Sealed Bid Offering
The Retail Division of New West Stations, Inc., J. Gilbert Moore, Arena Fuels, LLC, Summit Petroleum – L.B., LLC, Cathedral City Fuels Co. and C.H. Houston, LLC collectively (“Seller”) is offering to sell nine (9) operating gasoline stations with convenience stores, collectively the (“Properties”). Five (5) are fee-owned and four (4) are businesses and improvements (c-store building, canopy, tanks, lines, dispensers and car wash building, as applicable) with long-term land leases which are located throughout California and are available by sealed-bid on Tuesday, August 26, 2008. NRC Realty Advisors, LLC and it’s subsidiary; NRC Realty Advisors of California, Inc. (“NRC”) is coordinating the offering for the Seller.
Bid Deadline
NRC must receive all bids by Tuesday, August 26, 2008, 5:00 pm Central Time (the "Bid Deadline"). All bids must be sent to:
NRC Realty Advisors, LLC
363 W Erie Street, Suite 300E
Chicago, IL 60654
ATTN: SEALED BID SALE 812
Terms and Conditions of Sale
Sale of the Properties is subject to the terms and conditions outlined herein (the "Terms and Conditions of Sale"), in the Property Specific Package ("PSP") for each Property, the Purchase and Sale Agreement or the Assignment of Lease/Business and Asset Sale Agreement (collectively referred to herein as the "PSA") for each Property. In the event of a conflict between the Terms and Conditions of Sale and the PSA, the provisions of the applicable PSA will control.
Confidentiality
All information contained in the PSP and Bid Package is confidential and must be kept confidential by each person and entity receiving that information (each, "Receiving Party"). By ordering a PSP or receiving a Bid Package, these persons and entities agree to this confidentiality. However, the Receiving Party may disclose information obtained from the PSP and Bid Package, on a "need-to-know" basis, to the following persons and entities, as long as those persons and entities agree to keep that information confidential: (a) the employees, officers and directors of the Receiving Party or their affiliates, (b) third parties who are performing investigations and analyzing information to advise the Receiving Party regarding its bids, and (c) third parties providing a Receiving Party with financing for the purchase of a Property. These confidentiality provisions will terminate as to a Receiving Party only if and when it consummates its purchase of the Property.
Site Inspections
Properties may be inspected during normal business hours from 8:00 am to 5:00 pm local time. The store managers and employees have been instructed to refer any questions from a prospective bidder directly to NRC. UNDER NO CIRCUMSTANCES MAY PROSPECTIVE BIDDERS ASK QUESTIONS OF STORE MANAGERS OR STORE EMPLOYEES. BIDDERS VIOLATING THIS REQUIREMENT MAY BE DISQUALIFIED FROM BIDDING.
Bidder's Performance of Due Diligence
Bidders must perform their own independent due diligence before bidding.
Branding and Fuel Supply Agreement - Fee Owned Sites
Five (5) sites are being sold with fuel brand and supply agreements. Currently these sites are branded Chevron or Shell. Should the Buyer elect to retain the Chevron brand, they will be expected to enter into a Chevron gasoline direct-supply agreement subject to Chevron’s prior approval. Should the Buyer elect to retain the Shell brand, they will be expected to enter into a Shell gasoline supply agreement with an approved distributor and subject to Shell’s prior approval. Buyer must meet Chevron or Shell’s experience, financial and training requirements prior to closing. However, if Buyers chooses to de-brand, buyers shall remove Chevron or Shell trade dress at closing. Buyer will be required to pay for any (if applicable) associated costs for de-branding. See PSA for further information.
Branding and Fuel Supply Agreement - Leasehold Sites
Two (2) branded Properties are being offered. Both sites are offered with an Assignment of Leasehold interest in the real property. Properties will be sold on a branded basis. Seller will assign the existing gasoline supply agreement to Buyer upon prior approval by Shell or Chevron. Successful bidder must prepare a business plan, complete Shell or Chevron credit and training requirements prior to the Close Date. Seller will pay for assignment fee. See PSA for further information.
