EXHIBIT 99
AGREEMENT OF SALE
THIS AGREEMENT OF SALE ("Agreement") is dated as of the 1st day of August,
2005 between AEI FUND MANAGEMENT, INC, a Minnesota corporation, of 1300 Wells
Fargo Place, 30 Seventh Street East, St. Paul, Minnesota 55101 ("Purchaser"),
and CAPTEC FRANCHISE CAPITAL PARTNERS LP IV, a Delaware limited partnership, of
24 Frank Lloyd Wright Drive, Lobby L, 4th Floor, Ann Arbor, Michigan 48105
("Seller").
RECITALS:
Seller is the owner of certain real property and improvements located at
the addresses set forth in the Fundamental Sale Provisions below.
Purchaser desires to purchase, and Seller is willing to sell, the real
property and improvements upon the terms and conditions set out below.
In consideration of the terms, covenants and conditions set forth in this
Agreement, Seller and Purchaser agree as follows:
1. FUNDAMENTAL SALE PROVISIONS. Unless otherwise defined herein,
capitalized terms used in this Agreement shall have the meanings listed in the
following Fundamental Sale Provisions.
Land: That certain real property commonly known as an Arby's
located at 18767 Northline, Southgate, MI and more
particularly described in the attached Exhibit "A"("Land").
Leases: That certain Lease, dated August 4, 1998, as amended, ("Real
Estate Lease"), between Captec Net Lease Realty, Inc. (and
subsequently assigned to Seller), as landlord, and RTM, Inc.
(and subsequently assigned to Sybra, Inc.), as tenant
("Tenant") and guaranteed by ICH Corporation ("Guarantor")
pursuant to that certain Guaranty, dated April, 2001
("Guaranty").
Deposit: A deposit of Thirty Five Thousand Dollars ($35,000), payable
as set forth in Section 3(a) below ("Deposit").
Subject State: Michigan
Purchase Price: $1,160,000 and payable as set forth in Section 3 below.
Title Company: First American Title Insurance Company
Attn: Rod Ives, Vice President
1900 Midwest Plaza West, 801 Nicollet Mall
Minneapolis, MN 55402
Phone: 800-688-6325
Inspection Period: The Inspection Period commences on the date of this
Agreement and expires fifteen (15) business days after
Seller's receipt of all of the Due Diligence Items (as
defined and required by Section 4 below).
Financing Period Not Applicable
Closing: To occur within fifteen (15) business days following the end of the
Inspection Period and Seller's satisfying all of its obligations
under this Agreement.
Broker: CB Richard Ellis, Inc., a Delaware corporation, with an address at
505 North Brand Boulevard, Suite 100, Glendale, CA 91203 Attention:
Sterling Champ
2. AGREEMENT TO SELL AND CONVEY. Seller agrees to sell and convey to
Purchaser, and Purchaser agrees to purchase from Seller, subject to the terms
and conditions set forth in this Agreement, all of Seller's right, title and
interest in and to:
(a) Project. The Land and all buildings, structures, and
improvements (collectively, "Improvements") located on the Land ( "Project");
(b) Easements. All of the recorded easements benefiting, and
recorded rights of access appurtenant to, the Land;
(c) Rights and Appurtenances. All and singular, the rights and
appurtenances pertaining to the Land, including any adjacent streets, roads,
alleys, accesses, and rights-of-way; and
(d) Lease. The Leases, together with all prepaid rentals (to the
extent applicable) to a period beyond the date of Closing, any security deposit
held by Seller as of the date of Closing and Seller's interest in the
Guarantees.
All of the foregoing is collectively referred to as "Property".
3. PURCHASE PRICE; DEPOSIT. The Purchase Price for the Property shall
be payable as follows:
(a) Deposit. Within three (3) business days of the date of this
Agreement, Purchaser shall place the Deposit in escrow with the Title Company.
The Deposit shall be held in accordance with the terms of this Agreement and the
laws of the State of Texas and applied to the Purchase Price at Closing (if the
transaction is consummated). The Deposit shall be held in a money market account
reasonably acceptable to Purchaser and Seller and all interest shall be paid to
the party entitled to the Deposit. Upon the expiration of the Inspection Period,
assuming Purchaser has not otherwise elected to terminate this Agreement, the
Deposit shall be deemed non-refundable (except in the event of Seller's failure
to consummate the transactions described herein as a result of Seller's default
hereunder, and matters of Additional Due Diligence as set forth in Section 4
below); and
(b) Balance of Purchase Price. The balance of the Purchase Price
(plus or minus closing adjustments, as the case may be), together with the
Deposit, shall be paid to Seller at the Closing. Payment shall be by wire
transfer of immediately available U.S. funds in accordance with wire transfer
instructions provided by Seller prior to the Closing. In exchange for such
payment, Seller shall deliver to Purchaser a deed (in form required by the
Subject State) whereby Seller only warrants against its own acts and/or
omissions (the "Deed"). The Deed shall be substantially in the form attached as
Exhibit "B" and shall convey title to Purchaser, subject to the applicable Lease
and further subject to the lien for taxes which are not yet due and payable and
such other exceptions to title which are disclosed in the Title Commitment
(defined below) and to which Purchaser consents in writing or waives its
objection thereto pursuant to this Agreement.
