SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: March 22, 1999
PARTICIPATING INCOME PROPERTIES II, L.P.
and
FFCA INVESTOR SERVICES CORPORATION 88-C
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(Exact name of Co-Registrants as Specified in Their Organizational Documents)
Delaware 0-18504 86-0588505
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(Partnership State (Partnership (Partnership IRS
of organization) Commission File Employer Identification
Number) Number)
Delaware 0-18512 86-0588507
- --------------------- ------------------ -------------------------
(Corporation State (Corporation (Corporation IRS
of incorporation) Commission File Employer Identification
Number) Number)
The Perimeter Center, 17207 North Perimeter Drive, Scottsdale, AZ 85255
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (602) 585-4500
NONE
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(Former Name or Former Address, if Change Since Last Report)
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Item 2. Acquisition or Disposition of Assets.
On March 22, 1999, Participating Income Properties II, L.P. (the
"Registrant") closed a transaction with certain special purpose companies
affiliated with Flying J Inc. (collectively the "Buyer"), whereby the Buyer
acquired from the Registrant all of the Registrant's right, title and interest
in thirteen travel plaza properties (the "Travel Plazas") located in Arizona,
Arkansas, Georgia, Kentucky, Nevada, North Carolina, Oregon, South Carolina,
Tennessee, Texas and Wyoming, for an aggregate cash payment to the Registrant of
$80,460,000. The security holders of the Registrant (the "Investors") approved
these transactions by written consent without a meeting on October 26, 1998. The
Buyer is not affiliated with the Registrant or its managing general partner,
Franchise Finance Corporation of America II, a Delaware corporation (the
"General Partner"). The net cash proceeds from the sales are being held in U.S.
government securities pending distribution to Investors. The sale of the Travel
Plazas represents the disposition of substantially all of the Registrant's
assets and the Registrant has no further liability in connection with any of the
Travel Plazas. The General Partner has begun the process of winding down the
affairs of the Registrant, which includes liquidation and distribution of assets
to the Investors in accordance with the Registrant's limited partnership
agreement. The liquidation of the Registrant is expected to be completed in
1999.
As part of the purchase of the Travel Plazas, a portion of the aggregate
sales price may at the General Partner's discretion be deposited in trust (the
"Trust Fund") with a bank. The Trust Fund, including interest income, would be
available to satisfy claims made directly or indirectly arising from the
liquidation, dissolution and winding up of the affairs of the Registrant during
a period of up to 36 months following the liquidation date. If, at the end of
such period, no claims have been made or if final decisions have been rendered
for all disputed claims, the remaining balance of the Trust Fund will be
disbursed to the Investors.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
10.01 Purchase Agreement dated as of September 4, 1998, between
Participating Income Properties II, L.P. and CFJ Plaza Company II
LLC, including the First Amendment thereto dated as of March 22,
1999.
10.02 Purchase Agreement dated as of September 4, 1998, between
Participating Income Properties II, L.P. and CFJ Plaza Company I
LLC, including the First Amendment thereto dated as of March 22,
1999.
10.03 Purchase Agreement dated as of September 4, 1998, between
Participating Income Properties II, L.P. and CFJ Plaza Company
III LLC, including the First Amendment thereto dated as of March
22, 1999.
10.04 Extension Agreement dated March 22, 1999.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Co-Registrants have duly caused this report to be signed on their behalf by
the undersigned hereunto duly authorized.
PARTICIPATING INCOME PROPERTIES II, L.P.
By: FRANCHISE FINANCE CORPORATION
OF AMERICA II,
Managing General Partner
Date April 6, 1999 By: /s/ John Barravecchia
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John Barravecchia, Executive Vice
President, Chief Financial Officer,
Treasurer and Assistant Secretary
FFCA INVESTOR SERVICES CORPORATION 88-C
Date April 6, 1999 By: /s/ John Barravecchia
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John Barravecchia,
President, Secretary and Treasurer
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made as of September 4,
1998 by and between PARTICIPATING INCOME PROPERTIES II, L.P., a Delaware limited
partnership ("Seller"), whose address is 17207 North Perimeter Drive,
Scottsdale, Arizona 85255, and CFJ PLAZA COMPANY II LLC, a Delaware limited
liability company ("Buyer"), whose address is 50 West 990 South, Brigham City,
Utah 84302.
PRELIMINARY STATEMENT
Seller is the owner of the Properties and leases the Properties to
Lessee pursuant to the Leases and the Additional Lease Documents. Buyer desires
to acquire the Properties from Seller pursuant to this Agreement, and Seller has
agreed to sell the Properties to Buyer on the terms and conditions set forth in
this Agreement. Unless otherwise expressly provided herein, all defined terms
used in this Agreement shall have the meanings set forth in Section 1.
AGREEMENT
In consideration of the mutual covenants and provisions of this
Agreement, the parties agree as follows:
1. DEFINITIONS. The following terms shall have the meanings set forth
in this Section 1 for all purposes of this Agreement:
"ADDITIONAL LEASE DOCUMENTS" means those certain agreements described
on the attached EXHIBIT B between Seller and Lessee with respect to the
Properties.
"AFFILIATE" means any entity or person, as applicable, controlling,
controlled by or under common control with any other person or entity.
"CLOSING" shall have the meaning set forth in Section 4.
"CLOSING DATE" means the date specified as the closing date in Section
4.
"CODE" means the United States Bankruptcy Code, 11 U.S.C. Sec. 101 ET
SEQ., as amended.
"COMMITMENT" means that certain commitment letter dated as of June 9,
1998 between Flying J and FFCA Acquisition Corporation, which Commitment
provides for mortgage loan financing to be provided by Lender to Buyer to
finance the Properties, subject to the satisfaction by Buyer of its obligations
under the Commitment.
"ENVIRONMENTAL LAWS" means any present and future federal, state and
local laws, statutes, ordinances, rules, regulations and the like, as well as
common law, relating to Hazardous Materials, Regulated Substances or USTs and/or
the protection of human health or the environment by reason of a Release or a
Threatened Release of Hazardous Materials or relating to liability for or costs
of Remediation or prevention of Releases. "Environmental Laws" includes, but is
not limited to, the following statutes, as amended, any successor thereto, and
any regulations promulgated pursuant
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thereto, and any state or local statutes, ordinances, rules, regulations and the
like addressing similar issues: the Comprehensive Environmental Response,
Compensation and Liability Act; the Emergency Planning and Community
Right-to-Know Act; the Hazardous Materials Transportation Act; the Resource
Conservation and Recovery Act (including but not limited to Subtitle I relating
to USTs); the Solid Waste Disposal Act; the Clean Water Act; the Clean Air Act;
the Toxic Substances Control Act; the Safe Drinking Water Act; the Occupational
Safety and Health Act; the Federal Water Pollution Control Act; the Federal
Insecticide, Fungicide and Rodenticide Act; the Endangered Species Act; the
National Environmental Policy Act; and the River and Harbors Appropriation Act.
"Environmental Laws" also includes, but is not limited to, any present and
future federal, state and local laws, statutes, ordinances, rules, regulations
and the like, as well as common law: conditioning transfer of property upon a
negative declaration or other approval of a Governmental Authority with respect
to Hazardous Materials; requiring notification or disclosure of Releases or
other environmental condition of any Property to any Governmental Authority or
other person or entity, whether or not in connection with transfer of title to
or interest in property; imposing conditions or requirements relating to
Hazardous Materials, Regulated Substances or USTs in connection with permits or
other authorization for lawful activity; relating to the handling and disposal
of solid or hazardous waste; relating to nuisance, trespass or other causes of
action related to Hazardous Materials, Regulated Substances or USTs; and
relating to wrongful death, personal injury, or property or other damage in
connection with the physical condition or use of any Property by reason of the
presence of Hazardous Materials, Regulated Substances or USTs in, on, under or
above any Property.
"FLYING J" means Flying J Inc., a Utah corporation.
"GOVERNMENTAL AUTHORITY" means any governmental authority, agency,
department, commission, bureau, board, instrumentality, court or
quasi-governmental authority of the United States, the states where the
Properties are located or any political subdivision thereof and the state(s)
where Buyer is formed and/or maintains its chief executive office or any
political subdivision thereof.
"GOVERNMENTAL REQUIREMENTS" means all applicable federal, state and
local laws, statutes, rules, regulations and ordinances, including, without
limitation, the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the
"Governmental Requirements")
"HAZARDOUS MATERIALS" means (a) any toxic substance or hazardous waste,
substance or related material, or any pollutant or contaminant; (b) radon gas,
asbestos in any form which is or could become friable, urea formaldehyde foam
insulation, transformers or other equipment which contains dielectric fluid
containing levels of polychlorinated biphenyls in excess of federal, state or
local safety guidelines, whichever are more stringent, or any "petroleum" and
"petroleum-based substances" or any similar terms described or defined in any
Environmental Laws and any applicable federal, state, county or local laws
applicable to or regulating USTs; or (c) any substance, gas, material or
chemical which is or may be defined as or included in the definition of
"hazardous substances," "toxic substances," "hazardous materials," hazardous
wastes" or words of similar import under any Environmental Laws.
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"LEASES" means those certain leases between Seller, as lessor, and
Lessee, as lessee, with respect to the Properties, which leases, including all
amendments and modifications, are described more particularly on the attached
EXHIBIT B.
"LENDER" means FFCA Acquisition Corporation or its assignee.
"LESSEE" means CFJ Properties, a Utah general partnership.
"NON-FOREIGN SELLER CERTIFICATE" means the certificate to be delivered
by Seller prior to or at the Closing pursuant to which Seller shall certify to
Buyer that Seller is neither a nonresident alien, a foreign partnership, a
foreign trust or a foreign estate, as those terms are used in the Internal
Revenue Code.
"PERMITTED EXCEPTIONS" means (i) those easements, restrictions,
encumbrances and other matters of record as of the date Seller acquired title to
the Properties, (ii) those easements, restrictions, encumbrances and other
matters placed of record subsequent to the date Seller acquired title to the
Properties in accordance with the terms of the Leases, (iii) such other
easements, restrictions, encumbrances and other matters which do not have a
material adverse effect on the current operation or use of the Properties, (iv)
matters which current surveys of the Properties would reveal, (v) taxes and
assessments and (vi) liens, restrictions, easements, encumbrances and other
matters created by or resulting from the acts of Flying J, Buyer, Lessee or any
other Affiliate of Flying J, Buyer or Lessee; provided, however, Permitted
Exceptions shall not include monetary liens of record against one or more of the
Properties created by the acts of Seller, nor shall Permitted Exceptions include
lis pendens of record against one or more of the Properties as a result of any
dispute between Seller and any third-party.
"PERSON" means any individual, corporation, partnership, limited
liability company, trust, unincorporated organization, Governmental Authority or
any other form of entity.
"PROPERTIES" means the parcels of real estate described by address in
EXHIBIT A attached hereto, all rights, privileges and appurtenances associated
therewith, all buildings, fixtures and other improvements now located thereon,
and, with respect to those parcels of real estate described by address in
EXHIBIT A-1, all of Seller's right, title and interest in all of the equipment,
trade fixtures and other items of tangible personal property situated on or
about or used in connection with such real estate.
"PROXY CONSENT" means the consent to sell the Properties and all of the
properties which are the subject of the Related Seller Agreements, as
applicable, from more than 50% of the interests in Seller held by the limited
partners of Seller. Such Proxy Consent shall be received pursuant to a
definitive proxy statement filed with the Securities and Exchange Commission
pursuant to Section 14(a) of the Securities Exchange Act of 1934, as amended.
"PURCHASE PRICE" means the amount specified in Section 3.
"REGULATED SUBSTANCES" means "petroleum" and "petroleum-based
substances" or any similar terms described or defined in any Environmental Laws
and any applicable federal, state, county or local laws applicable to or
regulating USTs.
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"RELATED AFFILIATE AGREEMENTS" means the purchase agreements described
on the attached SCHEDULE II between Seller's Affiliates and Buyer or Buyer's
Affiliates.
"RELATED SELLER AGREEMENTS" means the purchase agreements described on
the attached SCHEDULE III between Seller and Buyer or Buyer's Affiliates.
"RELEASE" means any presence, release, deposit, discharge, emission,
leaking, spilling, seeping, migrating, injecting, pumping, pouring, emptying,
escaping, dumping, disposing or other movement of Hazardous Materials, Regulated
Substances or USTs.
"REMEDIATION" means any response, remedial, removal, or corrective
action, any activity to cleanup, detoxify, decontaminate, contain or otherwise
remediate any Hazardous Material, Regulated Substances or USTs, any actions to
prevent, cure or mitigate any Release, any action to comply with any
Environmental Laws or with any permits issued pursuant thereto, any inspection,
investigation, study, monitoring, assessment, audit, sampling and testing,
laboratory or other analysis, or any evaluation relating to any Hazardous
Materials, Regulated Substances or USTs.
"SPECIAL WARRANTY DEEDS" means the special or limited warranty deeds to
be executed and delivered by Seller at the Closing for the Properties, which
Special Warranty Deeds shall be subject to the Permitted Exceptions and
otherwise in the form attached hereto as EXHIBIT C, with such changes as may be
reasonably necessary to comply with Governmental Requirements and the
requirements of Title Company and/or applicable Governmental Authorities. The
Special Warranty Deeds shall be subject to the limitation of liability set forth
in Section 13.
"TERMINATIONS AND RELEASES" shall mean those certain terminations and
mutual releases of the Leases and the Additional Lease Documents to be executed
and delivered by Seller and Lessee as of the Closing; provided, however, such
Terminations and Releases shall not provide for the termination or release of
Lessee's obligations under the Leases and the Additional Lease Documents
accruing or arising prior to the Closing, including, without limitation,
Lessee's indemnification and hold harmless obligations set forth in the Leases
and the Additional Lease Documents, but shall provide for the termination and
release of all of (i) Lessee's obligations under the Leases and the Additional
Lease Documents accruing or arising subsequent to the Closing and (ii) Seller's
obligations under the Leases and the Additional Lease Documents relating thereto
accruing or arising prior to or subsequent to the Closing. The Terminations and
Releases shall contain Lessee's acknowledgment and agreement that all of
Lessee's obligations under the Leases which accrue or arise prior to the Closing
shall survive the Closing and the execution, delivery and recordation of the
Terminations and Releases, and shall otherwise be in the form attached hereto as
EXHIBIT D.
"THREATENED RELEASE" means a substantial likelihood of a Release which
requires action to prevent or mitigate damage to the soil, surface waters,
groundwaters, land, stream sediments, surface or subsurface strata, ambient air
or any other environmental medium comprising or surrounding any Property which
may result from such Release.
"TITLE COMPANY" means Lawyers Title Insurance Corporation, Phoenix
National Division, 3636 North Central Avenue, Suite 350, Phoenix, Arizona,
85012, Attention: Ms. Sheila Layne.
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"USTS" means any one or combination of tanks and associated piping
systems used in connection with the storage, dispensing and general use of
Regulated Substances.
2. TRANSACTION. On the terms and subject to the conditions set forth
herein, Seller shall sell and Buyer shall purchase the Properties. The sale and
purchase of the Properties and the closing of the transactions contemplated by
the Related Seller Agreements are intended to be an integrated and simultaneous
transaction. The transaction described in this Agreement involves only the sale
of the Properties and does not include any assets of Seller not expressly
included within the definition of Properties. Seller's liability to Buyer in
connection with the sale and conveyance of the Properties shall be limited as
set forth in Section 13.
3. PURCHASE PRICE. The aggregate purchase price for the Properties (the
"Purchase Price") shall be the amount of $22,200,000.00, which amount is
allocated among the Properties as set forth in SCHEDULE I. Seller and Buyer
shall agree in good faith prior to the Closing on an allocation of the Purchase
Price between the real property and personal property components of each of the
Properties solely for the purpose of calculating applicable transfer taxes
imposed by Governmental Authorities on the recordation of the Special Warranty
Deeds. The Purchase Price shall be net to Seller and shall be paid by Buyer to
Seller at the Closing in immediately available funds, subject to any prorations
and adjustments required by this Agreement.
4. CLOSING; ESCROW AGENT. (a) The purchase and sale of the Properties
shall be closed (the "Closing") within 15 days after the satisfaction or waiver
of all of the conditions and requirements set forth in this Agreement,
including, without limitation, receipt of the Proxy Consent, but in no event
shall the Closing occur later than November 30, 1998 (the "Closing Date"). The
Closing shall occur at Seller's offices or at such other location agreed to by
Seller and Buyer. The Closing documents shall be dated as of the Closing Date.
(b) On or prior to the Closing Date, the parties hereto shall deposit
with Title Company all documents and moneys necessary to comply with their
obligations under this Agreement. Title Company shall not cause the transaction
to close unless and until it has received written instructions from Buyer and
Seller to do so. Seller and Buyer hereby engage Title Company to act as escrow
agent in connection with this transaction. Seller and Buyer will deliver to
Title Company all documents, pay to Title Company all sums and do or cause to be
done all other things necessary or required by this Agreement, in the reasonable
judgment of Title Company, to enable Title Company to comply herewith and to
enable any title insurance policy provided for herein to be issued. Title
Company is authorized to pay, from any funds held by it for Buyer's or Seller's
respective credit, all amounts necessary to procure the delivery of such
documents and to pay, on behalf of Buyer and Seller, all charges and obligations
payable by them, respectively. Seller and Buyer will pay all charges payable by
them to Title Company. Title Company is authorized, in the event any conflicting
demand is made upon it concerning these instructions or the escrow, at its
election, to hold any documents and/or funds deposited hereunder until an action
shall be brought in a court of competent jurisdiction to determine the rights of
Seller and Buyer or to interplead such documents and/or funds in an action
brought in any such court. Deposit by Title Company of such documents and funds,
after deducting therefrom its charges and its expenses and attorneys' fees
incurred in connection with any such court action, shall relieve Title Company
of all further liability and responsibility for such documents and funds. Title
Company's receipt of this
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Agreement and opening of an escrow pursuant to this Agreement shall be deemed to
constitute conclusive evidence of Title Company's agreement to be bound by the
terms and conditions of this Agreement pertaining to Title Company. Disbursement
of any funds shall be made by check, certified check or wire transfer, as
directed by Buyer and Seller. Title Company shall be under no obligation to
disburse any funds represented by check or draft, and no check or draft shall be
payment to Title Company in compliance with any of the requirements hereof,
until it is advised by the bank in which such check or draft is deposited that
such check or draft has been honored. Title Company is authorized to act upon
any statement furnished by the holder or payee, or a collection agent for the
holder or payee, of any lien on or charge or assessment in connection with the
Properties, concerning the amount of such charge or assessment or the amount
secured by such lien without liability or responsibility for the accuracy of
such statement.
(c) At the Closing, Seller shall deliver or cause to be delivered to
Title Company or Buyer, as applicable, the following:
(1) the Special Warranty Deeds duly executed by Seller;
(2) the Non-Foreign Seller Certificate duly executed by
Seller;
(3) evidence of its capacity and authority for the closing of
this transaction;
(4) Terminations and Releases duly executed by Seller; and
(5) all other documents reasonably required by Buyer or Title
Company to close this transaction.
(d) At the Closing, Buyer shall deliver or cause to be delivered to
Title Company or Seller, as applicable, the following:
(1) the Purchase Price in immediately available funds,
adjusted for prorations and credits as provided for in this Agreement;
(2) evidence of its capacity and authority for the closing of
the transaction contemplated herein;
(3) Terminations and Releases duly executed by Lessee; and
(4) all other documents reasonably required by Seller or Title
Company to close this transaction.
(e) Upon receipt of the foregoing items, Title Company shall pay (i)
the Purchase Price to Seller, and (ii) all other sums deposited with Title
Company by Buyer to those third-parties or Title Company entitled to payment as
set forth in the settlement statement prepared by Title Company and signed by
Seller and Buyer, respectively, in connection with the Closing, and record the
Special Warranty Deeds in the applicable real property records.
(f) At the Closing, Seller shall relinquish its right, title and
interest in and to the letter(s) of credit issued for Seller's benefit with
respect to the Leases, provided that, prior to the Closing,
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Seller shall have the right to draw on such letter(s) of credit in accordance
with the terms and conditions thereof.
