SEALED BID SALE. Speedway LLC, a Delaware limited liability company and its affiliates ("Seller") are offering to sell one hundred sixty-six (166) properties located in Alaska, Arizona, Colorado, Florida, Georgia, Illinois, Indiana, Kentucky, Massachusetts, Maryland, Michigan, Minnesota, North Carolina, New Jersey, New Mexico, New York, Ohio, Pennsylvania, Rhode Island, Tennessee, Wisconsin and West Virginia (individually, a "Property" and collectively, the "Properties") by sealed bid sale. Seller has retained NRC Realty & Capital Advisors, LLC ("NRC") to coordinate the offering and sale of the Properties. Properties are being sold individually.
BID DEADLINE. Sealed bids are required to be received by NRC not later than October 14, 2021, at 3:00 p.m. Central Time (the "Bid Deadline") and sent to:
NRC Realty & Capital Advisors, LLC
445 W Erie, Suite 210
Chicago, IL 60654
ATTN: SEALED BID SALE 2102
Early bids will be considered when they are received.
OFFERED PROPERTIES. All of the Properties are former gas stations or undeveloped land sites and are offered for sale with the fee interest in the real property. Any underground storage tank systems have been removed the Properties and all but eleven (11) of the Properties have received a "No Further Action Letter" or equivalent from applicable governmental authorities. Eighty (80) of the Properties have buildings located thereon and eighty-six (86) are vacant land. All Properties are offered subject to a deed restriction prohibiting the use of the Property for convenience store use and prohibiting the sale of motor fuels and petroleum products, although Seller may consider removing the deed restriction on a case-by-case basis. Please see the Purchase and Sale Agreement ("PSA") for additional information.
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"). Prospective bidders are advised to carefully review the Terms and Conditions. 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 Seller or NRC with Seller’s consent, cause a sealed bid to be deemed non-conforming (a "Non-conforming Bid") and disqualified from consideration. NRC and Seller 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 PSA relating to a Property, the provision of the applicable PSA shall be controlling.
REFERENCED MATERIALS. The Terms and Conditions are set forth in two places in the sealed bid sale materials: (i) on the NRC website at https://www.nrc.com/2102 and (ii) in each property specific package ("PSP"), and are incorporated by reference in each PSA.
PRE-BIDDING DUE DILIGENCE. Bidders are solely responsible for conducting their own due diligence on Properties prior to bid submission. PSAs submitted as sealed bids become immediately enforceable by the parties upon Seller’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, Seller may have the right to retain such bidder’s Earnest Money Deposit (defined below). Successful bidders may, at the convenience of Seller and subject to the applicable provisions of the PSAs pertaining to such Properties, be provided further access to inspect Properties prior to the closing dates of the sales of such Properties; provided, however, the successful bidders’ obligations under the applicable PSAs shall not be contingent upon the occurrence of any further inspections or diligence performed on any Property or with the successful bidders being satisfied with the condition of any Property.
PROPERTY SPECIFIC PACKAGES. A PSP for each Property is available for download at http://www.nrc.com/2102. Each PSP contains, as available, (i) Property-specific legal description, (ii) a survey, plat or site plan, (iii) a property tax bill, (iv) if applicable, a no further action letter or equivalent information (an "NFA") from the State Department of Environmental Quality for those Properties that have had underground storage tanks removed, (v) if applicable, Seller’s most recent Phase I environmental site assessment for those Properties that never had underground storage tanks, (vi) if applicable, Seller’s most recent report of environmental action, or similar form of report, for certain Properties which are currently being remediated by the Seller and which will continue to be remediated by the Seller post-closing as described in the Environmental Matters section hereof, (vii) Assessor’s Parcel Number, (viii) a current title commitment for such Property and (ix) the PSA for such Property.
SEALED BID SUBMISSION
BID DEADLINE. Each sealed bid is required to be received by NRC as provided above by the Bid Deadline. A sealed bid received by NRC after the Bid Deadline is a Non-conforming Bid.
BID PACKAGE. The bid package (the "Bid Package") for a Property contains bid submission instructions and the related PSA to be completed, signed and submitted with the sealed bid. 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 a 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.
BID DEPOSIT. Each sealed bid is required to include an initial bid deposit (the "Bid Deposit") equal to the greater of 2.5% of the bid price indicated on the accompanying PSA or $10,000. The Bid Deposit is required to be made by 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. If a bid is not accepted by Seller, the Bid Deposit will be returned to the bidder subject to the terms outlined below.
NON-CONFORMING BIDS. NRC reserves the right, with Seller’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 (7) 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 EVALUATION AND AWARD
EVALUATION AND AWARD OF SEALED BIDS. NRC will present all sealed bids received by the Bid Deadline to Seller for consideration. Seller will review all sealed bids, other than rejected Non-conforming Bids. Seller may accept or reject sealed bids, in its sole and absolute discretion. Seller 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 Seller of the related PSAs. Seller shall attempt to accept or reject all bids within twenty (20) business days of the Bid Deadline, after which initial bid deposits shall be returned to unsuccessful bidders.
