ASSIGNMENT OF AGREEMENT OF SALE AND
FIRSTAMENDMENT TO AGREEMENT OF SALE
THIS ASSIGNMENT made and entered into this 23rd day of
December 2003, by and between AEI FUND MANAGEMENT, INC., a
Minnesota corporation, ("Assignor") and AEI NET LEASE INCOME
& GROWTH FUND XIX LIMITED PARTNERSHIP, a Minnesota limited
partnership ("Assignee");
WITNESSETH, that:
WHEREAS, on the 15th day of December 2003, Assignor
entered into a Agreement of Sale and First Amendment To
Agreement of Sale dated December 22nd, 2003 ("the
Agreement") for that certain property located at ▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ (the "Property") with GE Capital
Franchise Finance Corporation ("Seller"); and
WHEREAS, Assignor desires to assign an undivided one
hundred percent (100.0%) of its rights, title and interest
in, to and under the Agreement only as it pertains to the
Brownsville, TX property to Assignee as hereinafter
provided;
NOW, THEREFORE, for One Dollar ($1.00) and other good
and valuable consideration, receipt of which is hereby
acknowledged, it is hereby agreed between the parties as
follows:
1. Assignor assigns all of its rights, title and
interest in, to and under the Agreement, only as it
pertains to the Brownsville, TX property, to Assignee,
to have and to hold the same unto the Assignee, its
successors and assigns;
2. Assignee, only as it pertains to the Brownsville,
TX property, hereby assumes all rights, promises,
covenants, conditions and obligations under the
Agreement to be performed by the Assignor thereunder,
and agrees to be bound for all of the obligations of
Assignor under the Agreement.
All other terms and conditions of the Agreement shall remain
unchanged and continue in full force and effect.
AEI FUND MANAGEMENT, INC.
("Assignor")
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, its President
AEI NET LEASE INCOME & GROWTH FUND XIX
LIMITED PARTNERSHIP ("Assignee")
BY: AEI FUND MANAGEMENT XIX, INC.
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, its President
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement') is made and
entered into as of December 15, 2003 (the "Effective Date"),
by and between GE CAPITAL FRANCHISE FINANCE CORPORATION, a
Delaware corporation ("Seller") (successor by merger with
Franchise Finance Corporation of America, a Maryland
corporation, sole shareholder and successor by dissolution
of FFCA Acquisition Corporation, a Delaware corporation),
whose address is ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, and AEI FUND MANAGEMENT, INC., a Minnesota
corporation ("Buyer") whose address 1300 Minnesota World
Trade Center, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇.
WITNESSETH:
WHEREAS, Seller is the owner of that certain real
listed by address and Seller Property Number on the attached
Exhibit A attached hereto, together with the buildings,
structures, fixtures and improvements now located thereon
(individually a "Premises", collectively, the "Premises");
WHEREAS, Seller, as lessor, and Kona Restaurant Group,
Inc., a Delaware corporation ("Lessee"), are parties to
those certain Leases listed by address and Seller Property
Number on the attached Exhibit A (individually, the "Lease",
collectively the "Leases") with respect to the Premises;
WHEREAS, pursuant to those certain Unconditional
Guaranties of Payment and Performance listed by date, Seller
Property Number, lessee party and guarantor party on the
attached Exhibit A (individually the "Guaranty",
collectively the "Guaranties"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Creed ▇▇▇▇▇ ▇▇▇▇ Ill, ▇▇▇▇ ▇▇▇▇, and
Fired Up, Inc., a Texas corporation (individually a
"Guarantor", collectively the "Guarantors") guarantee the
obligations of the applicable lessee party under the
applicable Lease and certain other documents; and
WHEREAS, Buyer desires to purchase the Premises from
Seller and Seller desires to (i) sell and convey the
Premises to Buyer and (ii) assign its interest in each Lease
and in each Guaranty to Buyer, all subject to the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual
covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. SALE OF PREMISES. On the terms and conditions set
forth in this Agreement, Seller hereby agrees to sell and
convey the Premises to Buyer, and Buyer hereby agrees to
purchase the Premises from Seller.
