Exhibit 10.11


 


PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS


 


AUGUST 25, 2006


 


 


BUYER:


 


REALTY INCOME CORPORATION,


A MARYLAND CORPORATION


 


 


SELLER:


 


NPC INTERNATIONAL, INC.,


A KANSAS CORPORATION


 

















 


PURCHASE
AGREEMENT AND ESCROW INSTRUCTIONS


 


TABLE
OF CONTENTS


 


	
  1.

  	
  PURCHASE PRICE

  	
  1

  
	
  2.

  	
  OPENING OF
  ESCROW

  	
  1

  
	
  3.

  	
  TITLE TO
  PROPERTIES

  	
  2

  
	
  4.

  	
  CONDITIONS TO
  BUYER’S OBLIGATION TO PURCHASE

  	
  2

  
	
   

  	
  4.1

  	
  Approvals by Buyer

  	
  2

  
	
   

  	
  4.2

  	
  Utilities

  	
  3

  
	
   

  	
  4.3

  	
  Physical Characteristics of the Properties

  	
  3

  
	
   

  	
  4.4

  	
  Accuracy of Representations

  	
  4

  
	
   

  	
  4.5

  	
  No Hazardous Materials

  	
  4

  
	
   

  	
  4.6

  	
  Foreign Investments

  	
  4

  
	
   

  	
  4.7

  	
  Lease

  	
  4

  
	
   

  	
  4.8

  	
  Change in Conditions

  	
  4

  
	
   

  	
  4.9

  	
  Failure of Conditions

  	
  4

  
	
  5.

  	
  CONDITIONS TO
  SELLER’S OBLIGATION TO SELL

  	
  5

  
	
   

  	
  5.1

  	
  Performance by Buyer

  	
  5

  
	
   

  	
  5.2

  	
  Accuracy of Representations

  	
  5

  
	
   

  	
  5.3

  	
  Payment of Purchase Price

  	
  5

  
	
  6.

  	
  BUYER’S
  DELIVERIES TO ESCROW AGENT AND SELLER

  	
  5

  
	
   

  	
  6.1

  	
  Purchase Price

  	
  5

  
	
   

  	
  6.2

  	
  Lease and Memorandums

  	
  5

  
	
   

  	
  6.3

  	
  Failure to Deliver

  	
  5

  
	
  7.

  	
  SELLER’S
  DELIVERIES TO ESCROW AGENT AND BUYER

  	
  5

  
	
   

  	
  7.1

  	
  Deeds

  	
  5

  
	
   

  	
  7.2

  	
  Lease, Memorandums

  	
  5

  
	
   

  	
  7.3

  	
  Documents Needed to Close

  	
  5

  
	
   

  	
  7.4

  	
  Failure to Deliver

  	
  6

  
	
  8.

  	
  THE CLOSING

  	
  6

  
	
   

  	
  8.1

  	
  Date and Manner of Closing

  	
  6

  
	
   

  	
  8.2

  	
  Delay in Closing; Authority to Close

  	
  6

  
	
  9.

  	
  PRORATION,
  COSTS AND EXPENSES

  	
  6

  
	
   

  	
  9.1

  	
  Prorations and Apportionments

  	
  6

  
	
   

  	
  9.2

  	
  Payment of Adjustments to Proration

  	
  7

  
	
   

  	
  9.3

  	
  Seller’s Costs and Expenses

  	
  7

  
	
   

  	
  9.4

  	
  Buyer’s Costs and Expenses

  	
  7

  
	
  10.

  	
  DISTRIBUTION OF
  FUNDS AND DOCUMENTS

  	
  7

  
	
   

  	
  10.1

  	
  Form of Distributions

  	
  7

  
	
   

  	
  10.2

  	
  Recorded Documents

  	
  7

  
	
   

  	
  10.3

  	
  Non-Recorded Documents

  	
  7

  



 


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  10.4

  	
  Cash Disbursements

  	
  8

  
	
   

  	
  10.5

  	
  Copies of Documents

  	
  8

  
	
  11.

  	
  RETURN OF
  DOCUMENTS AND FUNDS UPON TERMINATION

  	
  8

  
	
   

  	
  11.1

  	
  Return of Seller’s Documents

  	
  8

  
	
   

  	
  11.2

  	
  Return of Buyer’s Documents

  	
  8

  
	
   

  	
  11.3

  	
  No Effect on Rights of Parties

  	
  8

  
	
   

  	
  11.4

  	
  Payment of Termination Fee

  	
  8

  
	
  12.

  	
  DEFAULT

  	
  8

  
	
   

  	
  12.1

  	
  Seller’s Remedy

  	
  8

  
	
   

  	
  12.2

  	
  Buyer’s Remedies

  	
  9

  
	
  13.

  	
  REPRESENTATIONS
  AND WARRANTIES OF SELLER

  	
  9

  
	
   

  	
  13.1

  	
  Authority of Seller

  	
  9

  
	
   

  	
  13.2

  	
  Condition of Properties

  	
  9

  
	
   

  	
  13.3

  	
  Use and Operation

  	
  10

  
	
   

  	
  13.4

  	
  Land Use Regulation

  	
  10

  
	
   

  	
  13.5

  	
  Reports, Contracts and Other Documents

  	
  10

  
	
   

  	
  13.6

  	
  Absence of Fraud and Misleading Statements

  	
  10

  
	
   

  	
  13.7

  	
  Litigation

  	
  10

  
	
   

  	
  13.8

  	
  Other Contracts to Convey

  	
  10

  
	
   

  	
  13.9

  	
  Environmental Compliance/Hazardous Materials

  	
  11

  
	
   

  	
  13.10

  	
  Property Tax Assessment

  	
  11

  
	
   

  	
  13.11

  	
  Agreements Affecting the Properties

  	
  11

  
	
   

  	
  13.12

  	
  Use Permits and Other Approvals

  	
  11

  
	
   

  	
  13.13

  	
  Confidentiality

  	
  12

  
	
   

  	
  13.14

  	
  Survival

  	
  12

  
	
   

  	
  13.15

  	
  No Broker

  	
  12

  
	
  14.

  	
  REPRESENTATIONS &
  WARRANTIES OF BUYER

  	
  12

  
	
   

  	
  14.1

  	
  Authority of Buyer

  	
  12

  
	
   

  	
  14.2

  	
  Absence of Fraud and Misleading Statements

  	
  13

  
	
   

  	
  14.3

  	
  Litigation

  	
  13

  
	
   

  	
  14.4

  	
  Financial Condition

  	
  13

  
	
   

  	
  14.5

  	
  Confidentiality

  	
  13

  
	
   

  	
  14.6

  	
  Survival

  	
  13

  
	
   

  	
  14.7

  	
  No Broker

  	
  13

  
	
  15.