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4. DUE DILIGENCE ITEMS. Unless a longer time period is specifically
identified below, within five (5) days of the date of this Agreement, and at its
sole cost and expense, Seller shall furnish or cause Broker to furnish to
Purchaser the following items (collectively, "Due Diligence Items"):
(a) Title Work. A copy of the owner's policy of title insurance
issued to Seller at the time it acquired the Project. Within ten (10) days of
the date of this Agreement, and provided Purchaser has delivered evidence to
Seller that the Deposit has been tendered to the Title Company, Seller shall
provide a commitment for an owner's policy of title insurance on the Project
("Title Commitment"), which shall: (i) be issued by Title Company in favor of
Purchaser without so called "Standard Exceptions", (ii) be dated after the date
of this Agreement, (iii) provide for coverage in an amount equal to the Purchase
Price, (iv) show the state and quality of title to the Property, together with
all liens, encumbrances and other charges and items affecting the Property; and
(v) be accompanied by legible copies of all documents referenced in the Title
Commitment. Any endorsements to the Title Commitment shall be obtained by
Purchaser at Purchaser's sole cost and expense;
(b) Survey. A copy of the existing ALTA as-built survey of the Land,
but only if such item is in Seller's possession ("Survey");
(c) Phase I. A copy of the existing "Phase I" environmental
assessment of the Project, but only if such item is in Seller's possession;
(d) Lease Documents. A complete copy of the Lease, along with the
Guaranty, and any amendments thereto, including but not limited to amendments,
assignments and/or letter agreements currently in Seller's possession.;
(e) Soil Reports. A copy of the existing soil report of the Land,
but only if such items are in Seller's possession;
(f) Building Plans and Specifications. A copy of the existing
building plans and specifications of the Land and Improvements, but only if such
items are in Seller's possession;
(g) Store Sales. A copy of the existing store sales of the Project
for the last six months, but only if such items are in Seller's possession; and
the store sales numbers, as called for by the Lease, for the last three years
and currently in Seller's possession;
(h) Insurance Policies or Certificates. A copy of the Tenant's
existing insurance policies or insurance certificate for the Project;
(i) Certificate of Occupancy. A copy of the existing certificate of
occupancy for the Project, but only if such item is in Seller's possession;
(j) Additional Permits. A copy of any other permits and licenses
issued or required for the operation of the Project, but only if such items are
in Seller's possession; and
(k) Real Estate Tax Bills. A copy of the current real estate tax
bills for the Project, but only if such items are in Seller's possession; and
(l) Seller's Rent Accounting for Tenant. A rent accounting for the
last twelve (12) months showing when Seller received each check from Tenant.
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Purchaser shall promptly deliver to Seller written acknowledgement
of Purchaser's receipt of each Due Diligence Item. Within ten (10) days after
the date of this Agreement, Purchaser shall notify Seller in writing in the
event that Purchaser has not yet received any Due Diligence Item (which notice
shall specify any Due Diligence Item not yet received); otherwise, Purchaser
shall be deemed to have received all of the Due Diligence Items.
Purchaser acknowledges and agrees that, except for such items which
are in the public records, the Due Diligence Items are proprietary and
confidential in nature and have been and/or will be made available to Purchaser
solely to assist Purchaser in determining the feasibility of purchasing the
Property. Purchaser agrees not to disclose the Due Diligence Items, or any of
the provisions, terms or conditions thereof to any party outside of Purchaser's
organization except: (i) to Purchaser's accountants, attorneys, lenders,
prospective lenders, environmental consultants, investors and/or prospective
investors (collectively, "Permitted Outside Parties") in connection with the
transactions contemplated by this Agreement, or (ii) as may be required by law.
Purchaser shall take such actions as are necessary so as to ensure that the
Permitted Outside Parties also protect the confidential nature of the Due
Diligence Items to the same extent as Purchaser is obligated to do so hereunder.