5. CLOSING COSTS; PRORATIONS. (a) Except as otherwise provided in this
Agreement, Buyer shall be responsible for the payment of all costs and expenses
of the transaction described in this Agreement, whether or not the transaction
described in this Agreement closes, including, without limitation:
(i) the cost of all investigations of the Properties conducted
by Buyer, if any, including, without limitation, all environmental
assessments and/or environmental insurance policies, engineering
assessments and mechanical assessments;
(ii) the fees and expenses of Buyer's attorneys and the
reasonable fees and expenses of Seller's attorneys (other than those
incurred in connection with the Proxy Consent);
(iii) the premiums for all title insurance policies, if any,
issued as a result of the conveyance of the Properties, including,
without limitation, all title search charges, the premium for all
endorsements to such title insurance policies, and UCC search charges;
(iv) all applicable documentary stamps taxes, filing, transfer
taxes, mortgage and/or recording taxes;
(v) the cost of all surveys;
(vi) the cost of complying with the requirements of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, to the extent
applicable; and
(vii) the fees and charges of Title Company in its capacity as
escrow agent;
provided, however, Seller shall be solely responsible for the payment
of all costs and expenses incurred in connection with soliciting the
Proxy Consent, whether or not the transaction described in this
Agreement closes, and if the transaction described in this Agreement
does not close because of a breach or default by Seller under this
Agreement, Seller shall be responsible for the payment of any title
commitment cancellation fees imposed by Title Company, the cost of all
ALTA surveys prepared in connection with the Closing and its own
attorneys' fees and expenses.
(b) All rent under the Leases, including, without limitation, Monthly
Percentage Rent (as defined in the Leases), shall be prorated between Seller and
Lessee as of midnight of the day preceding the Closing Date; provided, however,
in the event that the amount of any percentage rent due to Seller under the
Leases cannot be determined by the Closing Date, Buyer shall cause Lessee to
remit such amount to Seller within ten (10) days after the Closing Date.
(c) Seller and Buyer shall not prorate any of the items listed in the
following subsections (i) through (iii), whether accruing or arising prior to or
from and after the Closing Date, and Buyer and Lessee shall be solely
responsible for the payment of all such items:
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(i) any and all real estate, personal property, ad valorem and
related taxes, levies and charges and assessments with respect to the
Properties ("Taxes");
(ii) all charges for utilities used at the Properties; and
(iii) any and all installments of general or special
assessments.
(d) The provisions of this Section 5 shall survive the Closing or any
termination of this Agreement prior to Closing.
6. REPRESENTATIONS AND WARRANTIES OF BUYER. The representations and
warranties of Buyer contained in this Section are being made to induce Seller to
enter into this Agreement and consummate the transaction contemplated herein,
and Seller has relied, and will continue to rely, upon such representations and
warranties. Buyer represents and warrants to Seller as follows:
A. ORGANIZATION OF BUYER. Buyer is duly organized, validly
existing and in good standing under the laws of its state of formation
and qualified to do business in any jurisdiction where such
qualification is required. All necessary action has been taken to
authorize the execution, delivery and performance by Buyer of this
Agreement and the other documents, instrument and agreements provided
for herein.
B. AUTHORITY OF BUYER. The person who has executed this
Agreement on behalf of Buyer is duly authorized so to do.
C. ENFORCEABILITY. Upon execution by Buyer, this Agreement and
the other documents, instruments and agreements to be executed by Buyer
in connection with this Agreement shall constitute the legal, valid and
binding obligations of Buyer, enforceable against Buyer in accordance
with their respective terms, subject to the receipt of the consents and
approvals required by all applicable Governmental Requirements.
D. CONSENTS. Buyer has obtained all necessary consents and
approvals required to execute this Agreement and perform Buyer's
obligations hereunder.
E. LITIGATION. There are no suits, actions, proceedings or
investigations pending or threatened against or involving Buyer or any
of the Properties before any arbitrator or Governmental Authority which
could reasonably result in any material adverse effect on the business,
condition, worth or operations of Buyer or any of the Properties or
Buyer's ability to perform under this Agreement.
F. NONCONTRAVENTION. Buyer is not, and the authorization,
execution, delivery and performance of this Agreement will not result,
in any breach or default under any other document, instrument or
agreement to which Buyer is a party or by which Buyer, any of the
Properties or any of Buyer's property is subject or bound. The
authorization, execution, delivery and performance of this Agreement by
Buyer will not violate any applicable law, statute, regulation, rule,
ordinance, code or order.
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All representations and warranties of Buyer made in this Agreement
shall be and will remain true and complete as of the Closing Date as if made and
restated in full as of such date, and shall survive Closing.
7. REPRESENTATIONS AND WARRANTIES OF SELLER. The representations and
warranties of Seller contained in this Section are being made to induce Buyer to
enter into this Agreement and consummate the transaction contemplated herein,
and Buyer has relied, and will continue to rely, upon such representations and
warranties. Seller represents and warrants to Buyer as follows:
A. ORGANIZATION OF SELLER. Seller is duly organized, validly
existing and in good standing under the laws of its state of formation
and qualified as a foreign partnership to do business in the states
where the Properties are located. Seller has taken all necessary action
to authorize the execution and delivery of this Agreement, and upon
receipt of the Proxy Consent and the consents and approvals required by
all applicable Governmental Requirements, Seller shall be authorized to
perform its obligations under this Agreement and to execute and deliver
the documents, instruments and agreements provided for under this
Agreement.
B. AUTHORITY OF SELLER. The persons who have executed this
Agreement on behalf of Seller are duly authorized so to do.
C. ENFORCEABILITY OF DOCUMENTS. This Agreement and the other
documents, instruments and agreements provided for under this Agreement
to be executed by Seller shall constitute the legal, valid and binding
obligation of Seller enforceable against Seller in accordance with
their terms, subject to the receipt of the Proxy Consent and the
consents and approvals required by all applicable Governmental
Requirements.
D. CONSENTS. Seller has obtained all consents and approvals
required to execute this Agreement, and upon Seller's receipt of the
Proxy Consent and the consents and approvals required by all applicable
Governmental Requirements, Seller shall have obtained all consents and
approvals required to perform Seller's obligations hereunder.
E. LITIGATION. Seller has not been served with any suits,
actions or proceedings involving any of the Properties before any
arbitrator or Governmental Authority which could reasonably result in
any material adverse effect on the business, condition, worth or
operations of any of the Properties.
F. NONCONTRAVENTION. Subject to the receipt of the Proxy
Consent and the satisfaction of all applicable Governmental
Requirements, Seller is not, and the authorization, execution, delivery
and performance of this Agreement will not result, in any breach or
default under any other document, instrument or agreement to which
Seller is a party or by which Seller is subject or bound. Subject to
the receipt of the Proxy Consent and the satisfaction of all applicable
Governmental Requirements, the authorization, execution, delivery and
performance of this Agreement by Seller will not violate any applicable
law, statute, regulation, rule, ordinance, code or order.
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All representations and warranties of Seller made in this Agreement
shall be and will remain true and complete as of the Closing Date as if made and
restated in full as of such date, but shall not survive Closing.
8. "AS IS" NATURE OF SALE. BUYER ACKNOWLEDGES THAT IT IS FULLY AWARE OF
THE QUALITY, PHYSICAL CONDITION AND VALUE OF THE PROPERTIES AND THAT BUYER IS
NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF SELLER AS TO THE CONDITION
OF THE PROPERTIES IN PURCHASING THE PROPERTIES. BUYER FURTHER ACKNOWLEDGES THAT
BUYER'S OBLIGATION TO PURCHASE THE PROPERTIES IS NOT SUBJECT TO A DUE DILIGENCE
REVIEW PERIOD AND THAT BUYER HAS HAD AMPLE OPPORTUNITY TO EVALUATE AND ASSESS
THE PROPERTIES PRIOR TO THE EXECUTION OF THIS AGREEMENT. NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IT IS EXPRESSLY UNDERSTOOD
AND AGREED THAT BUYER IS PURCHASING THE PROPERTIES "AS IS", AND THAT SELLER IS
MAKING NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, BY
OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE QUALITY, PHYSICAL CONDITION
OR VALUE OF THE PROPERTIES, OR THE INCOME OR EXPENSES FROM OR OF THE PROPERTIES.
WITHOUT LIMITING THE FOREGOING, IT IS UNDERSTOOD AND AGREED THAT SELLER MAKES NO
WARRANTY OF HABITABILITY, SUITABILITY, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. SELLER MAKES NO REPRESENTATION OR WARRANTY REGARDING
ENVIRONMENTAL MATTERS OR THE AMERICANS WITH DISABILITIES ACT OR STATE
DISABILITIES LAWS, OR OTHER REPRESENTATION OR WARRANTY REGARDING THE PROPERTIES,
THE CONDITION THEREOF, THE SUITABILITY OF THE PROPERTIES FOR ANY PARTICULAR USE,
OR OTHERWISE.
BUYER REPRESENTS AND WARRANTS TO SELLER THAT BUYER HAS KNOWLEDGE AND
EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT ENABLE BUYER TO EVALUATE THE
MERITS AND RISKS OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT. FURTHERMORE,
BUYER ACKNOWLEDGES THAT IT IS NOT IN A DISPARATE BARGAINING POSITION RELATIVE TO
SELLER WITH RESPECT TO THIS AGREEMENT.
9. CONDITIONS PRECEDENT TO CLOSING. (a) The obligation of Seller to
consummate the transaction contemplated by this Agreement is subject to the
fulfillment or waiver of each of the following conditions:
(i) COMPLIANCE WITH REPRESENTATIONS, WARRANTIES AND COVENANTS.
All obligations of Buyer under this Agreement shall have been fully
performed and complied with, and no event shall have occurred or
condition shall exist which would, upon the Closing Date or upon the
giving of notice and/or passage of time, constitute a breach or default
by Buyer hereunder.
(ii) PROXY CONSENT; GOVERNMENTAL REQUIREMENTS. Seller shall
have received the Proxy Consent. All approvals, consents and/or notices
required to be obtained and/or
10
<PAGE>
delivered pursuant to all applicable Governmental Requirements shall
have been obtained and/or delivered in accordance with such
Governmental Requirements.
(iii) RELATED SELLER AGREEMENTS. The transactions described in
the Related Seller Agreements shall close concurrently with the closing
of the transaction described in this Agreement; provided, however, this
condition shall not apply if Seller defaults in its obligation to close
such Related Seller Agreements.
Notwithstanding the foregoing, upon satisfaction of the preceding conditions and
the conditions to Seller's obligation to close the transactions described in the
Related Seller Agreements, Seller shall be obligated to close the transaction
described in this Agreement and the Related Seller Agreements even if the
conditions to the closing of the transactions described in the Related Affiliate
Agreements are not satisfied. Seller agrees to undertake in good faith to obtain
the Proxy Consent and satisfy all Governmental Requirements applicable to
Seller.
(b) The obligation of Buyer to consummate the transaction contemplated
by this Agreement is subject to the fulfillment or waiver of each of the
following conditions:
(i) RELATED SELLER AGREEMENTS AND RELATED AFFILIATE
AGREEMENTS. Each of the transactions described in the Related Seller
Agreements and the Related Affiliate Agreements shall close
concurrently with the Closing; provided, however, if the conditions set
forth in the preceding subsection (a) and to Seller's obligation to
close the transactions described in the Related Seller Agreements are
satisfied, Seller shall be obligated, at Buyer's election, to close the
transactions described in this Agreement provided there is a concurrent
closing of the Related Seller Agreements.
(ii) COMPLIANCE WITH REPRESENTATIONS, WARRANTIES AND
COVENANTS. All obligations of Seller under this Agreement shall have
been fully performed and complied with, and no event shall have
occurred or condition shall exist which would, upon the Closing Date or
upon the giving of notice and/or passage of time, constitute a breach
or default by Seller hereunder.
(iii) PROXY CONSENT; GOVERNMENTAL REQUIREMENTS. Seller shall
have received the Proxy Consent. All approvals, consents and/or notices
required to be obtained and/or delivered pursuant to all applicable
Governmental Requirements shall have been obtained and/or delivered in
accordance with such Governmental Requirements.
(iv) FINANCING. Lender shall provide financing for the
Properties in the amount and on the terms and conditions set forth in
the Commitment, subject to the satisfaction by Buyer of its obligations
under the Commitment.
(v) LITIGATION. No suits, actions, proceedings or
investigations shall be pending or threatened against or involving
Seller which could result in a material adverse effect on Seller's
ability to consummate the transaction contemplated by this Agreement,
or which challenges the validity of the Proxy Consent.
11
<PAGE>
Buyer agrees to cooperate in good faith in assisting Seller with obtaining the
Proxy Consent and agrees to undertake in good faith to satisfy all Governmental
Requirements applicable to Buyer.
(c) If this Agreement fails to close as a result of a breach by Buyer
of any of its representations, warranties or obligations set forth in this
Agreement, such failure shall not limit or affect the Lessee's obligations under
the Leases and the Additional Lease Documents.
(d) If this Agreement fails to close as a result of a breach by Seller
of any of its representations, warranties or obligations set forth in this
Agreement, or because of the failure to satisfy the conditions precedent set
forth in this Section 9, such failure shall not limit or affect the Lessee's
obligations to Seller under the Leases and the Additional Lease Documents.
10. DEFAULT AND REMEDIES. (a) In the event of a breach by Buyer of any
of its representations, warranties or obligations set forth in this Agreement,
and/or in the event that all of the conditions to Buyer's obligation to close
either have been satisfied or would be satisfied at Closing and Buyer fails to
close its purchase of the Properties, Seller shall be entitled to seek specific
performance of Buyer's obligations under this Agreement, terminate this
Agreement, and/or recover as damages Seller's out-of-pocket costs and expenses
incurred in connection with the transaction contemplated by this Agreement,
including, without limitation, attorneys' fees and expenses.
(b) In the event of a breach by Seller of its representations,
warranties or obligations set forth in this Agreement, and/or in the event that
all conditions to Seller's obligation to close either have been satisfied or
would be satisfied at Closing and Seller fails to close its sale of the
Properties hereunder, Buyer, as its exclusive remedy, may either terminate this
Agreement or seek specific performance of Seller's obligations under this
Agreement.
11. CONDEMNATION. In the event any condemnation or eminent domain
proceeding is initiated or completed with respect to any Property prior to the
Closing Date, Buyer shall not have the right to terminate this Agreement;
provided, however, at Closing, Seller shall assign to Buyer its interest in and
to any proceeds resulting from such condemnation or eminent domain proceeding.
Prior to Closing, Seller agrees to consult in good faith with Buyer during the
pendency of any such proceeding, but Buyer's rights in and to the applicable
Property with respect to any such proceedings shall be subject to, and the
resulting proceeds shall be distributed in accordance with, the terms and
conditions of the applicable Lease.
12. CASUALTY. In the event of any fire or other casualty to any
Property prior to the Closing Date, Buyer shall not have the right to terminate
this Agreement; provided, however, at Closing, Seller shall assign to Buyer its
interest in and to any insurance proceeds resulting from such fire or casualty.
Prior to Closing, Seller agrees to consult in good faith with Buyer with respect
to the negotiation of any insurance settlements, but Buyer's rights in and to
the applicable Property as a result of any such casualty shall be subject to,
and the resulting insurance proceeds shall be distributed in accordance with,
the terms and conditions of the applicable Lease.
13. LIMITATIONS ON LIABILITY. Notwithstanding anything to the contrary
provided in this Agreement or in any other document or instrument to be executed
and delivered as contemplated by this Agreement in connection with the sale of
the Properties by Seller to Buyer, including, without
12
<PAGE>
limitation, the Special Warranty Deeds, and without limiting the provisions of
Section 14.R of this Agreement, it is specifically understood and agreed, such
agreement being a primary consideration for the execution of this Agreement by
Seller and Buyer, that:
(i) there shall be absolutely no personal liability on the
part of any partner (or any partner of any partner) of Seller, any
shareholder, director, officer or employee of a partner (or any partner
of any partner) of Seller or its Affiliates with respect to any of the
terms, covenants and conditions of this Agreement and the documents to
be executed and delivered as contemplated by this Agreement with
respect to the sale of the Properties, including, without limitation,
the Special Warranty Deeds;
(ii) Buyer waives all claims, demands and causes of action
against the partners (and the partners of the partners) of Seller and
the shareholders, officers, directors, employees and agents of the
partners (and the partners of the partners) of Seller and of its
Affiliates in the event of any breach by Seller of any of the terms,
covenants and conditions of this Agreement and the documents to be
executed and delivered as contemplated by this Agreement with respect
to the sale of the Properties, including, without limitation, the
Special Warranty Deeds; and
(iii) the exculpation of liability set forth in this
subsection is absolute and without any exception whatsoever.
14. MISCELLANEOUS PROVISIONS.
A. NOTICES. All notices, consents, approvals or other
instruments required or permitted to be given by either party pursuant
to this Agreement shall be in writing and given by (i) hand delivery,
(ii) facsimile, (iii) express overnight delivery service or (iv)
certified or registered mail, return receipt requested, and shall be
deemed to have been delivered upon (a) receipt, if hand delivered, (b)
transmission, if delivered by facsimile, (c) the next business day, if
delivered by express overnight delivery service, or (d) the third
business day following the day of deposit of such notice with the
United States Postal Service, if sent by certified or registered mail,
return receipt requested. Attorneys may send or receive notices on
behalf of their respective clients. Notices shall be provided to the
parties and addresses (or facsimile numbers, as applicable) specified
below:
If to Seller: Participating Income Properties II, L.P.
c/o Franchise Finance Corporation of America II
Dennis L. Ruben, Esq.
Executive Vice President and General Counsel
17207 North Perimeter Drive
Scottsdale, AZ 85255
Telephone: (602) 585-4500
Telecopy: (602) 585-2226
13
<PAGE>
If to Buyer: CFJ Plaza Company II LLC
50 West 990 South
Brigham City, UT 84302
Attention: J Phillip Adams
President
Telephone: (801) 734-6401
Telecopy: (801) 734-6574
B. ASSIGNMENT. During the period commencing with the date of
this Agreement and ending on the Closing Date, without the prior
written consent of Seller:
(i) Buyer shall not assign or transfer any of their
rights or interests under this Agreement;
(ii) no membership interest in Buyer shall be sold,
assigned, transferred or conveyed; and
(iii) no more than 49% in the aggregate of the voting
stock of Flying J shall be sold, assigned, transferred or
conveyed, whether in one transaction or a series of
transactions,
whether voluntarily or involuntarily or by operation of law or
otherwise, including, without limitation, by merger, consolidation or
dissolution or a transfer of equity interests of Flying J or Buyer, as
applicable.
C. COMMISSION. Buyer and Seller represent and warrant to each
other that they have dealt with no real estate broker, agent, finder or
other intermediary in connection with the transaction contemplated by
this Agreement. Buyer and Seller shall indemnify and hold each other
harmless from and against any costs, claims or expenses, including
attorneys' fees, arising out of the breach of their respective
representations and warranties contained within this Section.
D. WAIVER AND AMENDMENT. No provisions of this Agreement shall
be deemed waived or amended except by a written instrument
unambiguously setting forth the matter waived or amended and signed by
the party against which enforcement of such waiver or amendment is
sought. Waiver of any matter shall not be deemed a waiver of the same
matter on any future occasion or any other matter.
E. CAPTIONS. Captions are used throughout this Agreement for
convenience of reference only and shall not be considered in any manner
in the construction or interpretation hereof.
F. SEVERABILITY. The provisions of this Agreement shall be
deemed severable. If any part of this Agreement shall be held
unenforceable, the remainder shall remain in full force and effect, and
such unenforceable provision shall be reformed by such court so as to
give maximum legal effect to the intention of the parties as expressed
therein.
14
<PAGE>
G. CONSTRUCTION GENERALLY. This is an agreement between
parties who are experienced in sophisticated and complex matters
similar to the transaction contemplated by this Agreement and is
entered into by both parties in reliance upon the economic and legal
bargains contained herein and shall be interpreted and construed in a
fair and impartial manner without regard to such factors as the party
which prepared the instrument, the relative bargaining powers of the
parties or the domicile of any party. Seller and Buyer were each
represented by legal counsel competent in advising them of their
obligations and liabilities hereunder. Words of any gender used in this
Agreement shall be held and construed to include any other gender, and
words in the singular number shall be held to include the plural, and
vice versa, unless the context requires otherwise.
H. OTHER DOCUMENTS. Each of the parties agrees to sign such
other and further documents as may be appropriate to carry out the
intentions expressed in this Agreement.
I. ATTORNEYS' FEES. In the event of any judicial or other
adversarial proceeding between the parties concerning this Agreement,
the prevailing party shall be entitled to recover all of its attorneys'
fees and other costs in addition to any other relief to which it may be
entitled, including fees and expenses paid to the Title Company in
connection with this Agreement.