Franchise Properties - Leasehold Sites
Two (2) BP/ARCO stations with ampm convenience stores are being offered with an assignment of the existing Franchise and Lease. Both Properties have a prior DOFO (construction) loan and the self-amortized note must be assumed or paid off by buyer before the Close Date (see PSP for further information). Successful bidders will be required to complete the following requirements and qualifications as a condition precedent to becoming an approved Franchisee:
Successful bidder must prepare a business plan, complete BPWCP franchise and credit requirements prior to the Close Date. Successful bidder and/or Operational Designee must be personally available for an interview with a BPWCP representative at a time and place designated by BPWCP. Successful bidder must attend BPWCP am/pm training program at a designated location by BPWCP for a period of four (4) weeks. Seller will pay for assignment fee. Please refer to the PSA for further details.
Franchise Application - Leasehold Sites
All bidders must meet BPWCP/ARCO, Chevron, Shell, and Subway’s (as applicable) Franchise and financial requirements and be pre-qualified before bidding. NRC will provide interested prospects with a Franchisee/Dealer Application, which must be completed IN FULL by the bidder and any of such bidder’s partners participating in the purchase with bidder and returned to NRC at 888-533-4416 within 3 business days of bidder’s receipt from NRC. To receive the Franchisee/Dealer Application form, call the NRC Customer Service Center at 800.747.3342, ext. 812 or visit the Web site at www.nrc.com/812.
Del Taco Licence Agreement
Two (2) locations offer the assignment of the existing Del Taco License Agreement to interested Buyers upon approval from Del Taco. Buyers must meet Del Taco’s experience, financial and training requirements prior to approval of assignment. Buyer will be responsible for the assignment fee. Del Taco has a right of first refusal to operate their business. However, if Buyers chooses to de-brand, buyers shall remove Del Taco’s trade dress at closing. Buyer will be required to pay for any (if applicable) associated costs for de-branding.
Wendy's Licence Agreement
Two (2) locations offer the assignment of the existing Wendy’s Franchise Agreement to interested Buyers upon approval from Wendy’s. Buyers must meet Wendy’s experience, financial and 6 month training requirements prior to approval of assignment. Buyer will be responsible for the assignment fee. Wendy’s has a right of first refusal to operate their business. However, if Buyers chooses to de-brand, buyers shall remove Wendy’s trade dress at closing. Buyer will be required to pay for any (if applicable) associated costs for de-branding.
Subway Franchise
One (1) location offers the assignment of the existing Subway Franchise Agreements to Buyer upon approval from Subway. Buyers must meet Subway’s experience, financial and training requirements prior to approval of assignment. Seller will pay for the assignment fee. Subway has a right of first refusal to operate their business.
Right of First Refusal
Chevron, BPWCP and Shell collectively the (“Company”) have a right of first refusal for their respective branded site(s). Should the Company elect to purchase the Property then the PSA will be terminated and the Buyers Earnest Money Deposit will be returned.
Estimated Inventory Value
Not less than seven (7) days prior to the anticipated Closing Date, Seller or NRC shall deliver by facsimile to Buyer an estimated value of the Inventory (the “Estimated Inventory Value”). Buyer shall deposit with NRC one hundred ten percent (110%) of the Estimated Inventory Value at least five (5) days prior to the Closing Date by wire transfer of immediately available funds (the “Inventory Deposit”). Failure to make the Inventory Deposit as set forth herein shall be considered a default under the PSA and may result in the forfeiture of the Earnest Money Deposit, in Seller's complete and sole discretion.
Actual Inventory Value
A physical inventory and audit of all the Inventory on hand at the Property (the “Audit”) shall be conducted on the Closing Date or substantially contemporaneous therewith, by an auditor designated by Seller. Buyer is required to purchase all of the Inventory. The cost of the Audit shall be divided equally between the parties and shall be paid at the Closing. Any difference between the Estimated Inventory Value and the actual value of Inventory, as determined by the Audit (the “Actual Inventory Value”) may result in additional amounts due from Seller or Buyer. The appropriate party must remit such additional amounts by certified check to the either Seller or Buyer respectively at the Audit.
Point of Sale systems (POS) and Vendor Owned Equipment
All proprietary data from the POS system, the back office, and any vendor owned equipment may be removed by Seller or Vendor at closing.