  	
  COVENANTS

  	
  14

  
	
   

  	
  15.1

  	
  Indemnification by Parties

  	
  14

  
	
   

  	
  15.2

  	
  Maintenance

  	
  14

  
	
   

  	
  15.3

  	
  Other Agreements

  	
  14

  
	
  16.

  	
  LOSS BY FIRE OR
  OTHER CASUALTY; CONDEMNATION

  	
  15

  
	
   

  	
  16.1

  	
  Damage or Destruction

  	
  15

  
	
   

  	
  16.2

  	
  Condemnation

  	
  15

  
	
  17.

  	
  POSSESSION

  	
  15

  
	
  18.

  	
  NOTICES

  	
  15

  
	
  19.

  	
  GENERAL
  PROVISIONS

  	
  16

  
	
   

  	
  19.1

  	
  Recitals

  	
  16

  



 


ii

















 


	
   

  	
  19.2

  	
  Manner of Taking Title

  	
  16

  
	
   

  	
  19.3

  	
  Right to Assign

  	
  17

  
	
   

  	
  19.4

  	
  Gender; Number

  	
  17

  
	
   

  	
  19.5

  	
  Captions

  	
  17

  
	
   

  	
  19.6

  	
  Exhibits

  	
  17

  
	
   

  	
  19.7

  	
  Entire Agreement

  	
  17

  
	
   

  	
  19.8

  	
  Modification

  	
  17

  
	
   

  	
  19.9

  	
  Attorneys’ Fees

  	
  17

  
	
   

  	
  19.10

  	
  Joint and Several Liability

  	
  17

  
	
   

  	
  19.11

  	
  Governing Law

  	
  17

  
	
   

  	
  19.12

  	
  Time of Essence

  	
  18

  
	
   

  	
  19.13

  	
  Severability

  	
  18

  
	
   

  	
  19.14

  	
  Successors and Assigns

  	
  18

  
	
   

  	
  19.15

  	
  Information Provided

  	
  18

  
	
   

  	
  19.16

  	
  Drafting

  	
  18

  
	
   

  	
  19.17

  	
  No Agreement Until Accepted

  	
  18

  
	
   

  	
  19.18

  	
  Counterparts

  	
  19

  



 


EXHIBIT “A” -
PROPERTY LIST


EXHIBIT “B” - LAND
AND BUILDING LEASE AGREEMENT


EXHIBIT “C” -
CLOSING CHECKLIST


EXHIBIT “D” -
MINIMUM REQUIREMENTS FOR ALTA/ACSM LAND TITLE SURVEYS


 


iii

















 


PURCHASE
AGREEMENT AND ESCROW INSTRUCTIONS


 


This Purchase
Agreement and Escrow Instructions (this “Agreement”),
dated August    , 2006
for reference purposes only, is made by and between NPC International, Inc., a
Kansas corporation (“Seller”), and Realty Income Corporation, a Maryland corporation (“Buyer”),
and is made with reference to the recitals set forth below, and constitutes (i) a
contract of purchase and sale between the parties and (ii) escrow
instructions to First American Title Insurance
Company (the “Escrow Agent”).


 


RECITALS


 


A.      Properties.             Seller, or one or more wholly-owned
subsidiaries controlled by Seller, owns eighty-nine (89) certain real
properties, together with all improvements located thereon and appurtenances
thereunto belonging, which real properties are identified on the “Property List,” attached hereto and incorporated herein as Exhibit “A.”  The terms “Property”
and “Properties” as used in this Agreement
shall mean certain or all (as the context may require) of the real
properties identified on the Property List.


 


B.            Purchase and Sale.               Seller desires to
sell all of Seller’s right, title and interest in and to the Properties upon
the terms and conditions set forth below. Buyer desires to purchase all of
Seller’s right, title, and interest in and to the Properties upon the terms and
conditions set forth below.


 


C.            Leasehold Interest.              Concurrently with
the Closing (as defined in Section 8), Buyer, as landlord, shall lease the
Properties to Seller, as tenant, pursuant to a certain Land and Building Lease
Agreement (the “Lease”), substantially in the form of
Exhibit “B,” attached hereto and incorporated hereby.


 


1.             PURCHASE
PRICE


 


In consideration
of the covenants contained in this Agreement, Seller shall sell and Buyer shall
purchase the Properties for a total purchase price (“Purchase
Price”) equal to:  (i) the
aggregate “Sale Price” of the Properties (as
shown on the Property List) plus (ii) Closing Costs (as
such term is defined in Section 9.3). The Purchase Price shall be
delivered by Buyer to Escrow Agent on or before the Closing in Cash (defined as
(i) United States currency, (ii) cashier’s or certified check(s)
currently dated, payable to Escrow Agent, and honored upon presentation for
payment, (iii) an amount credited by wire transfer into Escrow Agent’s
bank account, or (iv) if monies are deposited with Escrow Agent within
twenty (20) days prior to the Closing, funds in such form as Escrow Agent
in its sole discretion requires). The portion of the Purchase Price allocated
to each of the Properties (the “Individual Purchase Price”)
is listed on Exhibit ”A.”


 


2.             OPENING
OF ESCROW


 


Within five (5) business
days following the execution of this Agreement, Buyer and Seller shall open an
escrow (the “Escrow”) with Escrow Agent for the
Properties and shall deposit with Escrow Agent fully executed counterparts of
this Agreement for use as escrow 


 


1

















 


instructions. Buyer and Seller shall execute Escrow Agent’s usual form of
supplemental escrow instructions for transactions of this type; provided,
however, that such escrow instructions shall be for the purpose of implementing
this Agreement, shall incorporate this Agreement by reference, and shall
specifically provide that no provisions shall have the effect of modifying this
Agreement unless it is so expressly stated and initialed on behalf of Buyer and
Seller.


 


3.             TITLE
TO PROPERTIES


 


At Closing, Seller
shall convey to Buyer fee simple title to the Properties by execution and
delivery of deeds (“Deeds”) for the
Properties in the forms customarily used in connection with commercial real
property transactions in the states and counties in which the Properties are
situated. At the Closing Buyer shall receive from First American Title
Insurance Company (“Title Company”)
an ALTA Owner’s Extended Policy of Title Insurance (the “Title Policy”)
with liability in the full amount of the Individual Purchase Price insuring fee
simple title to each of the Properties in Buyer, subject only to exceptions
approved by Buyer as provided in Section 4.1, together with such
endorsements as may be reasonably requested by Buyer (e.g., survey,
access, owner’s comprehensive, etc.). Indemnification of the Title Company to
induce it to insure any otherwise non-permitted exception to title shall not be
allowed except with the prior written consent of Buyer after full disclosure to
Buyer of the nature and substance of such exception and indemnity. The Title
Policy shall provide survey coverage and shall provide full coverage against
mechanics’ and materialmen’s liens arising out of the construction, repair or
alteration of any of improvements located on the Properties.