J. ENTIRE AGREEMENT. This Agreement, together with any other
certificates, instruments or agreements to be delivered hereunder,
constitute the entire agreement between the parties with respect to the
subject matter hereof, and there are no other representations,
warranties or agreements, written or oral, between Seller and Buyer
with respect to the subject matter of this Agreement.
K. FORUM SELECTION; JURISDICTION; VENUE; CHOICE OF LAW. Buyer
acknowledges that this Agreement was substantially negotiated in the
State of Arizona, the Agreement was signed by Seller in the State of
Arizona and delivered by Seller and Buyer in the State of Arizona and
there are substantial contacts between the parties and the transaction
contemplated herein and the State of Arizona. For purposes of any
action or proceeding arising out of this Agreement, the parties hereto
hereby expressly submit to the jurisdiction of all federal and state
courts located in the State of Arizona and Buyer consents that it may
be served with any process or paper by registered mail or by personal
service within or without the State of Arizona in accordance with
applicable law. Furthermore, Buyer waives and agrees not to assert in
any such action, suit or proceeding that it is not personally subject
to the jurisdiction of such courts, that the action, suit or proceeding
is brought in an inconvenient forum or that venue of the action, suit
or proceeding is improper. It is the intent of the parties hereto that
all provisions of this Agreement shall be governed by and construed
under the laws of the State of Arizona. To the extent a court of
competent jurisdiction finds Arizona law inapplicable with respect to
any provisions hereof, then, as to those provisions only, the laws of
the states where the Properties are located, as applicable, shall be
deemed to apply. Nothing contained in this subsection shall limit or
restrict the right of Seller to commence any proceeding in the federal
or state courts located in the states where the Properties are located
to the extent Seller deems such proceeding necessary or advisable to
exercise remedies available under this Agreement.
15
<PAGE>
L. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
M. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of Seller and Buyer and their respective
successors and permitted assigns, including, without limitation, any
United States trustee, any debtor-in-possession or any trustee
appointed from a private panel.
N. TIME OF THE ESSENCE. Time is of the essence with respect to
each provision of this Agreement; provided, however, whenever any
determination is to be made or action to be taken on a date specified
in this Agreement, if such date shall fall upon a Saturday, Sunday or
holiday observed by federal banks in the State of Arizona, the date for
such determination or action shall be extended to the first business
day immediately thereafter.
O. WAIVER OF JURY TRIAL AND CONSEQUENTIAL, SPECIAL, INDIRECT
AND PUNITIVE DAMAGES. SELLER AND BUYER HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY
WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING,
CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST
THE OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED
HEREIN OR RELATED HERETO. THIS WAIVER BY THE PARTIES HERETO OF ANY
RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN
ESSENTIAL ASPECT OF THEIR BARGAIN. FURTHERMORE, BUYER AND SELLER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT THEY MAY HAVE
TO SEEK CONSEQUENTIAL, SPECIAL, INDIRECT AND PUNITIVE DAMAGES FROM THE
OTHER WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION,
PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY ONE PARTY AGAINST THE
OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED HEREIN OR
RELATED HERETO. THE WAIVER BY BUYER AND SELLER OF ANY RIGHT THEY MAY
HAVE TO SEEK CONSEQUENTIAL, SPECIAL, INDIRECT AND PUNITIVE DAMAGES HAS
BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN ESSENTIAL ASPECT OF
THEIR BARGAIN.
P. NONRECORDATION. The parties agree that neither this
Agreement nor any notice or memorandum thereof shall be recorded in any
public records, and a breach of this provision shall constitute a
default by the breaching party.
Q. NO OFFER; EFFECTIVE DATE. The distribution of this
Agreement by Seller to Buyer shall not constitute an offer by Seller to
Buyer to convey the Properties and shall not be binding upon and
enforceable against Seller until such time as Seller and Buyer have
both executed and acknowledged this Agreement. The "date of this
Agreement" shall be the date by which an original of this Agreement (or
original counterparts of this Agreement) have been executed and
delivered by both Seller and Buyer.
16
<PAGE>
R. INDEMNIFICATION OF BUYER AND LESSEE. Seller agrees to
indemnify, hold harmless and defend Flying J, Buyer and Lessee and
their directors, officers, shareholders, successors, assigns and
Affiliates (the "Buyer Indemnified Parties"), from and against any and
all losses, costs, claims, liabilities, damages and expenses,
including, without limitation, reasonable attorneys' fees, incurred by
any of the Buyer Indemnified Parties in connection with the
solicitation of the Proxy Consent, except to the extent of the gross
negligence or intentional misconduct of any of the Buyer Indemnified
Parties. Notwithstanding the foregoing provisions of this subsection R,
Buyer and, by execution of this Agreement below, Flying J and Lessee,
acknowledge and agree that:
(i) upon consummation of the transaction described in
this Agreement, Seller intends to liquidate and dissolve,
distribute all of its assets to its partners and terminate its
existence (the "Liquidation");
(ii) from and after the Liquidation, any and all
obligations of Seller under this subsection R will be
satisfied solely pursuant to that certain General Partners and
Limited Partnership Liability Insurance Policy to be issued to
Seller by American International Specialty Lines Insurance
Company prior to commencement of the proxy solicitation with
respect to the Proxy Consent (the "Policy"), which Policy will
provide $8,500,000.00 of aggregate liability insurance
coverage subject to a $100,000.00 per loss retention and name
Buyer, Flying J and Lessee and the partners of Lessee as
additional insureds; and
(iii) from and after the Liquidation, Buyer, Flying J
and Lessee's sole recourse under this subsection R shall be to
the Policy and Seller shall have no liability or obligation to
Buyer, Flying J and Lessee pursuant to this subsection R or
otherwise under this Agreement and/or the documents and
instruments to be delivered by Seller at the Closing.
17
<PAGE>
IN WITNESS WHEREOF, Seller and Buyer have entered into this Agreement
as of the date first above written. SELLER:
PARTICIPATING INCOME PROPERTIES II,
L.P., a Delaware limited partnership
By Franchise Finance Corporation of
America II, a Delaware corporation,
managing general partner
By /s/ Dennis Ruben
------------------------------------
Dennis Ruben
Executive Vice President and
General Counsel
BUYER:
CFJ PLAZA COMPANY II LLC
By CFJ II Management Inc., a Delaware
corporation, managing member
By /s/ J Phillip Adams
------------------------------------
J Phillip Adams
President
<PAGE>
Flying J and Lessee are joining in the execution of this Agreement solely for
the purpose of acknowledging and agreeing to the terms of Section 14.R of this
Agreement.
FLYING J INC., a Utah corporation
By /s/ J Phillip Adams
----------------------------------------------
J Phillip Adams
President
CFJ PROPERTIES, a Utah general partnership
By Big West Oil Company, a Delaware corporation,
general partner
By /s/ J Phillip Adams
----------------------------------------------
J Phillip Adams
Senior Vice President
<PAGE>
STATE OF ARIZONA }
}ss.
COUNTY OF MARICOPA }
The foregoing instrument was acknowledged before me on September 4,
1998 by Dennis L. Ruben, Executive Vice President and General Counsel of
Franchise Finance Corporation of America II, a Delaware corporation, the
managing general partner of Participating Income Properties II, L.P., a Delaware
limited partnership, on behalf of such partnership.
------------------------------------
Notary Public
My Commission Expires:
- ------------------------------------
STATE OF }
}ss.
COUNTY OF }
The foregoing instrument was acknowledged before me on September 4,
1998 by J Phillip Adams, President of CFJ II Management Inc., a Delaware
corporation, managing member of CFJ Plaza Company II LLC, a Delaware limited
liability company, on behalf of the limited liability company.
------------------------------------
Notary Public
My Commission Expires:
- ------------------------------------
<PAGE>
STATE OF }
}ss.
COUNTY OF }
The foregoing instrument was acknowledged before me on September 4,
1998 by J Phillip Adams, President of Flying J Inc., a Utah corporation, on
behalf of the corporation.
------------------------------------
Notary Public
My Commission Expires:
- ------------------------------------
STATE OF }
}ss.
COUNTY OF }
The foregoing instrument was acknowledged before me on September 4,
1998 by J Phillip Adams, Senior Vice President of Big West Oil Company, a
Delaware corporation, general partner of CFJ Properties, a Utah general
partnership, on behalf of the partnership.
------------------------------------
Notary Public
My Commission Expires:
- ------------------------------------
<PAGE>
EXHIBIT A
PROPERTIES
FFCA NO. ADDRESS
5001-0004 3300 East Andy Devine Avenue
Kingman, Arizona 86401
Mohave County
5001-0006 Inter. 20 & U.S. Highway 285
Pecos, Texas 79772
Reeves County
5001-0007 800 Watt Road
Knoxville, Tennessee 37932
Knox County
5001-0018 1880 West Winnemucca Blvd.
Winnemucca, Nevada 89445
Humboldt County
<PAGE>
EXHIBIT A-1
PROPERTIES INCLUDING PERSONAL PROPERTY
FFCA NO. ADDRESS
5001-0018 1880 West Winnemucca Blvd
Winnemucca, Nevada 89445
Humboldt County
<PAGE>
SCHEDULE I
PURCHASE PRICE ALLOCATIONS
FFCA NO. LOCATION PURCHASE PRICE
5001-0004 Kingman, Arizona $7,700,000.00
5001-0006 Pecos, Texas 4,900,000.00
5001-0007 Knoxville, Tennessee 4,500,000.00
5001-0018 Winnemucca, Nevada 5,100,000.00
-------------
TOTAL $22,200,000.00
=============
<PAGE>
SCHEDULE II
RELATED AFFILIATE AGREEMENTS
Purchase Agreement dated as of the date of this Agreement between FFCA/PIP 1986
Property Company and CFJ Plaza Company I LLC (FFCA No. 5000-0016 and 0022).
Purchase Agreement dated as of the date of this Agreement between FFCA/PIP 1986
Property Company and CFJ Plaza Company II LLC (FFCA No. 5000-0009 and 0024).
Purchase Agreement dated as of the date of this Agreement between FFCA/PIP 1986
Property Company and CFJ Plaza Company III LLC (FFCA No. 5000-0002, 0003 and
0023).
Purchase Agreement dated as of the date of this Agreement between FFCA/PIP 1986
Property Company and FJI Plaza Company LLC (FFCA No. 5000-0005).
Purchase Agreement dated as of the date of this Agreement between FFCA/PIP 1986
Property Company and Flying J Real Estate Enterprises Inc. (FFCA No. 5000-0010
and 0012).
Purchase Agreement dated as of the date of this Agreement between Participating
Income Properties III Limited Partnership and FJI Plaza Company LLC (FFCA No.
5002-0003).
Purchase Agreement dated as of the date of this Agreement between Participating
Income Properties III Limited Partnership and CFJ Plaza Company I LLC (FFCA No.
5002-0001 and 0002).
<PAGE>
SCHEDULE III
RELATED SELLER AGREEMENTS
Purchase Agreement dated as of the date of this Agreement between Participating
Income Properties II, L.P. and CFJ Plaza Company I LLC (FFCA Nos. 5001-0003,
0005, 0008, 0009, 0016 and 0017).
Purchase Agreement dated as of the date of this Agreement between Participating
Income Properties II, L.P. and CFJ Plaza Company III LLC (FFCA No. 5001-0010,
0011 and 0012).
<PAGE>
FIRST AMENDMENT OF PURCHASE AGREEMENT
THIS FIRST AMENDMENT OF PURCHASE AGREEMENT (this "Amendment") is made
as of March 22, 1999 by and between PARTICIPATING INCOME PROPERTIES II, L.P., a
Delaware limited partnership ("Seller"), and CFJ PLAZA COMPANY II LLC, a
Delaware limited liability company ("Buyer").
PRELIMINARY STATEMENT
Seller and Buyer entered into that certain Purchase Agreement dated as
of September 4, 1998 (the "Agreement"). Initially capitalized terms not
otherwise defined herein shall have the meanings set forth in the Agreement.
At the time Seller and Buyer entered into the Agreement, the Agreement
contemplated that Buyer would purchase all of Seller's right, title and interest
in all personal property, appliances, trade fixtures, furniture and equipment
situated on or about or used in connection with the parcels of real estate as
described in Exhibit A-1 attached to the Agreement (collectively, the
"Personalty"). Seller and Buyer desire to amend the Agreement to provide that
Seller will convey the Personalty to CFJ Properties, a Utah general partnership
("CFJ") in accordance with this Amendment.
AGREEMENT
In consideration of the provisions of this Amendment, the parties agree
as follows:
1. AMENDMENT. The Agreement is amended to provide that:
A. all references to Seller conveying the Personalty to Buyer
are amended to provide that Seller shall convey the Personalty to CFJ;
and
B. at the Closing, Seller shall convey the Personalty to CFJ
pursuant to a bill of sale in form and substance reasonably
satisfactory to Seller and Buyer.
2. RATIFICATION. Except as otherwise amended by this Amendment, the
Agreement is unmodified and in full force and effect.
<PAGE>
IN WITNESS WHEREOF, Seller and Buyer have entered into this Amendment
as of the date first above written.
SELLER:
PARTICIPATING INCOME PROPERTIES II,
L.P., a Delaware limited partnership
By Franchise Finance Corporation of America
II, a Delaware corporation, managing
general partner
By /s/ Dennis L. Ruben
------------------------------------
Dennis L. Ruben
Executive Vice President and
General Counsel
BUYER:
CFJ PLAZA COMPANY II LLC, a Delaware
limited liability company
By CFJ II Management Inc., a Delaware
corporation, managing member
By /s/ J Phillip Adams
------------------------------------
J Phillip Adams
President
2
<PAGE>
STATE OF ARIZONA }
} ss.
COUNTY OF MARICOPA }
The foregoing instrument was acknowledged before me on March 22, 1999
by Dennis L. Ruben, Executive Vice President and General Counsel of Franchise
Finance Corporation of America II, a Delaware corporation, the managing general
partner of Participating Income Properties II, L.P., a Delaware limited
partnership, on behalf of such partnership.
-----------------------------------
Notary Public
My Commission Expires:
- ------------------------------------
STATE OF ARIZONA }
}ss.
COUNTY OF MARICOPA }
The foregoing instrument was acknowledged before me on March 22, 1999
by J Phillip Adams, President of CFJ II Management Inc., a Delaware corporation,
managing member of CFJ Plaza Company II LLC, a Delaware limited liability
company, on behalf of the limited liability company.
-----------------------------------
Notary Public
My Commission Expires:
- ------------------------------------
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made as of September 4,
1998 by and between PARTICIPATING INCOME PROPERTIES II, L.P., a Delaware limited
partnership ("Seller"), whose address is 17207 North Perimeter Drive,
Scottsdale, Arizona 85255, and CFJ PLAZA COMPANY I LLC, a Delaware limited
liability company ("Buyer"), whose address is 50 West 990 South, Brigham City,
Utah 84302.
PRELIMINARY STATEMENT
Seller is the owner of the Properties and leases the Properties to
Lessee pursuant to the Leases and the Additional Lease Documents. Buyer desires
to acquire the Properties from Seller pursuant to this Agreement, and Seller has
agreed to sell the Properties to Buyer on the terms and conditions set forth in
this Agreement. Unless otherwise expressly provided herein, all defined terms
used in this Agreement shall have the meanings set forth in Section 1.
AGREEMENT
In consideration of the mutual covenants and provisions of this
Agreement, the parties agree as follows:
1. DEFINITIONS. The following terms shall have the meanings set forth
in this Section 1 for all purposes of this Agreement:
"ADDITIONAL LEASE DOCUMENTS" means those certain agreements described
on the attached EXHIBIT B between Seller and Lessee with respect to the
Properties.
"AFFILIATE" means any entity or person, as applicable, controlling,
controlled by or under common control with any other person or entity.
"CLOSING" shall have the meaning set forth in Section 4.
"CLOSING DATE" means the date specified as the closing date in Section
4.
"CODE" means the United States Bankruptcy Code, 11 U.S.C. Sec. 101 ET
SEQ., as amended.
"COMMITMENT" means that certain commitment letter dated as of June 9,
1998 between Flying J and FFCA Acquisition Corporation, which Commitment
provides for mortgage loan financing to be provided by Lender to Buyer to
finance the Properties, subject to the satisfaction by Buyer of its obligations
under the Commitment.
"ENVIRONMENTAL LAWS" means any present and future federal, state and
local laws, statutes, ordinances, rules, regulations and the like, as well as
common law, relating to Hazardous Materials, Regulated Substances or USTs and/or
the protection of human health or the environment by reason of a Release or a
Threatened Release of Hazardous Materials or relating to liability for or costs
of Remediation or prevention of Releases. "Environmental Laws" includes, but is
not limited to, the following statutes, as amended, any successor thereto, and
any regulations promulgated pursuant thereto, and any state or local statutes,
ordinances, rules, regulations and the like addressing similar
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issues: the Comprehensive Environmental Response, Compensation and Liability
Act; the Emergency Planning and Community Right-to-Know Act; the Hazardous
Materials Transportation Act; the Resource Conservation and Recovery Act
(including but not limited to Subtitle I relating to USTs); the Solid Waste
Disposal Act; the Clean Water Act; the Clean Air Act; the Toxic Substances
Control Act; the Safe Drinking Water Act; the Occupational Safety and Health
Act; the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide
and Rodenticide Act; the Endangered Species Act; the National Environmental
Policy Act; and the River and Harbors Appropriation Act. "Environmental Laws"
also includes, but is not limited to, any present and future federal, state and
local laws, statutes, ordinances, rules, regulations and the like, as well as
common law: conditioning transfer of property upon a negative declaration or
other approval of a Governmental Authority with respect to Hazardous Materials;
requiring notification or disclosure of Releases or other environmental
condition of any Property to any Governmental Authority or other person or
entity, whether or not in connection with transfer of title to or interest in
property; imposing conditions or requirements relating to Hazardous Materials,
Regulated Substances or USTs in connection with permits or other authorization
for lawful activity; relating to the handling and disposal of solid or hazardous
waste; relating to nuisance, trespass or other causes of action related to
Hazardous Materials, Regulated Substances or USTs; and relating to wrongful
death, personal injury, or property or other damage in connection with the
physical condition or use of any Property by reason of the presence of Hazardous
Materials, Regulated Substances or USTs in, on, under or above any Property.
"FLYING J" means Flying J Inc., a Utah corporation.
"GOVERNMENTAL AUTHORITY" means any governmental authority, agency,
department, commission, bureau, board, instrumentality, court or
quasi-governmental authority of the United States, the states where the
Properties are located or any political subdivision thereof and the state(s)
where Buyer is formed and/or maintains its chief executive office or any
political subdivision thereof.
"GOVERNMENTAL REQUIREMENTS" means all applicable federal, state and
local laws, statutes, rules, regulations and ordinances, including, without
limitation, the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the
"Governmental Requirements")
"HAZARDOUS MATERIALS" means (a) any toxic substance or hazardous waste,
substance or related material, or any pollutant or contaminant; (b) radon gas,
asbestos in any form which is or could become friable, urea formaldehyde foam
insulation, transformers or other equipment which contains dielectric fluid
containing levels of polychlorinated biphenyls in excess of federal, state or
local safety guidelines, whichever are more stringent, or any "petroleum" and
"petroleum-based substances" or any similar terms described or defined in any
Environmental Laws and any applicable federal, state, county or local laws
applicable to or regulating USTs; or (c) any substance, gas, material or
chemical which is or may be defined as or included in the definition of
"hazardous substances," "toxic substances," "hazardous materials," hazardous
wastes" or words of similar import under any Environmental Laws.
"LEASES" means those certain leases between Seller, as lessor, and
Lessee, as lessee, with respect to the Properties, which leases, including all
amendments and modifications, are described more particularly on the attached
EXHIBIT B.
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"LENDER" means FFCA Acquisition Corporation or its assignee.
"LESSEE" means CFJ Properties, a Utah general partnership.
"NON-FOREIGN SELLER CERTIFICATE" means the certificate to be delivered
by Seller prior to or at the Closing pursuant to which Seller shall certify to
Buyer that Seller is neither a nonresident alien, a foreign partnership, a
foreign trust or a foreign estate, as those terms are used in the Internal
Revenue Code.