In permitting Purchaser and the Permitted Outside Parties to review the Due
Diligence Items, Seller has not waived any privilege or claim of confidentiality
with respect thereto and no third party benefits of any kind, either expressed
or implied, have been offered, intended or created by Seller and any such claims
are expressly rejected by Seller and waived by Purchaser on its own behalf and
on behalf of the Permitted Outside Parties. Provided, however, should any
material adverse matter come to the attention of Seller that should render the
Due Diligence Items inaccurate, false, or misleading (such matters deemed to be
"Additional Due Diligence Items"), Seller shall promptly bring such Additional
Due diligence Items to Purchaser's attention, and Purchaser shall have an
additional five (5) business days from receipt of the Additional Due Diligence
Items to review the same. Purchaser shall have such additional review period to
decide whether to proceed to closing or terminate this Agreement, and if
Purchaser shall terminate this Agreement, it shall receive a full refund of its
Earnest Money promptly upon termination hereof.
Purchaser shall return to Seller all of the Due Diligence Items
(including all copies Purchaser has made of the Due Diligence Items) at such
time as this Agreement is terminated for any reason. Purchaser's obligations
under this Section 4 shall survive the termination of this Agreement.
Purchaser acknowledges that most of the Due Diligence Items were
prepared by third parties and, in many instances, were prepared prior to
Seller's ownership of the Property. Purchaser further acknowledges and agrees
that, except as specifically set forth herein: (i) neither Seller nor any of its
directors, officers, partners, members, agents, employees or contractors have
made any warranty or representation regarding the truth, accuracy or
completeness of the Due Diligence Items or the sources thereof, (ii) Seller has
not undertaken any independent investigation as to the truth, accuracy and
completeness of the Due Diligence Items, (iii) neither Seller nor any director,
partner, member, officer, employee or agent acting on Seller's behalf is
authorized to make any representations or warranties of whatsoever kind or
nature regarding either the truth, accuracy or completeness of the Due Diligence
Items or the Property (other than as described herein) and (iv) Seller is
providing the Due Diligence Items to Purchaser (or making the Due Diligence
Items available to Purchaser) solely as an accommodation to Purchaser. Purchaser
further acknowledges and agrees that Purchaser shall be solely responsible for
reviewing, analyzing and determining the truth, completeness, accuracy and
adequacy of the Due Diligence Items.
5. CONDITIONS TO PURCHASER'S OBLIGATIONS.
(a) Objection Notice. Purchaser shall have until the close of
Seller's business on the date the Inspection Period expires to deliver written
notice to Seller indicating Purchaser's intention to
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terminate this Agreement. In the event Seller does not receive Purchaser's
notice of intent to terminate this Agreement within the time period set forth in
the preceding sentence, Purchaser shall be deemed to have accepted the Due
Diligence Items, the condition of the Property, and title thereto, as disclosed
in the Due Diligence Items, at which time the Deposit shall, except as provided
in the following sentence, become non-refundable. The Deposit shall be
refundable in the event of Seller's failure to consummate the transaction
described herein as a result of Seller's default hereunder.
(b) Responses to Objection Notice. In the event that Purchaser
discovers and informs Seller in writing of, or Seller informs Purchaser of, any
change in the status of title to the Property occurring after the date of this
Agreement and resulting in an encumbrance on the Property in addition to the
Leases and the Permitted Exceptions (as defined below) (each a "Title Defect"),
Seller may promptly undertake to cure the items specified in the Purchaser's
title objection letter or eliminate any such Title Defect to the reasonable
satisfaction of Purchaser and/or, to the extent possible, cause the Title
Company to insure over any Title Defect to the reasonable satisfaction of
Purchaser and accordingly modify the Title Commitment. In the event Seller
elects not to effect such cure or is either unable to do so or have the Title
Company so insure over Purchaser's objections within ten (10) days after receipt
by Seller of the Purchaser's title objection letter or notice of any Title
Defect, Purchaser may, at its option: (1) waive any of its objections set forth
in the Objection Notice or relating to the Title Defect, without any adjustment
in the Purchase Price, or (2) terminate this Agreement, in either event by
giving prompt written notice thereof to Seller. In the event Purchaser elects to
terminate this Agreement, the Deposit shall be returned to Purchaser and, except
as expressly set forth in this Agreement, neither Seller nor Purchaser shall
have any further obligations under this Agreement.
(c) Financing Contingency. Not Applicable.