2. CLOSING DATE. The closing of the transaction
contemplated by this Agreement (the "Closing") shall be held
on or before December 23, 2003, or such earlier date as the
parties may agree (the "Closing Date"). Seller and Buyer
agree to execute all documents
necessary to consummate the closing of this sale and to
furnish evidence of their authority and capacity.
3. PURCHASE PRICE. The purchase price for the
Premises shall be
$9.626.300.00 (the "Purchase Price"), the allocation of the
Purchase Price among each of the Properties is set forth on
Exhibit A attached hereto and shall be payable by Buyer to
Seller in immediately available funds on the Closing Date.
An ▇▇▇▇▇▇▇ deposit of $100,000.00 (the "▇▇▇▇▇▇▇ Deposit")
shall be paid by Buyer to Escrow Agent upon the execution of
this Agreement by the parties hereto. The ▇▇▇▇▇▇▇ Deposit
shall be applied toward the Purchase Price at Closing. The
Purchase Price shall be absolutely net to Seller, and Buyer
shall pay in immediately available funds at the Closing all
expenses in connection with the transaction contemplated by
this Agreement, including, but not limited to, all escrow
fees, title fees, survey fees, recording fees, attorneys'
fees, transfer taxes, stamp taxes, privilege taxes, sales
and use taxes and any and all other costs and fees
associated with the Closing. Buyer shall receive a credit at
Closing for any prepaid rental paid to Seller in an amount
equal to the monthly rental paid by each lessee pursuant to
the applicable Lease multiplied by a fraction, the numerator
of which is the number of days from and including the
Closing Date through and including the last day of the month
in which the Closing occurs, and the denominator of which is
the total number of days in the month in which the Closing
occurs; provided further, however, if Seller receives the
Purchase Price on or after 12:00 p.m. (Phoenix, AZ time) on
the Closing Date, the numerator of such fraction shall be
the number of days from and including the day after the
Closing Date through and including the last day of the month
in which the Closing occurs. Notwithstanding the foregoing,
a broker's commission shall be paid by Seller as set forth
in Section 21 hereof.
4. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller
represents and warrants to Buyer as of the date hereof and
as of the Closing Date that:
(a) Seller is a corporation duly organized and
validly existing under the laws of the State of
Delaware, has full power and authority to carry out and
consummate all transactions contemplated by this
Agreement, and has duly authorized the taking of any
and all actions necessary to carry out and consummate
the transactions contemplated or to be performed on its
part by this Agreement;
(b) Upon execution by Seller, this Agreement and
all documents to be executed in connection herewith by
Seller will constitute the legal, valid and binding
obligations of Seller, enforceable against Seller in
accordance with their terms;
(c) The person(s) who have executed this
Agreement on behalf of Buyer are duly authorized so to
do;
(d) There are no suits, actions, proceedings or
investigations pending or threatened against or
involving Seller before any court, arbiter,
administrative or governmental body which might
reasonably result in a material adverse change in
Seller's ability to close the transaction contemplated
by this Agreement; and
(e) Seller is not, and the authorization,
execution, delivery and performance of this Agreement
and the documents, instruments and agreements provided
for herein will not result in any breach of or default
under any other document, instrument or agreement to
which Seller is a party or by which Seller, or any of
Seller's property, is subject or bound. The
authorization, execution, delivery and performance of
this Agreement will not violate any applicable law,
statute, regulation, rule, ordinance, code or order.