"PERMITTED EXCEPTIONS" means (i) those easements, restrictions,
encumbrances and other matters of record as of the date Seller acquired title to
the Properties, (ii) those easements, restrictions, encumbrances and other
matters placed of record subsequent to the date Seller acquired title to the
Properties in accordance with the terms of the Leases, (iii) such other
easements, restrictions, encumbrances and other matters which do not have a
material adverse effect on the current operation or use of the Properties, (iv)
matters which current surveys of the Properties would reveal, (v) taxes and
assessments and (vi) liens, restrictions, easements, encumbrances and other
matters created by or resulting from the acts of Flying J, Buyer, Lessee or any
other Affiliate of Flying J, Buyer or Lessee; provided, however, Permitted
Exceptions shall not include monetary liens of record against one or more of the
Properties created by the acts of Seller, nor shall Permitted Exceptions include
lis pendens of record against one or more of the Properties as a result of any
dispute between Seller and any third-party.
"PERSON" means any individual, corporation, partnership, limited
liability company, trust, unincorporated organization, Governmental Authority or
any other form of entity.
"PROPERTIES" means the parcels of real estate described by address in
EXHIBIT A attached hereto, all rights, privileges and appurtenances associated
therewith, all buildings, fixtures and other improvements now located thereon,
and, with respect to those parcels of real estate described by address in
EXHIBIT A-1, all of Seller's right, title and interest in all of the equipment,
trade fixtures and other items of tangible personal property situated on or
about or used in connection with such real estate.
"PROXY CONSENT" means the consent to sell the Properties and all of the
properties which are the subject of the Related Seller Agreements, as
applicable, from more than 50% of the interests in Seller held by the limited
partners of Seller. Such Proxy Consent shall be received pursuant to a
definitive proxy statement filed with the Securities and Exchange Commission
pursuant to Section 14(a) of the Securities Exchange Act of 1934, as amended.
"PURCHASE PRICE" means the amount specified in Section 3.
"REGULATED SUBSTANCES" means "petroleum" and "petroleum-based
substances" or any similar terms described or defined in any Environmental Laws
and any applicable federal, state, county or local laws applicable to or
regulating USTs.
"RELATED AFFILIATE AGREEMENTS" means the purchase agreements described
on the attached SCHEDULE II between Seller's Affiliates and Buyer or Buyer's
Affiliates.
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"RELATED SELLER AGREEMENTS" means the purchase agreements described on
the attached SCHEDULE III between Seller and Buyer or Buyer's Affiliates.
"RELEASE" means any presence, release, deposit, discharge, emission,
leaking, spilling, seeping, migrating, injecting, pumping, pouring, emptying,
escaping, dumping, disposing or other movement of Hazardous Materials, Regulated
Substances or USTs.
"REMEDIATION" means any response, remedial, removal, or corrective
action, any activity to cleanup, detoxify, decontaminate, contain or otherwise
remediate any Hazardous Material, Regulated Substances or USTs, any actions to
prevent, cure or mitigate any Release, any action to comply with any
Environmental Laws or with any permits issued pursuant thereto, any inspection,
investigation, study, monitoring, assessment, audit, sampling and testing,
laboratory or other analysis, or any evaluation relating to any Hazardous
Materials, Regulated Substances or USTs.
"SPECIAL WARRANTY DEEDS" means the special or limited warranty deeds to
be executed and delivered by Seller at the Closing for the Properties, which
Special Warranty Deeds shall be subject to the Permitted Exceptions and
otherwise in the form attached hereto as EXHIBIT C, with such changes as may be
reasonably necessary to comply with Governmental Requirements and the
requirements of Title Company and/or applicable Governmental Authorities. The
Special Warranty Deeds shall be subject to the limitation of liability set forth
in Section 13.
"TERMINATIONS AND RELEASES" shall mean those certain terminations and
mutual releases of the Leases and the Additional Lease Documents to be executed
and delivered by Seller and Lessee as of the Closing; provided, however, such
Terminations and Releases shall not provide for the termination or release of
Lessee's obligations under the Leases and the Additional Lease Documents
accruing or arising prior to the Closing, including, without limitation,
Lessee's indemnification and hold harmless obligations set forth in the Leases
and the Additional Lease Documents, but shall provide for the termination and
release of all of (i) Lessee's obligations under the Leases and the Additional
Lease Documents accruing or arising subsequent to the Closing and (ii) Seller's
obligations under the Leases and the Additional Lease Documents relating thereto
accruing or arising prior to or subsequent to the Closing. The Terminations and
Releases shall contain Lessee's acknowledgment and agreement that all of
Lessee's obligations under the Leases which accrue or arise prior to the Closing
shall survive the Closing and the execution, delivery and recordation of the
Terminations and Releases, and shall otherwise be in the form attached hereto as
EXHIBIT D.
"THREATENED RELEASE" means a substantial likelihood of a Release which
requires action to prevent or mitigate damage to the soil, surface waters,
groundwaters, land, stream sediments, surface or subsurface strata, ambient air
or any other environmental medium comprising or surrounding any Property which
may result from such Release.
"TITLE COMPANY" means Lawyers Title Insurance Corporation, Phoenix
National Division, 3636 North Central Avenue, Suite 350, Phoenix, Arizona,
85012, Attention: Ms. Sheila Layne.
"USTS" means any one or combination of tanks and associated piping
systems used in connection with the storage, dispensing and general use of
Regulated Substances.
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2. TRANSACTION. On the terms and subject to the conditions set forth
herein, Seller shall sell and Buyer shall purchase the Properties. The sale and
purchase of the Properties and the closing of the transactions contemplated by
the Related Seller Agreements are intended to be an integrated and simultaneous
transaction. The transaction described in this Agreement involves only the sale
of the Properties and does not include any assets of Seller not expressly
included within the definition of Properties. Seller's liability to Buyer in
connection with the sale and conveyance of the Properties shall be limited as
set forth in Section 13.
3. PURCHASE PRICE. The aggregate purchase price for the Properties (the
"Purchase Price") shall be the amount of $36,130,000.00, which amount is
allocated among the Properties as set forth in SCHEDULE I. Seller and Buyer
shall agree in good faith prior to the Closing on an allocation of the Purchase
Price between the real property and personal property components of each of the
Properties solely for the purpose of calculating applicable transfer taxes
imposed by Governmental Authorities on the recordation of the Special Warranty
Deeds. The Purchase Price shall be net to Seller and shall be paid by Buyer to
Seller at the Closing in immediately available funds, subject to any prorations
and adjustments required by this Agreement.
4. CLOSING; ESCROW AGENT. (a) The purchase and sale of the Properties
shall be closed (the "Closing") within 15 days after the satisfaction or waiver
of all of the conditions and requirements set forth in this Agreement,
including, without limitation, receipt of the Proxy Consent, but in no event
shall the Closing occur later than November 30, 1998 (the "Closing Date"). The
Closing shall occur at Seller's offices or at such other location agreed to by
Seller and Buyer. The Closing documents shall be dated as of the Closing Date.
(b) On or prior to the Closing Date, the parties hereto shall deposit
with Title Company all documents and moneys necessary to comply with their
obligations under this Agreement. Title Company shall not cause the transaction
to close unless and until it has received written instructions from Buyer and
Seller to do so. Seller and Buyer hereby engage Title Company to act as escrow
agent in connection with this transaction. Seller and Buyer will deliver to
Title Company all documents, pay to Title Company all sums and do or cause to be
done all other things necessary or required by this Agreement, in the reasonable
judgment of Title Company, to enable Title Company to comply herewith and to
enable any title insurance policy provided for herein to be issued. Title
Company is authorized to pay, from any funds held by it for Buyer's or Seller's
respective credit, all amounts necessary to procure the delivery of such
documents and to pay, on behalf of Buyer and Seller, all charges and obligations
payable by them, respectively. Seller and Buyer will pay all charges payable by
them to Title Company. Title Company is authorized, in the event any conflicting
demand is made upon it concerning these instructions or the escrow, at its
election, to hold any documents and/or funds deposited hereunder until an action
shall be brought in a court of competent jurisdiction to determine the rights of
Seller and Buyer or to interplead such documents and/or funds in an action
brought in any such court. Deposit by Title Company of such documents and funds,
after deducting therefrom its charges and its expenses and attorneys' fees
incurred in connection with any such court action, shall relieve Title Company
of all further liability and responsibility for such documents and funds. Title
Company's receipt of this Agreement and opening of an escrow pursuant to this
Agreement shall be deemed to constitute conclusive evidence of Title Company's
agreement to be bound by the terms and conditions of this Agreement pertaining
to Title Company. Disbursement of any funds shall be made by check,
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certified check or wire transfer, as directed by Buyer and Seller. Title Company
shall be under no obligation to disburse any funds represented by check or
draft, and no check or draft shall be payment to Title Company in compliance
with any of the requirements hereof, until it is advised by the bank in which
such check or draft is deposited that such check or draft has been honored.
Title Company is authorized to act upon any statement furnished by the holder or
payee, or a collection agent for the holder or payee, of any lien on or charge
or assessment in connection with the Properties, concerning the amount of such
charge or assessment or the amount secured by such lien without liability or
responsibility for the accuracy of such statement.
(c) At the Closing, Seller shall deliver or cause to be delivered to
Title Company or Buyer, as applicable, the following:
(1) the Special Warranty Deeds duly executed by Seller;
(2) the Non-Foreign Seller Certificate duly executed by
Seller;
(3) evidence of its capacity and authority for the closing of
this transaction;
(4) Terminations and Releases duly executed by Seller; and
(5) all other documents reasonably required by Buyer or Title
Company to close this transaction.
(d) At the Closing, Buyer shall deliver or cause to be delivered to
Title Company or Seller, as applicable, the following:
(1) the Purchase Price in immediately available funds,
adjusted for prorations and credits as provided for in this Agreement;
(2) evidence of its capacity and authority for the closing of
the transaction contemplated herein;
(3) Terminations and Releases duly executed by Lessee; and
(4) all other documents reasonably required by Seller or Title
Company to close this transaction.
(e) Upon receipt of the foregoing items, Title Company shall pay (i)
the Purchase Price to Seller, and (ii) all other sums deposited with Title
Company by Buyer to those third-parties or Title Company entitled to payment as
set forth in the settlement statement prepared by Title Company and signed by
Seller and Buyer, respectively, in connection with the Closing, and record the
Special Warranty Deeds in the applicable real property records.
(f) At the Closing, Seller shall relinquish its right, title and
interest in and to the letter(s) of credit issued for Seller's benefit with
respect to the Leases, provided that, prior to the Closing, Seller shall have
the right to draw on such letter(s) of credit in accordance with the terms and
conditions thereof.
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5. CLOSING COSTS; PRORATIONS. (a) Except as otherwise provided in this
Agreement, Buyer shall be responsible for the payment of all costs and expenses
of the transaction described in this Agreement, whether or not the transaction
described in this Agreement closes, including, without limitation:
(i) the cost of all investigations of the Properties conducted
by Buyer, if any, including, without limitation, all environmental
assessments and/or environmental insurance policies, engineering
assessments and mechanical assessments;
(ii) the fees and expenses of Buyer's attorneys and the
reasonable fees and expenses of Seller's attorneys (other than those
incurred in connection with the Proxy Consent);
(iii) the premiums for all title insurance policies, if any,
issued as a result of the conveyance of the Properties, including,
without limitation, all title search charges, the premium for all
endorsements to such title insurance policies, and UCC search charges;
(iv) all applicable documentary stamps taxes, filing, transfer
taxes, mortgage and/or recording taxes;
(v) the cost of all surveys;
(vi) the cost of complying with the requirements of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, to the extent
applicable; and
(vii) the fees and charges of Title Company in its capacity as
escrow agent;
provided, however, Seller shall be solely responsible for the payment
of all costs and expenses incurred in connection with soliciting the
Proxy Consent, whether or not the transaction described in this
Agreement closes, and if the transaction described in this Agreement
does not close because of a breach or default by Seller under this
Agreement, Seller shall be responsible for the payment of any title
commitment cancellation fees imposed by Title Company, the cost of all
ALTA surveys prepared in connection with the Closing and its own
attorneys' fees and expenses.
(b) All rent under the Leases, including, without limitation, Monthly
Percentage Rent (as defined in the Leases), shall be prorated between Seller and
Lessee as of midnight of the day preceding the Closing Date; provided, however,
in the event that the amount of any percentage rent due to Seller under the
Leases cannot be determined by the Closing Date, Buyer shall cause Lessee to
remit such amount to Seller within ten (10) days after the Closing Date.
(c) Seller and Buyer shall not prorate any of the items listed in the
following subsections (i) through (iii), whether accruing or arising prior to or
from and after the Closing Date, and Buyer and Lessee shall be solely
responsible for the payment of all such items:
(i) any and all real estate, personal property, ad valorem and
related taxes, levies and charges and assessments with respect to the
Properties ("Taxes");
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(ii) all charges for utilities used at the Properties; and
(iii) any and all installments of general or special
assessments.
(d) The provisions of this Section 5 shall survive the Closing or any
termination of this Agreement prior to Closing.
6. REPRESENTATIONS AND WARRANTIES OF BUYER. The representations and
warranties of Buyer contained in this Section are being made to induce Seller to
enter into this Agreement and consummate the transaction contemplated herein,
and Seller has relied, and will continue to rely, upon such representations and
warranties. Buyer represents and warrants to Seller as follows:
A. ORGANIZATION OF BUYER. Buyer is duly organized, validly
existing and in good standing under the laws of its state of formation
and qualified to do business in any jurisdiction where such
qualification is required. All necessary action has been taken to
authorize the execution, delivery and performance by Buyer of this
Agreement and the other documents, instrument and agreements provided
for herein.
B. AUTHORITY OF BUYER. The person who has executed this
Agreement on behalf of Buyer is duly authorized so to do.
C. ENFORCEABILITY. Upon execution by Buyer, this Agreement and
the other documents, instruments and agreements to be executed by Buyer
in connection with this Agreement shall constitute the legal, valid and
binding obligations of Buyer, enforceable against Buyer in accordance
with their respective terms, subject to the receipt of the consents and
approvals required by all applicable Governmental Requirements.
D. CONSENTS. Buyer has obtained all necessary consents and
approvals required to execute this Agreement and perform Buyer's
obligations hereunder.
E. LITIGATION. There are no suits, actions, proceedings or
investigations pending or threatened against or involving Buyer or any
of the Properties before any arbitrator or Governmental Authority which
could reasonably result in any material adverse effect on the business,
condition, worth or operations of Buyer or any of the Properties or
Buyer's ability to perform under this Agreement.
F. NONCONTRAVENTION. Buyer is not, and the authorization,
execution, delivery and performance of this Agreement will not result,
in any breach or default under any other document, instrument or
agreement to which Buyer is a party or by which Buyer, any of the
Properties or any of Buyer's property is subject or bound. The
authorization, execution, delivery and performance of this Agreement by
Buyer will not violate any applicable law, statute, regulation, rule,
ordinance, code or order.
All representations and warranties of Buyer made in this Agreement
shall be and will remain true and complete as of the Closing Date as if made and
restated in full as of such date, and shall survive Closing.
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7. REPRESENTATIONS AND WARRANTIES OF SELLER. The representations and
warranties of Seller contained in this Section are being made to induce Buyer to
enter into this Agreement and consummate the transaction contemplated herein,
and Buyer has relied, and will continue to rely, upon such representations and
warranties. Seller represents and warrants to Buyer as follows:
A. ORGANIZATION OF SELLER. Seller is duly organized, validly
existing and in good standing under the laws of its state of formation
and qualified as a foreign partnership to do business in the states
where the Properties are located. Seller has taken all necessary action
to authorize the execution and delivery of this Agreement, and upon
receipt of the Proxy Consent and the consents and approvals required by
all applicable Governmental Requirements, Seller shall be authorized to
perform its obligations under this Agreement and to execute and deliver
the documents, instruments and agreements provided for under this
Agreement.
B. AUTHORITY OF SELLER. The persons who have executed this
Agreement on behalf of Seller are duly authorized so to do.
C. ENFORCEABILITY OF DOCUMENTS. This Agreement and the other
documents, instruments and agreements provided for under this Agreement
to be executed by Seller shall constitute the legal, valid and binding
obligation of Seller enforceable against Seller in accordance with
their terms, subject to the receipt of the Proxy Consent and the
consents and approvals required by all applicable Governmental
Requirements.
D. CONSENTS. Seller has obtained all consents and approvals
required to execute this Agreement, and upon Seller's receipt of the
Proxy Consent and the consents and approvals required by all applicable
Governmental Requirements, Seller shall have obtained all consents and
approvals required to perform Seller's obligations hereunder.
E. LITIGATION. Seller has not been served with any suits,
actions or proceedings involving any of the Properties before any
arbitrator or Governmental Authority which could reasonably result in
any material adverse effect on the business, condition, worth or
operations of any of the Properties.
F. NONCONTRAVENTION. Subject to the receipt of the Proxy
Consent and the satisfaction of all applicable Governmental
Requirements, Seller is not, and the authorization, execution, delivery
and performance of this Agreement will not result, in any breach or
default under any other document, instrument or agreement to which
Seller is a party or by which Seller is subject or bound. Subject to
the receipt of the Proxy Consent and the satisfaction of all applicable
Governmental Requirements, the authorization, execution, delivery and
performance of this Agreement by Seller will not violate any applicable
law, statute, regulation, rule, ordinance, code or order.
All representations and warranties of Seller made in this Agreement
shall be and will remain true and complete as of the Closing Date as if made and
restated in full as of such date, but shall not survive Closing.
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8. "AS IS" NATURE OF SALE. BUYER ACKNOWLEDGES THAT IT IS FULLY AWARE OF
THE QUALITY, PHYSICAL CONDITION AND VALUE OF THE PROPERTIES AND THAT BUYER IS
NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF SELLER AS TO THE CONDITION
OF THE PROPERTIES IN PURCHASING THE PROPERTIES. BUYER FURTHER ACKNOWLEDGES THAT
BUYER'S OBLIGATION TO PURCHASE THE PROPERTIES IS NOT SUBJECT TO A DUE DILIGENCE
REVIEW PERIOD AND THAT BUYER HAS HAD AMPLE OPPORTUNITY TO EVALUATE AND ASSESS
THE PROPERTIES PRIOR TO THE EXECUTION OF THIS AGREEMENT. NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IT IS EXPRESSLY UNDERSTOOD
AND AGREED THAT BUYER IS PURCHASING THE PROPERTIES "AS IS", AND THAT SELLER IS
MAKING NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, BY
OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE QUALITY, PHYSICAL CONDITION
OR VALUE OF THE PROPERTIES, OR THE INCOME OR EXPENSES FROM OR OF THE PROPERTIES.
WITHOUT LIMITING THE FOREGOING, IT IS UNDERSTOOD AND AGREED THAT SELLER MAKES NO
WARRANTY OF HABITABILITY, SUITABILITY, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. SELLER MAKES NO REPRESENTATION OR WARRANTY REGARDING
ENVIRONMENTAL MATTERS OR THE AMERICANS WITH DISABILITIES ACT OR STATE
DISABILITIES LAWS, OR OTHER REPRESENTATION OR WARRANTY REGARDING THE PROPERTIES,
THE CONDITION THEREOF, THE SUITABILITY OF THE PROPERTIES FOR ANY PARTICULAR USE,
OR OTHERWISE.
BUYER REPRESENTS AND WARRANTS TO SELLER THAT BUYER HAS KNOWLEDGE AND
EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT ENABLE BUYER TO EVALUATE THE
MERITS AND RISKS OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT. FURTHERMORE,
BUYER ACKNOWLEDGES THAT IT IS NOT IN A DISPARATE BARGAINING POSITION RELATIVE TO
SELLER WITH RESPECT TO THIS AGREEMENT.
9. CONDITIONS PRECEDENT TO CLOSING. (a) The obligation of Seller to
consummate the transaction contemplated by this Agreement is subject to the
fulfillment or waiver of each of the following conditions:
(i) COMPLIANCE WITH REPRESENTATIONS, WARRANTIES AND COVENANTS.
All obligations of Buyer under this Agreement shall have been fully
performed and complied with, and no event shall have occurred or
condition shall exist which would, upon the Closing Date or upon the
giving of notice and/or passage of time, constitute a breach or default
by Buyer hereunder.
(ii) PROXY CONSENT; GOVERNMENTAL REQUIREMENTS. Seller shall
have received the Proxy Consent. All approvals, consents and/or notices
required to be obtained and/or delivered pursuant to all applicable
Governmental Requirements shall have been obtained and/or delivered in
accordance with such Governmental Requirements.
(iii) RELATED SELLER AGREEMENTS. The transactions described in
the Related Seller Agreements shall close concurrently with the closing
of the transaction described in this
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Agreement; provided, however, this condition shall not apply if Seller
defaults in its obligation to close such Related Seller Agreements.
