Terms & Conditions of Sealed Bid Sale
OFFERINGBP West Coast Products LLC (“BPWCP”) is offering to sell or sublease (with sale of Site Assets) six (6) properties (the “Properties”) located in Washington by sealed-bid on November 1, 2018. NRC Realty & Capital Advisors, LLC (“NRC”) is coordinating the offering for BPWCP.
SEALED BID OFFERING.
Franchise Properties. Five (5) Franchise properties are being offered for sale or sublease (with sale of Site Assets). The Franchise Properties being offered are company-owned, company-operated (“COCO”) ARCO Stations with ampm convenience stores. These sites are offered with the fee interest in the real property, improvements, furnishing, fixtures and equipment or with a sublease of the real property, with sale of the improvements, furnishings, fixtures and equipment (collectively, with certain additional personal property, the “Site Assets”). Two (2) are owned in fee and three (3) are subleased with sale of the Site Assets. All Properties are being sold or subleased on a branded basis (See “Properties to be Sold or Subleased with ARCO and ampm Agreements” below).
Branded Properties. One (1) Branded Property is being offered for sublease (with sale of Site Assets). The Branded Property being offered is a company-owned, company-operated (“COCO”) ARCO Branded Gasoline Station. The site is offered with a sublease of the real property, with sale of the Site Assets. The Branded Property is being subleased on a branded basis (See “Properties to be Sold or Subleased with ARCO Fuel Supply Agreement” below).
Properties To Be Sold or Subleased With ARCO and ampm Agreements. Successful bidders for Franchise Properties will enter into a 20-year Contract Dealer Gasoline Agreement and a 20-year ampm Mini Market Agreement (collectively, the “Franchise Agreements”) effective upon the closing date.
Properties To Be Sold or Subleased With ARCO Fuel Supply agreement. All Branded Properties will be sold or subleased on a branded basis only. Successful bidders will enter into a 10-year Contract Dealer Gasoline Agreement effective upon the closing date.
Bid Deadline. All bids must be received by NRC by November 1, 2018, 12:00 noon Pacific Time (the “Bid Deadline”). All bids must be sent to:
NRC Realty & Capital Advisors, LLC
445 W. Erie, Suite 210
Chicago, IL 60654
ATTN: SEALED BID SALE 1816
Terms and Conditions of Sale. Sale and/or Sublease 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 Sublease Agreement (as appropriate) (referred to herein respectively as the “PSA” or “Sublease”) for each Property. In the event of a conflict between the Terms and Conditions of Sale and the applicable PSA or Sublease, the provisions of the applicable PSA or Sublease 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, a “Recipient”). By ordering a PSP or receiving a Bid Package, these persons and entities agree to this confidentiality. However, a Recipient 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 Recipient or the Recipient’s affiliates, (b) third parties who are performing investigations and analyzing information to advise a Recipient regarding its bids, and (c) third parties providing a Recipient with financing for the purchase of a Property. These confidentiality provisions will terminate as to a Recipient only if and when it consummates its purchase of the Property.
FRANCHISEE APPLICATION REQUIREMENTS
Franchisee Application. ALL bidders (including existing ARCO franchisees) must meet BPWCP’s current experience and financial requirements and be pre-qualified in order to bid. 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 800.915.6114 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. 1816 or visit the Web site at www.nrc.com/bp.
Franchise Disclaimer. In compliance with applicable law, BP representatives will provide one copy of the then current Franchise Disclosure Document (“FDD”) related to the Franchise Properties to each prospect interested in bidding on the Properties. The information contained on the sale website and any PSP does not constitute an offer of a BP franchise, which can only be made with a FDD provided by BP. In addition, in NY, an offering can only be made by a prospectus filed first with the Department of Law of the State of New York. Such filing does not constitute approval by the Department of Law. No franchise will be offered or sold in any state where registration is required until the offer has been registered by applicable law. The information contained on the sale website, any PSP and/or on the NRC website is not directed to anyone in the states of HI, IL, IN, MD, MI, MN, NY, ND, RI, SD, VA, or WI.