(d) Estoppel Certificate. Upon expiration or waiver of the
Inspection Period set forth above, Seller will make a one time request from
Tenant for a current estoppel certificate, in the form (if any) contemplated by
the Lease. If the form of Tenant estoppel certificate is not prescribed by the
Lease and Purchaser submits to Seller the form of estoppel certificate (as the
case may be) preferred by Purchaser or required by Purchaser's Lender (if any)
prior to the expiration of the Inspection Period, Seller will submit such form
of estoppel certificate to Tenant if such form is reasonable (as determined by
Seller in its sole discretion). Notwithstanding anything contained herein to the
contrary, in the event Tenant fails to provide the estoppel certificate required
by the Leases or alleges that there are outstanding material events of default
under the Lease which cannot be resolved to Purchaser's reasonable satisfaction
by the Closing, then, in such event, Purchaser's sole remedy shall be to waive
the requirement or to terminate this Agreement and receive the prompt return of
its Deposit. Seller shall be under no obligation to obtain any updates to the
estoppel certificate received from Tenant.
6. PERMITTED EXCEPTIONS. Seller shall convey the Property to Purchaser
subject to any easements, liens, exceptions, and other encumbrances noted in the
Title Commitment, the Survey, and the Lease (collectively, "Permitted
Exceptions").
7. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to Purchaser as to the following matters, each of which is true and
correct as of the date of this Agreement, and each of which shall be true and
correct as of the date of Closing. As used in this Section, the phrase "to
Seller's knowledge" means Seller's actual knowledge, without duty of inquiry.
(a) Authority. Seller is duly formed in the appropriate state and
has obtained all necessary consents and approvals required by its formation
documents for the execution of this Agreement and the performance of its
obligations arising hereunder;
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(b) Compliance. Seller has received no written notice from any
governmental agency alleging a violation of any statute, ordinance, regulation
or code with respect to the Property which violation has not been cured;
(c) Litigation. There is no pending nor, to Seller's knowledge,
threatened matters of litigation, administrative action or examination, claim or
demand relating to the Property or Seller's interest in the Property;
(d) Eminent Domain. There is no pending nor, to Seller's knowledge,
contemplated or threatened eminent domain, condemnation or other governmental
takings or proceedings relating to the Property or any part thereof; and
(e) Foreign Entity. Seller is not a foreign person or entity under
the Foreign Investment in Real Property Tax Act of 1980, as amended, and no
taxes or withholding under the such act shall be assessed against or imposed
upon Purchaser in connection with the transaction contemplated by this
Agreement.
Seller acknowledges and agrees that the warranties and
representations set forth above shall survive the Closing for a period of six
(6) months. If, prior to Closing, Purchaser receives written notice from Seller
that any material representation or warranty of Seller is untrue and cannot be
remedied, or Purchaser becomes aware that any material representation or
warranty of Seller is untrue and can not be remedied, Purchaser shall, as
Purchaser's sole and exclusive remedy, be entitled to terminate this Agreement
by written notice delivered to Seller on or before the Closing, in which event,
the Deposit shall be refunded to Purchaser, and, except for the terms and
provisions of this Agreement which specifically survive the termination of this
Agreement, the parties shall have no further obligations hereunder. If Purchaser
is so advised and Purchaser fails to terminate this Agreement within such
period, Purchaser shall be deemed to have waived the breach of such
representation or warranty and shall have no further rights or remedies as a
result of the breach of such representation or warranty. Seller does not, by
this Agreement, represent or warrant that there will be no changes in any of the
matters referred to in Seller's representations or warranties after the date
same are made through the acts and/or omissions of persons other than Seller,
and shall have no liability or responsibility in the event that any
representation or warranty becomes false or misleading as a result of any change
in circumstances after the date such representations or warranties are made.
8. COVENANTS OF SELLER.
(a) Actions. From and after the date of this Agreement and until the
date of Closing, Seller shall: (i) use commercially reasonable efforts to keep
(or cause to be kept) the Property fully insured in accordance with prudent and
customary practice and as required by the Leases; (ii) not alienate, encumber or
transfer the Property or any part thereof in favor of or to any other person or
entity unless required by law; and (iii) not amend the Leases without the prior
written consent of Purchaser (which consent shall not be unreasonably withheld,
conditioned or delayed); and
(b) Change in Status. From and after the date of this Agreement and
until the date of Closing, Seller shall promptly give Purchaser written notice
of any change in the status of title to the Property, which either changes the
nature of any Permitted Exceptions or represents an additional encumbrance on
the Property.
9. CLOSING. Seller and Purchaser shall consummate the transactions
contemplated by this Agreement at Closing through an escrow with the Title
Company and pursuant to escrow instructions acceptable to the Title Company,
Seller and Purchaser. The attorneys for Seller and Purchaser are
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authorized to execute the escrow instructions letter, any amendments thereto and
all directions or communications thereunder.
