SEALED BID SALE. NRC Realty Advisors of California, Inc. ("NRC") has been retained to coordinate the offering and sale of two (2) properties, 4505 Clairemont-Mesa Blvd., San Diego, California 92117 and 3377 Sandrock Road, San Diego, California 92123 (the "Properties") on behalf of Murad Enterprises LLC, a California Limited Liability Company, and M Fuel II, Inc., a California Corporation, and Fast Fuel, Inc., a California Corporation, and M Fuel I, Inc., a California Corporation (collectively, the "Sellers").
BID DEADLINE. The bid deadline (the "Bid Deadline") for this sale is set for December 13, 2022.
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 discretion of the Sellers or NRC with every Sellers' unanimous consent, cause a sealed bid to be deemed non-conforming (a "Non-Conforming Bid") and disqualified from consideration. If agreed upon unanimously in writing, NRC and Sellers 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") the provision of the applicable PSA shall be controlling. The sale is subject to final approval of the San Diego Superior Court ("Court").
THE PROPERTIES ARE TO BE SOLD SEPARATELY. The Properties are to be sold individually, separately and independent of one another based on Terms and Conditions, site specific PSA and at the sole and absolute discretion of the Sellers, and which is subject to the final approval of the Court.
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/2214; (ii) in the Property Specific Packages (the "PSP") for the sale; and (iii) are incorporated by reference in the PSA.
FINANCIAL ABILITY. Each prospective bidder who intends to submit a sealed bid for the Properties is required to fully complete, sign and return to NRC a financial prequalification form or corporate financial statement with their bid. A prequalification form is included with the Bid Package (as defined herein) contained in the PSP. A request for additional financial information shall not be considered a modification of the Sealed Bid or otherwise create eligibility to revoke the Sealed Bid.
DUE DILIGENCE
PRE-BIDDING DUE DILIGENCE. Bidders are solely responsible for conducting their own due diligence on the Properties prior to bid submission. A PSA submitted as a sealed bid becomes immediately enforceable upon Sellers' unanimous execution and approval of the Court and may be terminated only pursuant to the applicable Terms and Conditions. In the event a successful bidder defaults on its obligations under an enforceable PSA, Sellers has the right to retain such bidder's Earnest Money Deposit (defined herein).
PROPERTY SPECIFIC PACKAGE. A Property Specific Package ("PSP") for each property is available for download. Contact John Rapp. The PSP contains, as available, property specific physical, legal, and financial due diligence information. A PSP may include, as applicable, real estate tax bills, survey or site plan, title commitment, and UST information.
PROPERTY INSPECTIONS. Each property may be inspected during normal business hours through advance arrangement with NRC. 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 John Rapp with NRC at (949) 306-8800, for further information.
BID DEADLINE. A complete and conforming 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 each property contains bid submission instructions, the PSA to be completed, signed and submitted with the sealed bid, and a pre-qualification form and or corporate financials to be submitted to NRC. The Bid Package for the Properties are contained in the PSP. To obtain a Bid Package for the Properties, a prospective bidder is required to download the PSP from the NRC website at www.nrc.com/2214 (see downloads).
PURCHASE AND SALE AGREEMENT. A sealed bid for each of the Properties must be made on the PSA contained in the 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 SUBMISSION. Bids must be submitted to NRC Realty Advisors of California, Inc., 9053 Soquel Drive, #205, Aptos, CA 95003, Attn: Sale 2214. Electronic submissions will not be allowed. Bidders must put their signed PSA, and Bid Deposit (as described herein) into an envelope clearly marked with the bidder's name, company, address and contact information on the outside of the envelope. That envelope should be put into a Federal Express, United States Postal Service or UPS shipping envelope with tracking services to be sent to NRC.
BID DEPOSIT. A sealed bid is required to include an initial bid deposit (the "Bid Deposit") equal to two and a half percent (2.5%) of the bid price. The Bid Deposit is required to be made by cashier's check or wire transfer to NRC Realty & Capital Advisors, LLC. 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 Sellers, the Bid Deposit will be returned to the bidder subject to the terms set forth herein.
