ASSET PURCHASE AGREEMENT
(Covington, LA)
THIS ASSET PURCHASE AGREEMENT (this "Agreement"), dated
September 18, 2000, is between AEI NET LEASE INCOME & GROWTH FUND
XIX LIMITED PARTNERSHIP, a Minnesota limited partnership
(hereinafter individually, interchangeably and collectively
called "Seller") and SOUTHERN RIVER RESTAURANTS, LLC, a
Mississippi limited liability company, or its nominee
(hereinafter collectively called "Purchaser").
WHEREAS, Gulf Coast Restaurants, Inc. (the "Debtor") is
currently a Debtor-in-Possession in Proceedings No. 98-80398-MHM,
Chapter 11, pending before the United States Bankruptcy Court for
the Northern District of Georgia (the "Court"); and
WHEREAS, Purchaser has committed to purchase and the Debtor
has committed to sell thirteen (13) of the restaurants now owned
or operated by Debtor in accordance with the provisions of 11
U.S.C. 363, and pursuant to a bid offer filed with the Court
September 1, 2000 (the "Bid"), which has been approved by the
Court; and
WHEREAS, Seller, along with other owners who are affiliates
of Seller or its general partner are the owners of three
restaurants (collectively the "Restaurants") which are leased to
the Debtor pursuant to those certain lease agreements more fully
described on EXHIBIT "B", attached hereto (as the same may have
been assigned, the "Leases" and each a "Lease"); and
WHEREAS, Seller hereby commits to sell the Assets, as
hereinafter defined, to Purchaser, subject to and in accordance
with the representations, warranties, terms and conditions
specified herein; and
WHEREAS, the Purchaser and Seller desire to set forth a
binding agreement for the purchase and sale of the Assets owned
by the Seller, all as provided herein;
NOW THEREFORE, for the considerations set forth below, the
Purchaser and Seller do hereby agree as follows.
1. BINDING AGREEMENT TO ACQUIRE CERTAIN ASSETS. Seller
agrees to sell and convey to Purchaser, and Purchaser agrees to
purchase from Seller the following:
A. Real Estate: Seller's interest in the immovable
(real) property located in the State of Louisiana, more
particularly described on EXHIBIT "A", attached hereto and made a
part hereof, together with any rights-of-way, servitudes or other
benefits appurtenant thereto, and together with Seller's interest
in any and all buildings, improvements, leasehold improvements,
fixtures and components located thereon (sometimes hereinafter
referred to collectively as the "Real Property", and the building
improvements located thereon are sometimes hereinafter referred
to collectively as the "Building").
B. Personal Property: Any and all right, title and
interest of Seller if any, in and to any and all personal
property located at or within any and all of the above-described
Real Property, including without limitation, any and all
furniture (whether attached or unattached to the Building), and
any and all fixtures and signage (hereinafter collectively
referred to as the "Personal Property").
The foregoing described Real Property and the Personal
Property, together with Seller's interest in and under each of
the Lease, are sometimes hereinafter collectively called the
"Assets".
An exact updated legal description of the Real Property
shall be provided, in accordance with the certified survey
provided for in Article 5 herein and Seller agrees to execute a
quitclaim deed (in addition to the Limited Warranty Deed
described in Paragraph 3A below) attaching the new legal
description.
2. PRICE. The purchase price for the Assets is ONE
MILLION ONE HUNDRED SIXTEEN THOUSAND AND NO/100 DOLLARS
($1,116,000.00). The Purchase Price shall be payable at Closing
(as hereinafter described) in cash or current and readily
available funds (subject to adjustments and prorations as
hereinafter set forth).
3. CONVEYANCE DOCUMENTS AND DISCLAIMER OF WARRANTIES.
A. Conveyance Documents. Seller shall convey the
Real Property free and clear of any liens or encumbrances by
conveyance and/or assignment instruments in form and substance
satisfactory to Purchaser and the Title Company, as defined
below, subject only to current real estate taxes, not delinquent,
and Permitted Exceptions, as defined below; with limited warranty
of title as to the Real Property (as to Seller's own acts and
deeds and as to claims arising by, through or under the Seller).