 


4.             CONDITIONS
TO BUYER’S OBLIGATION TO PURCHASE


 


Buyer’s obligation
to purchase the Properties is expressly conditioned upon each of the following:


 


4.1                 Approvals
by Buyer


 


Buyer’s receipt
and approval for the Properties of the following prior to the Closing:


 


4.1.1                        ALTA
Commitments for Policy of Title Insurance. As soon as reasonably possible,
Seller shall cause the issuance of an ALTA commitment for policy of title
insurance, together with complete and legible copies of all encumbrances and
liens of record (the “Commitment”),
with respect to each of the Properties to be forwarded to Buyer for approval. If
no written disapproval of any items in the Commitment is received from Buyer on
or before ten (10) days after the later of delivery of the Commitment to
Buyer or delivery of the respective As-built Survey (as defined in Section 4.1.2),
the Commitment shall be deemed approved by Buyer.


 


4.1.2                        As-built
Surveys. A survey of each of the Properties (the “As-built
Survey”) prepared by a licensed
surveyor or civil engineer in sufficient detail to provide for the Title
Policies, certified to Buyer and Title Company conforming to the minimum
requirements for ALTA/ACSM land title surveys set forth on Exhibit “D,”
attached hereto and made a part hereof, to be delivered to Buyer. If no
written disapproval of the 


 


2

















 


As-built Survey is
received from Buyer on or before ten (10) days after the later of delivery
of the As-built Survey or the respective Commitment, the As-built Survey shall
be deemed approved by Buyer. Notwithstanding the foregoing, Buyer will accept
current As-built Survey’s in Seller’s possession provided: (i) Title
Company is willing to accept from Seller “A Survey Affidavit in lieu of Updated
Survey” (“Survey Affidavit”) and; (ii) Title
Company is willing to provide survey coverage to Buyer upon receipt of the
Survey Affidavit from Seller.


 


4.1.3                        Phase I
Environmental Site Assessment Report. A Phase I environmental site
assessment report (“Phase I”) in
accordance with ASTM guidelines to be prepared by an environmental consulting
firm approved by Buyer for each of the Properties; provided that the Phase I be
dated no earlier than twelve (12) months prior to the Scheduled Closing Date
(as defined in Section 8), and further provided that written evidence of
Buyer’s ability to rely on the Phase I be contemporaneously delivered to Buyer.
If no written disapproval of the Phase I is received from Buyer on or before
ten (10) days after delivery of same, the Phase I shall be deemed
approved by Buyer.


 


4.1.4                        Other
Documents. As soon as reasonably possible, Seller shall cause all other
documents listed on Exhibit “C” entitled “Closing
Checklist” for the Properties to be delivered to Buyer.


 


4.1.5                        Statement
of Matters Affecting Title. As soon as reasonably possible, Seller shall
deliver a statement of (and, if available, copies of) any other matters of any
nature of which Seller has knowledge and which affect title to any part of
the Properties, whether or not of record, whether or not visible or
ascertainable by inspection of the Properties, and whether or not otherwise
known to Buyer.


 


4.1.6                        Investment
Committee Approval. Approval of each of the Properties by Buyer’s
Investment Committee.


 


4.2                 Utilities


 


Buyer’s
satisfaction that all water, sewer, gas, electric, telephone, and drainage
facilities and all other utilities required by law or by the normal use and
operation of the Properties are at the time of Closing installed to the property
lines of the Properties, are and at the time of Closing will be connected and
operating pursuant to valid permits, and are and at the time of Closing will be
adequate to service the Properties and to permit full compliance with all
requirements of law and normal usage of the Properties.


 


4.3                 Physical
Characteristics of the Properties


 


Buyer’s review and
approval, prior to the Closing, of the structural, mechanical, electrical and
other physical characteristics of the Properties.


 


3

















 


4.4                 Accuracy
of Representations


 


All of Seller’s
representations and warranties contained in or made pursuant to this Agreement
shall have been true and correct when made and shall be true and correct as of
the Closing, and Seller shall have complied with all of Seller’s covenants and
agreements contained in or made pursuant to this Agreement.


 


4.5                 No
Hazardous Materials


 


Buyer’s
satisfaction that there are no Hazardous Materials (as defined in Section 13.9)
on the Properties.


 


4.6                 Foreign
Investments


 


Buyer’s receipt of
the affidavit, certification, or notice required by Section 1445 of the
Internal Revenue Code of 1986, as amended and the Regulations pursuant thereto,
in a form sufficient to relieve Buyer of any potential transferee
withholding liability under such Section. If Seller fails to deliver such
affidavit, certification, or notice to Buyer prior to or at the Closing, or
Buyer has knowledge or receives notice of the falsity of such document, then
the transactions shall be completed at the Closing, but Buyer shall withhold
ten percent (10%) of the “amount realized” (as set forth in the Regulations) by
Seller and transmit it to the Internal Revenue Service Center, Philadelphia,
PA  19255, all in accordance with Section 1445
and the Regulations pursuant thereto.


 


4.7                 Lease


 


Execution by Buyer
and Seller of the Lease for the Properties.


 


4.8                 Parking
Leases


 


Buyer’s review and
approval of those certain parking lease agreements for Pizza Hut Store Numbers
1646 (Ozark, MO), 1652 (Pittsburg, KS), 2703 (Wilburton, OK), and 2782 (Sioux
Falls, SD) (collectively, “Parking Leases”). Seller acknowledges and the
Parking Leases, per their terms, expire prior to the Lease and its options and
Buyer requires as a condition to its purchase of the Properties that Seller
provide an amendment to the Parking Leases such that the Parking Leases shall
be extended to expire no sooner than forty (40) years after the Rent
Commencement Date as such term is defined in the Lease.


 


4.9                 Change
in Conditions


 


If any of the
conditions in this Section 4 change after having been satisfied or waived
by Buyer and before the transaction contemplated herein is closed, then such
condition(s) shall be reinstated as if having never been satisfied or waived by
Buyer.


 


4.10               Failure
of Conditions


 


4.10.1                      The
foregoing conditions contained in this Section 4 are intended solely for
the benefit of Buyer. If any of the foregoing conditions are not satisfied or
approved by Buyer, Buyer shall have the right at its sole election either (i) to
waive the condition in question and proceed with the purchase of the Properties
pursuant to all of the other terms of this Agreement, reserving all of its
other rights and remedies available to it 


 


4

















 


under this Agreement or
otherwise at law or in equity by reason of such failure of condition or (ii) to
not purchase such of the Properties on which conditions are not satisfied.