10. SELLER'S OBLIGATIONS AT THE CLOSING. At the Closing, Seller shall:
(a) Deed. Execute and deliver the Deed to Purchaser;
(b) Title Policy. Cause the Title Company to furnish to Purchaser an
owner's policy of title insurance pursuant to the Title Commitment ("Title
Policy");
(c) Closing Statement. Execute and deliver to Purchaser a closing
statement itemizing the Purchase Price and all adjustments thereto as provided
in this Agreement;
(d) Assignment and Assumption of Lease and Guaranty. Execute and
deliver to Purchaser an assignment of all of Seller's right, title and interest
in and to the Lease and Guaranty in substantially the form attached as Exhibit
"C" ("Assignment"), together with such consents to and notices of such
assignment as may be required under the Lease;
(e) Affidavit. Execute and deliver to Purchaser a Non-Foreign
Persons Affidavit in substantially the form attached as Exhibit "D";
(f) Estoppel Certificate . Deliver to Purchaser an original of the
estoppel certificate from the Tenant in the form required by Section 5(d) above;
(g) Notice to Tenant. Execute and deliver to Purchaser a "Notice to
Tenant" substantially in the form attached as Exhibit "E"; and
(h) Additional Documents. Execute and deliver to Purchaser such
other documents or instruments as may be required under this Agreement, or as
otherwise required in Purchaser's reasonable judgment to effectuate the Closing.
11. PURCHASER'S OBLIGATIONS AT CLOSING. Subject to the terms,
conditions, and provisions hereof, and contemporaneously with the performance by
Seller of its obligations under Section 10 above, Purchaser shall:
(a) Purchase Price. Pay Seller the Purchase Price;
(b) Closing Statement. Execute and deliver to Seller a closing
statement itemizing the Purchase Price and all adjustments thereto as provided
in this Agreement;
(c) Assignment and Assumption of Lease and Guaranty. Acknowledge the
Assignment and Assumption of Lease and Guaranty for the purpose of assuming the
obligations of Seller under the Lease and Guaranty; and
(d) Additional Documents. Execute and deliver to Seller such other
documents or instruments as may be required under this Agreement, or as
otherwise required in Seller's reasonable opinion to effectuate the Closing.
Purchaser's obligation to close shall be specifically contingent
upon the Title Company furnishing to Purchaser the Title Policy and the Tenant
executing and delivering to Purchaser estoppel certificates in accordance with
the provisions of the Leases. Purchaser acknowledges that Seller's failure
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to deliver the foregoing items shall not constitute a default by Seller
hereunder, nor expose Seller to damages, but, in such circumstances, Purchaser
shall nonetheless be able to terminate this Agreement and receive the immediate
return of the Deposit.
12. CLOSING COSTS. At the Closing, Seller and Purchaser shall each be
responsible for 1/2 of the costs of closing including, but not limited to :
transfer taxes, transfer fees, recording costs, escrow fee and title commitment
charges Seller shall further be responsible for paying, subject to Section 21
below, the real estate brokerage commissions payable to Broker by reason of the
transaction contemplated by this Agreement. Purchaser shall further be
responsible for: (a) the costs and expenses of any additional endorsements
and/or additional title insurance coverage requests by Purchaser and (b) any
fees or expenses related to updates of the Survey or the environmental site
assessment. Seller and Purchaser shall pay their own attorneys' fees.
13. PRO-RATIONS.
(a) Taxes. Purchaser acknowledges that the Leases obligates the
Tenant to pay the taxes directly to the taxing authority. Accordingly, the
parties shall not prorate taxes between Purchaser and Seller, it being
acknowledged that Tenant shall be responsible for same. In no event shall Seller
be responsible for the payment of any real estate taxes and/or assessments
applicable during its period of ownership in the event the Tenant has defaulted
in the prompt payment of same.
(b) Rent. Rent actually paid for the month in which the Closing
occurs shall be prorated between Seller and Purchaser as of the close of
business on the date of Closing, with Purchaser receiving a credit for amounts
attributable to time periods including and following such date. To the extent
either party hereto receives rent after Closing to which the other has a claim,
such party shall remit same to the party entitled thereto within ten (10) days
of receipt. To the extent any rent arrearages exist under the Leases, Seller
shall have the right, to the extent it is holding a security deposit under the
Leases, to set-off against such security deposit for such arrearages.
14. POSSESSION. Subject to the rights of Tenant under the Lease, Seller
shall deliver possession of the Property to Purchaser at Closing.