Seller agrees to execute and deliver to Purchaser at Closing (a)
a Non-Foreign Affidavit, (b) an Owner's Affidavit certifying to
Seller's knowledge, among other things, that there are no unpaid
mechanic's liens affecting Seller's interest in the Real Property
that will not be satisfied at closing, that there are no liens
affecting any of the Real Property, that there has been no
construction work conducted by or at the instance of Seller at
the Real Property for the last 120 days for which the contractors
and/or subcontractors performing such work have not been paid in
full, that all taxes and special assessments that are due and
payable affecting each Real Property have been paid in full, that
the Seller or the Debtor is in possession of the Assets and that
to Seller's knowledge there are no unrecorded leases or subleases
affecting the Real Property, other than the Leases, (c) any other
affidavit, statement, or other document reasonably required by
the Title Company specified in Article 5 as a condition for the
issuance of the title insurance policy(ies) provided for below,
including without limitation the affidavit regarding Seller's
representations and warranties set forth in Article 13 below, and
(d) a Quitclaim ▇▇▇▇ of Sale conveying all of Seller's right,
title and interest in and to the Personal Property.
B. DISCLAIMER OF WARRANTIES; "AS IS" CONVEYANCE;
INSPECTION. PURCHASER ACKNOWLEDGES AND AGREES WITH SELLER THAT
(1) PURCHASER IS PURCHASING THE ASSETS AT CLOSING IN AN "AS IS"
CONDITION "WITH ALL FAULTS" AND SPECIFICALLY AND EXPRESSLY
WITHOUT ANY WARRANTIES, REPRESENTATIONS OR GUARANTEES, EITHER
EXPRESS OR IMPLIED, OF ANY KIND, NATURE, OR TYPE WHATSOEVER FROM
OR ON BEHALF OF THE SELLER; AND (2) EXCEPT FOR THE WARRANTIES OF
TITLE CONTAINED HEREIN OR TO BE CONTAINED IN THE ACT OF SALE TO
BE EXECUTED BY SELLER, SELLER HAS NOT, DOES NOT, AND WILL NOT (a)
MAKE ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, OR
ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY LIMITED TO,
ANY WARRANTY OF CONDITION, MERCHANTABILITY, HABITABILITY OR
FITNESS FOR A PARTICULAR USE, OR WITH RESPECT TO THE VALUE,
PROFITABILITY, OR MARKETABILITY OF THE ASSETS, OR (b) MAKE ANY
REPRESENTATION OR WARRANTY WITH REGARD TO COMPLIANCE WITH ANY
ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES,
REGULATIONS ORDERS OR REQUIREMENTS INCLUDING BUT NOT LIMITED TO
THOSE PERTAINING TO THE HANDLING, GENERATING, TREATING, STORING
OR DISPOSING OF ANY HAZARDOUS WASTE OR SUBSTANCE.
Purchaser acknowledges that except as set forth herein,
(a) Purchaser has not relied, and is not relying, upon any
information, document, sales brochures or other literature, maps
or sketches, projection, proforma, statement, representation,
guarantee or warranty (whether express or implied, or oral or
written, or material or immaterial) that may have been given by
or made by or on behalf of Seller; and (b) Seller shall not make
any warranties or representations as to (i) the quality, nature,
adequacy, or physical condition of the Assets including, but not
limited to, foundations, the structural elements, roof,
appurtenances, parking, plumbing, electrical systems, HVAC,
access, landscaping, sewage or utility systems, or facilities at
the Assets, if any; (ii) the quality, nature, adequacy or
physical condition of soils or the existence of ground water at
the Assets; (iii) the existence, quality, nature, adequacy or
physical condition of any utilities serving the Assets; (iv) the
development potential of the Assets, its habitability, or
fitness, suitability or adequacy of the Assets for any particular
purpose; (v) the zoning or other legal status of the Assets; (vi)
the Assets' or its operations' compliance with any applicable
codes, laws, regulations, statutes, ordinances, covenants,
conditions or restrictions of any governmental or
quasi-governmental entity or of any other person or entity;
(vii) the quality of any labor or materials relating in any way
to the Assets; or (viii) the condition of title to the Assets or
the nature, status and extent of any right of way, lease, right
of redemption, reservations, covenant, condition, restriction or
any other matter affecting title to the Assets.
Purchaser further acknowledges that Purchaser has had
and/or will be given, pursuant to this Agreement, an adequate
opportunity to make such legal, factual, and other inquiries and
investigations as Purchaser deems necessary, desirable, or
appropriate with respect to the Assets. Such inquiries and
investigations of Purchaser shall be deemed to include, but shall
not be limited to, any leases and contracts pertaining to the
Assets, the physical components of all portions of the Assets,
the condition of the Assets, such state of facts as an accurate
survey and inspection would show, the present and future zoning
ordinances, resolutions and regulations of the city, county, and
state where the Assets is located and the value and marketability
of the Assets.