 


4.10.2                      By written
agreement, the Closing may be extended for a reasonable time if required
to allow the conditions contained in this Section 4 to be satisfied,
subject to Buyer’s further rights to terminate this Agreement upon the
expiration of the period of any extension if all such conditions have not then
been satisfied.


 


5.             CONDITIONS
TO SELLER’S OBLIGATION TO SELL


 


Seller’s
obligation to sell is expressly conditioned upon each of the following:


 


5.1                 Performance
by Buyer


 


Timely performance
of each obligation, covenant, and delivery required of Buyer.


 


5.2                 Accuracy
of Representations


 


All of Buyer’s
representations and warranties contained in or made pursuant to this Agreement
shall have been true and correct when made and shall be true and correct at the
Closing, and Buyer shall have complied with all of Buyer’s covenants and
agreements contained in or made pursuant to this Agreement.


 


5.3                 Payment
of Purchase Price


 


Payment of the
Purchase Price at the Closing in the manner provided in this Agreement.


 


6.             BUYER’S
DELIVERIES TO ESCROW AGENT AND SELLER


 


6.1                 Purchase
Price


 


Buyer shall
deliver in Cash to Escrow Agent the Purchase Price as set forth in Section 1,
less or plus the adjustments, if any, made pursuant to Section 9. Escrow
Agent shall deposit the Purchase Price in an interest bearing account, the
interest upon which shall accrue to the benefit of Buyer.


 


6.2                 Lease
and Memorandums


 


On or before the
Closing, Buyer shall deliver to Escrow Agent the Lease for the Properties
executed by Buyer. On or before the Closing, Buyer shall deliver to Escrow
Agent the Memorandums of Lease for the Properties executed and acknowledged by
Buyer.


 


6.3                 Failure
to Deliver


 


The failure of
Buyer to make any required delivery within the specified time shall constitute
a material breach by Buyer.


 


5

















 


7.             SELLER’S
DELIVERIES TO ESCROW AGENT AND BUYER


 


7.1                 Deeds


 


On or before the
Closing, Seller shall deliver to Escrow Agent the Deeds for the Properties
executed and acknowledged by Seller.


 


7.2                 Lease,
Memorandums


 


On or before the
Closing, Seller shall deliver to Buyer the Lease for the Properties executed by
Seller. In addition, on or before the Closing, Seller shall deliver to Buyer
the Memorandums of Lease for the Properties executed and acknowledged by
Seller.


 


7.3                 Documents
Needed to Close


 


On or before the
Closing, Seller shall deliver to Buyer each and every document described in Section 4,
subject to Buyer’s right to waive delivery for the Properties.


 


7.4                 Failure
to Deliver


 


The failure of
Seller to make any required delivery within the specified time shall constitute
a material breach by Seller.


 


8.             THE
CLOSING


 


8.1                 Date
and Manner of Closing


 


Escrow Agent shall
close the Escrow (the “Closing”) on or
before August 31, 2006 (the “Scheduled Closing Date”),
provided that all of the conditions to Buyer’s obligation to purchase have been
either satisfied or waived. The Escrow shall be deemed closed when (i) all
documents required to be delivered to Buyer and Escrow Agent pursuant to this
Agreement have been delivered or delivery of such document(s) has been waived; (ii) the
Title Company is irrevocably committed to issuing the Title Policy; and (iii) all
funds required to be delivered to Escrow Agent pursuant to this Agreement have
been delivered.


 


Buyer, at its
election, may authorize Escrow Agent to close on the Properties all at
once or individually in certain intervals. If Buyer authorizes Escrow Agent to
close on the Properties individually, Buyer shall deliver to Escrow Agent the
portion of the Purchase Price representing payment due in connection with those
Properties for which Escrow Agent has received authorization to close.


 


8.2                 Delay
in Closing; Authority to Close


 


If Escrow Agent
cannot close the Escrow on or before the Scheduled Closing Date, it will
nevertheless close when all conditions have been satisfied or waived,
notwithstanding that one or more of such conditions was not timely performed,
unless after the Scheduled Closing Date and prior to the close of the delayed
Escrow, Escrow Agent receives a written notice to terminate the Escrow and this
Agreement with respect to the applicable Properties on which the Closing has
been delayed, from a party who, at the time such notice is delivered, is not in
default. Neither (i) the exercise of the right of termination, (ii) delay
in the exercise of the right of termination, nor (iii) the return of
monies and documents, shall affect the right of the party giving 


 


6

















 


notice of termination to pursue legal or equitable remedies for the
other party’s breach of this Agreement. Nor shall (i) the giving of such
notice, (ii) the failure to object to termination of the Escrow, or (iii) the
return of monies and documents affect the right of the other party to pursue
legal or equitable remedies for the breach of the party who gives notice.


 


9.             PRORATION,
COSTS AND EXPENSES


 


9.1                 Prorations
and Apportionments


 


Contemporaneously
with the Closing, Seller intends to lease the Properties from Buyer. Therefore,
the parties do not anticipate the need to prorate revenues or expenses. However,
in the event an item of expense or revenue must be prorated, it shall be
prorated and apportioned as of 12:01 a.m. on the date of the Closing so
that Seller shall bear all expenses with respect to the Properties and shall
have the benefit of all income with respect to the Properties through and
including the period preceding the date of the Closing. Any taxes or other
amounts which cannot be ascertained with certainty as of the Closing shall be
prorated on the basis of the parties’ reasonable estimates of such amount(s)
and shall be the subject of a final proration thirty (30) days after the
Closing or as soon thereafter as the precise amounts can be ascertained.


 


Notwithstanding
the foregoing, monthly rent payable by the “Tenant” under the Lease shall be
prorated based upon the actual number of days in the month in which the Closing
occurs, and shall be paid by Seller at the Closing for the period commencing on
the Closing and ending on the last day of the month in which the Closing occurs.
In addition, if the Closing occurs on or after the twenty-fifth (25th)
day of the month, Seller also shall pay the monthly rent payable by Tenant
under the Lease for the immediately succeeding calendar month.


 


9.2                 Payment
of Adjustments to Proration


 


Either party owing
the other party a sum of money based on adjustments made to prorations after
the Closing shall promptly pay that sum to the other party, together with
interest thereon at the rate of twelve percent (12%) per annum to the date of payment
if payment is not made within ten (10) days after mutual agreement of the
amount due.


 


9.3                 Seller’s
Costs and Expenses


 


Seller shall pay
Seller’s own attorneys’ fees and any and all brokerage commissions payable in
connection with the transaction contemplated hereby. Seller also shall pay the
cost of procuring the Title Policies, As-built Surveys, Phase I’s, documentary
or other transfer taxes applicable to the sale, Escrow fee and all other costs
and charges of the Escrow (collectively referred to herein as “Closing Costs”),
which Closing Costs, at Seller’s option, may be included in calculating
the Purchase Price under Section 1 of this Agreement and thereby
reimbursed to Seller at closing.