NON-CONFORMING BIDS. In the sole and absolute discretion of Sellers, by unanimous agreement in writing, a Non-Conforming Bid received after the Bid Deadline may be considered for acceptance if received before an Award of Bid (as defined herein). NRC reserves the right, with Sellers' unanimous 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 to the Bidder by certified mail within seven (7) business days after the later to occur of: (i) the date of such rejection; or (ii) the date that the related funds have cleared NRC's escrow account.
SEALED BID EVALUATION AND AWARD
EVALUATION AND AWARD OF SEALED BID. NRC will present all sealed bids received by the Bid Deadline to the Sellers for their consideration. The Sellers will review all sealed bids, other than rejected Non-Conforming Bids. Sellers may accept or reject sealed bids, in Sellers' sole and absolute unanimous discretion. Sellers 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, and failure to provide such additional information promptly upon request shall constitute cause to disqualify the bid from further consideration. The Sellers shall attempt to review all conforming bids within seven (7) business days of the Bid Deadline to determine and reject any non-competitive bids ("Non-Competitive Bids"), after which initial bid deposits for the Non-Competitive Bids shall be returned to unsuccessful bidders. FINAL BIDS ARE SUBJECT TO APPROVAL BY THE SAN DIEGO COUNTY SUPERIOR COURT.
BEST AND FINAL BIDS. Sellers reserve the right to solicit best and final offers ("BAFO") for the Properties. NRC shall notify bidders of Sellers' intent to solicit a BAFO by email. In that case, bidders will be given five (5) business days 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 a bidder's response to the request for a BAFO is accepted unanimously by Sellers, the BAFO will supersede and the purchase price in the PSA shall be amended accordingly.
PROHIBITION ON WITHDRAWING SEALED BIDS. Both sealed bids and BAFOs, except for Non-Competitive Bids, are firm purchase offers that, pursuant to this paragraph, remain in effect for a period of twenty (20) business days following the Bid Deadline. 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 later date on which all Sellers sign the related PSA and the PSA is approved by the Court, or such other date as is established by the Court ("Award of Bid"). Although NRC will notify the successful bidder in writing by email of the selection of its bid ("Notice of Selection"), the Award of Bid is not final and enforceable by the Bidder until the PSA has been signed all Sellers, approved by the Court, and the executed and approved PSA has been delivered to the Bidder.
ADDITIONAL EARNEST MONEY REQUIREMENT. Within two (2) business days after receiving notice from NRC of the 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 ten percent (10%) of the purchase price in the PSA. The Additional Bid Deposit is required to be made by wire transfer of immediately available funds to NRC's escrow account (wire instructions will be provided by NRC). 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.
SELLERS' RESERVATION OF RIGHTS. The Sellers, with approval by the Court, reserve the right, in their sole and absolute discretion, at any time and without giving reasons therefor, to decline any bid, to set or postpone, extend, or cancel the Bid Deadline, or to withdraw the property from the sealed bid sale at any time without notice. Sellers further reserve the right, in their sole and absolute discretion, without notifying any bidder, giving any bidder similar opportunity, or re-offering the property, to negotiate the terms of a bid, to overlook minor inconsistencies or nonconformance in a bid, to extend any deadlines or to accept or reject any bid for any reason, whether or not such bid is the highest purchase price. Sellers also reserve 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. Sellers reserve the right to take any action, whether in or out of the ordinary course of business, which any Sellers, in its sole discretion, deems necessary or prudent in the conduct of its business. Sellers 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 California.
PURCHASE AND SALE AGREEMENT TERMS
PURCHASE AND SALE AGREEMENT. The purchase of the Properties will be subject and consummated pursuant to the provisions of the 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 PSA is the sole, final, controlling, and fully-integrated agreement relating to rights, remedies and obligations of each party in connection with the purchase of the property and or Properties. NRC recommends that bidders consult with their attorneys prior to submitting their bid.
BUYERS PREMIUM. Each successful bidder will pay, in addition to the purchase price, an amount equal to one percent (1%) of the purchase price of the property and or Properties at closing (the "Buyers Premium").
CLOSING DATE AND TRANSFER OF POSSESSION. The successful bidder will be required to close escrow within forty-five (45) days of the effective date of the Award of Bid. Sellers shall have the sole option of extending the closing date for as many as ninety (90) days as it unanimously determines, in its sole and absolute discretion, to be reasonably necessary. The transfer of possession of the property and or Properties will occur upon the escrow closing. The PSA provides that Sellers will designate the title agent for the closing of the sale of the property and or Properties.