Without in any way limiting the generality of the
preceding subparagraphs of this section, but subject to Sections
13 and 14 of this Agreement, Purchaser specifically acknowledges
and agrees that as of the date of Closing, Purchaser shall waive,
release, and discharge any claim it has, might have had, or may
have against the Seller with respect to the condition of the
Assets, either patent or latent, its ability or inability to
obtain or maintain building permits, either temporary or final
certificates of occupancy, or licenses for the use or operation
of the Assets, and/or certificates of compliance for the Assets,
the actual or potential income or profits to be derived from the
Assets, the real estate taxes or assessments now or hereafter
payable thereon, the compliance with any environmental
protection, pollution, or land use laws, rules, regulations or
requirements, and any other state of facts which exist with
respect to the Assets.
4. ▇▇▇▇▇▇▇ MONEY. Purchaser shall deposit with
Capdevielle Title Corporation (the Title Agent"), as escrow agent
and agent for the Title Company, as defined below, the sum of
Twenty Five Thousand and 00/100 Dollars ($25,000.00), as ▇▇▇▇▇▇▇
money, contemporaneously with the execution of this Agreement by
Purchaser, to be held in Title Agent's interest bearing trust
account (with interest accruing to the benefit of the Purchaser)
and to be credited against the Purchase Price at Closing (said
▇▇▇▇▇▇▇ money, and any and all interest accrued thereon,
hereinafter collectively called the "Deposit"). Purchaser
acknowledges and agrees that the Deposit is nonrefundable except
to the extent provided in paragraph 6(c).
5. TITLE INSURANCE. Seller and Purchaser acknowledge and
agree that Purchaser intends to obtain from Title Agent a current
Commitment for Title Insurance based upon Chicago Title Insurance
Company Commitment No. 01508.0736 in favor of Applejazz, LLC
("Applejazz") issued August 17, 2000, effective August 11, 2000
("Title Commitment") covering each Real Property issued by
Chicago Title Insurance Company (the "Title Company"), whereby
the Title Company commits to issue to Purchaser a current form
ALTA Owner's Policy of Title Insurance (collectively and
interchangeably, the "Title Policy") with extended coverage,
subject only to the matters identified on EXHIBIT "C" attached
hereto and incorporated herein by reference, the Leases, existing
zoning, sewer, drainage and other public utility servitudes of
record, liens for ad valorem taxes which are not yet due and
payable, subdivision or other covenants, restrictions and
easements which do not adversely affect the use of the Real
Property for its current uses, and any other exceptions agreed to
by Purchaser in writing (collectively "Permitted Exceptions").
Purchaser, at its option, may also obtain an ALTA/ACSM "Urban"
Class certified survey of any of the Real Property satisfactory
to Purchaser, in its sole opinion (hereinafter, the "Survey(s)"),
bearing a legal description, made by a licensed surveyor.
Purchaser has obtained or shall obtain from Applejazz copies of
any prior title evidence, such as a current abstract or title
policy, and any prior surveys Seller may have previously
delivered to Applejazz, of any of the Real Property to expedite
further examination of title. Purchaser and Seller acknowledge
and agree that Purchaser is hereby deemed to have raised as
objections, effective as of the date of this Agreement, the
matters set forth in that certain letter from counsel to
Applejazz dated August 18, 2000 (collectively "Defects"). Seller
shall make a good faith effort to so cure such Defects and Seller
shall have twenty (20) days from the date of Purchaser's notice
of such Defects to furnish evidence to the extent the Defects are
cured or removed. If Seller is unable to cure such Defects
within said twenty (20) days, Purchaser may, at its election,
take the title as it then is upon giving to Seller notice of such
election and tendering performance on its part, or Purchaser may
exercise its rights to lease any of the Real Properties affected
by such Defects as provided under paragraph 6(c). Closing shall
be an insured closing so that when title is transferred to
Purchaser, the Title Policy(ies), as aforesaid, shall be
delivered to Purchaser subject only to the Permitted Exceptions.
6. INSPECTIONS. (a) Seller hereby grants Purchaser, its
agents, employees or representatives a period of time commencing
on the Effective Date and ending on September 25, 2000 (the
"Inspection Period"; 5:00 p.m. central time on the last day of
the Inspection Period shall hereinafter be referred to as the
"Inspection Notification Date") to conduct such feasibility
analyses, studies and investigations and with the approval of the
Debtor to enter upon the Property at any time, and from time to
time, at any time approved by Debtor, to conduct soil tests,
borings, percolation tests and any other tests, inspections or
examinations which Purchaser deems necessary or advisable, it its
sole discretion, and to review that certain Phase I Environmental
Assessment Update of the Applebee's Neighborhood Grill Restaurant
for the Real Property delivered to Applejam, Inc. under cover of
letter dated August 25, 2000 from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc., a copy of
which Purchaser intends to obtain from Applejazz (the "Report").