 


9.4                 Buyer’s
Costs and Expenses


 


Buyer shall pay
for Buyer’s own attorneys’ fees.


 


7

















 


10.          DISTRIBUTION
OF FUNDS AND DOCUMENTS


 


10.1               Form of
Distributions


 


All disbursements
by Escrow Agent shall be made by checks of Escrow Agent or by wire transfers to
the account of, and as directed by, the receiving party.


 


10.2               Recorded
Documents


 


Escrow Agent shall
cause the County Recorder of the County in which the Properties are located to
mail the Deeds (and any other documents which are required by this Agreement to
be, or by general usage are, recorded) after recordation, to the grantee,
beneficiaries, or person (i) acquiring rights under the documents or (ii) for
whose benefit the documents were acquired.


 


10.3               Non-Recorded
Documents


 


Escrow Agent
shall, at the Closing, deliver by United States mail (or shall hold for
personal pickup, if requested), each non-recorded document received by Escrow
Agent to the payee or person (i) acquiring rights under the document or (ii) for
whose benefit the documents were acquired.


 


10.4               Cash
Disbursements


 


At the Closing,
Escrow Agent shall hold for personal pickup or shall arrange for wire transfer (i) to
Seller, or order, the cash plus any proration or other credits to which Seller
shall be entitled for the Properties and less any appropriate proration or
other charges and (ii) to Buyer, or order, any excess funds previously
delivered to Escrow Agent by Buyer.


 


10.5               Copies
of Documents


 


Following the
Closing, Escrow Agent shall deliver to Buyer and to Seller a copy of the Deeds
(conformed to show recording data) and each other recorded document for the
Properties.


 


11.          RETURN
OF DOCUMENTS AND FUNDS UPON TERMINATION


 


11.1               Return
of Seller’s Documents


 


In the event the
Escrow is terminated for any reason (other than the default of Seller), Buyer
shall, within fifteen (15) calendar days following the termination, deliver to
Seller all documents and materials, if any, relating to the Properties
previously delivered to Buyer by Seller. Escrow Agent shall deliver all
documents and materials relating to the Properties previously deposited by
Seller and then in Escrow Agent’s possession to Seller.


 


11.2               Return
of Buyer’s Documents


 


In the event the
Escrow is terminated for any reason (other than the default of Buyer), Seller
shall, within fifteen (15) calendar days following termination, deliver to
Buyer all funds and documents, if any, relating to the Properties, previously
delivered to Seller by Buyer. Escrow Agent shall deliver all documents,
materials, and funds relating to the Properties previously deposited by Buyer
and then in Escrow Agent’s possession to Buyer.


 


8

















 


11.3               No
Effect on Rights of Parties


 


The return of
documents and monies as set forth above shall not affect the right of either
party to seek the legal or equitable remedies that the party may have with
respect to the enforcement of this Agreement.


 


11.4               Payment
of Termination Fee


 


Escrow Agent may condition
its deliveries upon payment of a termination fee by the party requesting
delivery. Notwithstanding the foregoing, any termination fee shall be paid (or
reimbursed) by the defaulting party, or paid equally if neither party is then
in default.


 


12.          DEFAULT


 


12.1               Seller’s
Remedy


 


If Buyer fails to
complete the acquisition of the Properties by reason of any default by Buyer,
Seller shall be released from any further obligations and shall be entitled to
the following:


 


INSOFAR
AS IT WOULD BE EXTREMELY IMPRACTICABLE AND DIFFICULT TO ESTIMATE THE DAMAGE AND
HARM WHICH SELLER WOULD SUFFER IN THE EVENT BUYER DEFAULTS AND FAILS TO
COMPLETE THE SALE OR ACQUISITION OF THE PROPERTIES, AND INSOFAR AS A REASONABLE
ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN THE EVENT OF
BUYER’S DEFAULT AND FAILURE TO DULY COMPLETE THE SALE OR ACQUISITION OF THE
PROPERTIES IS THE SUM OF TEN THOUSAND
DOLLARS ($10,000), SELLER SHALL BE
ENTITLED TO THE SUM OF TEN THOUSAND
DOLLARS ($10,000) AS AND FOR SELLER’S
SOLE REMEDY FOR DAMAGES ARISING FROM BUYER’S FAILURE TO COMPLETE THE SALE OR
ACQUISITION OF THE PROPERTIES IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. BY
PLACING THEIR INITIALS BELOW, THE PARTIES ARE CONFIRMING THE ACCURACY OF THE
STATEMENTS SET FORTH ABOVE.


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BUYER

  	
  SELLER

  



 


12.2               Buyer’s
Remedies


 


In the event that
the transaction fails to close on account of Seller’s fault or Seller’s breach
of this Agreement, Buyer shall be entitled to such remedies for breach of
contract as may be available under applicable law, including, without
limitation, the remedy of specific performance.


 


9

















 


13.          REPRESENTATIONS
AND WARRANTIES OF SELLER


 


The following
representations and warranties by Seller are now and shall, at the Closing, be
true and correct. If during the period between the execution of this Agreement
and the Closing, Seller learns of or has a reason to believe that any of the
following representations and warranties may cease to be true, Seller
covenants to give notice thereof to Buyer immediately.


 


13.1               Authority
of Seller


 


Seller is a Kansas corporation duly organized and validly
existing and in good standing under the laws of the State of formation; is
validly existing, in good standing and authorized to do business in the States
in which the Properties are located; and has the authority to own and convey
the Properties. This Agreement and all documents executed by Seller which are
to be delivered to Buyer are, or at the time of the Closing will be, duly
authorized, executed, and delivered by Seller and do not, and at the time of
the Closing will not, violate any provisions of any agreement or judicial order
to which Seller is a party or to which Seller or the Properties are subject.


 


13.2               Condition
of Properties


 


There are now, and
at the Closing there will be, no material, physical or mechanical defects of
the Properties, including, without limitation, plumbing, heating, air
conditioning, ventilating, emergency safety systems, and electrical systems,
and all such items are in good operating condition and repair and in compliance
with all applicable governmental laws, ordinances, regulations, and
requirements. In addition, there are no existing leases on the Properties
except otherwise disclosed to Buyer.


 


13.3               Use
and Operation


 


The use and
operation of the Properties now is, and at the time of Closing will be, in full
compliance with applicable building codes, safety, fire, environmental, zoning,
and land use laws, and other applicable local, state, and federal laws,
ordinances, regulations, and requirements. Seller knows of no facts nor has
Seller failed to disclose to Buyer any fact which would prevent Buyer from
using and operating the Properties after the Closing in the manner in which the
Properties have been used, leased and operated prior to the date of this
Agreement.