BEST AND FINAL BIDS. Seller reserves the right to solicit a best and final offer ("BAFO") for any Property. NRC shall notify bidders of Seller’s intent to solicit a BAFO by facsimile or email. 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 Seller, 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 twenty (20) business days following the Bid Deadline, in the case of sealed bids, and twenty (20) business days following 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 Seller signs the related PSA. NRC will notify successful bidders of awards by facsimile or email; however, the awards are not legally binding or enforceable until the date on which Seller delivers a fully signed PSA to the successful bidder.
ADDITIONAL EARNEST MONEY REQUIREMENT. Within two (2) business days after receiving written notice from NRC of Seller’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, the total amount deposited equals the greater of 10% of the purchase price of the accepted sealed bid or $25,000. The Additional Bid Deposit is required to be made by 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. 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 Bid Deposit requirement of this paragraph.
SELLER’S RESERVATION OF RIGHTS. Seller expressly reserves the right, in its sole discretion, at any time and without giving reasons therefor, to decline any bid, postpone, extend, or cancel the Bid Deadline, or 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 bidder, giving any bidder a similar opportunity, or re-offering a Property, to negotiate the terms of a bid, to overlook 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. Seller 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 therefor, to reject any or all proposals, or to terminate the process contemplated hereby. Seller reserves the right to take any action, whether in or out of the ordinary course of business, which Seller, in its sole discretion, deems necessary or prudent in the conduct of its business. Seller 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 of Texas.
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 thirty (30) days. Seller shall have the sole option of extending the closing date for as many as ninety (90) days if it finds it necessary. Transfer of possession will occur upon the escrow closing. The PSA for each Property provides that Stewart Title Guaranty Company will be the title company handling the closing of the Property.
TRANSFER OF TITLE. All Properties will be conveyed by special or limited warranty deed with marketable or indefeasible title, as applicable. Seller will provide title free and clear of deeds of trust or mortgages, judgment liens against Seller, mechanics' and materialmen's liens for work contracted for by Seller and tax liens for past due taxes, and otherwise subject to all matters of record or that would be shown by a current land title survey. The Purchaser 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, express or implied, other than the special or limited warranty of title to be set forth in the applicable deed.
NO MORTGAGE CONTINGENCY. The PSAs for the Properties do not contain a mortgage contingency. In the event that the purchaser is unable to secure purchase financing, the PSA may not be terminated on that basis.
DUAL AGENCY ACKNOWLEDGMENT, CONSENT AND WAIVER. NRC is acting as the marketing and sealed bid sale coordinator for Seller in connection with any offering or sale of Properties pursuant to these Terms and Conditions and in no event is NRC representing purchaser as its agent in connection with any transaction contemplated or consummated in connection herewith. Notwithstanding the immediately preceding sentence, if it is determined that NRC is acting as an agent for purchaser hereunder, purchaser and all parties claiming by, through or under purchaser shall hereby affirm and acknowledge that NRC is not acting in any manner which shall result in a dual agency, and purchaser hereby consents to all such actions of NRC and disclaims, waives and forever releases NRC from any and all obligations that might be imposed on an agent in connection with any transaction hereunder and purchaser hereby consents to same. Purchaser further disclaims, waives, forever releases, indemnifies and holds Seller harmless from any liability, loss, cost or obligation arising from any acts or omissions of NRC.
ENVIRONMENTAL MATTERS. Responsibility for environmental liabilities and indemnification for environmental matters for each Property is allocated as of closing as provided in the PSA for that Property. For a Property where either no known contamination exists or an NFA letter or similar document has been issued, the purchaser will be purchasing such Property on an "AS IS, WHERE IS" basis. For a Property where any reported or known reportable releases of petroleum product exists, the purchaser will be purchasing such Property on an "AS IS, WHERE IS" basis, except Seller will retain responsibility for remediating the environmental condition as it exists as of the date of closing in accordance with applicable law. The most recent environmental report(s) obtained by Seller will be made part of the PSP for any Property with such environmental conditions. Please see the website or PSP for each Property for additional information.
BUYERS PREMIUM. Each successful bidder will pay, in addition to the purchase price, an amount equal to 3% of the purchase price of the Property at closing.
BROKER PARTICIPATION. A fee equal to three percent (3%) of the first $500,000 of the purchase price for a Property and, if applicable, two percent (2%) of any additional amount of the purchase price over $500,000 for such Property, 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. In no event will the fee to such broker be less than $5,000. 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 2102. 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. 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.
DISCLAIMER. Seller 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), 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 purchaser 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 any improvements to any of the Properties.
The sale of each Property is and shall be on an "AS IS, WHERE IS, WITH ALL FAULTS," basis. Neither Seller, 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 solely on their own investigations. By submitting a bid for 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 Seller, NRC or any of their Representatives. The materials and information concerning the Properties contained in the sales mailer, postcards, other brochures, the PSP and the Bid Package, and any other information provided by Seller or 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 any other information that Seller or NRC may provide regarding the Properties, but must rely solely on their own inspections and studies. No warranty or representation, express or implied, is made by Seller, NRC, or any of their Representatives, as to the accuracy or completeness of the information provided to bidders.