At Seller's option, Seller may have a representative present
during any on site inspection of the Personal Property or
Building, or during any Re-Inspection (as defined below) of the
same. In furtherance of the foregoing, and to assist the
Purchaser in its Inspections of the Real Property, Purchaser has
obtained or shall obtain from Applejazz copies of the existing
Lease, environmental reports, title insurance policies, and
surveys concerning the Real Property. With Debtor's approval,
Seller hereby grants to Purchaser, its agents or contractors, the
right to enter upon the Real Property and within the Building
thereon to make the Inspections and the Surveys described herein.
Purchaser's entry onto the Real Property shall be at its own
risk. In connection with any such Physical Inspections conducted
by Purchaser and its agents or contractors, Purchaser covenants
and agrees that all such work and tests performed by or at the
request of Purchaser shall be nondestructive and Purchaser shall,
immediately upon any request of Seller, restore the Assets to the
condition thereof existing immediately prior to any such work or
tests. Seller makes no warranty or representation as to the
quality, accuracy or completeness of any of the information
delivered to Purchaser in accordance with this section or the
ability of Purchaser to rely thereon. Purchaser hereby agrees
that Purchaser shall be completely responsible for all acts and
omissions of itself, its agents, and representatives in
exercising such right and privilege granted in this paragraph,
and Purchaser hereby indemnifies Seller and agrees to hold Seller
free and harmless from and against any and all losses, costs,
damages, and expenses (including, without limitation, attorney's
fees, costs of litigation, and the cost and expense of removing
or bonding any liens affecting the Assets) ever suffered or
incurred by Seller by reason of the exercise of the rights and
privileges granted to Purchaser in this paragraph or the breach
of Purchaser's covenant to restore contained herein. The
indemnity contained in the immediately preceding sentence shall
expressly survive the Closing or any termination of this
Agreement.
(b) Purchaser shall have the right, at its option,
(with a representative of Seller present, if Seller so chooses)
to re-inspect the Personal Property and Building (the "Re-
Inspection") immediately prior to Closing. In the event such Re-
Inspection reflects that Personal Property or the Building has
materially declined in condition other than normal wear and tear
since the prior Physical Inspection, or any portion thereof has
been removed since the Physical Inspection without having been
replaced with similar Personal Property, Purchaser shall look to
the Debtor for any costs, damages or reimbursement, and not to
Seller.
(c) In the event Purchaser, in its sole discretion,
shall determine that any of the Assets are unsuitable to purchase
for one of the reasons set forth in this Paragraph 6(c), then
Purchaser shall give to Seller written notice no later than the
Inspection Notification Date of (i) Defects or (ii) if the Report
reveals the presence of environmental contaminants in violation
of applicable environmental laws other than de minimus quantities
of substances which technically could be considered environmental
contaminants provided that such substances are of a type and are
held in a quantity normally used in connection with the occupancy
or operation of comparable restaurants or commonly used as
cleaning or office supplies and are being held, stored and used
in compliance with all applicable environmental laws, and which
are not described in that certain Phase I Environmental report
the cover page of which is attached as EXHIBIT "D", (any or all
of which such conditions are hereinafter "Deficiencies"), and
Seller shall have thirty (30) days from the date of receipt of
such notice (1) to effect a cure of such Deficiencies, provided,
however, that such Deficiency is not readily susceptible to cure
within thirty (30) days, with the consent of the Purchaser's
lender, Seller shall have a reasonable period of time under the
circumstances to effect such cure if the Seller commences such
curative efforts within such thirty (30) day period and
thereafter diligently continues such efforts until the completion
of the cure, or (2) to advise Purchaser that it will not or
cannot cure such Deficiencies whereupon Purchaser shall have the
option, in its sole discretion, to elect (i) to purchase the
Assets notwithstanding the Deficiencies for the Purchase Price,
or (ii) to terminate this Agreement and, at Purchaser's option,
(x) assume Debtor's interest in the Lease applicable to the Real
Property (the "Subject Lease") and enter into a modification of
the Subject Lease with Seller on terms set forth in the Subject
Lease, modified only as necessary, to provide that the maximum
total rental due to Seller under the Subject Lease is 7% of the
gross sales of foods and beverages at the Restaurant to be
operated on the Real Property, or (y) terminate the Subject
Lease. Notwithstanding anything herein to the contrary, in the
event that Seller's curative efforts with respect to
contamination are not completed by October 24, 2000, but will be
completed within 180 days thereafter, Purchaser agrees to lease
the Real Property in accordance with the immediately preceding
sentence until such curative efforts are completed, at which time
Purchaser shall purchase the Assets for the Purchase Price. In
the event of a conflict between this paragraph 6(c) and any other
term or provision of this Agreement, the terms of this Paragraph
shall control.