(f) Seller is not a "foreign corporation,"
"foreign partnership," "foreign limited liability
company," "foreign trust," or "foreign estate" as those
terms are defined in the Internal Revenue Code and the
regulations promulgated thereunder;
5. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer
represents and warrants to Seller as of the date hereof and
as of the Closing Date that:
(a) Buyer has been duly organized or formed, is
validly existing and in good standing under the laws of
its state of organization or formation, is qualified to
do business in any jurisdiction where such
qualification is required, has full power and authority
to carry out and consummate all transactions
contemplated by this Agreement, and has duly authorized
the taking of any and all actions necessary to carry
out and consummate the transactions contemplated or to
be performed on its part by this Agreement. All
necessary corporate action has been taken to authorize
the execution, delivery and performance by Buyer of
this Agreement;
(b) Buyer is not a "foreign corporation,"
"foreign partnership," "foreign limited liability
company," "foreign trust," or "foreign estate" as those
terms are defined in the Internal Revenue Code and the
regulations promulgated thereunder;
(c) The person(s) who have executed this
Agreement on behalf of Buyer are duly authorized so to
do;
(d) Upon execution by Buyer, this Agreement and
all documents referenced herein or to be executed in
connection herewith by Buyer, will constitute the
legal, valid and binding obligations of Buyer,
enforceable against Buyer in accordance with their
terms;
(e) There are no suits, actions, proceedings or
investigations pending or threatened against or
involving Buyer before any court, arbiter,
administrative or governmental body which might
reasonably result in a material adverse change in
Buyer's ability to close the transaction contemplated
by this Agreement; and
(f) Buyer is not, and the authorization,
execution, delivery and performance of this Agreement
and the documents, instruments and agreements provided
for herein will not result in any breach of or default
under any other document, instrument or agreement to
which Buyer is a party or by which Buyer, or any of
Buyer's property, is subject or bound. The
authorization, execution, delivery and performance of
this Agreement will not violate any applicable law,
statute, regulation, rule, ordinance, code or order.
All representations contained in this Section shall survive
the Closing.
6. CONDITION TO CLOSING.
(a) Buyer shall have until 5:00 p.m. (Phoenix,
Arizona time), December 22, 2003 (the "Condition Date")
to perform such investigations regarding each of the
Premises, including, without limitation, the condition
of each of the Premises, the zoning of each of the
Premises, the suitability of each of the Premises for
Buyer's intended use, and to determine that each of the
Premises is satisfactory to Buyer in Buyer's sole
discretion (the "Condition"); provided, however, Buyer
shall provide Seller, within five (5) business days of
Buyer's receipt thereof, a copy of any environmental
report, survey, study, investigation and any written
conclusions disclosed in connection with such
environmental studies and/or reports conducted with
respect to any of the Premises. Notwithstanding the
foregoing, in no event shall Buyer be permitted to
conduct any Phase II environmental investigation on the
Premises without Seller's prior written consent, which
consent may be granted or withheld in Seller's sole and
absolute discretion. Buyer shall and does hereby agree
to repair any damage to the Premises resulting from any
of the foregoing investigations and inspections and to
indemnify, defend, protect and hold harmless Seller
for, from and against any and all liabilities, claims,
losses, costs, damages and expenses, including but not
limited to court costs and attorneys' fees, which may
be incurred by Seller as a result of the inspections or
investigations conducted by Buyer and Buyer's agents,
employees or contractors. Such indemnity shall
expressly include, without limitation, all
environmental conditions caused by Buyer. The foregoing
indemnity shall survive the Closing or any termination
of this Agreement. Buyer's obligation to purchase each
of the Premises shall be contingent upon its
satisfaction or waiver of the Condition prior to the
Condition Date with respect to such Premises. Buyer
will use its good faith best efforts to satisfy the
Condition on or before the Condition Date. If Buyer
fails to notify Seller in writing that the Condition
has not been satisfied or waived prior to the Condition
Date, then the Condition shall conclusively be deemed
satisfied or waived, the ▇▇▇▇▇▇▇ Deposit shall be
deemed non-refundable, and the parties shall proceed
with the consummation of the transaction contemplated
herein. If Buyer advises Seller in writing prior to the
Condition Date that the Condition with respect to any
of the Premises has not been satisfied or waived, or in
the event Seller notifies Buyer prior to the Closing
Date of Seller's intent to cancel this Agreement with
respect to Premises due to Seller's receipt of a Phase
I environmental assessment for such Premises that
Seller deems unacceptable in Seller's sole and absolute
discretion (a "Seller's Cancellation"), then this
Agreement shall terminate.
(b) In the event that this Agreement is
terminated Seller shall cause Escrow Agent to return
the ▇▇▇▇▇▇▇ Deposit (less all cancellation fees charged
by Escrow Agent, if any) to Buyer.
