SEALED BID SALE. Perkins Oil Company and its affiliates (“Seller”) are offering to sell a package of assets, including four (4) properties located in the State of Wyoming and the other assets listed below (the “Asset Package”) by sealed bid sale. Seller has retained NRC Realty & Capital Advisors, LLC (“NRC”) to coordinate the offering and sale of the Properties.
BID DEADLINE. LOIs are required to be received by NRC not later than June 23, 2022, 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 2205
ASSET PACKAGE. The Asset Package for sale includes the following items:
GAS PROPERTIES. Three (3) of the Properties (each, a “Gas Property” and collectively, the “Gas Properties”) are offered for sale as convenience stores with gas (one with a car wash) and are currently operating. All of the Gas Properties are offered with the fee interest in the real property. All Gas Properties include furnishings and equipment owned by Seller, plus inventory (which is to be paid for separately as set forth below). Equipment leased by Seller or owned by third parties will not be sold with the Gas Properties and will be removed prior to closing.
FORMER C-STORE PROPERTY. One (1) Property (the “Closed Property”) is offered for sale as a former convenience store with gas location. It is offered with the fee interest in the real property, and all underground storage tanks have been removed from the Closed Property. It includes furnishings and equipment owned by Seller.
DEALER FUEL SUPPLY CONTRACTS. Seller’s Fuel Supply Contracts with four convenience stores with gas is offered for sale (the “Dealer Contracts”).
BULK PLANT. Seller’s bulk plant is included as a part of the package.
CARDLOCK LOCATIONS. Seller’s three cardlock locations are included as a part of the package (each, a “Cardlock” and collectively, the “Cardlocks”). Two are fee owned and one is leased.
ROLLING STOCK. Seller’s 22 vehicles are included as a part of the package.
FUEL SUPPLY CONTRACT. Seller’s fuel supply contracts with Conoco and Sinclair (the “Fuel Supply Contracts”) will be assigned to the purchaser as a part of the sale.
TERMS AND CONDITIONS OF SEALED BID SALE
TERMS AND CONDITIONS. The offering and sale of the Asset Package 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 Purchase and Sale Agreement (“PSA”) relating to one or more Properties, 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) on the NRC website at http://www.nrc.com/2205 (ii) in the virtual data room (“VDR”) for the sale, and (iii) are incorporated by reference in the final PSA.
CONFIDENTIALITY AGREEMENT. Certain information that prospective bidders may receive in connection with this sealed bid sale is proprietary and non-public information that Seller considers confidential (“Confidential Information”), including, without limitation, real estate information, sales information for the Gas Properties, Dealer Contracts, and the Cardlocks, copies of fuel supply agreements, and environmental information. Confidential Information is contained in the VDR. Accordingly, each prospective bidder is required to sign a Confidentiality Agreement (“Confidentiality Agreement”) on the NRC website at http://www.nrc.com/2205.
PRE-BIDDING DUE DILIGENCE. Bidders are solely responsible for conducting their own due diligence on the Asset Package prior to bid submission.
VIRTUAL DATA ROOM. The VDR contains, as available, all information obtained from the Seller for the Asset Package, including property-specific physical, legal, environmental and financial due diligence information. The VDR may include, as applicable, tax bills, surveys or site plans, title commitments, UST information, remediation reports, contracts and financials.
PROPERTY INSPECTIONS. Properties that are currently operating may be inspected during normal business hours from 8:30 a.m. to 5:00 p.m. 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 investigations. Please call NRC at (800) 747-3342, ext. 2205 for further information.
SEALED BID SUBMISSION
BID DEADLINE. Bids on the Asset Package may be submitted at any time. In the event that NRC announces a 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 the Asset Package contains bid submission instructions, the related letter of intent (“LOI”) form to be completed, signed and submitted with the sealed bid, and a pre-qualification form. The Bid Package for the Asset Package is contained in the VDR. To obtain a Bid Package for the Asset Package, a prospective bidder is required to sign a confidentiality agreement and gain access to the VDR from NRC.
LETTER OF INTENT. A sealed bid for the Asset Package is made on the LOI contained in the related Bid Package. The LOI 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 LOI that is incomplete, incorrect or modified in any respect is a Non-conforming Bid.
NON-CONFORMING BIDS. NRC reserves the right, with Seller’s consent, to disqualify from consideration and reject any Non-conforming Bid.
SEALED BID EVALUATION AND AWARD
EVALUATION AND AWARD OF SEALED BIDS. NRC will present all sealed bids received 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. Seller shall attempt to review all bids within seven (7) business days of the receipt of the bid.
EFFECTIVE DATE OF AWARD OF BID. Once all bids have been reviewed, Seller will choose which bid to proceed with, and Seller and Bidder will negotiate a PSA for the sale. The effective date of the award of a sealed bid is the date on which Seller signs the related PSA. An award is not legally binding or enforceable until the date on which Seller delivers a fully signed PSA to the successful bidder.