PSP Information
A Property Specific Package ("PSP") for each property is available from NRC that contains site specific due diligence information as described below, as available. Prior to receiving a PSP for the Northern California Properties each prospective bidder is required to deliver to NRC a signed Confidentially Agreement. PSP's can be ordered by calling NRC's customer service center at 800.747.3342, extension 812. Each PSP is available at a cost of $35 per hard copy and $25 per CD ROM (including 2-day shipping).
Five year Fuel Sales (gallons) and 2008 YTD
Five year Retail Sales and 2008 YTD
Environmental Information
Tank and line configurations, sizes & type
Remediation reports on sites in remediation; no further action letters
Tank and line tightness reports
Current title reports
Permits and Licenses
ALTA/ACSM survey
Bid Package and Bid Deposit
A Bid Package will be included in each PSP. The Bid Package contains the PSA to be signed and returned to NRC, the sealed-bid envelope for the PSA, and instructions on how to complete and return bids to NRC. In order for a bid to be conforming, it must contain (a) a certified or cashiers check or money order in the amount of 2.5% of the bid price made payable to NRC Realty Advisors, LLC, (b) a fully signed and initialed PSA with Exhibit A (Legal Description), and (c) a completed Bidder Qualification Worksheet and Certification.
Bid Format
Bids must be made on the PSA forms provided in the PSP. No other method of bidding is acceptable. Purchase of gasoline, merchandise inventory and Buyers Premium at closing are in addition to the purchase price.
Bid Deposit
An initial bid deposit of 2.5% of the bid price (the "Bid Deposit") must be included with each bid. Bid Deposits must be in the form of a certified or cashier's check or money order made payable to NRC Realty Advisors, LLC. Bids that are received without a Bid Deposit will not be considered. Successful bidders will be required to increase the amount of the Bid Deposit to 10% of the purchase price (the "Additional Escrow Deposit") by certified or cashier's check or money order within two business days of written notification from NRC of Seller's acceptance of their bid. The Bid Deposit and the Additional Escrow Deposit shall collectively be referred to herein as the "Earnest Money Deposit". NRC shall deliver all Earnest Money Deposits to the Escrow Holders identified in the PSA. NRC reserves the right to allocate any excess Bid Deposits toward the Additional Escrow Deposit requirement. NRC will return Bid Deposits for unsuccessful bids by certified mail approximately ten (10) business days after the Bid has been rejected.
Evaluation and Award of Bids
Seller will review all bids received by the Bid Deadline. After consideration of bids, Seller, in its sole and absolute discretion, will
select the successful bidders. Seller reserves the right to review additional financial information concerning the Buyer, and information confirming the Buyer's ability to close the sale. Seller shall use good faith efforts to accept or reject bids within ten (10) business days after the Bid Deadline. All sales will be final, upon Seller's acceptance of the bid.
Prohibition on Withdrawing Bids
Sealed bids will be considered purchase offers in effect as of the Bid Deadline and will remain in effect for seven (7) business days thereafter, unless amended prior thereto by a BAFO. BAFOs shall be considered purchase offers in effect as of the date the BAFO is received by NRC and for seven (7) business days thereafter. Purchase offers may not be revoked or withdrawn by the bidder during such time periods.
Effective Date of Award of Bid
The effective date of the award of the bid will be the date that Seller signs the PSA. Since time is of essence, NRC will notify successful bidders of the award via facsimile. The fully executed PSA will be sent subsequently by mail.
Seller's Reservation of Rights
Seller reserves the right, in its sole discretion, to decline any bid, postpone, extend, or cancel the Bid Deadline, and withdraw any Property from the sealed-bid sale at any time without notice. Seller further reserves the right, in its sole discretion, without notifying any other bidder, giving any other bidder similar opportunity, or re-offering the subject Property, to negotiate with any bidder the terms of its bid; to overlook minor inconsistencies or nonconformance in any bid; to extend any deadlines for any Property; and to accept the bid that Seller considers in its best interest, whether or not it is the highest purchase price. Seller may require verification of funds available to close on offers before accepting any bid.
Closing Dates and Transfer of Possession
Successful bidders for the Properties will be required to close escrow no later than 90 days after the date that escrow was opened, provided that Seller shall have the right to extend the closing date up to an additional 30 days. Seller will set the date and time of closing, in its sole discretion. Possession of the Properties will be transferred upon the escrow closing.