7. TITLE REVIEW.
(a) Within five (5) days of the execution of this
Agreement, Escrow Agent (as hereinafter defined) shall
have delivered current title commitments for an ALTA
Owner's Policy for the Property in Colorado and TLTA
Owner's Policies for the Properties in Texas, issued by
Lawyers Title Insurance Company (individually, a
"Report" and, collectively, the "Reports") on each of
the Premises to Buyer and Seller. Each Report shall
show the status of title to the applicable Premises as
of the date of such Report and shall be accompanied by
legible copies of all documents referred to in such
Report.
(b) Buyer shall have five (5) days following
receipt of last Report to be received by Buyer (the
"Title Review Period") in which to review the Reports
and to give Seller and Escrow Agent written notice of
any title matter shown on any such Report which is
unacceptable to Buyer, in Buyers sole judgment. If,
prior to the expiration of the Title Review Period,
Buyer gives notice of dissatisfaction as to any
exception to title as shown in any Report, Seller shall
have until the Closing Date to cause Escrow Agent to
eliminate the disapproved exception or exceptions from
such Report. If Seller does not cause Escrow Agent to
eliminate the disapproved exception or obtain a title
insurance endorsement on or before the Closing Date,
Buyer's sole and exclusive remedy shall be cancel this
Agreement and have the ▇▇▇▇▇▇▇ Deposit returned by
giving written notice to Seller and Escrow Agent on or
before the Closing Date; it being understood and
agreed, however, that Seller shall have no duty
whatsoever to cause Escrow Agent to eliminate any such
exception. Notwithstanding anything in this Agreement
to the contrary, Buyer will not be able to cancel this
Agreement with respect to any of the Premises due to
Buyer's dissatisfaction as to any exception to title
that attached to the Premises through the action or
inaction of Buyer (or an affiliate of Buyer).
(c) If Buyer does not object to an exception to
title disclosed in any of the Reports before the
expiration of the Title Review Period, such matter
shall be deemed to have been approved by Buyer, and all
of the same, along with all exceptions to title set
forth in the Reports to which Buyer objects, but
subsequently waives such objection, or which objection
is cured by Seller pursuant to Section 7(b) hereof,
shall be deemed to be the "Permitted Exceptions."
(d) Upon a cancellation in accordance with the
provisions of this Section 7, Seller shall cause Escrow
Agent to return the ▇▇▇▇▇▇▇ Deposit (less all
cancellation fees charged by Escrow Agent, if any) to
Buyer.
8. ASSIGNMENT OF LEASES AND GUARANTIES: AS-IS
ASSIGNMENT. At the Closing, upon satisfaction of all
conditions and requirements of this Agreement, Seller shall
assign to Buyer its interest as lessor under each Lease and
under each Guaranty, pursuant to an Assignment and
Assumption of Lessor's Interest in Lease substantially in
the form attached hereto as Exhibit B (each, an "Assignment
of Lease" and, collectively, the "Assignment of Leases) and
pursuant to an Assignment of Guaranty substantially in the
form attached hereto as Exhibit E (the "Assignment of
Guaranty") (each, an "Assignment of Guaranty" and,
collectively, the "Assignment of Guaranties"); provided,
however, notwithstanding any other provision of this
Agreement to the contrary, Buyer acknowledges that each
Lease and each Guaranty is being assigned in an "AS-IS and
"WHERE IS" condition, and not in reliance on any agreement,
understanding, condition, warranty or representation made by
Seller or any agent or employee of Seller as to the
condition, enforceability or quality thereof, as to the rent
or other amounts payable thereunder, or as to any other
matter in connection therewith, and Buyer further
acknowledges that neither Seller nor any party acting on
behalf of Seller has made or shall be deemed to have made
any such agreement, condition, representation or warranty.
9. CONVEYANCE OF TITLE. Fee simple title to the
Premises shall be conveyed by Seller to Buyer at the Closing
by a limited warranty deed (or a jurisdictional equivalent)
substantially in the form attached hereto as Exhibit C
(individually, a "Deed" and, collectively, the "Deeds").
Seller and Buyer acknowledge that each Lease will remain as
an encumbrance against the corresponding Premises after
Closing, and each Lease shall be a Permitted Exception.
