For further information please call NRC at 800.747.3342
Terms and Conditions
SEALED BID SALE. BP Products North America Inc. ("BPPNA") is offering to sell forty-six (46) properties located in the states of Georgia, Florida, Illinois, Indiana, Ohio and Pennsylvania (hereinafter referred to as "East Coast Properties") and BP West Coast Products LLC ("BPWCP") is offering to sell eight (8) properties in the states of Arizona, California, Oregon and Washington (hereinafter referred to as "West Coast Properties") (and collectively the "Properties") by sealed bid sale. BPPNA and BPWCP (collectively "BP") have retained NRC Realty Advisors, LLC ("NRC") to coordinate the offering and sale of the Properties.
OFFER DUE DATE.Sealed bids are required to be received by NRC not later than Thursday, March 6, 2008 at 3:00 pm Central Time (the "Offer Due Date") and sent to:
NRC Realty Advisors, LLC
363 W. Erie Street, Suite 300E
Chicago, IL 60610
ATTN: SEALED BID SALE 801
OFFERED COMMERCIAL PROPERTIES. The Properties are offered for the following uses, subject to certain agreements and/or use restrictions, including as described below:
EAST COAST PROPERTIES. Forty-six (46) of the Properties are offered for commercial use ("Commercial Property"). Seventeen (17) of the Commercial Properties are vacant land parcels. Forty-three (43) of the Commercial Properties are owned in fee and three (3) are leaseholds. All forty-six ((46) Commercial Properties are offered subject to 25-year use restrictions prohibiting the operation of a facility selling motor fuels, a convenience store and/or a quick service restaurant at the Commercial Property. Please refer to the site information in the Brochure (described below) for site-specific use restriction information.
WEST COAST PROPERTIES. Eight (8) of the Properties are offered for commercial use ("Commercial Property"). Five (5) of the Commercial Properties are vacant land parcels. All eight (8) of the Commercial Properties are owned in fee. All eight (8) Commercial Properties are offered subject to 25-year use restrictions prohibiting the operation of a facility selling motor fuels, a convenience store and/or a fast food restaurant at the Commercial Property. Please refer to the site information in the Brochure (described below) for site-specific use restriction information.
COMMERCIAL PROPERTIES AVAILABLE IN SALES 802, 803, 804 AND 805. A section of the brochure for Sale 801 lists Commercial Properties that are Available in Other BP/NRC Sales. ("Other Commercial Properties"). These Other Commercial Properties are listed in the brochure for ease of reference for Commercial site bidders. The specific sale number and Offer Due Date for the Other Commercial Properties are provided. The Terms and Conditions of Sale for the site's specific sale number will apply to the sale of each Other Commercial Property.
TERMS AND CONDITIONS OF SEALED BID SALE
TERMS AND CONDITIONS. The offering and sale of the Properties in this sealed bid sale are subject to these Terms and Conditions of Sealed Bid Sale (the "Terms and Conditions"), except for the Other Commercial Properties, where the Terms and Conditions of that Properties' sale will apply. Prospective bidders are advised to carefully review the applicable Terms and Conditions as well as the Terms and Conditions posted for the respective other sale. Failure to comply either as a participant in the sale or in the preparation or submission of a sealed bid, may, in the sole discretion of NRC with BP's consent, cause a sealed bid to be deemed non-conforming (a "Non-conforming Bid") and disqualified from consideration. NRC and BP reserve the right to amend, supplement or modify these Terms and Conditions, from time to time, without consent from or notice to prospective bidders. In the event the Terms and Conditions conflict with a provision of the Purchase and Sale Agreement ("PSA") or Real Estate Sale Agreement ("RESA") relating to a Property, the provision of the applicable PSA shall be controlling.
REFERENCED MATERIALS. The Terms and Conditions are set forth in three places in the sealed bid sale materials; (i) in the sales brochure relating to the Properties (the "Brochure"); (ii) on the NRC website at http://www.nrc.com/bp and (iii) in each Bid Package (as defined below), and are incorporated by reference in each PSA.