15. INSPECTION. From and after the date of this Agreement and until the
expiration of the Inspection Period, Seller agrees that Purchaser and its agents
and representatives shall, subject to arranging all onsite visits with Seller
and Broker, be entitled to enter upon the Property for inspection, soil tests,
examination, land-use planning and for any due diligence investigation relating
to Purchaser's proposed ownership of the Property, subject to the rights of the
Tenant under the Leases. As to any such investigation, Purchaser shall restore
the Property to the same condition as existed prior to any such investigation,
and shall not: (i) perform any invasive tests without Seller's prior consent, or
(ii) interfere with the possessory rights of the Tenant. Purchaser shall
indemnify and hold harmless Seller from and against, and shall reimburse Seller
with respect to, any and all claims, demands, causes of action, loss, damage,
liabilities, costs and expenses (including reasonable attorneys' fees and
disbursements) asserted against or incurred by Seller by reason of or arising
out of any such on-site investigation, it being acknowledged that all such
obligations shall survive the termination of this Agreement.
16. ACKNOWLEDGEMENT. Purchaser understands and acknowledges that Seller
has not made and does not make any representation or warranties whatsoever, oral
or written, express or implied, to Purchaser with respect to the condition,
state of repair or operability of the Property (including but not limited to
environmental protection, pollution or land use laws, rules, regulations, orders
or requirements, including the existence in, on, or under the Property of any
hazardous materials or substances, soil or sub-soil conditions, all improvements
thereon, the structural portions thereof, and the personal property,
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mechanical, plumbing, electrical, sewer, sanitary disposal, heating, ventilating
and air conditioning systems and other building service equipment therein), with
respect to the suitability or fitness for the Purchaser's intended use or
purpose or with respect to the appreciation or income potential of the Property,
the zoning of the Property, the platting of the Property, the availability or
adequacy of utilities to the Property, access to the Property, requirements in
connection with any development of the Property or any other matter whatsoever.
Purchaser further acknowledges and agrees that Purchaser has investigated or
will investigate all matters of concern to Purchaser with respect to the
Property and that Purchaser is not relying and hereby expressly waives any
reliance on any representation or warranty, oral or written, express or implied,
of Seller with respect to such matters. Purchaser agrees to purchase the
Property and all Improvements thereon and mechanical systems therein delivered
to Purchaser, as is, where is, with all faults. Notwithstanding any provision of
this Agreement to the contrary, Purchaser releases Seller from any liability,
claims, damages, expenses of any kind or nature, or any other claim resulting
from the presence, removal or other remediation of hazardous materials or
substances in, on, under or about the Property or which has migrated from
adjacent lands onto the Property or from the Property to adjacent land. The
provisions of this Section 16 shall survive the Closing.
17. FURTHER ASSURANCES. Seller and Purchaser agree to perform such other
acts, and to execute, acknowledge, and/or deliver subsequent to the Closing such
other instruments, documents and other materials as Seller or Purchaser may
reasonably request in order to effectuate the consummation of the transactions
contemplated in this Agreement and to vest title to the Property in Purchaser.
The provisions of this Section 17 shall survive the Closing.
18. DEFAULT BY SELLER. In the event that Seller should fail to
consummate the transactions contemplated by this Agreement for any reason,
excepting Purchaser's default or the failure of any of the conditions to
Seller's obligations hereunder to be satisfied or waived, Purchaser may
terminate this Agreement by giving prompt written notice thereof to Seller, or
specifically enforce this Agreement; provided, however, that in the event that
such failure of Seller was beyond Seller's reasonable control, Purchaser's sole
remedy shall be to terminate this Agreement; provided, further, in the event
Purchaser elects to specifically enforce this Agreement, it must institute such
action within thirty (30) days following Seller's default, failing which,
Purchaser shall be deemed to have waived the right to pursue specific
performance.
19. DEFAULT BY PURCHASER. In the event Purchaser should fail to
consummate the transactions contemplated in this Agreement for any reason,
except default by Seller or the failure of any of the conditions to Purchaser's
obligations hereunder to be satisfied or waived, Seller may retain the Deposit
and terminate this Agreement by giving prompt written notice thereof to
Purchaser, or specifically enforce this Agreement.
20. ATTORNEY'S FEES. Should either Seller or Purchaser employ an
attorney or attorneys to enforce any of the provisions of this Agreement or to
protect its interest in any matter arising under this Agreement or to recover
damages for the breach of this Agreement, the losing party in any final judgment
agrees to pay the prevailing party all reasonable costs, charges, and expenses,
including reasonable attorney's fees, expended or incurred by it in connection
therewith.