Notwithstanding the foregoing, upon satisfaction of the preceding conditions and
the conditions to Seller's obligation to close the transactions described in the
Related Seller Agreements, Seller shall be obligated to close the transaction
described in this Agreement and the Related Seller Agreements even if the
conditions to the closing of the transactions described in the Related Affiliate
Agreements are not satisfied. Seller agrees to undertake in good faith to obtain
the Proxy Consent and satisfy all Governmental Requirements applicable to
Seller.
(b) The obligation of Buyer to consummate the transaction contemplated
by this Agreement is subject to the fulfillment or waiver of each of the
following conditions:
(i) RELATED SELLER AGREEMENTS AND RELATED AFFILIATE
AGREEMENTS. Each of the transactions described in the Related Seller
Agreements and the Related Affiliate Agreements shall close
concurrently with the Closing; provided, however, if the conditions set
forth in the preceding subsection (a) and to Seller's obligation to
close the transactions described in the Related Seller Agreements are
satisfied, Seller shall be obligated, at Buyer's election, to close the
transactions described in this Agreement provided there is a concurrent
closing of the Related Seller Agreements.
(ii) COMPLIANCE WITH REPRESENTATIONS, WARRANTIES AND
COVENANTS. All obligations of Seller under this Agreement shall have
been fully performed and complied with, and no event shall have
occurred or condition shall exist which would, upon the Closing Date or
upon the giving of notice and/or passage of time, constitute a breach
or default by Seller hereunder.
(iii) PROXY CONSENT; GOVERNMENTAL REQUIREMENTS. Seller shall
have received the Proxy Consent. All approvals, consents and/or notices
required to be obtained and/or delivered pursuant to all applicable
Governmental Requirements shall have been obtained and/or delivered in
accordance with such Governmental Requirements.
(iv) FINANCING. Lender shall provide financing for the
Properties in the amount and on the terms and conditions set forth in
the Commitment, subject to the satisfaction by Buyer of its obligations
under the Commitment.
(v) LITIGATION. No suits, actions, proceedings or
investigations shall be pending or threatened against or involving
Seller which could result in a material adverse effect on Seller's
ability to consummate the transaction contemplated by this Agreement,
or which challenges the validity of the Proxy Consent.
Buyer agrees to cooperate in good faith in assisting Seller with obtaining the
Proxy Consent and agrees to undertake in good faith to satisfy all Governmental
Requirements applicable to Buyer.
(c) If this Agreement fails to close as a result of a breach by Buyer
of any of its representations, warranties or obligations set forth in this
Agreement, such failure shall not limit or affect the Lessee's obligations under
the Leases and the Additional Lease Documents.
11
<PAGE>
(d) If this Agreement fails to close as a result of a breach by Seller
of any of its representations, warranties or obligations set forth in this
Agreement, or because of the failure to satisfy the conditions precedent set
forth in this Section 9, such failure shall not limit or affect the Lessee's
obligations to Seller under the Leases and the Additional Lease Documents.
10. DEFAULT AND REMEDIES. (a) In the event of a breach by Buyer of any
of its representations, warranties or obligations set forth in this Agreement,
and/or in the event that all of the conditions to Buyer's obligation to close
either have been satisfied or would be satisfied at Closing and Buyer fails to
close its purchase of the Properties, Seller shall be entitled to seek specific
performance of Buyer's obligations under this Agreement, terminate this
Agreement, and/or recover as damages Seller's out-of-pocket costs and expenses
incurred in connection with the transaction contemplated by this Agreement,
including, without limitation, attorneys' fees and expenses.
(b) In the event of a breach by Seller of its representations,
warranties or obligations set forth in this Agreement, and/or in the event that
all conditions to Seller's obligation to close either have been satisfied or
would be satisfied at Closing and Seller fails to close its sale of the
Properties hereunder, Buyer, as its exclusive remedy, may either terminate this
Agreement or seek specific performance of Seller's obligations under this
Agreement.
11. CONDEMNATION. In the event any condemnation or eminent domain
proceeding is initiated or completed with respect to any Property prior to the
Closing Date, Buyer shall not have the right to terminate this Agreement;
provided, however, at Closing, Seller shall assign to Buyer its interest in and
to any proceeds resulting from such condemnation or eminent domain proceeding.
Prior to Closing, Seller agrees to consult in good faith with Buyer during the
pendency of any such proceeding, but Buyer's rights in and to the applicable
Property with respect to any such proceedings shall be subject to, and the
resulting proceeds shall be distributed in accordance with, the terms and
conditions of the applicable Lease.
12. CASUALTY. In the event of any fire or other casualty to any
Property prior to the Closing Date, Buyer shall not have the right to terminate
this Agreement; provided, however, at Closing, Seller shall assign to Buyer its
interest in and to any insurance proceeds resulting from such fire or casualty.
Prior to Closing, Seller agrees to consult in good faith with Buyer with respect
to the negotiation of any insurance settlements, but Buyer's rights in and to
the applicable Property as a result of any such casualty shall be subject to,
and the resulting insurance proceeds shall be distributed in accordance with,
the terms and conditions of the applicable Lease.
13. LIMITATIONS ON LIABILITY. Notwithstanding anything to the contrary
provided in this Agreement or in any other document or instrument to be executed
and delivered as contemplated by this Agreement in connection with the sale of
the Properties by Seller to Buyer, including, without limitation, the Special
Warranty Deeds, and without limiting the provisions of Section 14.R of this
Agreement, it is specifically understood and agreed, such agreement being a
primary consideration for the execution of this Agreement by Seller and Buyer,
that:
(i) there shall be absolutely no personal liability on the
part of any partner (or any partner of any partner) of Seller, any
shareholder, director, officer or employee of a partner (or any partner
of any partner) of Seller or its Affiliates with respect to any of the
12
<PAGE>
terms, covenants and conditions of this Agreement and the documents to
be executed and delivered as contemplated by this Agreement with
respect to the sale of the Properties, including, without limitation,
the Special Warranty Deeds;
(ii) Buyer waives all claims, demands and causes of action
against the partners (and the partners of the partners) of Seller and
the shareholders, officers, directors, employees and agents of the
partners (and the partners of the partners) of Seller and of its
Affiliates in the event of any breach by Seller of any of the terms,
covenants and conditions of this Agreement and the documents to be
executed and delivered as contemplated by this Agreement with respect
to the sale of the Properties, including, without limitation, the
Special Warranty Deeds; and
(iii) the exculpation of liability set forth in this
subsection is absolute and without any exception whatsoever.
14. MISCELLANEOUS PROVISIONS.
A. NOTICES. All notices, consents, approvals or other
instruments required or permitted to be given by either party pursuant
to this Agreement shall be in writing and given by (i) hand delivery,
(ii) facsimile, (iii) express overnight delivery service or (iv)
certified or registered mail, return receipt requested, and shall be
deemed to have been delivered upon (a) receipt, if hand delivered, (b)
transmission, if delivered by facsimile, (c) the next business day, if
delivered by express overnight delivery service, or (d) the third
business day following the day of deposit of such notice with the
United States Postal Service, if sent by certified or registered mail,
return receipt requested. Attorneys may send or receive notices on
behalf of their respective clients. Notices shall be provided to the
parties and addresses (or facsimile numbers, as applicable) specified
below:
If to Seller: Participating Income Properties II, L.P.
c/o Franchise Finance Corporation of America II
Dennis L. Ruben, Esq.
Executive Vice President and General Counsel
17207 North Perimeter Drive
Scottsdale, AZ 85255
Telephone: (602) 585-4500
Telecopy: (602) 585-2226
If to Buyer: CFJ Plaza Company I LLC
50 West 990 South
Brigham City, UT 84302
Attention: J Phillip Adams
President
Telephone: (801) 734-6401
Telecopy: (801) 734-6574
B. ASSIGNMENT. During the period commencing with the date of
this Agreement and ending on the Closing Date, without the prior
written consent of Seller:
13
<PAGE>
(i) Buyer shall not assign or transfer any of their
rights or interests under this Agreement;
(ii) no membership interest in Buyer shall be sold,
assigned, transferred or conveyed; and
(iii) no more than 49% in the aggregate of the voting
stock of Flying J shall be sold, assigned, transferred or
conveyed, whether in one transaction or a series of
transactions,
whether voluntarily or involuntarily or by operation of law or
otherwise, including, without limitation, by merger, consolidation or
dissolution or a transfer of equity interests of Flying J or Buyer, as
applicable.
C. COMMISSION. Buyer and Seller represent and warrant to each
other that they have dealt with no real estate broker, agent, finder or
other intermediary in connection with the transaction contemplated by
this Agreement. Buyer and Seller shall indemnify and hold each other
harmless from and against any costs, claims or expenses, including
attorneys' fees, arising out of the breach of their respective
representations and warranties contained within this Section.
D. WAIVER AND AMENDMENT. No provisions of this Agreement shall
be deemed waived or amended except by a written instrument
unambiguously setting forth the matter waived or amended and signed by
the party against which enforcement of such waiver or amendment is
sought. Waiver of any matter shall not be deemed a waiver of the same
matter on any future occasion or any other matter.
E. CAPTIONS. Captions are used throughout this Agreement for
convenience of reference only and shall not be considered in any manner
in the construction or interpretation hereof.
F. SEVERABILITY. The provisions of this Agreement shall be
deemed severable. If any part of this Agreement shall be held
unenforceable, the remainder shall remain in full force and effect, and
such unenforceable provision shall be reformed by such court so as to
give maximum legal effect to the intention of the parties as expressed
therein.
G. CONSTRUCTION GENERALLY. This is an agreement between
parties who are experienced in sophisticated and complex matters
similar to the transaction contemplated by this Agreement and is
entered into by both parties in reliance upon the economic and legal
bargains contained herein and shall be interpreted and construed in a
fair and impartial manner without regard to such factors as the party
which prepared the instrument, the relative bargaining powers of the
parties or the domicile of any party. Seller and Buyer were each
represented by legal counsel competent in advising them of their
obligations and liabilities hereunder. Words of any gender used in this
Agreement shall be held and construed to include any other gender, and
words in the singular number shall be held to include the plural, and
vice versa, unless the context requires otherwise.
14
<PAGE>
H. OTHER DOCUMENTS. Each of the parties agrees to sign such
other and further documents as may be appropriate to carry out the
intentions expressed in this Agreement.
I. ATTORNEYS' FEES. In the event of any judicial or other
adversarial proceeding between the parties concerning this Agreement,
the prevailing party shall be entitled to recover all of its attorneys'
fees and other costs in addition to any other relief to which it may be
entitled, including fees and expenses paid to the Title Company in
connection with this Agreement.
J. ENTIRE AGREEMENT. This Agreement, together with any other
certificates, instruments or agreements to be delivered hereunder,
constitute the entire agreement between the parties with respect to the
subject matter hereof, and there are no other representations,
warranties or agreements, written or oral, between Seller and Buyer
with respect to the subject matter of this Agreement.
K. FORUM SELECTION; JURISDICTION; VENUE; CHOICE OF LAW. Buyer
acknowledges that this Agreement was substantially negotiated in the
State of Arizona, the Agreement was signed by Seller in the State of
Arizona and delivered by Seller and Buyer in the State of Arizona and
there are substantial contacts between the parties and the transaction
contemplated herein and the State of Arizona. For purposes of any
action or proceeding arising out of this Agreement, the parties hereto
hereby expressly submit to the jurisdiction of all federal and state
courts located in the State of Arizona and Buyer consents that it may
be served with any process or paper by registered mail or by personal
service within or without the State of Arizona in accordance with
applicable law. Furthermore, Buyer waives and agrees not to assert in
any such action, suit or proceeding that it is not personally subject
to the jurisdiction of such courts, that the action, suit or proceeding
is brought in an inconvenient forum or that venue of the action, suit
or proceeding is improper. It is the intent of the parties hereto that
all provisions of this Agreement shall be governed by and construed
under the laws of the State of Arizona. To the extent a court of
competent jurisdiction finds Arizona law inapplicable with respect to
any provisions hereof, then, as to those provisions only, the laws of
the states where the Properties are located, as applicable, shall be
deemed to apply. Nothing contained in this subsection shall limit or
restrict the right of Seller to commence any proceeding in the federal
or state courts located in the states where the Properties are located
to the extent Seller deems such proceeding necessary or advisable to
exercise remedies available under this Agreement.
L. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
M. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of Seller and Buyer and their respective
successors and permitted assigns, including, without limitation, any
United States trustee, any debtor-in-possession or any trustee
appointed from a private panel.
N. TIME OF THE ESSENCE. Time is of the essence with respect to
each provision of this Agreement; provided, however, whenever any
determination is to be made or action to be taken on a date specified
in this Agreement, if such date shall fall upon a Saturday,
15
<PAGE>
Sunday or holiday observed by federal banks in the State of Arizona,
the date for such determination or action shall be extended to the
first business day immediately thereafter.
O. WAIVER OF JURY TRIAL AND CONSEQUENTIAL, SPECIAL, INDIRECT
AND PUNITIVE DAMAGES. SELLER AND BUYER HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY
WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING,
CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST
THE OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED
HEREIN OR RELATED HERETO. THIS WAIVER BY THE PARTIES HERETO OF ANY
RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN
ESSENTIAL ASPECT OF THEIR BARGAIN. FURTHERMORE, BUYER AND SELLER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT THEY MAY HAVE
TO SEEK CONSEQUENTIAL, SPECIAL, INDIRECT AND PUNITIVE DAMAGES FROM THE
OTHER WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION,
PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY ONE PARTY AGAINST THE
OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED HEREIN OR
RELATED HERETO. THE WAIVER BY BUYER AND SELLER OF ANY RIGHT THEY MAY
HAVE TO SEEK CONSEQUENTIAL, SPECIAL, INDIRECT AND PUNITIVE DAMAGES HAS
BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN ESSENTIAL ASPECT OF
THEIR BARGAIN.
P. NONRECORDATION. The parties agree that neither this
Agreement nor any notice or memorandum thereof shall be recorded in any
public records, and a breach of this provision shall constitute a
default by the breaching party.
Q. NO OFFER; EFFECTIVE DATE. The distribution of this
Agreement by Seller to Buyer shall not constitute an offer by Seller to
Buyer to convey the Properties and shall not be binding upon and
enforceable against Seller until such time as Seller and Buyer have
both executed and acknowledged this Agreement. The "date of this
Agreement" shall be the date by which an original of this Agreement (or
original counterparts of this Agreement) have been executed and
delivered by both Seller and Buyer.
R. INDEMNIFICATION OF BUYER AND LESSEE. Seller agrees to
indemnify, hold harmless and defend Flying J, Buyer and Lessee and
their directors, officers, shareholders, successors, assigns and
Affiliates (the "Buyer Indemnified Parties"), from and against any and
all losses, costs, claims, liabilities, damages and expenses,
including, without limitation, reasonable attorneys' fees, incurred by
any of the Buyer Indemnified Parties in connection with the
solicitation of the Proxy Consent, except to the extent of the gross
negligence or intentional misconduct of any of the Buyer Indemnified
Parties. Notwithstanding the foregoing provisions of this subsection R,
Buyer and, by execution of this Agreement below, Flying J and Lessee,
acknowledge and agree that:
(i) upon consummation of the transaction described in
this Agreement, Seller
16
<PAGE>
intends to liquidate and dissolve, distribute all of its
assets to its partners and terminate its existence (the
"Liquidation");
(ii) from and after the Liquidation, any and all
obligations of Seller under this subsection R will be
satisfied solely pursuant to that certain General Partners and
Limited Partnership Liability Insurance Policy to be issued to
Seller by American International Specialty Lines Insurance
Company prior to commencement of the proxy solicitation with
respect to the Proxy Consent (the "Policy"), which Policy will
provide $8,500,000.00 of aggregate liability insurance
coverage subject to a $100,000.00 per loss retention and name
Buyer, Flying J and Lessee and the partners of Lessee as
additional insureds; and
(iii) from and after the Liquidation, Buyer, Flying J
and Lessee's sole recourse under this subsection R shall be to
the Policy and Seller shall have no liability or obligation to
Buyer, Flying J and Lessee pursuant to this subsection R or
otherwise under this Agreement and/or the documents and
instruments to be delivered by Seller at the Closing.
17
<PAGE>
IN WITNESS WHEREOF, Seller and Buyer have entered into this Agreement
as of the date first above written.
SELLER:
PARTICIPATING INCOME PROPERTIES II,
L.P., a Delaware partnership
By Franchise Finance Corporation of America
II, a corporation, managing
general partner
By /s/ Dennis L. Ruben
-----------------------------------
Dennis L. Ruben
Executive Vice President and
General Counsel
BUYER:
CFJ PLAZA COMPANY I LLC, a Delaware
limited liability company
By CFJ I Management Inc., a Delaware corporation,
managing member
By /s/ J Phillip Adams
-----------------------------------
J Phillip Adams
President
<PAGE>
Flying J and Lessee are joining in the execution of this Agreement solely for
the purpose of acknowledging and agreeing to the terms of Section 14.R of this
Agreement.
FLYING J INC., a Utah corporation
By /s/ J Phillip Adams
-----------------------------------
J Phillip Adams
President
CFJ PROPERTIES, a Utah general partnership
By Big West Oil Company, a Delaware corporation,
general partner
By /s/ J Phillip Adams
-----------------------------------
J Phillip Adams
Senior Vice President
<PAGE>
STATE OF ARIZONA }
}ss.
COUNTY OF MARICOPA }
The foregoing instrument was acknowledged before me on September 4,
1998 by Dennis L. Ruben, Executive Vice President and General Counsel of
Franchise Finance Corporation of America II, a Delaware corporation, the
managing general partner of Participating Income Properties II, L.P., a Delaware
limited partnership, on behalf of such partnership.
-----------------------------------
Notary Public
My Commission Expires:
- -----------------------------------
STATE OF }
}ss.
COUNTY OF }
The foregoing instrument was acknowledged before me on September 4,
1998 by J Phillip Adams, President of CFJ I Management Inc., a Delaware
corporation, managing member of CFJ Plaza Company I LLC, a Delaware limited
liability company, on behalf of the limited liability company.
-----------------------------------
Notary Public
My Commission Expires:
- -----------------------------------
<PAGE>
STATE OF }
}ss.
COUNTY OF }
The foregoing instrument was acknowledged before me on September 4,
1998 by J Phillip Adams, President of Flying J Inc., a Utah corporation, on
behalf of the corporation.
-----------------------------------
Notary Public
My Commission Expires:
- -----------------------------------
STATE OF }
}ss.
COUNTY OF }
The foregoing instrument was acknowledged before me on September 4,
1998 by J Phillip Adams, Senior Vice President of Big West Oil Company, a
Delaware corporation, general partner of CFJ Properties, a Utah general
partnership, on behalf of the partnership.
-----------------------------------
Notary Public
My Commission Expires:
- -----------------------------------
<PAGE>
EXHIBIT A
PROPERTIES
FFCA NO. ADDRESS
5001-0003 288 Resaca Beach Blvd. NW
Resaca, Georgia 30735
Gordon County
5001-0005 Bucksnort Road Exit 66 I-75
Jackson, Georgia 30233
Butts County
5001-0008 Interstate 40
Graham, North Carolina 27253
Alamance County
5001-0009 Highway 38/SE Quad I-95
Dillon, South Carolina 29536
Dillon County
5001-0016 650 Stage Coach Drive
Rock Springs, Wyoming 82901
Sweetwater County
5001-0017 400 NW Frontage Road
Troutdale, Oregon 97060
Multnomah County
<PAGE>
EXHIBIT A-1
PROPERTIES INCLUDING PERSONAL PROPERTY
FFCA NO. ADDRESS
5001-0003 288 Resaca Beach Blvd. NW
Resaca, Georgia 30735
Gordon County
5001-0005 Bucksnort Road Exit 66 I-75
Jackson, Georgia 30233
Butts County
5001-0016 650 Stage Coach Drive
Rock Springs, Wyoming 82901
Sweetwater County
5001-0017 400 NW Frontage Road
Troutdale, Oregon
Multnomah County
<PAGE>
SCHEDULE I
PURCHASE PRICE ALLOCATIONS
FFCA NO. LOCATION PURCHASE PRICE
5001-0003 Resaca, Georgia $ 7,887,000.00
5001-0005 Jackson, Georgia 6,700,000.00
5001-0008 Graham, North Carolina 6,000,000.00
5001-0009 Dillon, South Carolina 6,200,000.00
5001-0016 Rock Springs, Wyoming 4,600,000.00
5001-0017 Troutdale, Oregon 4,743,000.00
-------------
Total $36,130,000.00
=============
<PAGE>
SCHEDULE II
RELATED AFFILIATE AGREEMENTS
Purchase Agreement dated as of the date of this Agreement between FFCA/PIP 1986
Property Company and CFJ Plaza Company I LLC (FFCA No. 5000-0016 and 0022).