 


13.4               Land
Use Regulation


 


There are no
condemnation, environmental, zoning or other land use regulation proceedings
contemplated or instituted which could detrimentally affect the use or
operation of the Properties or the value of the Properties, nor has Seller
received notice of any special assessment proceedings affecting the Properties.


 


13.5               Reports,
Contracts and Other Documents


 


Contracts or
documents delivered to Buyer pursuant to this Agreement are, and at the time of
Closing will be, true and correct copies, are and at the time of Closing will
be in full force and effect, and contain no inaccuracies or misstatements of
fact. All documents that are required by this Agreement to be delivered to
Buyer have been or will be delivered to Buyer.


 


10

















 


13.6               Absence
of Fraud and Misleading Statements


 


No representation,
warranty, or statement of Seller in this Agreement or in any document,
certificate, or schedule furnished or to be furnished to Buyer pursuant
thereto, contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary to make the statements or
facts not misleading. All representations, warranties, or statements of Seller
are based upon current, accurate, and complete information as of the time of
their making and there has been no subsequent material change in the
information.


 


13.7               Litigation


 


There is no
litigation, pending or threatened, against Seller or any basis therefor that
arises out of the ownership of the Properties, or that might detrimentally
affect the use or operation of the Properties for their intended purpose or the
value of the Properties, or adversely affect the ability of Seller to perform its
obligations under this Agreement.


 


13.8               Other
Contracts to Convey


 


Seller has not
committed nor obligated itself in any manner whatsoever to sell the Properties
to any party other than Buyer. Seller has not hypothecated or assigned any
rents or income from the Properties in any manner.


 


13.9               Environmental
Compliance/Hazardous Materials


 


The Properties are
not, and, as of the Closing will not be, in violation of any federal, state, or
local law, ordinance, or regulation relating to industrial hygiene or to the
environmental conditions on, under, or about the Properties including, but not
limited to, soil and groundwater conditions. There are no Hazardous Materials
(as defined below) present on the Properties except as otherwise disclosed to
Buyer in writing. Seller further warrants and represents that during the time
in which Seller owned the Properties, neither Seller nor, to the best of Seller’s
knowledge, after due and diligent inquiry, any third party has used, generated,
manufactured, produced, stored, or disposed of on, under, or about the
Properties or transported to or from the Properties any Hazardous Materials
except as otherwise disclosed to Buyer in writing. There is no proceeding or
inquiry by any governmental authority with respect to the presence of Hazardous
Materials on the Properties or the migration of Hazardous Materials from or to
the Properties except as otherwise disclosed to Buyer in writing. There are no
storage tanks located in or under the Properties except as otherwise disclosed
to Buyer in writing. The term “Hazardous Material”
means, but is not limited to, any substance, material, or waste which is toxic,
ignitable, reactive, or corrosive; which is or can be injurious to the health,
safety, or welfare of the public or environment, and which is or becomes
regulated by any local or state governmental authority or the United States
Government. The term “Hazardous Material” includes, without limitation, any
material or substance which is (i) defined as a “hazardous waste,” “extremely
hazardous waste,” “restricted hazardous waste,” “hazardous substance,” “pollutant
or contaminant,” or “hazardous material,” by any local or state law, (ii) oil
and petroleum products and their by-products, (iii) asbestos or
asbestos-containing materials, (iv) designated as a “hazardous substance”
pursuant to the Federal Water Pollution Control Act, (v) defined as a “hazardous
waste” pursuant to the Federal Resource Conservation and Recovery Act, or (vi) defined
as a “hazardous substance” pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act. Seller has disclosed to Buyer in
writing all 


 


11

















 


information in Seller’s possession or control that relates to the
environmental condition of the Properties.


 


13.10             Property Tax Assessment


 


There are no
special assessments levied against the Properties except as appear on the last
available tax statement. Notwithstanding any other provision of this Agreement
to the contrary, if Buyer shall become liable after the Closing for payment of
any property taxes assessed against the Properties for any period of time prior
to the Closing, Seller shall immediately pay to Buyer on demand an amount equal
to such tax assessment.


 


13.11             Agreements Affecting the Properties


 


At the Closing
there will be no leases (other than the Lease), easements, encumbrances, or
other agreements affecting the Properties except as shown in the Commitment for
the Properties or as otherwise disclosed to Buyer by Seller in writing and
approved by Buyer.


 


13.12             Use Permits and Other Approvals


 


Seller has
obtained all licenses, permits, approvals, easements, and rights of way
required from all governmental authorities having jurisdiction over the
Properties or from private parties for the normal use and operation of the
Properties and to ensure free and unimpeded vehicular and pedestrian ingress to
and egress from the Properties as required to permit the normal intended usage
of the Properties. Seller has materially complied with all licenses and permits
and has not received any notice that any licenses or permits will not be
renewed upon expiration, or of any material conditions which will be imposed in
order to receive any renewal.


 


13.13             Confidentiality


 


Except to the
extent provided in the remainder of this Section (and subject to the terms
and conditions specified herein), Seller shall hold as confidential all
material terms and conditions of, and information received in connection with,
the transaction contemplated hereby. Except: (i) for Seller’s directors,
officers, employees, affiliates, attorneys, accountants, auditors, lenders (and
their lenders and any rating agencies) and others providing professional
services, investors or prospective purchasers of Seller and (ii) as may be
required to comply with regulatory requirements (e.g., filings with the
Securities and Exchange Commission), administrative agency requirements,
requirements of law, or a court order, Seller shall not release any such
information to any other third parties without Buyer’s prior written consent,
which shall not be unreasonably withheld, conditioned or delayed. Seller’s
confidentiality obligations hereunder shall survive the Closing and delivery of
the Deeds for a period of two (2) years. Notwithstanding the foregoing,
Seller may release one or more press releases to the public concerning the
transaction contemplated hereunder provided that Buyer shall have the right to
approve any such press releases prior to publication (said approval not to be
unreasonably withheld, conditioned or delayed) for a period of one (1) year
following the Closing. The provisions of this Agreement supersede all previous
confidentiality agreements (if any) between the parties hereto.


 


13.14             Survival


 


The
representations and warranties of Seller contained herein shall survive the
Closing and delivery of the Deeds.


 


12

















 


13.15             No Broker


 


Seller warrants to
Buyer that there are no brokerage commissions or finder’s fees payable as a
result of the Closing herein or as a result of any agreements with Seller or
actions of Seller. Seller shall indemnify and hold harmless Buyer from any
claims, costs, damages, or liability based on any statement, representations,
or agreement by Seller with respect to the payment of any brokerage commissions
or finders’ fees.