Inspections of COCO Properties. The Properties may be inspected during normal business hours from 8:30am to 5:00pm local time, Monday through Saturday. The store managers and employees have been instructed to refer any Buyer questions directly to NRC. UNDER NO CIRCUMSTANCES MAY BUYERS ASK QUESTIONS OF STORE MANAGERS OR STORE EMPLOYEES. BUYERS VIOLATING THIS REQUIREMENT WILL BE DISQUALIFIED FROM BIDDING. For the Excluded Sites, Buyer’s inspection will be limited to non-environmental matters. The Bellevue, WA property will not be available for inspection until construction is completed at the Property.
Bidder's Performance of Due Diligence. Bidders must perform their own independent due diligence before bidding.
Property-Specific Due Diligence Information. Physical, environmental and certain financial information about each Property is contained in the PSP. A separate PSP is available for each Property for download from the sale website once a potential bidder has signed a confidentiality agreement and has received a FDD from BP and signed a receipt showing the same. Please contact the NRC Customer Service Center at 800.747.3342, ext. 1816 with any questions or visit the Web site at www.nrc.com/1816.
SEALED BID SUBMISSION
Bid Package and Bid Deposit. A Bid Package will be included in each PSP. The Bid Package contains the PSA or Sublease to be signed and instructions on how to complete and return bids to NRC. In order for a bid to be conforming. A bid must requires (a) a wire in the amount of 2.5% of the bid price sent to NRC, and (b) a fully signed and initialed PSA or Sublease with Exhibit A (Legal Description) and all other exhibits attached to be delivered to NRC.
Bid Format. Bids must be made on the PSA or Sublease forms provided in the PSP. No other method of bidding is acceptable. Payment of franchise fees and purchase of gasoline and merchandise inventory 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 wired to NRC per the instructions in the bid package. 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 by certified or cashier’s check or money order within two business days of written notification from NRC of BPWCP’s acceptance of their bid. NRC will return bid deposits for unsuccessful bids by certified mail.
SEALED BID EVALUATION AND AWARD
Evaluation and Award of Bids. BPWCP will review all bids received by the Bid Deadline from pre-qualified bidders. After consideration of bids, BPWCP, in its sole and absolute discretion, will select the successful bidders. BPWCP reserves the right to review additional financial information concerning the Buyer, and information confirming the Buyer’s ability to close the sale. BPWCP shall use good faith efforts to accept or reject bids within fifteen business days after the Bid Deadline. All sales will be final, upon BPWCP’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 20 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 20 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 BPWCP signs the PSA or Sublease. Since time is of essence, NRC will notify successful bidders of the award via facsimile, however, the awards are not legally binding or enforceable until the date on which BP delivers a fully signed PSA or Sublease to the successful bidder. The fully executed PSA or Sublease will be sent subsequently by mail.
Additional Earnest Money Requirements and Escrow Deposit. Within two business days after NRC’s notification of BPWCP’s acceptance of the bid, the successful bidder must deposit sufficient additional funds (the “Additional Escrow Deposit”) that, when added to the Bid Deposit, must equal 10% of the successful bid price. The Additional Escrow Deposit must be payable to NRC and paid by wire transfer of immediately available funds. 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 or Sublease. NRC reserves the right to allocate any excess Bid Deposits toward the Additional Escrow Deposit requirement.
BPWCP’s Reservation of Rights. BPWCP 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. BPWCP 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 BPWCP considers in its best interest, whether or not it is the highest purchase price. BPWCP may require verification of funds available to close on offers before accepting any bid. The Terms and Conditions of Sale are subject to any modifications required by the laws of the state in which the Property is located.
Non-Conforming or Rejected Bids. BPWCP reserves the right to reject any bid that it considers nonconforming. No alteration to the PSA or Sublease is allowed. Any change may cause BPWCP to consider a bid non-conforming. In that case, BPWCP will not evaluate the bid. NRC will return bid deposits from nonconforming or rejected bids by certified mail approximately seven days after the Bid Deadline.