(d) In the event Purchaser fails to make objection to
any alleged Deficiencies by the Inspection Notification Date,
Purchaser shall be deemed to have approved the Assets in all
matters related thereto.
7. CONDITIONS PRECEDENT.
A. FOR PURCHASER'S BENEFIT. Seller hereby
acknowledges that Purchaser has advised Seller of its intent to
initially use the Real Property as an Applebee's restaurant with
associated bar serving alcoholic beverages (collectively,
"Purchaser's Intended Use"). This purchase and sale is subject
to the satisfaction, or waiver by Purchaser, of the following
conditions and covenants prior to the Closing Date (hereinafter
defined):
1. There shall be no outstanding Defects or
Deficiencies.
B. FOR SELLER'S BENEFIT. As conditions precedent to
Seller's obligations under this Agreement:
1. All rents and other amounts then due and
payable under the Subject Lease shall have been paid in full by
the Debtor.
C. FAILURE OF CONDITIONS. In the event that any of
the foregoing Conditions Precedent have not been satisfied or
complied with, or waived by Purchaser, or by Seller, as
applicable, on or before October 24, 2000, as such date may be
extended by rights of parties under express provisions of this
Agreement, Purchaser or Seller may, at its option terminate this
Agreement; in which case, the Deposit shall be returned to
Purchaser and the parties shall thereafter be released from any
further liability hereunder, except with respect to the Condition
Precedent in Section 7.A.1, as to which Purchaser may exercise
its rights under Section 6(c)(i) or (ii).
8. EMINENT DOMAIN; DAMAGE. If prior to Closing any part
of the Real Property is condemned or appropriated by public
authority or any party exercising the right of eminent domain, or
if any Building is destroyed or materially damaged by fire,
windstorm, explosion or other casualty, Purchaser may, at its
option, terminate the Agreement or elect to close notwithstanding
such casualty or condemnation, in which case the Purchase Price
shall be reduced by the amount of Seller's award and/or insurance
proceeds, or if such condemnation and/or insurance award is not
yet determined, the Purchase Price shall remain the same and
Seller shall assign to Purchaser at Closing its rights in such
award.
9. RISK OF LOSS. Prior to Closing, the risk of loss or
damage to the Assets shall remain with Seller.
10. CLOSING; ESCROW; AND CLOSING EXPENSES. Closing and
settlement (the "Closing") shall take place through escrow at the
office of the Title Agent referenced in Article 4 above, via
mail delivery of the closing documents, and otherwise at a place
mutually agreed to by the parties, on or before October 24, 2000,
as such date may be extended by rights of parties under express
provisions of this Agreement (the "Closing Date"). Prior to
Closing in escrow, Purchaser shall submit to Seller for approval
a copy of the proposed conveyance documents. Prior to Closing in
escrow, Seller shall submit to Purchaser a copy of the most
recent tax bills. All current real estate taxes are to be
prorated as of 11:59 p.m. on the date prior to the Closing Date
(the "Proration Time"), and if the amount of such taxes is not
then ascertainable, the prorating shall be on the basis of the
amount of the most recent ascertainable taxes. Any past due and
unpaid special assessments, shall be paid by Seller at Closing or
Purchaser shall receive an adjustment in the Purchase Price to
cover the cost of the special assessment(s). Any other special
assessments shall be prorated as of the Proration Time. All
transfer and conveyance taxes and/or documentary transaction
taxes and special real estate taxes related to conveyance, if
any, shall be paid for by the Seller. All base rent, common area
maintenance charges and other monetary charges under the Leases
shall be prorated as of the Proration Time. All percentage rent,
if any, payable under the Leases shall be prorated as of the
Proration Time. The cost of recording the conveyance documents
called for herein shall be paid for by Purchaser. All title
curative work, including the cost of recording any documents
required therewith, shall be paid for by Seller. Any and all
closing costs and escrow fees and other costs related to Closing
shall be equally divided between Seller and Purchaser. Purchaser
shall pay for the cost of the Survey inspections described or
permitted under Paragraph 6 and all title searches and charges
and title premiums. Each party shall bear its own attorney's
fees.