 


14.          REPRESENTATIONS &
WARRANTIES OF BUYER


 


Buyer hereby
represents and warrants to Seller as follows:


 


14.1               Authority
of Buyer


 


Buyer is a Maryland corporation duly organized and
validly existing under the laws of the State of formation. This Agreement and
all documents executed by Buyer which are to be delivered to Seller at the
Closing are, or at the time of Closing will be, duly authorized, executed, and
delivered by Buyer, and are, or at the Closing will be, legal, valid, and
binding obligations of Buyer, and do not, and at the time of Closing will not,
violate any provisions of any agreement or judicial order to which Buyer is a
party or to which it is subject.


 


14.2               Absence
of Fraud and Misleading Statements


 


No representation,
warranty, or statement of Buyer in this Agreement or in any document,
certificate, or schedule furnished or to be furnished to Seller pursuant
thereto contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary to make the statements or
facts not misleading. All representations, warranties, or statements of Buyer
are based upon current, accurate, and complete information as of the time of
their making and there has been no subsequent material change in the information.


 


14.3               Litigation


 


There is no
litigation pending or, to Buyer’s knowledge, threatened, against Buyer or any
basis therefore before any court or administrative agency that might adversely
affect the ability of Buyer to perform its obligations under this
Agreement.


 


14.4               Financial
Condition


 


Buyer has adequate
financial resources to make timely payment of all sums due from Buyer hereunder
and to perform all of its obligations hereunder.


 


14.5               Confidentiality


 


Except to the
extent provided in the remainder of this Section (and subject to the terms
and conditions specified herein), Buyer shall hold as confidential all material
terms and conditions of, and information received in connection with, the
transaction contemplated hereby. Except: (i) for Buyer’s directors,
officers, employees, affiliates, attorneys, accountants, auditors, lenders and
others providing professional services, investors or prospective purchasers of
Buyer or the Property and (ii) as may be required to comply with
regulatory requirements (e.g., filings with the Securities and Exchange
Commission), administrative agency requirements, requirements of law, or court
order, Buyer shall not release any such information to any other third parties
without Seller’s prior written consent, which shall not be unreasonably
withheld, 


 


13

















 


conditioned or delayed. Buyer’s confidentiality obligations hereunder
shall survive the Closing and delivery of the Deeds for a period of two (2) years.
Notwithstanding the foregoing, Buyer may release one or more press
releases to the public concerning the transaction contemplated hereunder
provided that Seller shall have the right to approve any such press releases
prior to publication (said approval not to be unreasonably withheld,
conditioned or delayed) for a period of one (1) year following the Closing.
The provisions of this Agreement supersede all previous confidentiality
agreements (if any) between the parties hereto.


 


14.6               Survival


 


The
representations and warranties of Buyer contained herein shall survive the
Closing.


 


14.7               No
Broker


 


Buyer warrants
that there are no brokerage commissions payable as a result of the Closing
herein or as a result of any agreements with Buyer or actions of Buyer. Buyer
shall indemnify and hold harmless Seller from any claims, costs, damages, or
liability based on any statement, representations, or agreement by Buyer with
respect to the payment of any brokerage commissions or finders’ fees.


 


15.          COVENANTS


 


Matters as to
which Escrow Agent need not be concerned, Seller and Buyer covenant and agree
with one another as follows:


 


15.1               Indemnification
by Parties


 


Each party shall
indemnify the other party and hold the other party harmless from and against
any and all claims, demands, liabilities, liens, costs, expenses, penalties,
damages, and losses, including, without limitation, reasonable attorneys’ fees
and costs, suffered as a direct or indirect result of:


 


15.1.1                      Any
misrepresentation, breach of warranty, or breach of covenant made pursuant to
this Agreement or in any document, certificate, or exhibit given or
delivered pursuant to or in connection with this Agreement; and


 


15.1.2                      Any and all
obligations, liabilities, claims, liens, or encumbrances, whether direct,
contingent, or consequential and no matter how arising or accruing, which are
in any way related to or arising from any act, conduct, omission, contract, or
commitment of a party (or any of its agents or employees) at any time or times
before the Closing, including indemnification by Seller of Buyer, without
limitation, of (i) all foreseeable and all unforeseeable consequential
damages, directly or indirectly arising out of the use, generation, storage, or
disposal of Hazardous Materials by Seller or any prior owner or operator of the
Properties and (ii) the cost of any required or necessary repair, cleanup,
remediation, removal, or detoxification and the preparation of any closure or
other required plans, or actions, whether such action is 


 


14

















 


required or necessary
prior to or following transfer of title to the Properties, to the full extent
that such action is attributable, directly or indirectly, to the presence, use,
generation, storage, release, threatened release, treatment, or disposal of
Hazardous Materials by any person on the Properties prior to transfer of title
to Buyer. The provisions of this Section shall survive the execution and
delivery of this Agreement, the delivery of the Deeds, and transfer of title.


 


15.2               Maintenance


 


Between the Seller’s
execution of this Agreement and the Closing, Seller shall, at Seller’s sole
cost and expense, maintain the Properties in good order, condition, and repair,
reasonable wear and tear excepted, and shall operate the Properties in the same
manner as before the making of this Agreement as though Seller were retaining
the Properties.


 


15.3               Other
Agreements


 


Seller shall not
enter into or terminate any contracts or agreements pertaining to the
Properties without in each case obtaining Buyer’s prior written consent
thereto.


 


16.          LOSS
BY FIRE OR OTHER CASUALTY; CONDEMNATION


 


16.1               Damage
or Destruction


 


In the event that
any of the improvements on the Properties are damaged or destroyed by fire or
other casualty prior to the Closing, then Seller may terminate this
Agreement as to each damaged or destroyed Property, or may agree to
restore and repair such damage, either before or after the Closing. Termination
shall be by written notice to Buyer within five (5) days after the
occurrence of the damage or destruction. Buyer shall have no obligation to
accept Seller’s offer to restore or repair such damage if such restoration and
repair would cause the Scheduled Closing Date to be extended. If the
restoration or repair shall take place after the Closing, a portion of the
proceeds of sale equal to the estimated cost of such restoration or repair,
shall be held in escrow by Escrow until Seller has completed the restoration or
repair to the reasonable satisfaction of Buyer. Seller shall pay escrow and
related costs, if any, that exist as a result of terminating this Agreement
under this Section.


 


16.2               Condemnation


 


In the event that
prior to the Closing a governmental entity shall commence any eminent domain
proceeding to take any portion of the Properties, Buyer shall have the option
to make either of the following elections:


 


16.2.1                      Terminate
this Agreement with respect to the affected Property by written notice to
Seller within five (5) days of its receiving notice of such action of
condemnation; or


 


16.2.2                      Proceed with
the transaction in which case the Purchase Price shall not be reduced and Buyer
shall be entitled to the net award paid to Seller or Seller’s mortgagee for the
taking, if any, and Seller shall assign and transfer to Buyer all right, title,
and interest in and to any awards.