CONFIDENTIALITY AGREEMENT. Certain information that prospective bidders may receive in connection with this sealed bid sale is proprietary and non-public information that BP considers confidential ("Confidential Information"), including, without limitation, Confidential Information contained in a Property Specific Package ("PSP") or Bid Package as further described below. Accordingly, each prospective bidder is required to sign and return a Confidentiality Agreement and Acknowledgement of Disclaimer ("Confidentiality Agreement") to NRC by mail or fax. A Confidentiality Agreement is included with the Brochure and is additionally available for download on the NRC website at http://www.nrc.com/bp or by calling NRC.
DUE DILIGENCE
PRE-BIDDING DUE DILIGENCE. Bidders are solely responsible for conducting their own due diligence on Properties prior to bid submission. PSAs or RESAs submitted as sealed bids become immediately enforceable by the parties upon BP's execution and may be terminated only pursuant to the terms thereof. In the event a successful bidder defaults on its obligations under an enforceable PSA or RESA, BP may have the right to retain such bidder's Earnest Money Deposit (defined below).
PROPERTY SPECIFIC PACKAGES. A PSP for each Property is available from NRC. Each PSP contains, as available, Property-specific physical, legal, environmental and financial due diligence information. A PSP may include, as applicable, Property-specific sales data, tank and line configuration, size and type, remediation reports, tank and line tightness reports, title reports, permits and licenses, surveys or site plans. PSPs are available in hard copy at a cost of $35 per book and on CD-ROM at a cost of $25 per CD-ROM, in each case including shipping. PSPs may be purchased by calling NRC at (800) 747-3342, ext. 801 or by faxing a completed PSP order form that is available for download on the NRC website to NRC at (312) 278-6900. NRC shall have no obligation to fulfill a PSP order for a Commercial Property, regardless of payment, until the prospective bidder placing such order has provided a signed Confidentiality Agreement to NRC.
PROPERTY INSPECTIONS. Properties that are currently operating may be inspected during normal business hours from 8:30am to 5:00pm local time, Monday through Saturday. UNDER NO CIRCUMSTANCES MAY BIDDERS ASK QUESTIONS OF STORE MANAGERS OR STORE EMPLOYEES. BIDDERS VIOLATING THIS REQUIREMENT MAY BE DISQUALIFIED FROM BIDDING. The store managers and employees have been instructed to refer any questions from a bidder directly to NRC. All pre-bid inspections are limited to non-invasive investigation. Properties that are not currently operating may be inspected by appointment only. Please call NRC at (800) 747-3342, ext. 801 for further information.
SEALED BID SUBMISSION
OFFER DUE DATE. Each sealed bid is required to be received by NRC as provided above by the Offer Due Date. A sealed bid received by NRC after the Offer Due Date is a Non-conforming Bid.
BID PACKAGE. The bid package (the "Bid Package") for a Property contains bid submission instructions, the related PSA to be completed, signed and submitted with the sealed bid and a sealed bid return envelope in which the sealed bid is submitted to NRC. The Bid Package for each Property is contained in or sent with the related PSP. To obtain a Bid Package for a Property, a prospective bidder is required to order the related PSP from NRC.
PURCHASE AND SALE AGREEMENT. A sealed bid for an East Coast Property is made on the PSA contained in the related Bid Package. The PSA is required to be fully and correctly completed, without any modification and properly signed. A sealed bid received in any other format or on a PSA that is incomplete, incorrect or modified in any respect is a Non-conforming Bid. Instructions on how to complete the PSA in compliance with the Terms and Conditions are contained in the Bid Package.
REAL ESTATE SALE AGREEMENT. A sealed bid for a West Coast Property is made on the RESA contained in the related Bid Package. The RESA is required to be fully and correctly completed, without any modification and properly signed. A sealed bid received in any other format or on a RESA that is incomplete, incorrect or modified in any respect is a Non-conforming Bid. Instructions on how to complete the RESA in compliance with the Terms and Conditions are contained in the Bid Package.