Purchase Agreement dated as of the date of this Agreement between FFCA/PIP 1986
Property Company and CFJ Plaza Company II LLC (FFCA No. 5000-0009 and 0024).
Purchase Agreement dated as of the date of this Agreement between FFCA/PIP 1986
Property Company and CFJ Plaza Company III LLC (FFCA No. 5000-0002, 0003 and
0023).
Purchase Agreement dated as of the date of this Agreement between FFCA/PIP 1986
Property Company and FJI Plaza Company LLC (FFCA No. 5000-0005).
Purchase Agreement dated as of the date of this Agreement between FFCA/PIP 1986
Property Company and Flying J Real Estate Enterprises Inc. (FFCA No. 5000-0010
and 0012).
Purchase Agreement dated as of the date of this Agreement between Participating
Income Properties III Limited Partnership and FJI Plaza Company LLC (FFCA No.
5002-0003).
Purchase Agreement dated as of the date of this Agreement between Participating
Income Properties III Limited Partnership and CFJ Plaza Company I LLC (FFCA No.
5002-0001 and 0002).
<PAGE>
SCHEDULE III
RELATED SELLER AGREEMENTS
Purchase Agreement dated as of the date of this Agreement between Participating
Income Properties II, L.P. and CFJ Plaza Company II LLC (FFCA No. 5001-0004,
0006, 0007 and 0018).
Purchase Agreement dated as of the date of this Agreement between Participating
Income Properties II, L.P. and CFJ Plaza Company III LLC (FFCA No. 5001-0010,
0011 and 0012).
<PAGE>
FIRST AMENDMENT OF PURCHASE AGREEMENT
THIS FIRST AMENDMENT OF PURCHASE AGREEMENT (this "Amendment") is made
as of March 22, 1999 by and between PARTICIPATING INCOME PROPERTIES II, L.P., a
Delaware limited partnership ("Seller"), and CFJ PLAZA COMPANY I LLC, a Delaware
limited liability company ("Buyer").
PRELIMINARY STATEMENT
Seller and Buyer entered into that certain Purchase Agreement dated as
of September 4, 1998 (the "Agreement"). Initially capitalized terms not
otherwise defined herein shall have the meanings set forth in the Agreement.
At the time Seller and Buyer entered into the Agreement, the Agreement
contemplated that Buyer would purchase all of Seller's right, title and interest
in all personal property, appliances, trade fixtures, furniture and equipment
situated on or about or used in connection with the parcels of real estate as
described in Exhibit A-1 attached to the Agreement (collectively, the
"Personalty"). Seller and Buyer desire to amend the Agreement to provide that
Seller will convey the Personalty to CFJ Properties, a Utah general partnership
("CFJ") in accordance with this Amendment.
AGREEMENT
In consideration of the provisions of this Amendment, the parties agree
as follows:
1. AMENDMENT. The Agreement is amended to provide that:
A. all references to Seller conveying the Personalty to Buyer
are amended to provide that Seller shall convey the Personalty to CFJ;
and
B. at the Closing, Seller shall convey the Personalty to CFJ
pursuant to a bill of sale in form and substance reasonably
satisfactory to Seller and Buyer.
2. RATIFICATION. Except as otherwise amended by this Amendment, the
Agreement is unmodified and in full force and effect.
<PAGE>
IN WITNESS WHEREOF, Seller and Buyer have entered into this Amendment
as of the date first above written.
SELLER:
PARTICIPATING INCOME PROPERTIES II,
L.P., a Delaware limited partnership
By Franchise Finance Corporation of America
II, a Delaware corporation, managing
general partner
By /s/ Dennis L. Ruben
-----------------------------------
Dennis L. Ruben
Executive Vice President and
General Counsel
BUYER:
CFJ PLAZA COMPANY I LLC, a Delaware
limited liability company
By CFJ I Management Inc., a Delaware
corporation, managing member
By /s/ J Phillip Adams
-----------------------------------
J Phillip Adams
President
2
<PAGE>
STATE OF ARIZONA }
}ss.
COUNTY OF MARICOPA }
The foregoing instrument was acknowledged before me on March 22, 1999
by Dennis L. Ruben, Executive Vice President and General Counsel of Franchise
Finance Corporation of America II, a Delaware corporation, the managing general
partner of Participating Income Properties II, L.P., a Delaware limited
partnership, on behalf of such partnership.
-----------------------------------
Notary Public
My Commission Expires:
- ------------------------------------
STATE OF ARIZONA }
}ss.
COUNTY OF MARICOPA }
The foregoing instrument was acknowledged before me on March 22, 1999
by J Phillip Adams, President of CFJ I Management Inc., a Delaware corporation,
managing member of CFJ Plaza Company I LLC, a Delaware limited liability
company, on behalf of the limited liability company.
-----------------------------------
Notary Public
My Commission Expires:
- ------------------------------------
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made as of September 4,
1998 by and between PARTICIPATING INCOME PROPERTIES II, L.P., a Delaware limited
partnership ("Seller"), whose address is 17207 North Perimeter Drive,
Scottsdale, Arizona 85255, and CFJ PLAZA COMPANY III LLC, a Delaware limited
liability company ("Buyer"), whose address is 50 West 990 South, Brigham City,
Utah 84302.
PRELIMINARY STATEMENT
Seller is the owner of the Properties and leases the Properties to
Lessee pursuant to the Leases and the Additional Lease Documents. Buyer desires
to acquire the Properties from Seller pursuant to this Agreement, and Seller has
agreed to sell the Properties to Buyer on the terms and conditions set forth in
this Agreement. Unless otherwise expressly provided herein, all defined terms
used in this Agreement shall have the meanings set forth in Section 1.
AGREEMENT
In consideration of the mutual covenants and provisions of this
Agreement, the parties agree as follows:
1. DEFINITIONS. The following terms shall have the meanings set forth
in this Section 1 for all purposes of this Agreement:
"ADDITIONAL LEASE DOCUMENTS" means those certain agreements described
on the attached EXHIBIT B between Seller and Lessee with respect to the
Properties.
"AFFILIATE" means any entity or person, as applicable, controlling,
controlled by or under common control with any other person or entity.
"CLOSING" shall have the meaning set forth in Section 4.
"CLOSING DATE" means the date specified as the closing date in Section
4.
"CODE" means the United States Bankruptcy Code, 11 U.S.C. Sec. 101 ET
SEQ., as amended.
"COMMITMENT" means that certain commitment letter dated as of June 9,
1998 between Flying J and FFCA Acquisition Corporation, which Commitment
provides for mortgage loan financing to be provided by Lender to Buyer to
finance the Properties, subject to the satisfaction by Buyer of its obligations
under the Commitment.
"ENVIRONMENTAL LAWS" means any present and future federal, state and
local laws, statutes, ordinances, rules, regulations and the like, as well as
common law, relating to Hazardous Materials, Regulated Substances or USTs and/or
the protection of human health or the environment by reason of a Release or a
Threatened Release of Hazardous Materials or relating to liability for or costs
of Remediation or prevention of Releases. "Environmental Laws" includes, but is
not limited to, the following statutes, as amended, any successor thereto, and
any regulations promulgated pursuant
<PAGE>
thereto, and any state or local statutes, ordinances, rules, regulations and the
like addressing similar issues: the Comprehensive Environmental Response,
Compensation and Liability Act; the Emergency Planning and Community
Right-to-Know Act; the Hazardous Materials Transportation Act; the Resource
Conservation and Recovery Act (including but not limited to Subtitle I relating
to USTs); the Solid Waste Disposal Act; the Clean Water Act; the Clean Air Act;
the Toxic Substances Control Act; the Safe Drinking Water Act; the Occupational
Safety and Health Act; the Federal Water Pollution Control Act; the Federal
Insecticide, Fungicide and Rodenticide Act; the Endangered Species Act; the
National Environmental Policy Act; and the River and Harbors Appropriation Act.
"Environmental Laws" also includes, but is not limited to, any present and
future federal, state and local laws, statutes, ordinances, rules, regulations
and the like, as well as common law: conditioning transfer of property upon a
negative declaration or other approval of a Governmental Authority with respect
to Hazardous Materials; requiring notification or disclosure of Releases or
other environmental condition of any Property to any Governmental Authority or
other person or entity, whether or not in connection with transfer of title to
or interest in property; imposing conditions or requirements relating to
Hazardous Materials, Regulated Substances or USTs in connection with permits or
other authorization for lawful activity; relating to the handling and disposal
of solid or hazardous waste; relating to nuisance, trespass or other causes of
action related to Hazardous Materials, Regulated Substances or USTs; and
relating to wrongful death, personal injury, or property or other damage in
connection with the physical condition or use of any Property by reason of the
presence of Hazardous Materials, Regulated Substances or USTs in, on, under or
above any Property.
"FLYING J" means Flying J Inc., a Utah corporation.
"GOVERNMENTAL AUTHORITY" means any governmental authority, agency,
department, commission, bureau, board, instrumentality, court or
quasi-governmental authority of the United States, the states where the
Properties are located or any political subdivision thereof and the state(s)
where Buyer is formed and/or maintains its chief executive office or any
political subdivision thereof.
"GOVERNMENTAL REQUIREMENTS" means all applicable federal, state and
local laws, statutes, rules, regulations and ordinances, including, without
limitation, the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the
"Governmental Requirements")
"HAZARDOUS MATERIALS" means (a) any toxic substance or hazardous waste,
substance or related material, or any pollutant or contaminant; (b) radon gas,
asbestos in any form which is or could become friable, urea formaldehyde foam
insulation, transformers or other equipment which contains dielectric fluid
containing levels of polychlorinated biphenyls in excess of federal, state or
local safety guidelines, whichever are more stringent, or any "petroleum" and
"petroleum-based substances" or any similar terms described or defined in any
Environmental Laws and any applicable federal, state, county or local laws
applicable to or regulating USTs; or (c) any substance, gas, material or
chemical which is or may be defined as or included in the definition of
"hazardous substances," "toxic substances," "hazardous materials," hazardous
wastes" or words of similar import under any Environmental Laws.
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"LEASES" means those certain leases between Seller, as lessor, and
Lessee, as lessee, with respect to the Properties, which leases, including all
amendments and modifications, are described more particularly on the attached
EXHIBIT B.
"LENDER" means FFCA Acquisition Corporation or its assignee.
"LESSEE" means CFJ Properties, a Utah general partnership.
"NON-FOREIGN SELLER CERTIFICATE" means the certificate to be delivered
by Seller prior to or at the Closing pursuant to which Seller shall certify to
Buyer that Seller is neither a nonresident alien, a foreign partnership, a
foreign trust or a foreign estate, as those terms are used in the Internal
Revenue Code.
"PERMITTED EXCEPTIONS" means (i) those easements, restrictions,
encumbrances and other matters of record as of the date Seller acquired title to
the Properties, (ii) those easements, restrictions, encumbrances and other
matters placed of record subsequent to the date Seller acquired title to the
Properties in accordance with the terms of the Leases, (iii) such other
easements, restrictions, encumbrances and other matters which do not have a
material adverse effect on the current operation or use of the Properties, (iv)
matters which current surveys of the Properties would reveal, (v) taxes and
assessments and (vi) liens, restrictions, easements, encumbrances and other
matters created by or resulting from the acts of Flying J, Buyer, Lessee or any
other Affiliate of Flying J, Buyer or Lessee; provided, however, Permitted
Exceptions shall not include monetary liens of record against one or more of the
Properties created by the acts of Seller, nor shall Permitted Exceptions include
lis pendens of record against one or more of the Properties as a result of any
dispute between Seller and any third-party.
"PERSON" means any individual, corporation, partnership, limited
liability company, trust, unincorporated organization, Governmental Authority or
any other form of entity.
"PROPERTIES" means the parcels of real estate described by address in
EXHIBIT A attached hereto, all rights, privileges and appurtenances associated
therewith, all buildings, fixtures and other improvements now located thereon,
and, with respect to those parcels of real estate described by address in
EXHIBIT A-1, all of Seller's right, title and interest in all of the equipment,
trade fixtures and other items of tangible personal property situated on or
about or used in connection with such real estate.
"PROXY CONSENT" means the consent to sell the Properties and all of the
properties which are the subject of the Related Seller Agreements, as
applicable, from more than 50% of the interests in Seller held by the limited
partners of Seller. Such Proxy Consent shall be received pursuant to a
definitive proxy statement filed with the Securities and Exchange Commission
pursuant to Section 14(a) of the Securities Exchange Act of 1934, as amended.
"PURCHASE PRICE" means the amount specified in Section 3.
"REGULATED SUBSTANCES" means "petroleum" and "petroleum-based
substances" or any similar terms described or defined in any Environmental Laws
and any applicable federal, state, county or local laws applicable to or
regulating USTs.
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"RELATED AFFILIATE AGREEMENTS" means the purchase agreements described
on the attached SCHEDULE II between Seller's Affiliates and Buyer or Buyer's
Affiliates.
"RELATED SELLER AGREEMENTS" means the purchase agreements described on
the attached SCHEDULE III between Seller and Buyer or Buyer's Affiliates.
"RELEASE" means any presence, release, deposit, discharge, emission,
leaking, spilling, seeping, migrating, injecting, pumping, pouring, emptying,
escaping, dumping, disposing or other movement of Hazardous Materials, Regulated
Substances or USTs.
"REMEDIATION" means any response, remedial, removal, or corrective
action, any activity to cleanup, detoxify, decontaminate, contain or otherwise
remediate any Hazardous Material, Regulated Substances or USTs, any actions to
prevent, cure or mitigate any Release, any action to comply with any
Environmental Laws or with any permits issued pursuant thereto, any inspection,
investigation, study, monitoring, assessment, audit, sampling and testing,
laboratory or other analysis, or any evaluation relating to any Hazardous
Materials, Regulated Substances or USTs.
"SPECIAL WARRANTY DEEDS" means the special or limited warranty deeds to
be executed and delivered by Seller at the Closing for the Properties, which
Special Warranty Deeds shall be subject to the Permitted Exceptions and
otherwise in the form attached hereto as EXHIBIT C, with such changes as may be
reasonably necessary to comply with Governmental Requirements and the
requirements of Title Company and/or applicable Governmental Authorities. The
Special Warranty Deeds shall be subject to the limitation of liability set forth
in Section 13.
"TERMINATIONS AND RELEASES" shall mean those certain terminations and
mutual releases of the Leases and the Additional Lease Documents to be executed
and delivered by Seller and Lessee as of the Closing; provided, however, such
Terminations and Releases shall not provide for the termination or release of
Lessee's obligations under the Leases and the Additional Lease Documents
accruing or arising prior to the Closing, including, without limitation,
Lessee's indemnification and hold harmless obligations set forth in the Leases
and the Additional Lease Documents, but shall provide for the termination and
release of all of (i) Lessee's obligations under the Leases and the Additional
Lease Documents accruing or arising subsequent to the Closing and (ii) Seller's
obligations under the Leases and the Additional Lease Documents relating thereto
accruing or arising prior to or subsequent to the Closing. The Terminations and
Releases shall contain Lessee's acknowledgment and agreement that all of
Lessee's obligations under the Leases which accrue or arise prior to the Closing
shall survive the Closing and the execution, delivery and recordation of the
Terminations and Releases, and shall otherwise be in the form attached hereto as
EXHIBIT D.
"THREATENED RELEASE" means a substantial likelihood of a Release which
requires action to prevent or mitigate damage to the soil, surface waters,
groundwaters, land, stream sediments, surface or subsurface strata, ambient air
or any other environmental medium comprising or surrounding any Property which
may result from such Release.
"TITLE COMPANY" means Lawyers Title Insurance Corporation, Phoenix
National Division, 3636 North Central Avenue, Suite 350, Phoenix, Arizona,
85012, Attention: Ms. Sheila Layne.
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"USTS" means any one or combination of tanks and associated piping
systems used in connection with the storage, dispensing and general use of
Regulated Substances.
2. TRANSACTION. On the terms and subject to the conditions set forth
herein, Seller shall sell and Buyer shall purchase the Properties. The sale and
purchase of the Properties and the closing of the transactions contemplated by
the Related Seller Agreements are intended to be an integrated and simultaneous
transaction. The transaction described in this Agreement involves only the sale
of the Properties and does not include any assets of Seller not expressly
included within the definition of Properties. Seller's liability to Buyer in
connection with the sale and conveyance of the Properties shall be limited as
set forth in Section 13.
3. PURCHASE PRICE. The aggregate purchase price for the Properties (the
"Purchase Price") shall be the amount of $22,130,000.00, which amount is
allocated among the Properties as set forth in SCHEDULE I. Seller and Buyer
shall agree in good faith prior to the Closing on an allocation of the Purchase
Price between the real property and personal property components of each of the
Properties solely for the purpose of calculating applicable transfer taxes
imposed by Governmental Authorities on the recordation of the Special Warranty
Deeds. The Purchase Price shall be net to Seller and shall be paid by Buyer to
Seller at the Closing in immediately available funds, subject to any prorations
and adjustments required by this Agreement.
4. CLOSING; ESCROW AGENT. (a) The purchase and sale of the Properties
shall be closed (the "Closing") within 15 days after the satisfaction or waiver
of all of the conditions and requirements set forth in this Agreement,
including, without limitation, receipt of the Proxy Consent, but in no event
shall the Closing occur later than November 30, 1998 (the "Closing Date"). The
Closing shall occur at Seller's offices or at such other location agreed to by
Seller and Buyer. The Closing documents shall be dated as of the Closing Date.
(b) On or prior to the Closing Date, the parties hereto shall deposit
with Title Company all documents and moneys necessary to comply with their
obligations under this Agreement. Title Company shall not cause the transaction
to close unless and until it has received written instructions from Buyer and
Seller to do so. Seller and Buyer hereby engage Title Company to act as escrow
agent in connection with this transaction. Seller and Buyer will deliver to
Title Company all documents, pay to Title Company all sums and do or cause to be
done all other things necessary or required by this Agreement, in the reasonable
judgment of Title Company, to enable Title Company to comply herewith and to
enable any title insurance policy provided for herein to be issued. Title
Company is authorized to pay, from any funds held by it for Buyer's or Seller's
respective credit, all amounts necessary to procure the delivery of such
documents and to pay, on behalf of Buyer and Seller, all charges and obligations
payable by them, respectively. Seller and Buyer will pay all charges payable by
them to Title Company. Title Company is authorized, in the event any conflicting
demand is made upon it concerning these instructions or the escrow, at its
election, to hold any documents and/or funds deposited hereunder until an action
shall be brought in a court of competent jurisdiction to determine the rights of
Seller and Buyer or to interplead such documents and/or funds in an action
brought in any such court. Deposit by Title Company of such documents and funds,
after deducting therefrom its charges and its expenses and attorneys' fees
incurred in connection with any such court action, shall relieve Title Company
of all further liability and responsibility for such documents and funds. Title
Company's receipt of this Agreement and opening of an escrow pursuant to this
Agreement shall be deemed to constitute
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conclusive evidence of Title Company's agreement to be bound by the terms and
conditions of this Agreement pertaining to Title Company. Disbursement of any
funds shall be made by check, certified check or wire transfer, as directed by
Buyer and Seller. Title Company shall be under no obligation to disburse any
funds represented by check or draft, and no check or draft shall be payment to
Title Company in compliance with any of the requirements hereof, until it is
advised by the bank in which such check or draft is deposited that such check or
draft has been honored. Title Company is authorized to act upon any statement
furnished by the holder or payee, or a collection agent for the holder or payee,
of any lien on or charge or assessment in connection with the Properties,
concerning the amount of such charge or assessment or the amount secured by such
lien without liability or responsibility for the accuracy of such statement.
(c) At the Closing, Seller shall deliver or cause to be delivered to
Title Company or Buyer, as applicable, the following:
(1) the Special Warranty Deeds duly executed by Seller;
(2) the Non-Foreign Seller Certificate duly executed by
Seller;
(3) evidence of its capacity and authority for the closing of
this transaction;
(4) Terminations and Releases duly executed by Seller; and
(5) all other documents reasonably required by Buyer or Title
Company to close this transaction.