11. TIME OF THE ESSENCE; DEFAULT. Time is of the essence
of this Agreement. If Purchaser defaults hereunder and fails to
cure said default within thirty (30) days after receipt of
written notice thereof from Seller stating the nature of the
default and the actions needed, then, upon demand of Seller, said
Deposit shall be forfeited as liquidated damages and this
Agreement shall become null and void. It is specifically agreed
by Seller and Purchaser that Seller's sole remedy in the event of
a default by Purchaser under this Agreement shall be limited
solely to retention of the Deposit as liquidated damages, and
Seller waives any and all other damages and causes of action
which may have arisen pursuant to law, and that Seller's damages
in the event of a breach or default by Purchaser are difficult to
ascertain at this time and the Deposit is a reasonable estimate
of such damages and is not intended to be a penalty.
If Seller defaults hereunder, or if the Seller is
unable or unwilling to deliver title to any of the Assets on the
Closing Date in the manner required herein, and fails to cure
said default within thirty (30) days after receipt of written
notice thereof from Purchaser, the Deposit shall be returned to
Purchaser only pursuant to the terms of paragraph 6(c) and in all
other events shall be delivered promptly to Seller, and the
Purchaser may demand specific performance or seek any other
remedy, available at law or in equity.
If either party hereto is required to engage the
services of an attorney to enforce any of the provisions hereof,
the prevailing party may collect its reasonable attorney's fees
actually incurred in connection with such actions.
12. NOTICE. All notices and demands herein required shall
be in writing and shall be sent by either (a) United States
Certified Mail, return receipt requested, postage prepaid, or (b)
national overnight delivery service with return receipt, delivery
charge prepaid, or (c) by fax notice with printed confirmation,
to Seller at AEI Fund Management, 1300 Minnesota World Trade
Center, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Mr. ▇▇▇▇ ▇▇▇▇▇▇, Chief Financial Officer, Facsimile
No. (▇▇▇) ▇▇▇-▇▇▇▇, with copy to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
A. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq., Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇; or to
Purchaser at Paradise Foods, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ Paradise, Facsimile No. (601)
445-4397, with a copy to Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇.
Notices sent by United States Certified Mail as set forth above
shall be effective five (5) days after the same is deposited with
the United States Postal Service, postage prepaid. Notices sent
by national overnight courier service shall be effective one (1)
day after depositing the same with such courier service, delivery
fee prepaid, marked for next day delivery. Notices sent by fax
shall be effective on the same business day provided the
confirmation reflects the recipient received the same before 5:00
p.m., recipient's time; otherwise, such notice shall be effective
on the next business day.
13. COVENANTS. Seller represents, covenants and warrants,
in addition to any other representations, covenants and
warranties contained in this Agreement, that (a) Seller owns good
and valid title to all of the Assets subject to the Subject Lease
and Permitted Exceptions, only; (b) closing of the transaction
contemplated herein will not violate the terms of any agreements
that Seller may have with any other parties, including mortgages,
stand still agreements, and cease and desist orders and any by-
laws of Seller, or to the best of Seller's knowledge, any law or
ordinance; (c) Seller has received no notice of, and to Seller's
actual knowledge, there are no actions, suits or proceedings
pending against, by or affecting Seller which affect title to the
Assets or which questions the validity or enforceability of this
Agreement or of any action taken by Seller under this Agreement,
in any court or before any governmental authority, domestic or
foreign; and Seller has received no notice of, and to Seller's
actual knowledge, there are no pending condemnation actions
involving all or any portion of the Assets; (d) to Seller's
actual knowledge, other than the Subject Lease, there are no
leases with Seller, including without limitation, billboard
leases, or other agreements for use, occupancy or possession
presently in force with respect to all or any portion of the Real
Property, and the Subject Lease is (and shall be as of the
Closing Date) in full force and effect; (e) [intentionally
deleted]; (f) [intentionally deleted]; (g) between the date of
this Agreement and the Closing Date, the Seller will not grant or
enter into any agreement with any party other than the Purchaser
providing for the sale, lease, option to acquire, or other
disposition of any of the Assets (Purchaser acknowledges that
Seller has heretofore entered into an agreement regarding the
Assets with Applejazz which agreement is being assigned or
terminated in accordance with this Agreement and orders of the
Court); and (h) all of the foregoing representations covenants
and warranties will be true and correct at Closing or Seller will
advise of any necessary corrections or additions to render the
same not misleading. Seller agrees to sign at Closing an
affidavit confirming the foregoing as of the Closing Date or
advising Purchaser of any necessary corrections or additions to
render the foregoing not misleading as of such date. All of the
covenants, warranties, representations and agreements contained
in this Paragraph 13 (as modified by closing additions or
corrections in the manner specified herein) and in 14 (ii) below,
shall survive closing and shall run with the land and extend to
and be binding upon the heirs, executors, administrators,
successors and assigns of the respective parties for a period of
one (1) year. Purchaser, in turn, covenants and warrants that
it has the due power and authority to enter into this Agreement
and to close the transaction contemplated herein, without the
consent or intervention of any other parties.