21. BROKERAGE COMMISSIONS. Each party represents to the other that no
brokers other than Broker has been involved in this transaction. In the event
that this transaction is consummated and Closing occurs, Seller shall pay Broker
a real estate commission in an amount set forth in a separate written agreement
between Seller and Broker. Seller and Purchaser agree that if any other claims
for brokerage commissions are ever made against Seller or Purchaser in
connection with this transaction, all
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claims shall be handled and paid by the party whose actions or alleged
commitments form the basis of such claim. Seller agrees to indemnify and hold
Purchaser harmless from any loss, liability, damage, cost, or expense
(including, without limitation, reasonable attorney's fees) paid or incurred by
Purchaser by reason of any claim to any broker's, finder's, or other fee in
connection with this transaction by any party claiming by, through, or under
Seller. Except as provided in the foregoing sentence, Purchaser agrees to
indemnify and hold Seller harmless from any loss, liability, damage, cost or
expense (including, without limitation, reasonable attorney's fees) paid or
incurred by Seller by reason of any claim to any broker's, finder's, or other
fee in connection with this transaction by any party claiming by, through, or
under Purchaser, which obligation of each party shall survive the Closing.
22. RISK OF LOSS. All risk of loss or damage to the Property prior to
Closing, including, without limitation, loss by reason of eminent domain or
condemnation proceedings or by reason of fire, windstorm, or other casualty,
shall rest with Seller. If, prior to the Closing, the Property is subject to
eminent domain or condemnation proceedings or is damaged as a result of fire or
other casualty, Seller shall give Purchaser written notice thereof and Purchaser
shall have the option, exercisable by written notice to Seller within ten (10)
days after the date of Seller's notice, to either:
(a) Accept Title. Accept title to the Property without any reduction
of the Purchase Price, in which event, at the Closing and subject to the rights
of Tenant, Seller shall assign to Purchaser any eminent domain or condemnation
award or insurance proceeds payable to Seller or its successors or assigns by
reason of such eminent domain or condemnation proceeding or damage or casualty,
and pay over to Purchaser any monies theretofore received by Seller in
connection with such eminent domain or condemnation proceeding or fire or other
casualty; or
(b) Terminate. Terminate this Agreement, in which event neither
Seller nor Purchaser shall have any further obligations under this Agreement and
the Purchaser shall receive the prompt return of the Deposit.
In the event Purchaser shall fail to exercise either such option
within such ten (10) day period, Purchaser shall be deemed to have elected the
option set forth in Section 22(a).
23. ASSIGNMENT. Except as set forth in Section 31 below, neither
Purchaser nor Seller may assign its respective rights or obligations under this
Agreement without the consent of the other. Provided, however, if Purchaser
shall remain primarily liable hereunder, the Purchaser may assign, with written
notice to the Seller, all or a portion of its interest herein to an affiliate of
Purchaser.
24. NOTICES. Any notice to be given or to be served upon either party in
connection with this Agreement must be in writing and shall be given by
certified or registered mail (return receipt requested), by overnight express
delivery or by facsimile (followed by hard copy by either of the two preceding
methods of delivery) and shall be deemed to have been given upon receipt.
Notices shall be sent to the addresses set forth on the signature page of this
Agreement and shall be deemed delivered upon delivery or on the date when the
receiving party first refuses to accept such delivery. Either party may at any
time, by giving five (5) days written notice to the other, designate any other
address in substitution of any of the foregoing addresses to which such notice
shall be given and other parties to whom copies of all notices under this
Agreement shall be sent.
25. BINDING EFFECT. This Agreement shall be binding upon and shall inure
to the benefit of the Seller and Purchaser and their respective permitted
successors and assigns.
26. ENTIRE AGREEMENT. This Agreement represents the entire agreement
between Seller and Purchaser with respect to the subject matter hereof, and all
prior agreements between
10
Seller and Purchaser with respect to such subject matter shall have no further
force or effect, including, without limitation, any proposal letters.
27. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the Subject State, without giving effect to
principles of conflicts of law.
28. MODIFICATION. This Agreement may only be modified or otherwise
amended by a written instrument executed by duly authorized representatives of
Seller and Purchaser.
29. TIME OF ESSENCE. Time is of the essence of this Agreement.
30. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original, and all of which
together shall constitute one and the same instrument.
31. 1031 EXCHANGE. In the event, prior to Closing, Purchaser shall
desire to structure this transaction as a part of a tax deferred exchange,
pursuant to Section 1031 of the Internal Revenue Code, Purchaser may assign its
rights, but not its obligations, to a Qualified Intermediary under Treasury
Regulation 1.103(k)-(1)(g)(4) and Seller, as an accommodation to Purchaser,
shall enter into and execute any such amendatory documentation as Purchaser may
reasonably request; provided, however, that Seller shall not incur any
additional cost, expense, risk or potential liability whatsoever on account
thereof. Seller shall have no liability to Purchaser whatsoever in the event the
subject transaction is found, held or adjudicated not to qualify as or as a part
of a tax deferred exchange pursuant to Section 1031 of the Internal Revenue
Code.
