ASSIGNMENT OFAGREEMENT 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 INCOME & GROWTH FUND
XXII LIMIThD 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 22, 2003 ("the Agreement") for that certain
property located at 0000 Xxx Xxxxx Xxxxxxxxx, Xxxxxxxx, XX (the
"Property") with GE Capital Franchise Finance Corporation
("Seller"); and
WHEREAS, Assignor desires to assign an undivided fifty
percent (50.0%) of its rights, title and interest in, to and
under the Agreement only as it pertains to the Longmont, CO
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, only as it pertains to the Longmont, CO
property, assigns all of its rights, title and interest in,
to and under the Agreement to Assignee, to have and to hold
the same unto the Assignee, its successors and assigns;
2. Assignee, only as it pertains to the Longmont, CO
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/ Xxxxxx X Xxxxxxx
Xxxxxx X Xxxxxxx, its President
AEI INCOME & GROWTH FUND XXII
LIMITED PARTNERSHIP ("Assignee")
BY: AEI FUND MANAGEMENT XXI, INC.
By:/s/ Xxxxxx X Xxxxxxx
Xxxxxx X Xxxxxxx, 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 00000
Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, and AEI FUND
MANAGEMENT, INC., a Minnesota corporation ("Buyer") whose address
1300 Minnesota World Trade Center, 00 Xxxxxxx Xxxxxx Xxxx, Xx.
Xxxx, XX 00000.
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"),
Xxxxxx X. Xxxxxxxx, Xxxxxxxxx Xxxxxxxx, Creed Xxxxx Xxxx Ill,
Xxxx Xxxx, 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 xxxxxxx deposit of
$100,000.00 (the "Xxxxxxx Deposit") shall be paid by Buyer
to Escrow Agent upon the execution of this Agreement by the
parties hereto. The Xxxxxxx 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 Xxxxxxx
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 Xxxxxxx
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
Buyer's 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 Xxxxxxx 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 Xxxxxxx 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: Xxxx Xxxxxxx, 0000
Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 ("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 Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx
Deposit shall not be deposited with Buyer if both parties make
demand for the payment of the Xxxxxxx 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 Xxxxxxx Deposit. If only one party makes demand for payment
of the Xxxxxxx 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
Xxxxxxx Deposit under this contract shall be reduced by the
amount of any actual expenses incurred on behalf of the party
receiving the Xxxxxxx 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 APORTIONMENT 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 Xxxxxxx 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 Xxxxxxx 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 sha1l 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
00000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxx
If to Buyer:
AEI Fund Management, Inc.
1300 Minnesota World Trade Center
00 Xxxxxxx Xxxxxx Xxxx
Xx. Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
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 Xxxxxxx
Xxxxx, Inc. ("Broker"), whose address is 000 Xxxxx Xxxxx Xxxxxx,
Xxx Xxxxxxx, XX 900-71. If, and only if, this transaction closes
arid 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.COUNTEMARTS. 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/ Xxxx X Xxxxxx
Name Xxxx X Xxxxxx
Its: Vice President,
Collateral Management
BUYER:
AEI FUND MANAGEMENT, INC., a
Minnesota corporation
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Its Chief Financial Officer
STATE OF ARIZONA
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 acknowledgments personally appeared Xxxx
Xxxxxx, a Vice President of GE Capital, 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 December 15, 2003.
/s/ Xxxx X Xxxxx
Notary Public
My Commission Expires:
2/25/07 [notary seal]
STATE OF MINNESOTA
COUNTY OF XXXXXX
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 Xxxxxxx
Xxxxx, 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 1, 2003
/s/ Xxxxxxx X Xxxxxxxxx
Notary Public
My Commission Expires:
[notary seal]
EXHIBIT A
8000-8947-7603 San Dario Avenue, Laredo, TX
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
0000-0000-000 X. Xxxxxx Xxxx, XxXxxxx, XX
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- 0000 X. Xxxxxxxxxx, Xxxxxxxxxxx, XX
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- 0000 Xxx Xxxxx Xxxx, Xxxxxxxx, XX
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
FIRST AMENDMENT TO AGREEMENT OF SALE
THIS FIRST AMENDMENT TO AGREEMENT OF SALE (this
"Amendment") is made and, entered into as of the 22 day of
December, 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 00000 Xxxxx Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000, and AEI FUND MANAGEMENT, INC., a
Minnesota corporation (the "Buyer'), whose address is 1300
Minnesota World Trade Center, 00 Xxxxxxx Xxxxxx Xxxx, Xx. Xxxx,
XX 00000, and amends that certain Agreement of Sale dated
December 15, 2003, between Seller and Buyer (the "Agreement").
All capitalized terms used in this Amendment, unless otherwise
defined herein, shall have the meanings ascribed to them in the
Agreement.
WITNESSETH:
WHEREAS, pursuant to Section 2 of the Agreement, the
Closing Date is scheduled to be held on December 23, 2003;
WHEREAS, pursuant to Section 6 of the Agreement, the
Condition Date is December 22, 2003; and
WHEREAS, Buyer desires to amend the Agreement to extend the
Closing Date as well as the Condition Date and Seller is willing
to extend the Closing Date and the Condition Date subject to the
terms and conditions of this Amendment.
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. The terms and provisions of this Amendment shall be
deemed effective on and as of the Effective Date.
2. Section 2 of the Agreement is hereby amended in its
entirety and restated as follows:
"2. Closing Date. The closing of the transaction
contemplated by this Agreement (the "Closing") shall be
held on or before December 31, 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 and to furnish evidence of their
authority and capacity."
3. The first sentence of Section 6 of the Agreement is hereby
amended in its entirety and restated as follows:
"6. Condition Date. Buyer shall have until December 30,
2003 (the "Condition Dates) to perform such investigations
regarding the Premises, including, without limitation, the
condition of the Premises, the zoning of the Premises, and the
suitability of the Premises for Buyers intended use of the
Premises, and determine that the Premises is satisfactory to
Buyer in its sole discretion (the "Condition"); provided,
however, Buyer shall provide Seller, within five (5) business
days of Buyers 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 the.. Premises."
4. The parties hereto warrant and represent to each other
with respect to themselves that (i) all necessary action has been
taken to authorize the execution of this Amendment, (ii) the
person whO has executed this Amendment on behalf of each party is
duly authorized to do so, and (iii) this Amendment constitutes
the legal, valid and binding obligation of the parties hereto,
enforceable against such parties in accordance with its terms.
5. This Amendment 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 Amendment to physically form
one document. For purposes of this Amendment a facsimile
signature shall be deemed an original.
6. In all other respects, the Agreement, shall remain unchanged
and in full force and effect.
THIS SPACE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, Seller and Buyer have entered into this
Amendment as of the date first above written.
SELLER:
GE CAPITAL FRANCHISE FINANCE
CORPORATION, a Delaware
corporation
By/s/ Xxxxx X Xxxxxxx
Name Xxxxx X Xxxxxxx
Its Senior Vice President
BUYER:
AEI FUND MANAGEMENT, INC., a
Minnesota corporation
By /s/ Xxxxxx X Xxxxxxx
Name Xxxxxx X Xxxxxxx
Its President