TRANSFER OF TITLE. The Properties will be conveyed by special warranty deed with marketable title. The Sellers 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. The buyer will pay for title insurance coverage. Real estate taxes will be current to the date of closing, with any appropriate prorations handled through escrow. Except as may be stated in the paragraph herein entitled "ENVIRONMENTAL MATTERS", the Properties will be conveyed "AS IS, WHERE IS, WITH ALL FAULTS," regarding any conditions affecting the property and or Properties, with no representations or warranties.
NO MORTGAGE CONTINGENCY. The PSA for the property and or Properties does not contain a mortgage or financing contingency. In the event that the buyer is unable to secure purchase financing, the PSA may not be terminated on that basis.
LICENSES, PERMITS AND AUTHORIZATION. It is the buyer's sole responsibility to obtain, at its expense, any licenses, permits and authorizations (collectively, "Licenses") required to acquire, manage, develop, lease and/or operate the Properties. Buyer's procurement of these items is not a condition to Closing. Please see the PSP for additional information.
ESTIMATED INVENTORY VALUE. The buyer will purchase non-petroleum and petroleum inventory, as applicable, (the "Inventory") located at the property and or Properties from Sellers at closing. The purchase price for the specific property and or Properties does not include the Inventory items, and Inventory shall be paid for separately by buyer. Not less than seven (7) days prior to the closing date, NRC shall deliver by facsimile or e-mail 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 Sellers' complete and sole discretion.
ACTUAL INVENTORY VALUE. A physical count of the Inventory on hand at the property (the "Inventory Review") shall be conducted by a third-party servicer designated by Sellers at closing. Buyer is required to purchase at closing the entire Inventory unless otherwise unanimously agreed by Sellers. 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 Sellers or buyer, as the case may be. The appropriate party must remit such additional amounts within two (2) business days following Final Inventory Purchase Price final determination. See the PSA for specific details.
BROKER PARTICIPATION. A fee equal to two percent (2%) of the purchase price of the property (not including the purchase price for the Inventory) will be paid by NRC through the closing of escrow of the sale pursuant to the PSA to the licensed broker whose registered prospect consummates the sale. Brokers must register their buyer 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 email it to Rick Fogle, rick.fogle@nrc.com Attn: Sale 2214. 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 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 the buyer, and an affidavit may be required stating that the broker is acting solely as broker and not as a purchaser and has no direct or indirect ownership interest in buyer. NO OTHER FORM OR ORAL REGISTRATION IS PERMITTED.
DUAL AGENCY ACKNOWLEDGMENT, CONSENT AND WAIVER. NRC is acting as the marketing and sealed bid sale coordinator for Sellers in connection with any offering or sale of the property and or Properties pursuant to these Terms and Conditions and in no event is NRC representing buyer 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 buyer 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 buyer hereby consents to same. Buyer further disclaims, waives, forever releases, indemnifies and holds Sellers harmless from any liability, loss, cost or obligation arising from any acts or omissions of NRC.
ENVIRONMENTAL MATTERS. The buyer will purchase such property on an "AS IS, WHERE IS" basis, based solely upon its own investigation and due diligence, and not in reliance on any information or representations from Sellers or NRC. No invasive testing will be allowed without the express written consent of the Sellers. Please see the PSP for additional information.
DISCLAIMER. The Sellers, 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 property and or Properties. Accordingly (except as otherwise specifically stated in the PSA), Sellers, 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 its 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 its 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 specific property; and (f) the physical condition of the property, including, without limitation, the structural, mechanical and engineering characteristics of the improvements to the property and or Properties.
Except as stated above and as set forth in the related PSA, the sale of the Properties is on an "AS IS, WHERE IS, WITH ALL FAULTS," basis. Neither Sellers, 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 bid on a property based solely on their own investigations. By accepting title to any of the Properties, a bidder acknowledges that it has conducted any and all investigation(s) that it has considered necessary or advisable and that it is not relying upon any representations of Sellers, 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 Sellers 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 Sellers or NRC provides, but must rely solely on their own estimates and studies. No warranty or representation, express or implied, is made by Sellers, NRC, or any of their Representatives, as to the accuracy or completeness of the information provided to bidders.