(d) At the Closing, Buyer shall deliver or cause to be delivered to
Title Company or Seller, as applicable, the following:
(1) the Purchase Price in immediately available funds,
adjusted for prorations and credits as provided for in this Agreement;
(2) evidence of its capacity and authority for the closing of
the transaction contemplated herein;
(3) Terminations and Releases duly executed by Lessee; and
(4) all other documents reasonably required by Seller or Title
Company to close this transaction.
(e) Upon receipt of the foregoing items, Title Company shall pay (i)
the Purchase Price to Seller, and (ii) all other sums deposited with Title
Company by Buyer to those third-parties or Title Company entitled to payment as
set forth in the settlement statement prepared by Title Company and signed by
Seller and Buyer, respectively, in connection with the Closing, and record the
Special Warranty Deeds in the applicable real property records.
(f) At the Closing, Seller shall relinquish its right, title and
interest in and to the letter(s) of credit issued for Seller's benefit with
respect to the Leases, provided that, prior to the Closing,
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Seller shall have the right to draw on such letter(s) of credit in accordance
with the terms and conditions thereof.
5. CLOSING COSTS; PRORATIONS. (a) Except as otherwise provided in this
Agreement, Buyer shall be responsible for the payment of all costs and expenses
of the transaction described in this Agreement, whether or not the transaction
described in this Agreement closes, including, without limitation:
(i) the cost of all investigations of the Properties conducted
by Buyer, if any, including, without limitation, all environmental
assessments and/or environmental insurance policies, engineering
assessments and mechanical assessments;
(ii) the fees and expenses of Buyer's attorneys and the
reasonable fees and expenses of Seller's attorneys (other than those
incurred in connection with the Proxy Consent);
(iii) the premiums for all title insurance policies, if any,
issued as a result of the conveyance of the Properties, including,
without limitation, all title search charges, the premium for all
endorsements to such title insurance policies, and UCC search charges;
(iv) all applicable documentary stamps taxes, filing, transfer
taxes, mortgage and/or recording taxes;
(v) the cost of all surveys;
(vi) the cost of complying with the requirements of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, to the extent
applicable; and
(vii) the fees and charges of Title Company in its capacity as
escrow agent;
provided, however, Seller shall be solely responsible for the payment
of all costs and expenses incurred in connection with soliciting the
Proxy Consent, whether or not the transaction described in this
Agreement closes, and if the transaction described in this Agreement
does not close because of a breach or default by Seller under this
Agreement, Seller shall be responsible for the payment of any title
commitment cancellation fees imposed by Title Company, the cost of all
ALTA surveys prepared in connection with the Closing and its own
attorneys' fees and expenses.
(b) All rent under the Leases, including, without limitation, Monthly
Percentage Rent (as defined in the Leases), shall be prorated between Seller and
Lessee as of midnight of the day preceding the Closing Date; provided, however,
in the event that the amount of any percentage rent due to Seller under the
Leases cannot be determined by the Closing Date, Buyer shall cause Lessee to
remit such amount to Seller within ten (10) days after the Closing Date.
(c) Seller and Buyer shall not prorate any of the items listed in the
following subsections (i) through (iii), whether accruing or arising prior to or
from and after the Closing Date, and Buyer and Lessee shall be solely
responsible for the payment of all such items:
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(i) any and all real estate, personal property, ad valorem and
related taxes, levies and charges and assessments with respect to the
Properties ("Taxes");
(ii) all charges for utilities used at the Properties; and
(iii) any and all installments of general or special
assessments.
(d) The provisions of this Section 5 shall survive the Closing or any
termination of this Agreement prior to Closing.
6. REPRESENTATIONS AND WARRANTIES OF BUYER. The representations and
warranties of Buyer contained in this Section are being made to induce Seller to
enter into this Agreement and consummate the transaction contemplated herein,
and Seller has relied, and will continue to rely, upon such representations and
warranties. Buyer represents and warrants to Seller as follows:
A. ORGANIZATION OF BUYER. Buyer is duly organized, validly
existing and in good standing under the laws of its state of formation
and qualified to do business in any jurisdiction where such
qualification is required. All necessary action has been taken to
authorize the execution, delivery and performance by Buyer of this
Agreement and the other documents, instrument and agreements provided
for herein.
B. AUTHORITY OF BUYER. The person who has executed this
Agreement on behalf of Buyer is duly authorized so to do.
C. ENFORCEABILITY. Upon execution by Buyer, this Agreement and
the other documents, instruments and agreements to be executed by Buyer
in connection with this Agreement shall constitute the legal, valid and
binding obligations of Buyer, enforceable against Buyer in accordance
with their respective terms, subject to the receipt of the consents and
approvals required by all applicable Governmental Requirements.
D. CONSENTS. Buyer has obtained all necessary consents and
approvals required to execute this Agreement and perform Buyer's
obligations hereunder.
E. LITIGATION. There are no suits, actions, proceedings or
investigations pending or threatened against or involving Buyer or any
of the Properties before any arbitrator or Governmental Authority which
could reasonably result in any material adverse effect on the business,
condition, worth or operations of Buyer or any of the Properties or
Buyer's ability to perform under this Agreement.
F. NONCONTRAVENTION. Buyer is not, and the authorization,
execution, delivery and performance of this Agreement will not result,
in any breach or default under any other document, instrument or
agreement to which Buyer is a party or by which Buyer, any of the
Properties or any of Buyer's property is subject or bound. The
authorization, execution, delivery and performance of this Agreement by
Buyer will not violate any applicable law, statute, regulation, rule,
ordinance, code or order.
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All representations and warranties of Buyer made in this Agreement
shall be and will remain true and complete as of the Closing Date as if made and
restated in full as of such date, and shall survive Closing.
7. REPRESENTATIONS AND WARRANTIES OF SELLER. The representations and
warranties of Seller contained in this Section are being made to induce Buyer to
enter into this Agreement and consummate the transaction contemplated herein,
and Buyer has relied, and will continue to rely, upon such representations and
warranties. Seller represents and warrants to Buyer as follows:
A. ORGANIZATION OF SELLER. Seller is duly organized, validly
existing and in good standing under the laws of its state of formation
and qualified as a foreign partnership to do business in the states
where the Properties are located. Seller has taken all necessary action
to authorize the execution and delivery of this Agreement, and upon
receipt of the Proxy Consent and the consents and approvals required by
all applicable Governmental Requirements, Seller shall be authorized to
perform its obligations under this Agreement and to execute and deliver
the documents, instruments and agreements provided for under this
Agreement.
B. AUTHORITY OF SELLER. The persons who have executed this
Agreement on behalf of Seller are duly authorized so to do.
C. ENFORCEABILITY OF DOCUMENTS. This Agreement and the other
documents, instruments and agreements provided for under this Agreement
to be executed by Seller shall constitute the legal, valid and binding
obligation of Seller enforceable against Seller in accordance with
their terms, subject to the receipt of the Proxy Consent and the
consents and approvals required by all applicable Governmental
Requirements.
D. CONSENTS. Seller has obtained all consents and approvals
required to execute this Agreement, and upon Seller's receipt of the
Proxy Consent and the consents and approvals required by all applicable
Governmental Requirements, Seller shall have obtained all consents and
approvals required to perform Seller's obligations hereunder.
E. LITIGATION. Seller has not been served with any suits,
actions or proceedings involving any of the Properties before any
arbitrator or Governmental Authority which could reasonably result in
any material adverse effect on the business, condition, worth or
operations of any of the Properties.
F. NONCONTRAVENTION. Subject to the receipt of the Proxy
Consent and the satisfaction of all applicable Governmental
Requirements, Seller is not, and the authorization, execution, delivery
and performance of this Agreement will not result, in any breach or
default under any other document, instrument or agreement to which
Seller is a party or by which Seller is subject or bound. Subject to
the receipt of the Proxy Consent and the satisfaction of all applicable
Governmental Requirements, the authorization, execution, delivery and
performance of this Agreement by Seller will not violate any applicable
law, statute, regulation, rule, ordinance, code or order.
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All representations and warranties of Seller made in this Agreement
shall be and will remain true and complete as of the Closing Date as if made and
restated in full as of such date, but shall not survive Closing.
8. "AS IS" NATURE OF SALE. BUYER ACKNOWLEDGES THAT IT IS FULLY AWARE OF
THE QUALITY, PHYSICAL CONDITION AND VALUE OF THE PROPERTIES AND THAT BUYER IS
NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF SELLER AS TO THE CONDITION
OF THE PROPERTIES IN PURCHASING THE PROPERTIES. BUYER FURTHER ACKNOWLEDGES THAT
BUYER'S OBLIGATION TO PURCHASE THE PROPERTIES IS NOT SUBJECT TO A DUE DILIGENCE
REVIEW PERIOD AND THAT BUYER HAS HAD AMPLE OPPORTUNITY TO EVALUATE AND ASSESS
THE PROPERTIES PRIOR TO THE EXECUTION OF THIS AGREEMENT. NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IT IS EXPRESSLY UNDERSTOOD
AND AGREED THAT BUYER IS PURCHASING THE PROPERTIES "AS IS", AND THAT SELLER IS
MAKING NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, BY
OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE QUALITY, PHYSICAL CONDITION
OR VALUE OF THE PROPERTIES, OR THE INCOME OR EXPENSES FROM OR OF THE PROPERTIES.
WITHOUT LIMITING THE FOREGOING, IT IS UNDERSTOOD AND AGREED THAT SELLER MAKES NO
WARRANTY OF HABITABILITY, SUITABILITY, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. SELLER MAKES NO REPRESENTATION OR WARRANTY REGARDING
ENVIRONMENTAL MATTERS OR THE AMERICANS WITH DISABILITIES ACT OR STATE
DISABILITIES LAWS, OR OTHER REPRESENTATION OR WARRANTY REGARDING THE PROPERTIES,
THE CONDITION THEREOF, THE SUITABILITY OF THE PROPERTIES FOR ANY PARTICULAR USE,
OR OTHERWISE.
BUYER REPRESENTS AND WARRANTS TO SELLER THAT BUYER HAS KNOWLEDGE AND
EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT ENABLE BUYER TO EVALUATE THE
MERITS AND RISKS OF THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT. FURTHERMORE,
BUYER ACKNOWLEDGES THAT IT IS NOT IN A DISPARATE BARGAINING POSITION RELATIVE TO
SELLER WITH RESPECT TO THIS AGREEMENT.
9. CONDITIONS PRECEDENT TO CLOSING. (a) The obligation of Seller to
consummate the transaction contemplated by this Agreement is subject to the
fulfillment or waiver of each of the following conditions:
(i) COMPLIANCE WITH REPRESENTATIONS, WARRANTIES AND COVENANTS.
All obligations of Buyer under this Agreement shall have been fully
performed and complied with, and no event shall have occurred or
condition shall exist which would, upon the Closing Date or upon the
giving of notice and/or passage of time, constitute a breach or default
by Buyer hereunder.
(ii) PROXY CONSENT; GOVERNMENTAL REQUIREMENTS. Seller shall
have received the Proxy Consent. All approvals, consents and/or notices
required to be obtained and/or
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delivered pursuant to all applicable Governmental Requirements shall
have been obtained and/or delivered in accordance with such
Governmental Requirements.
(iii) RELATED SELLER AGREEMENTS. The transactions described in
the Related Seller Agreements shall close concurrently with the closing
of the transaction described in this Agreement; provided, however, this
condition shall not apply if Seller defaults in its obligation to close
such Related Seller Agreements.
Notwithstanding the foregoing, upon satisfaction of the preceding conditions and
the conditions to Seller's obligation to close the transactions described in the
Related Seller Agreements, Seller shall be obligated to close the transaction
described in this Agreement and the Related Seller Agreements even if the
conditions to the closing of the transactions described in the Related Affiliate
Agreements are not satisfied. Seller agrees to undertake in good faith to obtain
the Proxy Consent and satisfy all Governmental Requirements applicable to
Seller.
(b) The obligation of Buyer to consummate the transaction contemplated
by this Agreement is subject to the fulfillment or waiver of each of the
following conditions:
(i) RELATED SELLER AGREEMENTS AND RELATED AFFILIATE
AGREEMENTS. Each of the transactions described in the Related Seller
Agreements and the Related Affiliate Agreements shall close
concurrently with the Closing; provided, however, if the conditions set
forth in the preceding subsection (a) and to Seller's obligation to
close the transactions described in the Related Seller Agreements are
satisfied, Seller shall be obligated, at Buyer's election, to close the
transactions described in this Agreement provided there is a concurrent
closing of the Related Seller Agreements.
(ii) COMPLIANCE WITH REPRESENTATIONS, WARRANTIES AND
COVENANTS. All obligations of Seller under this Agreement shall have
been fully performed and complied with, and no event shall have
occurred or condition shall exist which would, upon the Closing Date or
upon the giving of notice and/or passage of time, constitute a breach
or default by Seller hereunder.
(iii) PROXY CONSENT; GOVERNMENTAL REQUIREMENTS. Seller shall
have received the Proxy Consent. All approvals, consents and/or notices
required to be obtained and/or delivered pursuant to all applicable
Governmental Requirements shall have been obtained and/or delivered in
accordance with such Governmental Requirements.
(iv) FINANCING. Lender shall provide financing for the
Properties in the amount and on the terms and conditions set forth in
the Commitment, subject to the satisfaction by Buyer of its obligations
under the Commitment.
(v) LITIGATION. No suits, actions, proceedings or
investigations shall be pending or threatened against or involving
Seller which could result in a material adverse effect on Seller's
ability to consummate the transaction contemplated by this Agreement,
or which challenges the validity of the Proxy Consent.
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Buyer agrees to cooperate in good faith in assisting Seller with obtaining the
Proxy Consent and agrees to undertake in good faith to satisfy all Governmental
Requirements applicable to Buyer.
(c) If this Agreement fails to close as a result of a breach by Buyer
of any of its representations, warranties or obligations set forth in this
Agreement, such failure shall not limit or affect the Lessee's obligations under
the Leases and the Additional Lease Documents.
(d) If this Agreement fails to close as a result of a breach by Seller
of any of its representations, warranties or obligations set forth in this
Agreement, or because of the failure to satisfy the conditions precedent set
forth in this Section 9, such failure shall not limit or affect the Lessee's
obligations to Seller under the Leases and the Additional Lease Documents.
10. DEFAULT AND REMEDIES. (a) In the event of a breach by Buyer of any
of its representations, warranties or obligations set forth in this Agreement,
and/or in the event that all of the conditions to Buyer's obligation to close
either have been satisfied or would be satisfied at Closing and Buyer fails to
close its purchase of the Properties, Seller shall be entitled to seek specific
performance of Buyer's obligations under this Agreement, terminate this
Agreement, and/or recover as damages Seller's out-of-pocket costs and expenses
incurred in connection with the transaction contemplated by this Agreement,
including, without limitation, attorneys' fees and expenses.
(b) In the event of a breach by Seller of its representations,
warranties or obligations set forth in this Agreement, and/or in the event that
all conditions to Seller's obligation to close either have been satisfied or
would be satisfied at Closing and Seller fails to close its sale of the
Properties hereunder, Buyer, as its exclusive remedy, may either terminate this
Agreement or seek specific performance of Seller's obligations under this
Agreement.
11. CONDEMNATION. In the event any condemnation or eminent domain
proceeding is initiated or completed with respect to any Property prior to the
Closing Date, Buyer shall not have the right to terminate this Agreement;
provided, however, at Closing, Seller shall assign to Buyer its interest in and
to any proceeds resulting from such condemnation or eminent domain proceeding.
Prior to Closing, Seller agrees to consult in good faith with Buyer during the
pendency of any such proceeding, but Buyer's rights in and to the applicable
Property with respect to any such proceedings shall be subject to, and the
resulting proceeds shall be distributed in accordance with, the terms and
conditions of the applicable Lease.
12. CASUALTY. In the event of any fire or other casualty to any
Property prior to the Closing Date, Buyer shall not have the right to terminate
this Agreement; provided, however, at Closing, Seller shall assign to Buyer its
interest in and to any insurance proceeds resulting from such fire or casualty.
Prior to Closing, Seller agrees to consult in good faith with Buyer with respect
to the negotiation of any insurance settlements, but Buyer's rights in and to
the applicable Property as a result of any such casualty shall be subject to,
and the resulting insurance proceeds shall be distributed in accordance with,
the terms and conditions of the applicable Lease.
13. LIMITATIONS ON LIABILITY. Notwithstanding anything to the contrary
provided in this Agreement or in any other document or instrument to be executed
and delivered as contemplated by this Agreement in connection with the sale of
the Properties by Seller to Buyer, including, without
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limitation, the Special Warranty Deeds, and without limiting the provisions of
Section 14.R of this Agreement, it is specifically understood and agreed, such
agreement being a primary consideration for the execution of this Agreement by
Seller and Buyer, that:
(i) there shall be absolutely no personal liability on the
part of any partner (or any partner of any partner) of Seller, any
shareholder, director, officer or employee of a partner (or any partner
of any partner) of Seller or its Affiliates with respect to any of the
terms, covenants and conditions of this Agreement and the documents to
be executed and delivered as contemplated by this Agreement with
respect to the sale of the Properties, including, without limitation,
the Special Warranty Deeds;
(ii) Buyer waives all claims, demands and causes of action
against the partners (and the partners of the partners) of Seller and
the shareholders, officers, directors, employees and agents of the
partners (and the partners of the partners) of Seller and of its
Affiliates in the event of any breach by Seller of any of the terms,
covenants and conditions of this Agreement and the documents to be
executed and delivered as contemplated by this Agreement with respect
to the sale of the Properties, including, without limitation, the
Special Warranty Deeds; and
(iii) the exculpation of liability set forth in this
subsection is absolute and without any exception whatsoever.
14. MISCELLANEOUS PROVISIONS.
A. NOTICES. All notices, consents, approvals or other
instruments required or permitted to be given by either party pursuant
to this Agreement shall be in writing and given by (i) hand delivery,
(ii) facsimile, (iii) express overnight delivery service or (iv)
certified or registered mail, return receipt requested, and shall be
deemed to have been delivered upon (a) receipt, if hand delivered, (b)
transmission, if delivered by facsimile, (c) the next business day, if
delivered by express overnight delivery service, or (d) the third
business day following the day of deposit of such notice with the
United States Postal Service, if sent by certified or registered mail,
return receipt requested. Attorneys may send or receive notices on
behalf of their respective clients. Notices shall be provided to the
parties and addresses (or facsimile numbers, as applicable) specified
below:
If to Seller: Participating Income Properties II, L.P.
c/o Franchise Finance Corporation of America II
Dennis L. Ruben, Esq.
Executive Vice President and General Counsel
17207 North Perimeter Drive
Scottsdale, AZ 85255
Telephone: (602) 585-4500
Telecopy: (602) 585-2226
13
<PAGE>
If to Buyer: CFJ Plaza Company III LLC
50 West 990 South
Brigham City, UT 84302
Attention: J Phillip Adams
President
Telephone: (801) 734-6401
Telecopy: (801) 734-6574
B. ASSIGNMENT. During the period commencing with the date of
this Agreement and ending on the Closing Date, without the prior
written consent of Seller:
(i) Buyer shall not assign or transfer any of their
rights or interests under this Agreement;
(ii) no membership interest in Buyer shall be sold,
assigned, transferred or conveyed; and
(iii) no more than 49% in the aggregate of the voting
stock of Flying J shall be sold, assigned, transferred or
conveyed, whether in one transaction or a series of
transactions,
whether voluntarily or involuntarily or by operation of law or
otherwise, including, without limitation, by merger, consolidation or
dissolution or a transfer of equity interests of Flying J or Buyer, as
applicable.
C. COMMISSION. Buyer and Seller represent and warrant to each
other that they have dealt with no real estate broker, agent, finder or
other intermediary in connection with the transaction contemplated by
this Agreement. Buyer and Seller shall indemnify and hold each other
harmless from and against any costs, claims or expenses, including
attorneys' fees, arising out of the breach of their respective
representations and warranties contained within this Section.
D. WAIVER AND AMENDMENT. No provisions of this Agreement shall
be deemed waived or amended except by a written instrument
unambiguously setting forth the matter waived or amended and signed by
the party against which enforcement of such waiver or amendment is
sought. Waiver of any matter shall not be deemed a waiver of the same
matter on any future occasion or any other matter.
E. CAPTIONS. Captions are used throughout this Agreement for
convenience of reference only and shall not be considered in any manner
in the construction or interpretation hereof.
