12. BROKER COMMISSIONS. Seller represents and warrants to Buyer that no
person or entity is entitled to Brokerage fee or commission arising out of the
sale of the Property. Seller shall indemnify and hold Buyer harmless from any
and all claims for any such fees or commissions, including without limitation,
costs and attorney's fees. Buyer represents and warrants to Seller that no
person or entity is entitled to Brokerage fee or commission arising out of the
sale of the Property. Buyer shall indemnify and hold Seller harmless from any
and all claims for any such fees or commissions, including without limitation,
costs and attorney's fees. Seller and Buyer agree that if any other claims for
brokerage commissions are ever made against Seller or Buyer 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.
13. TRANSACTION CHARGES AND EXPENSES. The Title Company shall serve both
as escrow and closing agent for this transaction. Buyer shall pay the Title
Company's fees and Buyer and Seller shall pay each its own approved attorney's
usual and customary costs of closing this transaction. Real property taxes on
the Property for the year in which the transaction closes shall be prorated to
date of closing, with the parties executing a Tax Proration Agreement as set
forth in paragraph 11(a)(vi). Seller shall pay any transfer taxes.
14. LIABILITY FOR DEFAULT.
(a) DEFAULT BY SELLER. If the Buyer has performed all of the
obligations of Buyer hereunder and Seller shall breach this Contract or fail to
perform any of Seller's obligations hereunder or fail to otherwise close this
transaction, then Buyer, may elect, as its sole remedy, to either:
(i) treat this Contract as terminated, in which case all payments
and things of value received hereunder, including the Earnest Deposit, shall be
returned to Buyer, Seller agrees to sign any necessary documents as required by
the escrow agent to release Earnest Deposit to Buyer and reimburse Buyer for all
of its expenses incurred for its investigation of the Property under Paragraph
5, herein, as evidenced by paid invoices to third parties; or
(ii) treat this Contract as being in full force and effect and
Buyer shall have the right to an action for specific performance by instituting
such action within three (3)
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months following Seller's default, failing which Buyer shall be deemed to have
waived the right to pursue specific performance. Seller shall reimburse Buyer
for any expenses in connection with such enforcement, including, but not limited
to, all reasonable attorneys' fees, court costs, and related expenses, not to
exceed twenty thousand and 00/100 dollars ($20,000.00).
(b) DEFAULT BY BUYER. If the Seller has performed Seller's obligations
under this Contract, and after the satisfaction of all conditions stated herein
to the benefit of the Buyer, Buyer fails to make the payments herein or fails to
otherwise close this transaction, then Seller, as its sole remedy, shall treat
this Contract as terminated, in which case all payments and things of value
received hereunder, including the Earnest Deposit , shall be retained by Seller
and, Buyer agrees to sign any necessary documents as required by the escrow
agent to release said Earnest Deposit.
15. PARAGRAPH INTENTIONALLY OMITTED.
16. FIRST RIGHT OF REFUSAL OPTIONS. The Seller warrants and represents
that there is no existing First Right of Refusal option to allow a third party
to purchase the Property.
17. ESTOPPEL. The Seller has informed Buyer that the Property is currently
leased under the terms and conditions of the Lease. Seller shall provide at
closing a termination of the Lease.
18. SECURED STRUCTURE. Buyer and Seller agree that Seller shall cause the
Tenant to remove any personal items from the Property on or prior to the date of
closing. No exterior doors or windows shall be removed from the structure(s), if
any. Seller shall cause the Tenant to leave the structure(s), if any, on the
Property secured, as of the time of closing and the Property shall be vacant and
unobstructed at the time of closing.
19. THIS PARAGRAPH INTENTIONALLY OMITTED.
20. MISCELLANEOUS.
(a) AUTHORITY AND BINDING EFFECT. The individual signing this Contract
on behalf of Seller and the individual signing this Contract on behalf of Buyer
has the authority to bind the respective party to the agreements set forth
herein. This Contract shall be binding upon and inures to the benefit of the
parties hereto and their respective successors and assigns. The representations
and agreements contained herein shall extend to and be obligatory upon the
heirs, executors, administrators, successors and assigns of the parties hereto.
(b) ATTORNEY'S FEES. In connection with any litigation arising out of
this Contract, the prevailing party shall be entitled to recover all costs
incurred, including reasonable attorney's fees.