10. ESCROW AGENT. Seller and Buyer hereby agree to
employ LandAmerica Financial Group, Inc., Attention: ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Escrow Agent") to act as escrow agent in
connection with this transaction upon the following terms
and conditions:
(a) The parties hereto will (i) deliver (or cause
to be delivered) to Escrow Agent all documents required
by this Agreement, including, without limitation, the
Deeds and the Assignment of Leases (collectively, the
"Operative Documents"), (ii) pay Escrow Agent all sums
required by this Agreement, including, without
limitation, the Purchase Price and closing costs, and
(iii) cause to be done all other things necessary or
required by this Agreement.
(b) Escrow Agent is authorized to pay, from any
funds held by it for the respective credit of the
parties hereto, all amounts necessary to procure the
delivery of such documents and to pay, on their behalf,
all charges and obligations payable by them
respectively.
(c) Escrow Agent is authorized, in the event any
demand is made upon it concerning these instructions or
the escrow, at its election, to hold any money and
documents deposited hereunder until an action shall be
brought in a court of competent jurisdiction to
determine the rights of the parties hereto or to
interplead
said money and documents in an action brought in any
such court. Deposit by Escrow Agent of said documents
and funds, after deducting therefrom its charges and
its expenses and attorneys' fees incurred in connection
with any such court action, shall relieve Escrow Agent
of all further liability and responsibility.
(d) Disbursement of any funds shall be made in
immediately available funds. Escrow Agent shall be
under no obligation to disburse any funds represented
by check or draft, and no check or draft shall be
payment to Escrow Agent in compliance with any of the
requirements hereof, until Escrow Agent is advised by
the bank in which such check or draft has been
deposited that such check or draft has been honored.
Receipt of this Agreement by Escrow Agent and the opening of
an escrow by Escrow Agent shall constitute Escrow Agent's
agreement to comply with the terms and provisions of this
Agreement relating to Escrow Agent. At the Closing, Escrow
Agent shall record the appropriate Operative Documents and
any other documents to be recorded, in the appropriate
recording office, as required, and disburse the Purchase
Price to Seller. Escrow Agent shall not cause the sale of
the Premises to close unless and until it has received
written instructions from Seller and Buyer to effect the
Closing. All of the Operative Documents and the other
documents required to be executed hereunder shall be dated
as of the Closing Date. Buyer hereby agrees to cooperate in
the preparation, execution and delivery to Escrow Agent of
any required forms to carry out and consummate the
transaction contemplated herein.
The ▇▇▇▇▇▇▇ Deposit shall be deposited with Escrow
Agent with the understanding that Escrow Agent is not (a) a
party to this contract and does not assume or have any
liability for the performance or non-performance of any
party to this contract, (b) liable for interest on the funds
held unless a party requests that such funds be deposited in
an interest bearing account, in which event such interest
shall be for the benefit of Buyer unless the ▇▇▇▇▇▇▇ Deposit
is paid to Seller as a result of Buyer's default or
termination of this Agreement, and (c) liable for any loss
of escrow funds caused by the failure of any banking
institution in which such funds have been deposited. The
▇▇▇▇▇▇▇ Deposit shall not be deposited with Buyer if both
parties make demand for the payment of the ▇▇▇▇▇▇▇ Deposit,
Escrow Agent has the right to require from all parties a
written release of liability of Escrow Agent which
authorizes the disbursement of the ▇▇▇▇▇▇▇ Deposit. If only
one party makes demand for payment of the ▇▇▇▇▇▇▇ Deposit,
Escrow Agent shall give notice to the other party of such
demand. Escrow Agent is authorized and directed to honor
such demand unless the other party objects to Escrow Agent
in writing within thirty (30) days after Escrow Agent's
notice to that party. Any refund or payment of the ▇▇▇▇▇▇▇
Deposit under this contract shall be reduced by the amount
of any actual expenses incurred on behalf of the party
receiving the ▇▇▇▇▇▇▇ Deposit.
11. POSSESSION. Possession of the Premises will be
given by Seller to Buyer, subject to each lessee's rights in
the applicable Premises pursuant to the applicable Lease, on
the Closing Date by delivery of the Deeds and Assignment of
Leases.