Transfer of Title
All Properties will be conveyed with marketable title. Seller will provide title free and clear of monetary liens, except non-delinquent
real estate taxes and subject to permitted exceptions, as outlined in the PSA. The Buyer pays for title insurance coverage. Real estate taxes will be current to the date of closing. All Properties will be conveyed "AS IS, WHERE IS, WITH ALL FAULTS," regarding any conditions affecting the Properties, with no representations or warranties, except for those stated in the PSA.
Environmental Matters For New West Locations
All Properties are conveyed "AS IS, WHERE IS, WITH ALL FAULTS," regarding environmental conditions affecting the Properties, with no representation or warranties except as those set forth in the PSA. Seller will provide a current Phase 1 Environmental Site Assessment (“ESA”) at each site before the Closing Date. The Buyer will reimburse Seller approximately $3,000 for the cost of the ESA at closing. Environmental matters are addressed in the PSA. Bidders should review these provisions carefully. Buyer or any of their affiliates or representatives will not be permitted to perform any soil or ground water tests prior to closing. The successful buyers shall be responsible for environmental contamination identified after the closing.
INDEMNITIES ON SITES CURRENTLY IN REMEDIATION OR WITH REPORTED RELEASES
Certain locations have had reported releases or are currently being remediated by the Seller, and those sites are identified in the PSPs. , the The Seller will indemnify the buyer for those sites, and clean-up those sites at its sole expense until a No further Action letter is obtained from the State of California. These sites have been qualified or being considered for inclusion into the California Underground Storage Tank Clean-up fund, and Seller is currently receiving reimbursements for the clean-up of certain sites. Seller’s post closing Indemnity relates to specific releases for certain sites identified in the PSP packages, and copies of the Indemnification Agreement are in the PSP packages.
ENVIRONMENTAL INDEMNITIES ON SITES CURRENTLY IN REMEDIATION BY PRIOR OWNER - FEE OWNED SITES.
Seller will indemnify, defend and hold harmless Buyer from any environmental contamination known to exist at the property prior to closing caused by sellers operations and required to be investigated or remediated by any regulatory authority.
SITES WITH NO FURTHER ACTION (NFA) OR WITH NO REPORTED RELEASES.
Sites with NFA’s or no reported releases are being sold "AS IS, WHERE IS, WITH ALL FAULTS," regarding environmental conditions and no indemnification for the property is given by Seller. Buyer will indemnify and hold harmless Seller for any environmental contamination occurring subsequent to closing or not know to exist at the property and discovered subsequent to closing.
EVR Upgrade
A number of the Properties located in California have to comply with the EVR Phase II requirements as specified in CARB certification procedure CP-201 and incorporated by reference under the California Code of Regulations §94011 (the “EVR Upgrade”) by April 2009 at buyer’s sole expense. Seller estimates the range of costs for the performance of the EVR Upgrade to be from Fifty Thousand ($50,000) to One Hundred Thousand ($100,000) for most properties. Buyers must perform their own independent cost estimates, and should consult with their own contractors prior to bidding.
CHANGE OF SUCCESSFUL BIDDER’S ENTITY AND/OR OPERATING ENTITY.
Successful bidders will be accorded a fifteen (15) day grace period to change their buying entity and/or operating entity upon notification of the award of bids. After expiration of the grace period, any change in the buying entity and/or operating entity will require Seller approval, the payment by successful bidder of $1,000 each ("Assignment Processing Fee") due at the time successful bidder submits the change of entity to NRC, and, at Seller's sole discretion.
LICENSES, PERMITS AND AUTHORIZATION.
The successful bidder must obtain, at its expense, any licenses, permits and authorizations (collectively, "Licenses") required to acquire, manage, develop, and operate the Property.
BUYERS PREMIUM.
The Buyer shall pay, in addition to the purchase price, an amount equal to 5% of the purchase price of the Property at closing.
BROKER COOPERATION.