BID DEPOSIT. Each sealed bid is required to include an initial bid deposit (the "Bid Deposit") equal to 2.5% of the bid price indicated on the accompanying PSA or RESA. The Bid Deposit is required to be made by certified or cashier's check or money order made payable to NRC Realty Advisors, LLC or wire transfer of immediately available funds to NRC's escrow account (wire instructions may be obtained from NRC). Personal or company checks will not be accepted. A sealed bid that is submitted without a Bid Deposit that complies with this paragraph is a Non-conforming Bid.
NON-CONFORMING BIDS. NRC reserves the right, with BP's consent, to disqualify from consideration and reject any Non-conforming Bid. After a Non-conforming Bid is rejected, NRC will return the related Bid Deposit by certified mail within seven business days after the later to occur of (i) the date of such rejection and (ii) the date that the related funds have cleared NRC's escrow account.
SEALED BID EVALUTION AND AWARD
EVALUATION AND AWARD OF SEALED BIDS. NRC will present all sealed bids received by the Offer Due Date to BP for consideration. BP will review all of these sealed bids, other than rejected Non-conforming Bids. BP may accept or reject sealed bids, in its sole and absolute discretion. BP and NRC reserve the right to request and review additional financial information relating to a bidder and/or other information confirming a bidder's ability to close a sale. All sales are final upon acceptance and execution by BP of the related PSAs or RESAs.
BEST AND FINAL BIDS. BP reserves the right to solicit a best and final offer ("BAFO") for any Property. NRC shall notify bidders of BP's intent to solicit a BAFO by facsimile. In that case, bidders will be given an opportunity to raise, but not lower or withdraw, their bids. If a bidder elects not to submit a BAFO, such bidder's original bid amount remains in effect. If accepted by BP, a BAFO will amend the purchase price of the related PSA.
PROHIBITION ON WITHDRAWING SEALED BIDS. Both sealed bids and BAFOs are purchase offers that, pursuant to this paragraph, remain in effect for a period of thirty (30) business days following the Offer Due Date, in the case of sealed bids, and the date the BAFO is received by NRC, in the case of BAFOs. Sealed bid and BAFO purchase offers during such periods are irrevocable and may not be withdrawn.
EFFECTIVE DATE OF AWARD OF BID. The effective date of the award of a sealed bid is the date on which BP signs the related PSA or RESA. NRC will notify successful bidders of awards by facsimile; however, the awards are not legally binding or enforceable until the date on which BP delivers a fully signed PSA to the successful bidder.
ADDITIONAL EARNEST MONEY REQUIREMENT. Within two business days after receiving written notice from NRC of BP's acceptance of a sealed bid, a successful bidder is required to deposit sufficient additional funds (the "Additional Bid Deposit") that, when added to the initial Bid Deposit equals 10% of the purchase price of the accepted sealed bid for East Coast Properties and 5% of the accepted sealed bid price for West Coast Properties. The Additional Bid Deposit is required to be made by certified or cashier's check or money order made payable to NRC Realty Advisors, LLC or wire transfer of immediately available funds to NRC's escrow account (wire instructions may be obtained from NRC). Personal or company checks will not be accepted. The Bid Deposit together with the Additional Bid Deposit is collectively referred to herein as the "Earnest Money Deposit"). The Earnest Money Deposit will be held by NRC for the benefit of the parties and without obligation to invest funds. Any interest on the Earnest Money Deposit that accrues will be paid to BP and bidders shall have no rights or interest thereto. NRC reserves the right to allocate any of a bidder's excess Bid Deposits on other Properties to the Earnest Money Deposit of an accepted sealed bid in connection with satisfying the Additional Deposit requirement of this paragraph.