12. NO APPORTIONMENT OF UTILITY CHARGES. Pursuant to
the Leases, the applicable lessee identified in Exhibit A is
responsible for payment of all water and sewer charges or
rentals, electricity, gas, telephone and all other utility
charges (collectively, the "Utility Charges") accruing with
respect to each of the Premises. Buyer shall indemnify,
defend and exonerate and save Seller harmless for, from and
against any claims, liability, loss, cost or expenses for
Utility Charges arising before, on or subsequent to the
Closing Date.
13. TAXES. Pursuant to the Leases, the applicable
lessee identified in Exhibit A is responsible for the
payment of all real and personal property taxes due and
owing under each of the Leases.
14. AGREEMENT NOT TO BE RECORDED. This Agreement shall
not be filed of record by or on behalf of Buyer in any
office or place of public record and, if Buyer shall fail to
comply with the terms hereof by recording or attempting to
record the same, such act shall not operate to bind or cloud
the title to the Premises. Seller shall, nevertheless, have
the right forthwith to institute appropriate legal
proceedings, at Buyer's sole expense, to have the same
removed from record.
15. DEFAULT. If Seller defaults hereunder at or prior
to the Closing by failing to complete the conditions of the
Closing in accordance with the terms of this Agreement, then
Buyer may elect to (i) treat this Agreement as terminated
and receive a refund of the ▇▇▇▇▇▇▇ Deposit (less all
cancellation fees charged by Escrow Agent, if any) or (ii)
bring an action against Seller in equity for specific
performance. If Buyer defaults hereunder at or prior to the
Closing by failing to complete the conditions of the Closing
in accordance with the terms of this Agreement, then Seller
may elect to (i) treat this Agreement as terminated and
retain the ▇▇▇▇▇▇▇ Deposit as liquidated damages for such
default (and not as a penalty) or (ii) bring an action
against Buyer at law for monetary damages.
16. NOTICES. All notices given by any party pursuant
to this Agreement shall be in writing and shall be sent to
the other party via overnight courier (such as Federal
Express or Airborne Express), facsimile or by United States
Postal Service registered or certified mail, postage
prepaid, return receipt requested, addressed to the other
party at the following addresses:
If to Seller:
GE Capital Franchise Finance Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
If to Buyer:
AEI Fund Management, Inc.
1300 Minnesota World Trade Center
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
or to such other address as the respective parties may
hereafter designate by notice in writing in the manner
specified above. Any notice may be given on behalf of any
party by its counsel. Notices given in the manner aforesaid
shall be deemed sufficiently served or given for all
purposes hereunder at the time such notices, demands or
requests shall be deposited with the overnight courier or
any Post Office, or branch Post Office regularly maintained
by the United States Government.
17.TIME OF THE ESSENCE. Time, wherever specified herein
for the performance by Seller or Buyer of any of their
respective obligations hereunder, is hereby made and
declared to be of the essence under this Agreement.
18.ASSIGNABILITY. This Agreement and any of the rights
of Buyer hereunder may not be assigned by Buyer; provided,
however, that Buyer shall have the right to designate an
affiliate as grantee under the Deed, by providing Seller and
Escrow Agent written notice of such designation at least
five (5) days prior to the Closing Date. Such designee shall
assume all obligations imposed on Buyer as if the designee
were the original purchaser named in this Agreement. In no
event shall any such designation (i) release Buyer from
liability hereunder unless expressly agreed in writing by
Seller, or (ii) create any privity of contract between
Seller and such designee. Any attempted assignment in
contravention of this Section 18 shall be null and void.
19.RELEASE. Buyer hereby fully and forever releases,
discharges and holds harmless Seller and its officers,
directors, employees, agents, attorneys, other
representatives, affiliates, successors and assigns, as
applicable, for, from and against any and all obligations,
claims, liabilities, suits, expenses, costs, fines and
penalties of any nature (matured or unmatured, known or
unknown) whatsoever arising out of or relating to this
Agreement, whether based in tort, contract or any other
theory of recovery, which Buyer may now have or which may
hereafter accrue or otherwise be acquired for injuries or
damages which result from a Seller's Cancellation.