A cooperating commission of 2% for the Northern California Properties will be paid to brokers who properly register with NRC as the cooperating broker for a buyer who closes on the purchase of a property. No commission will be paid to any broker whose client has previously contacted NRC and/or has ordered sales information directly from NRC, or to a client who is currently a Chevron or Shell dealer or distributor. No commission shall be paid to brokers or their affiliates, including family members and entities in which brokers or their family member has an ownership interest, who directly or indirectly, participate in the purchase of a Property. An affidavit may be required stating that the broker is acting solely as broker and not, for itself or through and affiliate or family member, participating directly or indirectly as a purchaser. Commissions will be paid at the closing of the sale. In the event the registration is by a salesperson, the salesperson must have the salesperson’s signature and the broker’s signature. The registration must include the client’s name, company, client’s business partners (if any,) addresses and contact phone numbers, the store number(s) their client is bidding on, as well as their client’s NRC Customer Account Number (available from NRC). The registration form must be acknowledged by the broker’s client, said acknowledgement to be their client’s signature and name/title. NO ORAL OR OTHER FORM OF REGISTRATION IS PERMITTED. THE COMPLETED REGISTRATION FORM MUST BE FAXED TO NRC AT (312) 278-6900, referencing sale 812 NO LATER THAN AUGUST 26, 2008. After receiving the registration, NRC will stamp the form to acknowledge receipt and fax the registration form with the stamped and dated acknowledgement of receipt to the broker. NO COMMISSION WILL BE PAID TO ANY BROKER WHO HAS NOT RECEIVED NRC’S STAMPED ACKNOWLEDGEMENT. In the event brokers have registered the same prospect, the first valid registration will be honored.
AMENDMENTS.
Seller reserves the absolute right, in its sole discretion, to amend the Terms and Conditions of Sale, the PSA, and any other sale documents or closing document.
1031 TAX DEFERRED EXCHANGE.
All successful bidders may be required to execute (in a form acceptable to Seller) before closing.
Disclaimer
Seller and NRC and their respective members, directors, officers, employees, agents, subsidiaries, and affiliates (collectively,
"Representatives"), disclose that they may not have complete knowledge of the physical or economic characteristics of the Properties being sold. Accordingly (except as otherwise specifically stated in the PSA), Seller and NRC, and their Representatives disclaim any warranty, guaranty or representation, express or implied, concerning (a) the condition or state of repair of the Properties, including, without limitation, any condition arising in connection with the generation, use, transportation, storage, release, or disposal of petroleum products, toxic or hazardous substances, on and under, above, upon, or in the vicinity of the Properties, and its impact on water, soil and geology, (b) the suitability of the Properties and their water, soil and geology for any activities and use that the Buyer may elect to conduct; (c) the extent of any right of way, lease, possession, lien, encumbrance, easement, license, reservation, or condition in connection with the Properties; (d) the compliance of the Properties or their operation with any applicable laws, ordinances, or regulations of any government or other body, including without limitation, compliance with any land use, Americans with Disabilities Act, wetland, or zoning law or regulation, or applicable environmental or coastal laws, rules, ordinances, and regulations; (e) title to or the boundaries of the Properties; and (f) the physical condition of the Properties, including, without limitation, the structural, mechanical and engineering characteristics of the improvements to the Properties. Except as stated above and as set forth in the PSA, the sale of the Properties is on an "AS IS, WHERE IS, WITH ALL FAULTS," basis. The Buyers expressly agree that Seller and NRC and their Representatives make no warranty or representation, express or implied, or arising by operation of law, including, without limitation, any warranty of condition, habitability, or merchantability or fitness for a particular purpose, with respect to the Properties. The Buyers will buy the Properties based on their own investigations. By accepting title to any Property, the Buyers acknowledge that they have conducted any investigation that they have considered necessary or advisable and that they are not relying upon any representations of Seller, NRC or either of their Representatives. The materials and information concerning the Properties contained in this sales brochure, postcards, other brochures, the PSP, and the Bid Package, and any other information provided by Seller and NRC or their Representatives, is based in part upon information and materials obtained from sources considered reliable, without independent verification. Bidders must not base their bids upon that information or environmental studies, repair estimates, other studies, or pro-forma and financial information that Seller or NRC provides, but must rely solely on their own estimates and studies. No warranty or representation, express or implied, is made by Seller, NRC, or either of their Representatives, as to the accuracy or completeness of the information provided to bidders.
|
Back to top