(c) TIME IS OF THE ESSENCE. Time shall be considered of the essence
for this Contract.
(d) WAIVER. No waiver by Seller or Buyer of any default or breach
under this Contract shall operate as a waiver of any future default, whether of
like or different nature.
(e) ENTIRE CONTRACT MODIFICATION. This Contract contains the entire
agreement of the terms and conditions agreed upon by the parties herein. This
Contract supersedes all oral agreements regarding the subject matter of this
Contract.
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(f) EFFECTIVE DATE OF CONTRACT. The "Effective Date" of this Contract
shall be the last date established by affixing signatures (or initials) and date
on this Contract.
(g) COUNTERPARTS AND FACSIMILE SIGNATURES. This Contract may be
executed in multiple counterparts, each of which shall be considered to be an
original document. "Facsimile signatures," as that term is commonly used with
reference to facsimile machines used in transmitting documents, signatures,
photocopies, etc., will be and hereby are declared by all parties to this
Contract to be the same as an original signature to this Contract. A facsimile
of this Contract, including the signature portion thereof, will be treated and
relied upon by all parties hereto as an original Contract and an authentic
signature with the same legal effect as though the facsimile were an original
document to which a genuine signature has been affixed.
(h) CONSTRUCTION. The term "Seller" may be either singular or plural
according to whichever is evidenced by the signatures below.
(i) SEVERABILITY. Should any provision of this Contract be held to be
illegal, invalid or unenforceable, such a finding shall have no effect on any
other provisions of this Contract.
(j) CONTROLLING LAW. This Contract shall be construed and interpreted
according to the laws of the State of Georgia.
(k) COMPUTATION OF TIME. If any date for the occurrence of an event or
act under this Contract falls on a Saturday, Sunday or legal holiday in the
State of Missouri, then the time for the occurrence of such event or act shall
be extended to the next succeeding business day. All time computations under
this Contract shall be based on Central Time Zone.
(l) CAPTIONS. The section headings or captions appearing in the
Contract are for convenience only, are not part of this Contract and are not to
be construed in interpreting this Contract.
(m) CONFIDENTIALITY. Whether or not the transactions contemplated are
consummated, all parties hereto will keep confidential all information including
the terms of this Contract and materials regarding each other, except as
required by applicable law or legal process.
21. ACCEPTANCE. If the Contract set forth above is acceptable, then please
execute the Acceptance at the bottom of this Contract and return a fully signed
counterpart of it to the undersigned. If not accepted by 5:00 p.m. Central Time
Zone on September 14, 2006, the Contract set forth herein shall lapse and
terminate.
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Once accepted, this shall constitute a Contract between the parties and
enforceable by and against all parties executing it. This is a legally binding
Contract. If not understood, seek competent legal advice.
BUYER
/s/ Charlie Downs
- -----------------------------------------
O'REILLY AUTOMOTIVE, INC.
By: Charlie Downs
Its: Vice President Real Estate
Executed 10:45 o'clock A. M. CT on September 12, 2006
ACCEPTANCE:
The undersigned has read and understands the foregoing Contract and hereby
accepts the same and agrees to be bound by the terms hereof.
SELLER
/s/ Daniel J. Kelly
- -----------------------------------------
CAPTEC FRANCHISE, CAPITAL PARTNERS, LP IV
By (print): Daniel J. Kelly
Its: Vice President
Executed 4:30 o'clock P. M. ET on September 12, 2006.