14. HAZARDOUS SUBSTANCES.
A. Seller's Representations, Warranties and
Covenants. Seller represents, warrants and covenants the
following:
(i) For purposes of this Section 14 "Hazardous
Substances" means substances or pollutants known to be hazardous
wastes, hazardous substances, hazardous constituents, toxic
substances, whether solid, liquid or gaseous, including but not
limited to asbestos, radioactive materials, oil, gasoline, diesel
fuel and other hydrocarbons, and any other substances defined as
"hazardous wastes", "hazardous substances", "toxic substances",
"pollutants", "contaminants", or other similar designations, the
removal, storage or presence of which is regulated or required
and/or the maintenance of which is penalized by the Resources
Conservation Recovery Act, 42 U.S.C. 6901, et seq., the
Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. 9601, et seq., the Toxic Substances Control Act,
15 U.S.C. 2601, et seq., the Clean Water Act, 33 U.S.C. 1251, et
seq., the Safe Drinking Water Act, 42 U.S.C. 300(f)-300(j) - 10,
the Clean Air Act, 42 U.S.C. 7401, et seq., or any other local,
state or federal agency, authority or governmental unit provided,
however, that such definition expressly excludes such materials
which would otherwise be "Hazardous Substances" if used in the
ordinary course of business or for cleaning office uses.
(ii) Seller has not received and is not aware of
any notification from any federal, state, county or city agency
or authority to Seller relating to Hazardous Substances on, in or
at any Real Property.
15. MUTUAL INDEMNITIES. Seller agrees to indemnify, defend
and hold Purchaser, its officers, directors, shareholders,
employees, agents and representatives ("Purchaser et al") from
and against any and all damages, losses, liabilities,
deficiencies, actions, demands, judgments, costs and expenses
(including reasonable attorneys' fees and accountants' fees
actually incurred) of any kind or nature whatsoever (except those
items caused by Debtor or Purchaser or which by this Agreement
specifically become the obligation of Purchaser) caused by Seller
and arising out of, resulting from, relating to, or incident to
the Assets up to the Proration Time. Purchaser agrees to
indemnify, defend and hold Seller, its officers, directors,
shareholders, employees, agents and representatives ("Seller et
al") from and against any and all damages, losses, liabilities,
deficiencies, actions, demands, judgments, costs and expenses
(including reasonable attorneys' fees and accountants' fees
actually incurred) of any kind or nature whatsoever (except those
items caused by Debtor or Seller or which by this Agreement
specifically become the obligation of Seller) caused by Purchaser
and/or arising out of, resulting from, relating to, or incident
to the Assets from and after the Proration Time.
16. BROKERS' INDEMNITY. Seller and Purchaser hereby
covenant and warrant that there are no real estate brokers
involved in this transaction. In connection with the foregoing,
Purchaser hereby agrees to indemnify, defend and hold Seller
harmless from any and all claims, costs or damages incurred by
Seller resulting from Purchaser's failure to pay such commission
or resulting from any other person or firm claiming to have
negotiated, instituted or brought about this Agreement on behalf
of Purchaser other than the foregoing described broker. Seller,
in turn, hereby agrees to indemnify, defend and hold Purchaser
harmless from any and all claims, costs or damages incurred by
Purchaser resulting from any person or firm claiming to have
negotiated, instituted or brought about this Agreement on behalf
of Seller.
17. APPLICABLE LAW. This Agreement shall be governed by
and construed under the laws of the State of Louisiana.
18. EFFECTIVE DATE. This Agreement shall be effective as
of the date the last party hereto signs such Agreement. This
Agreement shall not be binding on either party, however, until it
is fully executed by all parties hereto.