PURCHASE AND SALE AGREEMENT TERMS
Closing Dates and Transfer of Possession. Successful bidders for Fee Properties will be required to close escrow no later than the later to occur of (a) 90 days after the date that escrow was opened and (b) 15 business days after the successful bidder has completed ampm franchisee training, provided that BPWCP shall have the right to extend the closing date up to an additional 60 days. Successful bidders for Lease Properties will be required to close escrow no later than 15 business days after the successful bidder has completed both ampm franchisee training and the environmental due diligence, provided that 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. Closings are conditioned on the Buyer completing ampm franchisee training and meeting other BPWCP policy and procedural requirements. Possession of the Properties will be transferred upon the escrow closing. NRC will be the escrow agent for Lease Properties and successful bidders for those sites will be required to pay NRC a $5,000 escrow fee at 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 PSA or Sublease. 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 PSA or Sublease.
Mortgage Contingency. A Buyer will have 30 days to secure financing that it considers acceptable. SBA financing is not acceptable. If a Buyer is unable to secure the financing, it must provide BPWCP with timely written notice of its inability to do so. Upon BPWCP’s receipt of the notice, the PSA will terminate. If neither BPWCP nor NRC receives that timely notice, (a) the Buyer will be considered to have obtained its financing or decided to purchase the Property for cash, or (b) BPWCP may terminate the PSA.
Environmental Matters. Environmental matters are addressed in the PSA or Sublease 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 PSA or Sublease. If a Buyer terminates the PSA or Sublease 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 PSA or Sublease for said sites, conducting such tests may impact the Buyer’s eligibility for the BP reimbursement program for an environmental Type 5 site.
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/subleasing 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 BPWCP approval, the payment by successful bidder of $5,000 (“Assignment Processing Fee”) due at the time successful bidder submits the change of entity to BPWCP, and, at BPWCP’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.
Buyer's Premium.The Buyer shall pay, in addition to the purchase price, an amount equal to 3.5% of the purchase price of the Property at closing.
Broker Cooperation. A fee equal to one percent (1%) of the purchase price of each Property, net of Buyers Premium, will be paid by NRC upon the closing of escrow of the sale of such Property pursuant to the PSA to any licensed broker or agent whose registered prospect consummates the sale. Brokers must register their prospect(s) with NRC no less than three (3) days prior to the Bid Deadline by completing the Co-Op Broker registration in the form provided by NRC without modification, and faxing it to NRC at (312) 278-6900, referencing Sale 1816. All such Co-Op Broker registrations are not effective until accepted in writing by NRC and NRC shall have the authority to determine if any registration is accepted based upon the requirements of these Terms and Conditions and the Co-Op Broker registration document, in its sole judgment. No registration will be accepted by NRC and no commissions will be paid in connection with any prospect who has previously expressed interest in the Property with Seller or its agents or who has been contacted by NRC, including any current ampm franchisees or ARCO dealers. No commissions will be paid on any Property to any broker participating as a principal in the purchase of the Property or who has a direct or indirect ownership interest in purchaser, and an affidavit may be required stating that the broker is acting solely as broker and not as purchaser and has no direct or indirect ownership interest in purchaser. NO OTHER FORM OR ORAL REGISTRATION IS PERMITTED.
Amendments. BPWCP reserves the absolute right, in its sole discretion, to amend the Terms and Conditions of Sale, the PSA or Sublease, and any other sale documents or closing document.
Disclaimer. BPWCP 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 or Sublease), BPWCP 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 or Sublease, the sale of the Properties is on an “AS IS, WHERE IS, WITH ALL FAULTS,” basis. The Buyers expressly agree that BPWCP 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 BPWCP, NRC or either of their Representatives. The materials and information concerning the Properties contained on the sale website, the PSP, and the Bid Package, and any other information provided by BPWCP 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 BPWCP or NRC provides, but must rely solely on their own estimates and studies. No warranty or representation, express or implied, is made by BPWCP, NRC, or either of their Representatives, as to the accuracy or completeness of the information provided to bidders.