BP'S RESERVATION OF RIGHTS. BP expressly reserves the right, in its sole discretion, at any time and without giving reasons therefore, to decline any bid, postpone, extend, or cancel the Offer Due Date, or withdraw any Property from the sealed bid sale at any time without notice. BP further reserves the right, in its sole discretion, without notifying any bidder, giving any bidder similar opportunity, or re-offering a Property, to negotiate the terms of a bid, to overlook minor inconsistencies or nonconformance in a bid, to extend any deadlines or to accept any bid for any reason, whether or not such bid is the highest purchase price. BP also reserves the right to terminate, at any time, further participation in the process by any party or all parties, to modify any of the rules or procedures set forth herein or any other procedures without prior notice or assigning any reason therefore, to reject any or all proposals, or to terminate the process contemplated hereby. BP reserves the right to take any action, whether in or out of the ordinary course of business, which BP, in its sole discretion, deems necessary or prudent in the conduct of the business. BP may require verification of funds available to close on offers before accepting any bid. The Terms and Conditions are subject to modification as may be required by the laws of the State in which a Property is located.
EAST COAST PROPERTIES - PURCHASE AND SALE AGREEMENT TERMS
PURCHASE AND SALE AGREEMENT. The purchase of each Property will be subject and consummated pursuant to the provisions of the applicable PSA. Certain PSA provisions have been summarized herein for the benefit of prospective bidders, including, without limitation, certain environmental terms. These summaries do not restate the PSA provisions and are not intended to be full, complete and accurate descriptions thereof. Accordingly, bidders may not rely on these summaries as enforceable provisions. The applicable PSA is the sole agreement relating to rights, remedies and obligations of each party in connection with the purchase of a Property.
CLOSING DATES AND TRANSFER OF POSSESSION. Successful bidders will be required to close escrow within the time period specified in the related PSA. The closing period for Commercial Properties is forty-five (45) days. Transfer of possession will occur upon the escrow closing.
TRANSFER OF TITLE. BP will provide title free and clear of monetary liens, except non-delinquent real estate taxes and subject to standard permitted exceptions outlined in the title. The buyer will pay 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.
NO MORTGAGE CONTINGENCY - COMMERCIAL PROPERTIES. The PSAs related to Commercial Properties, including sites with debranded gasoline stations, do not contain a contingency in the event that the buyer is unable to secure purchase financing, and may not be terminated on that basis.
BUYERS PREMIUM. Each successful bidder will pay, in addition to the purchase price, an amount equal to 5.5% of the purchase price of the Property at closing unless the Property is located within the Chicago area market, in which case the Buyer's Premium will be 3.25%
ENVIRONMENTAL MATTERS. Environmental matters in connection with the sale of a Property are provided for and subject to certain PSA provisions and the exhibits attached thereto. The following is a summary of certain of these provisions, and is not intended to be a true and accurate description thereof. Prospective bidders may not rely upon any part of these summaries and should refer to the PSA as the sole document governing the rights and responsibilities of the parties.
DISCLOSURE. Each PSP contains a list of available environmental reports and underground storage tank ("UST") closure reports performed by BP, if applicable. Buyer may request copies of the environmental and closure reports after execution of the PSA by buyer and BP. If not removed previously, BP will retain the responsibility for pulling that UST system prior to the sale, and BP will retain the responsibility to perform required UST closure report and any other required testing and/or cleanup/claims associated with the BP UST pull, to include any cleanup of any new release that BP reports to the state in connection with BP's UST pull process. BP retains liability for hydrocarbons resulting from BP ownership/operation before the sale. BP retains right of access to perform any tests or work required by regulators due to BP releases discovered by BP's UST pull or for any incomplete BP cleanup project.
Environmental Review Period. The PSA provides a 30-day period within which buyers may conduct environmental due diligence, including invasive soil or ground water tests, at their sole expense. If a buyer terminates the PSA within such 30-day period due to the environmental condition of the Property, the Earnest Money Deposit shall be returned to buyer. If a buyer elects to conduct soil or ground water tests, the buyer must give BP written notice of its intent to do so at least five (5) business days before entering the Property. The notice must contain the name and telephone number of the environmental consultant, the nature of the test to be completed, including boring and drilling locations, the anticipated date of testing and proof of insurance. No testing may be conducted without the written approval of BP. Buyers must provide the test results to BP not later than five (5) days after buyer's receipt thereof.