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Exhibit A
See attached
10
Exhibit B
Form of Warranty Deed
STATE OF GEORGIA
COUNTY OF CLAYTON
WARRANTY DEED
THIS INDENTURE, made this ___ day of _____, 200__, between CAPTEC
FRANCHISE CAPITAL PARTNERS L.P. IV, a Delaware limited partnership, (hereinafter
referred to as "Grantor") and ______________, a ____ (hereinafter referred to as
"Grantee"), the words "Grantor" and "Grantee" to include the heirs, executors,
legal representatives, successors and assigns of said parties where the context
requires or permits;
WITNESSETH:
THAT, the said Grantor, for and in consideration of the sum of TEN DOLLARS
($10.00) AND OTHER GOOD AND VALUABLE CONSIDERATION, in hand paid, at and before
the sealing and delivery of these presents, the receipt of which is hereby
acknowledged by Grantor, has granted, bargained, sold and conveyed, and by these
presents does grant, bargain, sell and convey unto the said Grantee, all that
tract or parcel of land lying and being in Clayton County, Georgia, being more
particularly described in Exhibit "A" attached hereto and incorporated herein
and made a part hereof by reference thereto and, together with all and singular
the rights, members and appurtenances thereto, to the same being, belonging, or
in anywise appertaining, which are also hereby conveyed, being hereinafter
referred to as the "Premises", subject, however, to those matters set forth in
Exhibit "B" attached hereto and by reference thereto incorporated herein, being
hereinafter referred to collectively as the "Permitted Title Exceptions".
TO HAVE AND TO HOLD the Premises, to the only proper use, benefit and
behoove of the Grantee, forever in FEE SIMPLE.
AND THE GRANTOR, and the heirs, executors, legal representatives,
successors and assigns of Grantor, will warrant Grantee, and the heirs,
executors, legal representatives, successors and assigns of Grantee, against the
claims of all persons whomsoever, subject, however, to the Permitted Title
Exceptions.
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IN WITNESS WHEREOF, the Grantor has executed this instrument under seal,
the day and year first above written.
CAPTEC FRANCHISE CAPITAL PARTNERS L.P. IV
Witness: By: GP4 Asset Acquisition, LLC
Its: General Partner
_________________________________
By: __________________________
Print Name:
Its: __________________________
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this __ day of
______________, 200_, by ___________________________, who is personally known to
me, as Vice President of GP4 Asset Acquisition LLC, a Michigan limited liability
company and the general partner of Captec Franchise Capital Partners 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
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Exhibit A to Deed
LEGAL DESCRIPTION
ALL THAT TRACT or parcel of land lying and being in Land Lot 248 of the 13th
District of Clayton County, Georgia, and being more particularly described as
follows:
TO FIND THE TRUE POINT OF BEGINNING, BEGIN at a point of intersection of the
northwestern right-of-way line of Georgia State Highway 85 (a 170 foot
right-of-way) with the southwestern right-of-way line of Helmer Road (an 80 foot
right-of-way); running thence south 24 degrees 15 minutes 00 seconds west along
the northwestern right-of-way line of Georgia State Highway 85 a distance of
909.45 feet to a 3/8 inch rebar found; said point being the TRUE POINT OF
BEGINNING; FROM THE TRUE POINT OF BEGINNING AS THUS ESTABLISHED, run thence
south 24 degrees 15 minutes 00 seconds west along the northwesterly right-of-way
line of Georgia State Highway 85 a distance of 235 feet to a point; thence
leaving the northwesterly right-of-way line of Georgia State Highway 85, run
north 65 degrees 45 minutes 00 seconds west a distance of 79.31 feet to a point;
run thence north 01 degree 25 minutes 15 seconds west a distance of 16.65 feet
to a 3/4 inch open top pipe found; run thence north 65 degrees 45 minutes 00
seconds west a distance of 105.74 feet to a 3/4 inch open top pipe found; run
thence north 24 degrees 15 minutes 00 seconds east a distance of 220.00 feet to
a 3/8 inch rebar found; run thence south 65 degrees 45 minutes 00 seconds east a
distance of 192.26 feet to a 3/8 inch rebar found on the northwesterly
right-of-way line of Georgia State Highway 85 and being the TRUE POINT OF
BEGINNING;
The above described property, containing 0.9995 acres is shown on and is
described according to that certain Boundary and Topographic Survey for Atlantis
Properties, L.L.C., Regions Bank, Blockbuster Videos, Inc., Commonwealth Land
Title Insurance Company, Captec Net Lease Realty, Inc., Credit Suisse First
Boston Mortgage Capital, L.L.C., and First American Title Insurance Company
prepared by Travis Pruitt & Associates, P.C., certified by Travis N. Pruitt,
Sr., GRLS No. 1729, dated February 4, 1997, last revised April 9, 1997, which
Survey is incorporated herein by reference thereto and made a part of this
description.
13
Exhibit B to Deed
Permitted Exceptions
14
Exhibit C
See attached
15
Exhibit D
16