20.AS-IS SALE.
(a) Buyer acknowledges that it has fully
inspected each of the Premises and is fully familiar
with the physical condition thereof, and that each of
the Premises is being purchased by Buyer in an "AS-IS"
and "WHERE IS" condition, with all defects, including,
without limitation, all conditions with respect to the
condition of the soil, surface waters, groundwaters,
land, stream sediments, surface and
subsurface strata, ambient air and any other
environmental medium comprising or surrounding any of
the Premises, as a result of such inspection and
investigation and not in reliance on any agreement,
understanding, condition, warranty or representation
made by Seller or any agent or employee of Seller as to
the condition, quantity or quality thereof, as to any
permitted use thereof, or as to the adequacy of utility
service thereto, or as to the income or expense in
connection therewith, or as to any other matter in
connection therewith; and Buyer further acknowledges
that neither Seller nor any party acting on behalf of
Seller has made or shall be deemed to have made any
such agreement, condition, representation or warranty.
Seller expressly disclaims the IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
with respect to each of the Premises.
(b) Buyer shall accept each of the Premises on
the Closing Date in the same condition as the same is
in as of the date of this Agreement, as such condition
may have changed by reason of wear and tear, damage by
fire or other casualty. Without in any manner limiting
the generality of the foregoing, Buyer specifically
acknowledges that the fact that any portion of any of
the Premises or any part thereof may not be in working
order or condition on the Closing Date by reason of
wear and tear, damage by fire or other casualty or by
reason of its present condition, shall not relieve
Buyer of its obligations to complete the Closing.
21.BROKERS. The parties hereto warrant and represent to
each other that they have not employed or retained any
broker or finder in connection with this transaction, other
than CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc. ("Broker"), whose address is ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. If, and only if,
this transaction closes and the sale proceeds of the sale
transaction contemplated hereby are distributed to Seller,
then Seller agrees to pay to Broker a real estate commission
in the sum of $91,450.02. The parties agree that, if any
person other than Broker (a "Claimant") shall assert a claim
to a finder's fee, brokerage commission or other
compensation on account of alleged employment as a finder,
broker or other consultant or agent in connection with the
transaction embodied by this Agreement, the party under whom
the Claimant is claiming (i.e., the party who is alleged to
have retained or utilized the services of the Claimant)
shall indemnify, defend and hold the other party harmless
for, from and against any such claim and all costs, expenses
and liabilities incurred in connection with such claim or
any action or proceeding brought on such claim, including,
but not limited to, counsel and witness fees and court costs
in defending against such claims. This indemnity obligation
shall survive the Closing or any termination of this
Agreement.
22.CAPTIONS OR HEADINGS. The captions or headings of
the sections of this Agreement are for convenience only, and
shall not control or affect the meaning or construction of
any of the terms or provisions of this Agreement.
23.MODIFICATION. No change, alteration, amendment,
modification or waiver of any of the terms or provisions
hereof shall be valid, unless the same shall be in writing
and signed by the parties hereto.
24.Entire Agreement. This Agreement and the other
Operative Documents constitute the entire agreement between
the parties with respect to the subject matter hereof, and
there are no other representations, warranties or
agreements, written or oral, between Seller and Buyer with
respect to the subject matter of this Agreement and the
other Operative Documents. Notwithstanding anything in this
Agreement and the other Operative Documents to the contrary,
upon the execution and delivery of this Agreement by Seller
and Buyer, any bid proposals or letters of intent with
respect to the transactions contemplated by this Agreement
shall be deemed null and void and of no further force and
effect and the terms and conditions of this Agreement shall
control notwithstanding that such terms and conditions may
be inconsistent with or vary from those set forth in such
bid proposals or letters of intent.
25.APPLICABLE LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of
Arizona.
26.ADVANCE RENTAL. Notwithstanding any provision in the
Lease to the contrary, Seller and Buyer acknowledge that no
advance rental or other form of security deposit has been
paid by Lessee.
27.BINDING EFFECT. Subject to the provisions of Section
18 above, this Agreement shall be binding upon and inure to
the benefit of the parties hereto, their officers,
directors, employees, predecessors, successors, parents,
affiliates, subsidiaries, heirs, executors, administrators,
agents and assigns.