EARNEST MONEY REQUIREMENT. Within two (2) business days after receiving a fully executed PSA, a successful bidder is required to deposit sufficient funds (the “Earnest Money Deposit”) that equals the greater of 10% of the purchase price of the accepted sealed bid or $50,000. The Earnest Money 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 Earnest Money Deposit will be held by NRC for the benefit of the parties and without obligation to invest funds.
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 or all of the Asset Package 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 similar opportunity, or re-offering the Asset Package, 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. 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 Wyoming.
PURCHASE AND SALE AGREEMENT TERMS
PURCHASE AND SALE AGREEMENT. The purchase of each Property in the Asset Package will be subject and consummated pursuant to the provisions of the applicable PSA negotiated by the parties. Certain proposed PSA provisions have been summarized herein for the benefit of prospective bidders, including, without limitation, certain environmental terms. These summaries do not restate the proposed 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 the Asset Package.
CLOSING DATES AND TRANSFER OF POSSESSION. Successful bidders will be required to close escrow within the time required in the PSA. 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.
TRANSFER OF TITLE. Seller 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 commitment for all real properties owned in fee. The Purchaser will pay for title insurance coverage. Real estate taxes will be current to the date of closing. All items in the Asset Package, including any sites with real property, will be conveyed “AS IS, WHERE IS, WITH ALL FAULTS,” regarding any conditions affecting the Asset Package, with no representations or warranties.
NO MORTGAGE CONTINGENCY. The PSA for the Asset Package will 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.
LICENSES, PERMITS AND AUTHORIZATION. It is the Purchaser’s sole responsibility to obtain, at its expense, any licenses, permits and authorizations (collectively, “Licenses”) required to acquire, manage, develop, and/or operate any of the assets in the Asset Package. Purchaser’s procurement of these items is not a condition to Closing. Please see the VDR for the Asset Package for additional information.
ESTIMATED INVENTORY VALUE. Purchaser will purchase non-petroleum and petroleum inventory, as applicable, less any Seller proprietary items or dealer inventory (the “Inventory”) located at the Gas Properties, Bulk Plant, and Cardlocks from Seller at closing. The Purchase Price for a Gas Property does not include the Inventory items, and Inventory shall be paid for separately by Purchaser. Not less than seven (7) days prior to the closing date for all sites where Inventory is being transferred, NRC shall deliver by facsimile or e-mail to Purchaser an estimated value of the Inventory (the “Estimated Inventory Value”). Purchaser 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 count of the Inventory on hand at the Gas Properties, Bulk Plant and the Cardlocks (the “Inventory Review”) shall be conducted by a third party servicer designated by Seller at closing. Purchaser is required to purchase at closing the entire Inventory unless otherwise agreed by Seller. The cost of the Inventory Review shall be divided equally between the parties. On the day after closing, the third-party servicer will perform the Inventory Review and then calculate the purchase price of the Inventory as set forth in the PSA. Any difference between the Estimated Inventory Value and the final value of Inventory, as determined by the Inventory Review (the “Final Inventory Purchase Price”) may result in additional amounts due from Seller or Purchaser, as the case may be. The appropriate party must remit such additional amounts within two business days following final determination. See the PSA for specific details. Inventory shall not include any out-of-code or damaged merchandise and Seller shall remove all out-of-code or damaged merchandise prior to conclusion of the physical inventory at the Property.
DE-IDENTIFICATION. Prior to closing, Seller shall remove, as necessary in its sole discretion, from the Gas Properties, Bulk Plant and Cardlocks, all signage, advertising and other displays on or in the Gas Properties, Bulk Plant and Cardlocks, including on or in the buildings in comprising or underlying such Properties, containing any of Seller’s trade names, trademarks or other intellectual property owned or licensed by Seller. In addition, any and all proprietary back office computers, POS systems and proprietary equipment will be removed prior to closing.
BUYERS PREMIUM. Each successful bidder will pay, in addition to the purchase price, an amount equal to 2% of the purchase price of all of the assets in the Asset Package at closing.
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 the Asset Package 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. The Purchaser will be purchasing the Gas Properties, the Bulk Plant, and the Cardlocks on an “AS IS, WHERE IS” basis.
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 assets in the Asset Package. 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 assets in the Asset Package, 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 assets in the Asset Package, and their impact on water, soil and geology; (b) the suitability of the any of the assets in the Asset Package 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 assets in the Asset Package; (d) the compliance of the assets in the Asset Package 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 assets in the Asset Package; and (f) the physical condition of the assets in the Asset Package, 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, the sale of each asset in the Asset Package is 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 assets in the Asset Package. Bidders will buy the Asset Package based solely on their own investigations. By accepting title to any asset in the Asset Package, 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 Asset Package contained on the sale website, the VDR 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 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 any of their Representatives, as to the accuracy or completeness of the information provided to bidders.