 


15

















 


17.          POSSESSION


 


Possession of the
Properties shall be delivered to Buyer at the Closing, subject to the Lease.


 


18.          NOTICES


 


All notices,
requests, or demands herein provided to be given or made, or which may be
given or made by either party to the other, shall be given or made only in
writing and shall be deemed to have been duly given:  (i) when delivered personally at the
address set forth below, or to any agent of the party to whom notice is being
given, or (ii) on the date delivered when sent via Overnight Mail,
properly addressed and postage prepaid, or (iii) on the date sent via
facsimile transmission, or (iv) seventy-two (72) hours after the time the
same is deposited in the United States mail, properly addressed and first class postage
prepaid, return receipt requested. Notwithstanding the prescribed methods of
delivery set forth above, actual receipt of written notice by a party
designated below shall constitute notice given in accordance with this
Agreement on the date received, unless deemed earlier given pursuant to the
foregoing methods of delivery. The proper address to which notices, requests,
or demands may be given or made by either party shall be the address set
forth at the end of this Section or to such other address or to such other
person as any party shall designate. Such address may be changed by
written notice given to the other party in accordance to this Section.


 


If to
Buyer:


 


Realty
Income Corporation


Attn:  Legal Department


220
West Crest Street


Escondido,
CA  92025-1707


(760)
741-2111


(760)
741-8674 (Fax number)


 


If to
Seller:


 


NPC International, Inc.


Attn:  Jim Villamaria


720 W.
20th St.


Pittsburg,
KS 66762


(620)
231-3390


(620)
235-7755 (Fax number)


jim.villamaria@npcinternation.com


 


16

















 


If to
Escrow:


 


First American Title Insurance Company


Attn:  PJ Whitworth


3 Greenway Plaza, Suite 1100


Houston, TX  77046


(713) 850-0455


(713) 850-0456 (Fax number)


 


19.          GENERAL
PROVISIONS


 


19.1               Recitals


 


The Recitals set
forth above commencing on Page 1 of this Agreement are incorporated herein
by reference.


 


19.2               Manner
of Taking Title


 


Buyer shall have
the right to take title to the Properties at the Closing in a name other than
Buyer’s name.


 


19.3               Right
to Assign


 


Buyer shall have
the right to assign Buyer’s rights hereunder, but any such assignment shall not
relieve Buyer of Buyer’s obligations herein unless Seller expressly relieves
Buyer.


 


19.4               Gender;
Number


 


The use of (i) the
neuter gender includes the masculine and feminine and (ii) the singular
number includes the plural whenever the context requires.


 


19.5               Captions


 


Captions in this
Agreement are inserted for the convenience of reference only and do not define,
describe, or limit the scope or the intent of this Agreement or any of its
terms.


 


19.6               Exhibits


 


All attached
exhibits are a part of this Agreement and are incorporated in full by this
reference.


 


19.7               Entire
Agreement


 


This Agreement
contains the entire agreement between the parties relating to the transactions
contemplated hereby and all prior or contemporaneous agreements,
understandings, representations, and statements, oral or written, are merged
into this Agreement.


 


19.8               Modification


 


No modification,
waiver, amendment, discharge, or change of this Agreement shall be valid unless
it is in writing and signed by the party against which the enforcement of the
modification, waiver, amendment, discharge, or change is or may be sought.


 


17

















 


19.9               Attorneys’
Fees


 


Should any party
employ an attorney for the purpose of enforcing or construing this Agreement,
or any judgment based on this Agreement, in any legal proceeding whatsoever,
including insolvency, bankruptcy, arbitration, declaratory relief, or other
litigation, the prevailing party shall be entitled to receive from the other
party or parties, reimbursement for all attorneys’ fees and all costs,
including, but not limited to, service of process, filing fees, court and court
reporter costs, investigative costs, expert witness fees, and the cost of any
bonds, whether taxable or not, and that such reimbursement shall be included in
any judgment or final order issued in that proceeding. The “prevailing party”
means the party determined by the court to most nearly prevail and not
necessarily the one in whose favor a judgment is rendered.


 


19.10             Joint and Several Liability


 


If any party
consists of more than one person or entity, the liability of each such person
or entity signing this Agreement shall be joint and several.


 


19.11             Governing Law


 


This Agreement
shall be construed and enforced in accordance with the laws of the State of
Maryland.


 


19.12             Time of Essence


 


Time is of the
essence of this Agreement and every provision hereof.


 


19.13             Severability


 


In the event any
term, covenant, condition, or provision of this Agreement is held to be
invalid, void, or otherwise unenforceable by any court of competent
jurisdiction, the fact that such term, covenant, condition, or provision is
invalid, void, or otherwise unenforceable shall in no way affect the validity
or enforceability of any other term, covenant, condition, or provision of this
Agreement.


 


19.14             Successors and Assigns


 


All terms of this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by
the parties and their respective legal representatives, successors, and
assigns.


 


19.15             Information Provided


 


Seller warrants
and represents that all information Seller has provided to Buyer is accurate
and correct and Seller acknowledges that Buyer has relied upon such information
in entering into this Agreement.


 


19.16             Drafting


 


This Agreement
shall not be construed more strictly against one party than the other because
it may have been drafted by one of the parties or its counsel, each having
contributed substantially and materially to the negotiation and drafting
hereof.


 


19.17             No Agreement Until Accepted


 


Buyer’s delivery
of unexecuted copies or drafts of this Agreement is solely for the purpose of
review by the party to whom delivered and is in no way to be construed as an
offer by 


 


18

















 


Buyer nor in any way implies that Buyer is under any obligation to
purchase the Properties. When this Agreement has been executed by both Buyer
and Seller, it shall constitute a binding agreement to purchase and sell the
Properties upon the terms and conditions provided herein and Buyer and Seller
agree to execute all instruments and documents and take all actions as may be
reasonably necessary or required in order to consummate the purchase and sale
of the Properties as contemplated herein.


 


THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY.


 


19

















 


19.18             Counterparts


 


This Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original. The counterparts shall together constitute but one agreement. Any
signature on a copy of this Agreement or any document necessary or convenient
thereto sent by facsimile shall be binding upon transmission by facsimile and
the facsimile copy may be utilized for the purposes of this Agreement.


 


 


	
  BUYER:

  	
   

  	
  SELLER:

  
	
   

  	
   

  	
   

  
	
  Realty Income Corporation,
a Maryland corporation

  	
   

  	
  NPC International, Inc.,
a Kansas corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   /s/

  	
   

  	
  By:

  	
   /s/

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date: August 25,
  2006

  	
   

  	
  Date: August 25,
  2006

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ESCROW AGENT:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  First American Title Insurance Company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /s/

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date: August 25,
  2006

  
						



 


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