Indemnification. BP may transfer its contractual obligations relating to any BP cleanup obligation or any indemnification of Buyer under the PSA to a third party, such as a consultant and/or insurer, if BP so determines, and buyer will cooperate with any consultant and/or insurer selected by BP.
BROKER COOPERATION - EAST COAST. A cooperating commission of 2% will be paid to brokers who properly register with NRC as the cooperating broker for a buyer who closes on the purchase of a Commercial 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 BP 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 an affiliate or family member, participating directly or indirectly as a purchaser. Commissions will be paid at the closing of the sale.
Brokers must register their prospect(s) with NRC using a cooperating broker registration form that is available online at www.nrc.com/801. NRC must receive broker registrations no less than three (3) days prior to the Offer Due Date by fax. The form must contain the broker's name, company name, contact address and phone numbers, the broker's license number and a representation that the broker is licensed and in good standing as a broker in the state where the Property such broker's client intends to purchase is located. 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,) address(es) 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 is required to be faxed to NRC at (312) 278-6900. 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 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.
WEST COAST PROPERTIES - REAL ESTATE SALE AGREEMENT TERMS
CLOSING DATES AND TRANSFER OF POSSESSION. Successful bidders for West Coast Properties will be required to close escrow no later than 90 days after the date that escrow was opened. BPWCP shall have the right to extend the closing date up to an additional 60 days. BPWCP 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. BPWCP will provide title free and clear of monetary liens, except non-delinquent real estate taxes and subject to permitted exceptions, as outlined in the RESA. 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 pertaining to reported releases of hydrocarbons as stated in the RESA.
NO MORTGAGE CONTINGENCY - COMMERCIAL PROPERTIES. The RESA related to Commercial Properties, including sites with debranded gasoline stations, do not contain a contingency in the event that the buyer is unable to secure purchase financing, and may not be terminated on that basis.
BUYERS PREMIUM. Each successful bidder will pay, in addition to the purchase price, an amount equal to 3.25% of the purchase price of the Property at closing.
ENVIRONMENTAL MATTERS. Environmental matters are addressed in the RESA and either the Deed or the Declaration of Environmental Restriction and Other Environmental Covenants (as appropriate) attached thereto. Bidders should review these provisions carefully. The Buyer will have a 45-day contingency period to conduct environmental due diligence, at its sole expense. If the Buyer decides to conduct soil or ground water tests, it must give BPWCP a written notice of its intent to do so at least one week before entering the Property. The notice of its intent to perform testing must be in writing and contain the name and telephone number of the environmental consultant, the nature of the test to be completed and the anticipated date of testing. The Buyer must provide the test results to BPWCP. At the closing, the Buyer shall give BPWCP an environmental indemnity as provided in the RESA. If a buyer terminates the RESA within such 45-day period due to the environmental condition of the Property and has conducted soil and/or groundwater tests, the Earnest Money Deposit is subject to forfeiture to BP. In addition, pursuant to the RESA for said sites, conducting such tests may impact the buyer's eligibility for the BP reimbursement program for an environmental Type 5 site.
DISCLAIMER
BP and NRC and their respective members, directors, officers, employees, agents, parents, subsidiaries, and affiliates (collectively, "Representatives"), disclose that they may not have complete knowledge of the physical, environmental or economic characteristics of the Properties. Accordingly (except as otherwise specifically stated in a PSA or RESA), BP 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 related PSA or RESA, the sale of each Property is on an "AS IS, WHERE IS, WITH ALL FAULTS," basis. Neither BP, NRC nor any of their Representatives make any 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. Bidders will buy the Properties based on their own investigations. By accepting title to any Property, a Bidder acknowledges that it has conducted any investigation that it has considered necessary or advisable and that it is not relying upon any representations of BP, 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 BP 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 BP or NRC provides, but must rely solely on their own estimates and studies. No warranty or representation, express or implied, is made by BP, NRC, or either of their Representatives, as to the accuracy or completeness of the information provided to bidders.
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