19. MISCELLANEOUS.
A. In the event any time period provided for in
this Agreement expires on a weekend or legal holiday (being
defined by any holiday recognized by the United States Postal
Service), the time period shall be automatically extended to the
next business day. If any provision of this Agreement or the
application thereof to any person or circumstances shall, to any
extent, be held invalid or unenforceable, such provision shall be
construed as closely as possible to its original intent but so as
to remain enforceable or valid under law, and the remainder of
the Agreement, or the application of such term or provision to
persons whose circumstances are other than those as to which it
is held invalid or unenforceable, shall not be affected thereby.
B. If at any time following the execution of this
Agreement another entity is approved by the Court to be the
lessee or purchaser of any or all of the Assets, at either the
Purchaser's or the Seller's option, this Agreement will terminate
and the Seller shall receive the Deposit and any interest thereon
and/or other amounts escrowed hereunder by Purchaser.
C. Except to the extent required by the Court, the
Seller will keep, in strict confidence, all of the terms and
conditions of this Agreement.
[SIGNATURES BEGIN ON NEXT PAGE]
IN WITNESS WHEREOF, Seller and Purchaser have caused their
duly authorized officers to execute this Agreement.
OFFERED BY: PURCHASER:
SOUTHERN RIVER RESTAURANTS, LLC,
A MISSISSIPPI LIMITED LIABILITY COMPANY
By: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇
Name: ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇
Title: Member
Date of Execution: September 18, 2000
[SIGNATURES CONTINUED ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
ACCEPTED BY: SELLER:
AEI NET LEASE INCOME & GROWTH FUND XIX
LIMITED PARTNERSHIP,
a Minnesota limited partnership
By: AEI Fund Management XIX, Inc.,
its corporate general partner
By: /s/ ▇▇▇▇ ▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
Date of Execution: September 15, 2000
EXHIBIT "A"
[REAL PROPERTY DESCRIPTIONS]
PARCEL 1
ALL THAT CERTAIN PIECE OR PARCEL OF GROUND, together with all the
buildings and improvements thereon, situated in and being located
in Section ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ 11 East, St. Tammany
Parish, Louisiana, and being described in accordance with ▇.▇.
▇▇▇▇▇▇▇▇, dated July 17, 1985 as Our Parcel "D", and by reference
to said survey, said property is described as follows, to-wit:
Commencing at the intersection of the south line of Holiday Drive
and the east line of an 80 unnamed street, which said point is
also described as being North 89 degrees, 59 minutes, 00 seconds
East, 1362.70 feet; thence South 00 degrees, 10 minutes, 00
seconds West 2056.51 feet; thence South 00 degrees, 09 minutes,
00 seconds West, 678.20 feet from the section corner common to
Section 9, 10, 15 and 16 Township 7 South, Range ▇▇ ▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
From said referenced point, go South 00 degrees, 14 minutes, 42
seconds East 811.41 feet along the east line of the said 80
unnamed street to the southern line of the Wal-Mart site; thence
with the southern line of the Wal-Mart side, go North 89 degrees,
21 minutes, 52 seconds East, 995.65 feet; thence South 7 degrees,
35 minutes, 00 seconds West 101.15 feet; thence go South 10
degrees, 59 minutes, 28 seconds West, 346.14 feet; thence South
17 degrees, 09 minutes, 08 seconds West, 103.23 feet to a point
which is the point of beginning; thence continuing South 17
degrees, 09 minutes, 08 seconds West 200.00 feet; thence
continuing South 17 degrees, 09 minutes, 08 seconds West, 200.00
feet; thence South 89 degrees, 21 minutes, 52 seconds West,
223.15 feet; thence North 15 degrees, 39 minutes, 46 seconds
East, 198.41 feet; thence North 89 degrees, 21 minutes, 52
seconds East, 228.57 feet to the point of beginning.
SERVITUDE PARCEL
THAT CERTAIN NON-EXCLUSIVE SERVITUDE ESTATE created in the act of
Easements with Covenants and Restrictions Affecting Land dated
and filed may 23, 1985, and recorded in COB 1204, folio 558, as
corrected in COB 1217, folio 482, filed August 14, 1985,
affecting the land therein described.
EXHIBIT "B"
[LEASE DESCRIPTIONS]
SLIDELL, LOUISIANA. Lease Agreement dated May 5, 1993 with AEI
Real Estate Funds XVI and XVIII Limited Partnerships.
COVINGTON, LOUISIANA. Lease Agreement dated June 23, 1993 with
AEI Net Lease Income & Growth Fund XIX Limited Partnership.
LAFAYETTE, LOUISIANA. Lease Agreement dated January 17, 1995,
with AEI Net Lease Income & Growth Fund XX Limited Partnership.