28.OTHER DOCUMENTS. Each of the parties hereto agrees
to sign such and further documents as may be appropriate to
carry out the intentions expressed in this Agreement.
29.COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an
original and all of which together shall constitute one and
the same document. Signature pages may be detached from the
counterparts and attached to a single copy of this Agreement
to physically form one document.
30.ESTOPPEL CERTIFICATE. On or before Closing Seller
shall deliver to Buyer an estoppel certificate executed by
Lessee substantially in the form attached hereto as Exhibit
D, and a Landlord's estoppel certificate executed by Seller
substantially in the form attached hereto as Exhibit F.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above written.
SELLER:
GE CAPITAL FRANCHISE FINANCE
CORPORATION, a Delaware corporation
By: /s/ ▇▇▇▇ ▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇ ▇▇▇▇▇▇
Its: Vice President Collateral Management
BUYER:
AEI FUND MANAGEMENT, INC., a Minnesota
Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Its: Chief Financial Officer
STATE OF ARIZONA ]
]SS.
COUNTY OF MARICOPA ]
I HEREBY CERTIFY that on this day, before me, an
officer duly authorized in the State aforesaid and in the
County aforesaid, to take acknowIedgments, personally
appeared ▇▇▇▇ ▇▇▇▇▇▇, a Vice President of GE Capital
Franchise Finance Corporation, a Delaware corporation, on
behalf of the corporation, to me known to be the person
described in and who executed the foregoing instrument and
that he acknowledged before me that he executed the same.
WITNESS my hand and official seal in the County and
State last aforesaid on Dec 15, 2003
/s/ ▇▇▇▇ ▇ ▇▇▇▇▇
Notary Public
My Commission Expires:
2/25/07 [notary seal]
STATE OF MINNESOTA ]
]SS.
COUNTY OF ▇▇▇▇▇▇ ]
I HEREBY CERTIFY that on this day, before me, an
officer duly authorized in the State aforesaid and in the
County aforesaid to take acknowledgments, personally
appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇, the Chief Financial Officer of AEI
Fund Management, Inc., a Minnesota corporation, on behalf of
corporation, to me known to be the person described in and
who executed the foregoing instrument and that he
acknowledged before me that he executed the same.
WITNESS my hand and official seal in the County and State
last aforesaid on December 11, 2003
/s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
Notary Public
My Commission Expires:
[notary seal]
EXHIBIT A
8000-8947- ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
Lease dated June 10, 1999 by and between FFCA
Acquisition Corporation, a Delaware corporation and Kona
Restaurant Group, Inc., a Delaware corporation, as amended
by that certain First Amendment to Lease dated November 23,
1999, as guarantied by that certain Unconditional Guaranty
of Payment and Performance dated June 10,1999.
PURCHASE PRICE: $2,537,000
8001-0315- ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
Lease dated August 10, 1999 by and between FFCA
Acquisition Corporation, a Delaware corporation and Kona
Restaurant Group, Inc., a Delaware corporation, as amended
by that certain First Amendment to Lease dated June 21,
2000, as guarantied by that certain Unconditional Guaranty
of Payment and Performance dated July 20,1999.
PURCHASE PRICE: $2,289,200
8000-8964 - ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇
Lease dated May 19, 1999 by and between FFCA Acquisition
Corporation, a Delaware corporation and Kona Restaurant
Group, Inc., a Delaware corporation, as amended by that
certain First Amendment to Lease dated April 28, 2000, as
guarantied by that certain Unconditional Guaranty of Payment
and Performance dated May 19, 1999.
PURCHASE PRICE: $2,259,100
8000-8966- ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
Lease dated July 1, 1999 by and between FFCA Acquisition
Corporation, a Delaware corporation and Kona Restaurant
Group, Inc., a Delaware corporation, as amended by that
certain First Amendment to Lease dated March 31, 2000, as
further amended by that certain Second Amendment to Lease
dated November 16, 2000, as guarantied by that certain
Unconditional Guaranty of Payment and Performance dated July
1,1999.
PURCHASE PRICE: $2,541,000