F. SEVERABILITY. The provisions of this Agreement shall be
deemed severable. If any part of this Agreement shall be held
unenforceable, the remainder shall remain in full force and effect, and
such unenforceable provision shall be reformed by such court so as to
give maximum legal effect to the intention of the parties as expressed
therein.
14
<PAGE>
G. CONSTRUCTION GENERALLY. This is an agreement between
parties who are experienced in sophisticated and complex matters
similar to the transaction contemplated by this Agreement and is
entered into by both parties in reliance upon the economic and legal
bargains contained herein and shall be interpreted and construed in a
fair and impartial manner without regard to such factors as the party
which prepared the instrument, the relative bargaining powers of the
parties or the domicile of any party. Seller and Buyer were each
represented by legal counsel competent in advising them of their
obligations and liabilities hereunder. Words of any gender used in this
Agreement shall be held and construed to include any other gender, and
words in the singular number shall be held to include the plural, and
vice versa, unless the context requires otherwise.
H. OTHER DOCUMENTS. Each of the parties agrees to sign such
other and further documents as may be appropriate to carry out the
intentions expressed in this Agreement.
I. ATTORNEYS' FEES. In the event of any judicial or other
adversarial proceeding between the parties concerning this Agreement,
the prevailing party shall be entitled to recover all of its attorneys'
fees and other costs in addition to any other relief to which it may be
entitled, including fees and expenses paid to the Title Company in
connection with this Agreement.
J. ENTIRE AGREEMENT. This Agreement, together with any other
certificates, instruments or agreements to be delivered hereunder,
constitute the entire agreement between the parties with respect to the
subject matter hereof, and there are no other representations,
warranties or agreements, written or oral, between Seller and Buyer
with respect to the subject matter of this Agreement.
K. FORUM SELECTION; JURISDICTION; VENUE; CHOICE OF LAW. Buyer
acknowledges that this Agreement was substantially negotiated in the
State of Arizona, the Agreement was signed by Seller in the State of
Arizona and delivered by Seller and Buyer in the State of Arizona and
there are substantial contacts between the parties and the transaction
contemplated herein and the State of Arizona. For purposes of any
action or proceeding arising out of this Agreement, the parties hereto
hereby expressly submit to the jurisdiction of all federal and state
courts located in the State of Arizona and Buyer consents that it may
be served with any process or paper by registered mail or by personal
service within or without the State of Arizona in accordance with
applicable law. Furthermore, Buyer waives and agrees not to assert in
any such action, suit or proceeding that it is not personally subject
to the jurisdiction of such courts, that the action, suit or proceeding
is brought in an inconvenient forum or that venue of the action, suit
or proceeding is improper. It is the intent of the parties hereto that
all provisions of this Agreement shall be governed by and construed
under the laws of the State of Arizona. To the extent a court of
competent jurisdiction finds Arizona law inapplicable with respect to
any provisions hereof, then, as to those provisions only, the laws of
the states where the Properties are located, as applicable, shall be
deemed to apply. Nothing contained in this subsection shall limit or
restrict the right of Seller to commence any proceeding in the federal
or state courts located in the states where the Properties are located
to the extent Seller deems such proceeding necessary or advisable to
exercise remedies available under this Agreement.
15
<PAGE>
L. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
M. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of Seller and Buyer and their respective
successors and permitted assigns, including, without limitation, any
United States trustee, any debtor-in-possession or any trustee
appointed from a private panel.
N. TIME OF THE ESSENCE. Time is of the essence with respect to
each provision of this Agreement; provided, however, whenever any
determination is to be made or action to be taken on a date specified
in this Agreement, if such date shall fall upon a Saturday, Sunday or
holiday observed by federal banks in the State of Arizona, the date for
such determination or action shall be extended to the first business
day immediately thereafter.
O. WAIVER OF JURY TRIAL AND CONSEQUENTIAL, SPECIAL, INDIRECT
AND PUNITIVE DAMAGES. SELLER AND BUYER HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY
WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING,
CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST
THE OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED
HEREIN OR RELATED HERETO. THIS WAIVER BY THE PARTIES HERETO OF ANY
RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN
ESSENTIAL ASPECT OF THEIR BARGAIN. FURTHERMORE, BUYER AND SELLER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT THEY MAY HAVE
TO SEEK CONSEQUENTIAL, SPECIAL, INDIRECT AND PUNITIVE DAMAGES FROM THE
OTHER WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION,
PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY ONE PARTY AGAINST THE
OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENT CONTEMPLATED HEREIN OR
RELATED HERETO. THE WAIVER BY BUYER AND SELLER OF ANY RIGHT THEY MAY
HAVE TO SEEK CONSEQUENTIAL, SPECIAL, INDIRECT AND PUNITIVE DAMAGES HAS
BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN ESSENTIAL ASPECT OF
THEIR BARGAIN.
P. NONRECORDATION. The parties agree that neither this
Agreement nor any notice or memorandum thereof shall be recorded in any
public records, and a breach of this provision shall constitute a
default by the breaching party.
Q. NO OFFER; EFFECTIVE DATE. The distribution of this
Agreement by Seller to Buyer shall not constitute an offer by Seller to
Buyer to convey the Properties and shall not be binding upon and
enforceable against Seller until such time as Seller and Buyer have
both executed and acknowledged this Agreement. The "date of this
Agreement" shall be the date by which an original of this Agreement (or
original counterparts of this Agreement) have been executed and
delivered by both Seller and Buyer.
16
<PAGE>
R. INDEMNIFICATION OF BUYER AND LESSEE. Seller agrees to
indemnify, hold harmless and defend Flying J, Buyer and Lessee and
their directors, officers, shareholders, successors, assigns and
Affiliates (the "Buyer Indemnified Parties"), from and against any and
all losses, costs, claims, liabilities, damages and expenses,
including, without limitation, reasonable attorneys' fees, incurred by
any of the Buyer Indemnified Parties in connection with the
solicitation of the Proxy Consent, except to the extent of the gross
negligence or intentional misconduct of any of the Buyer Indemnified
Parties. Notwithstanding the foregoing provisions of this subsection R,
Buyer and, by execution of this Agreement below, Flying J and Lessee,
acknowledge and agree that:
(i) upon consummation of the transaction described in
this Agreement, Seller intends to liquidate and dissolve,
distribute all of its assets to its partners and terminate its
existence (the "Liquidation");
(ii) from and after the Liquidation, any and all
obligations of Seller under this subsection R will be
satisfied solely pursuant to that certain General Partners and
Limited Partnership Liability Insurance Policy to be issued to
Seller by American International Specialty Lines Insurance
Company prior to commencement of the proxy solicitation with
respect to the Proxy Consent (the "Policy"), which Policy will
provide $8,500,000.00 of aggregate liability insurance
coverage subject to a $100,000.00 per loss retention and name
Buyer, Flying J and Lessee and the partners of Lessee as
additional insureds; and
(iii) from and after the Liquidation, Buyer, Flying J
and Lessee's sole recourse under this subsection R shall be to
the Policy and Seller shall have no liability or obligation to
Buyer, Flying J and Lessee pursuant to this subsection R or
otherwise under this Agreement and/or the documents and
instruments to be delivered by Seller at the Closing.
17
<PAGE>
IN WITNESS WHEREOF, Seller and Buyer have entered into this Agreement
as of the date first above written.
SELLER:
PARTICIPATING INCOME PROPERTIES II,
L.P., a Delaware partnership
By Franchise Finance Corporation of America
II, a corporation, managing
general partner
By /s/ Dennis L. Ruben
-----------------------------------
Dennis L. Ruben
Executive Vice President and General
Counsel
BUYER:
CFJ PLAZA COMPANY III LLC, a Delaware
limited liability
By CFJ III Management Inc., a Delaware
corporation, managing member
By /s/ J Phillip Adams
-----------------------------------
J Phillip Adams, President
<PAGE>
Flying J and Lessee are joining in the execution of this Agreement solely for
the purpose of acknowledging and agreeing to the terms of Section 14.R of this
Agreement.
FLYING J INC., a Utah corporation
By /s/ J Phillip Adams
-----------------------------------
J Phillip Adams
President
CFJ PROPERTIES, a Utah general partnership
By Big West Oil Company, a Delaware corporation,
general partner
By /s/ J Phillip Adams
-----------------------------------
J Phillip Adams
Senior Vice President
<PAGE>
STATE OF ARIZONA }
}ss.
COUNTY OF MARICOPA }
The foregoing instrument was acknowledged before me on September 4,
1998 by Dennis L. Ruben, Executive Vice President and General Counsel of
Franchise Finance Corporation of America II, a Delaware corporation, the
managing general partner of Participating Income Properties II, L.P., a Delaware
limited partnership, on behalf of such partnership.
-----------------------------------
Notary Public
My Commission Expires:
- ------------------------------------
STATE OF }
}ss.
COUNTY OF }
The foregoing instrument was acknowledged before me on September 4,
1998 by J Phillip Adams, President of CFJ III Management Inc., a Delaware
corporation, managing member of CFJ Plaza Company III LLC, a Delaware limited
liability company, on behalf of the limited liability company.
-----------------------------------
Notary Public
My Commission Expires:
- ------------------------------------
<PAGE>
STATE OF }
}ss.
COUNTY OF }
The foregoing instrument was acknowledged before me on September 4,
1998 by J Phillip Adams, President of Flying J Inc., a Utah corporation, on
behalf of the corporation.
-----------------------------------
Notary Public
My Commission Expires:
- ------------------------------------
STATE OF }
}ss.
COUNTY OF }
The foregoing instrument was acknowledged before me on September 4,
1998 by J Phillip Adams, Senior Vice President of Big West Oil Company, a
Delaware corporation, general partner of CFJ Properties, a Utah general
partnership, on behalf of the partnership.
-----------------------------------
Notary Public
My Commission Expires:
- ------------------------------------
<PAGE>
EXHIBIT A
PROPERTIES
FFCA NO. ADDRESS
5001-0010 Stephenson Mill Road
Walton, Kentucky 41094
Boone County
5001-0011 1815 North Foster Road
San Antonio, Texas 78244
Bexar County
5001-0012 Interstate 30 & Highway 108
Texarkana, Arkansas 75502
Miller County
<PAGE>
EXHIBIT A-1
PROPERTIES INCLUDING PERSONAL PROPERTY
FFCA NO. ADDRESS
5001-0010 Stephenson Mill Road
Walton, Kentucky 41094
Boone County
5001-0011 1815 North Foster Road
San Antonio, Texas 78244
Bexar County
5001-0012 Interstate 30 & Highway 108
Texarkana, Arkansas 75502
Miller County
<PAGE>
SCHEDULE I
PURCHASE PRICE ALLOCATIONS
FFCA NO. LOCATION
5001-0010 Walton, Kentucky $ 7,559,806.00
5001-0011 San Antonio, Texas 7,210,097.00
5001-0012 Texarkana, Arkansas 7,360,097.00
--------------
$22,130,000.00
==============
<PAGE>
SCHEDULE II
RELATED AFFILIATE AGREEMENTS
Purchase Agreement dated as of the date of this Agreement between FFCA/PIP 1986
Property Company and CFJ Plaza Company I LLC (FFCA No. 5000-0016 and 0022).
Purchase Agreement dated as of the date of this Agreement between FFCA/PIP 1986
Property Company and CFJ Plaza Company II LLC (FFCA No. 5000-0009 and 0024).
Purchase Agreement dated as of the date of this Agreement between FFCA/PIP 1986
Property Company and CFJ Plaza Company III LLC (FFCA No. 5000-0002, 0003 and
0023).
Purchase Agreement dated as of the date of this Agreement between FFCA/PIP 1986
Property Company and FJI Plaza Company LLC (FFCA No. 5000-0005).
Purchase Agreement dated as of the date of this Agreement between FFCA/PIP 1986
Property Company and Flying J Real Estate Enterprises Inc. (FFCA No. 5000-0010
and 0012).
Purchase Agreement dated as of the date of this Agreement between Participating
Income Properties III Limited Partnership and FJI Plaza Company LLC (FFCA No.
5002-0003).
Purchase Agreement dated as of the date of this Agreement between Participating
Income Properties III Limited Partnership and CFJ Plaza Company I LLC (FFCA No.
5002-0001 and 0002).
<PAGE>
SCHEDULE III
RELATED SELLER AGREEMENTS
Purchase Agreement dated as of the date of this Agreement between Participating
Income Properties II, L.P. and CFJ Plaza Company I LLC (FFCA Nos. 5001-0003,
0005, 0008, 0009, 0016 and 0017).
Purchase Agreement dated as of the date of this Agreement between Participating
Income Properties II, L.P. and CFJ Plaza Company II LLC (FFCA No. 5001-0004,
0006, 0007 and 0018).
<PAGE>
FIRST AMENDMENT OF PURCHASE AGREEMENT
THIS FIRST AMENDMENT OF PURCHASE AGREEMENT (this "Amendment") is made
as of March 22, 1999 by and between PARTICIPATING INCOME PROPERTIES II, L.P., a
Delaware limited partnership ("Seller"), and CFJ PLAZA COMPANY III LLC, a
Delaware limited liability company ("Buyer").
PRELIMINARY STATEMENT
Seller and Buyer entered into that certain Purchase Agreement dated as
of September 4, 1998 (the "Agreement"). Initially capitalized terms not
otherwise defined herein shall have the meanings set forth in the Agreement.
At the time Seller and Buyer entered into the Agreement, the Agreement
contemplated that Buyer would purchase all of Seller's right, title and interest
in all personal property, appliances, trade fixtures, furniture and equipment
situated on or about or used in connection with the parcels of real estate as
described in Exhibit A-1 attached to the Agreement (collectively, the
"Personalty"). Seller and Buyer desire to amend the Agreement to provide that
Seller will convey the Personalty to CFJ Properties, a Utah general partnership
("CFJ") in accordance with this Amendment.
AGREEMENT
In consideration of the provisions of this Amendment, the parties agree
as follows:
1. AMENDMENT. The Agreement is amended to provide that:
A. all references to Seller conveying the Personalty to Buyer
are amended to provide that Seller shall convey the Personalty to CFJ;
and
B. at the Closing, Seller shall convey the Personalty to CFJ
pursuant to a bill of sale in form and substance reasonably
satisfactory to Seller and Buyer.
2. RATIFICATION. Except as otherwise amended by this Amendment, the
Agreement is unmodified and in full force and effect.
<PAGE>
IN WITNESS WHEREOF, Seller and Buyer have entered into this Amendment
as of the date first above written.
SELLER:
PARTICIPATING INCOME PROPERTIES II,
L.P., a Delaware limited partnership
By Franchise Finance Corporation of America
II, a Delaware corporation, managing
general partner
By /s/ Dennis L. Ruben
-----------------------------------
Dennis L. Ruben
Executive Vice President and
General Counsel
BUYER:
CFJ PLAZA COMPANY III LLC, a Delaware
limited liability company
By CFJ III Management Inc., a Delaware
corporation, managing member
By /s/ J Phillip Adams
-----------------------------------
J Phillip Adams
President
2
<PAGE>
STATE OF ARIZONA }
}ss.
COUNTY OF MARICOPA }
The foregoing instrument was acknowledged before me on March 22, 1999
by Dennis L. Ruben, Executive Vice President and General Counsel of Franchise
Finance Corporation of America II, a Delaware corporation, the managing general
partner of Participating Income Properties II, L.P., a Delaware limited
partnership, on behalf of such partnership.
-----------------------------------
Notary Public
My Commission Expires:
- ------------------------------------
STATE OF ARIZONA }
}ss.
COUNTY OF MARICOPA }
The foregoing instrument was acknowledged before me on March 22, 1999
by J Phillip Adams, President of CFJ III Management Inc., a Delaware
corporation, managing member of CFJ Plaza Company III LLC, a Delaware limited
liability company, on behalf of the limited liability company.
-----------------------------------
Notary Public
My Commission Expires:
- ------------------------------------
March 22, 1999
CJI Plaza Company I LLC
CJI Plaza Company II LLC
CJI Plaza Company III LLC
FJI Plaza Company LLC
50 West 990 South
Brigham City, Utah 84302
Ladies and Gentlemen:
This letter sets forth the agreement of each of the undersigned to
extend (the "Extension") the latest date on which the Closing Date (as defined
in each of the Purchase Agreements described on the attached SCHEDULE I (the
"Purchase Agreements")) may occur until March 31, 1999. Please sign this letter
as set forth below to evidence your agreement to such Extension.
FFCA/PIP 1986 PROPERTY COMPANY, a Delaware
general partnership
By Participating Income Properties 1986, L.P.,
a Delaware limited partnership, general
partner
By FFCA Management Company Limited Partnership,
a Delaware limited partnership, general
partner
By Perimeter Center Management Company, a
Delaware corporation, general partner
By /s/ Dennis L. Ruben
--------------------------------------------
Dennis L. Ruben
Executive Vice President and
General Counsel
<PAGE>
PARTICIPATING INCOME PROPERTIES II,
LIMITED PARTNERSHIP, a Delaware limited
partnership
By Franchise Finance Corporation of America
II, a Delaware corporation, managing
general partner
By /s/ Dennis L. Ruben
-----------------------------------------
Dennis L. Ruben
Executive Vice President and
General Counsel
PARTICIPATING INCOME PROPERTIES III,
LIMITED PARTNERSHIP, a Delaware limited
partnership
By FFCA Participating Management Company
Limited Partnership, a Delaware limited
partnership, managing general partner
By Franchise Finance Corporation of America
III, a Delaware corporation, managing
general partner
By /s/ Dennis L. Ruben
-----------------------------------------
Dennis L. Ruben
Executive Vice President and
General Counsel
<PAGE>
Agreed to and accepted this 22nd day of March, 1999:
CFJ PLAZA COMPANY I LLC, a Delaware limited
liability company
By CFJ I Management Inc., a Delaware
corporation, its managing member
By /s/ J Phillip Adams
-----------------------------------------
J Phillip Adams
President
CFJ PLAZA COMPANY II LLC, a Delaware limited
liability company
By CFJ II Management Inc., a Delaware
corporation, its managing member
By /s/ J Phillip Adams
-----------------------------------------
J Phillip Adams
President
CFJ PLAZA COMPANY III LLC, a Delaware
limited liability company
By CFJ III Management Inc., a Delaware
corporation, its managing member
By /s/ J Phillip Adams
-----------------------------------------
J Phillip Adams
President
FJI PLAZA COMPANY LLC, a Delaware limited
liability company
By FJI Management Inc., a Delaware
corporation, its managing member
By /s/ J Phillip Adams
-----------------------------------------
J Phillip Adams
President
<PAGE>
SCHEDULE I
DESCRIPTION OF PURCHASE AGREEMENTS
Purchase Agreement dated as of the date of this Agreement between Participating
Income Properties II, L.P. and CFJ Plaza Company I LLC (FFCA Nos. 5001-0003,
0005, 0008, 0009, 0016 and 0017).
Purchase Agreement dated as of the date of this Agreement between FFCA/PIP 1986
Property Company and CFJ Plaza Company I LLC (FFCA No. 5000-0016 and 0022).
Purchase Agreement dated as of the date of this Agreement between FFCA/PIP 1986
Property Company and CFJ Plaza Company II LLC (FFCA No. 5000-0009 and 0024).
Purchase Agreement dated as of the date of this Agreement between Participating
Income Properties II, L.P. and CFJ Plaza Company II LLC (FFCA No. 5001-0004,
0006, 0007 and 0018).
Purchase Agreement dated as of the date of this Agreement between Participating
Income Properties II, L.P. and CFJ Plaza Company III LLC (FFCA No. 5001-0010,
0011 and 0012).
Purchase Agreement dated as of the date of this Agreement between FFCA/PIP 1986
Property Company and CFJ Plaza Company III LLC (FFCA No. 5000-0002, 0003 and
0023).
Purchase Agreement dated as of the date of this Agreement between FFCA/PIP 1986
Property Company and FJI Plaza Company LLC (FFCA No. 5000-0005).
Purchase Agreement dated as of the date of this Agreement between FFCA/PIP 1986
Property Company and Flying J Real Estate Enterprises Inc. (FFCA No. 5000-0010
and 0012).
Purchase Agreement dated as of the date of this Agreement between Participating
Income Properties III Limited Partnership and FJI Plaza Company LLC (FFCA No.
5002-0003).
Purchase Agreement dated as of the date of this Agreement between Participating
Income Properties III Limited Partnership and CFJ Plaza Company I LLC (FFCA No.
5002-0001 and 0002).