[Signature page to follow]
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
effective as of the date first written above.
PURCHASER: SELLER:
AEI FUND MANAGEMENT, INC. CAPTEC FRANCHISE CAPITAL PARTNERS L.P. IV
By /s/ Robert P. Johnson
----------------------- By: GP4 Asset Acquisition, LLC
Name: Robert P. Johnson Its: General Partner
Its: President
By: /s/ W. Ross Martin
-----------------------
Print Name: W. Ross Martin
Its: Vice President
Send Notices To:
AEI Fund Management, Inc.
Attention: George J. Rerat Send Notices To:
1300 Wells Fargo Place
30 Seventh Street East Captec Franchise Capital Partners L.P. IV
St. Paul, Minnesota 55101 Attention: Gary A. Bruder
Telephone: (651) 225-7723 24 Frank Lloyd Wright Drive
Facsimile: (651) 227-7705 Lobby L, Fourth Floor, P.O. Box 544
E-Mail: grerat@aeifunds.com Ann Arbor, Michigan 48106-0544
Telephone: 734-994-5505
Facsimile: 734-994-1376
With a Copy To: E-mail: gbruder@captec.com
Michael Daugherty
Daugherty Law Firm With a Copy To:
30 East Seventh Street, Ste 1300 Captec Financial Group, Inc.
Telephone: (612) 720-0777 Attention: Jennifer L. Tingley
Facsimile: 612-677-3181 24 Frank Lloyd Wright Drive
E-Mail: mbdlaw@usinternet.com Lobby L, 4th Floor
Ann Arbor, Michigan 48105
Telephone: (734) 913-0554
Facsimile: (734) 913-0584
E-Mail: jtingley@captec.com
12
SCHEDULE OF EXHIBITS
A - Legal Description of the Land
B - Form of Deed
C - Form of Assignment of Lease
D - Form of Non-Foreign Persons Affidavit
E - Form of Notice to Tenant
13
EXHIBIT A
LEGAL DESCRIPTION
Land situated in the State of Michigan, County of Wayne, City of Southgate,
being in the Northwest 1/4 of Section 26, Township 3 South, Range 10 East,
being more particularly described as follows:
Beginning, for reference, at a point at the North 1/4 corner of said Section
26; thence North 89 degrees 41 minutes 10 seconds West, with the North line of
said Section 26, a distance of 1311.72 feet to a point; thence South 0 degrees
36 minutes 40 seconds West, a distance of 60.00 feet to a point in the Southerly
right-of-way line of Northline Road; thence North 89 degrees 47 minutes 50
seconds West, with the Southerly right-of-way line of said Northline Road, a
distance of 150.00 feet to the true point of beginning; thence, from said true
point of beginning, South 0 degrees 12 minutes 10 seconds West, a distance of
224.56 feet to a point; thence South 43 degrees 14 minutes 13 seconds East, a
distance of 58.07 feet to a point in the Northwesterly right-of-way line of West
Frontage Road; thence South 46 degrees 45 minutes 47 seconds West, with the
Northwesterly right-of-way line of said West Frontage Road, a distance of 240.00
feet to a point; thence North 43 degrees 14 minutes 13 seconds West, a distance
of 6.52 feet to a point; thence North 0 degrees 18 minutes 50 seconds East, a
distance of 136.22 feet to a point; thence North 89 degrees 41 minutes 10
seconds West, a distance of 25.00 feet to a point; thence North 0 degrees 18
minutes 50 seconds East, a distance of 291.05 feet to a point in the Southerly
right-of-way line of said Northline Road; thence South 89 degrees 47 minutes 50
seconds East, with a Southerly right-of-way line of said Northline Road, a
distance of 162.99 feet to the true point of beginning.
EXHIBIT B
FORM OF DEED
[Note: Modify to conform to recording/other requirements of the State of
Michigan.]
WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS: That Captec Franchise Capital Partners LP IV, a
Delaware limited partnership
Whose address is: 24 Frank Lloyd Wright Drive, Lobby L, 4th Floor, Ann Arbor, MI
48106-0544
Conveys and warrants to: AEI FUND MANAGEMENT, INC, a Minnesota corporation
Whose address is: 1300 Wells Fargo Place, 30 Seventh Street East, St. Paul,
Minnesota 55101
The following described premises situated in the City of Southgate, County of
Wayne and State of Michigan, to wit:
See Exhibit "A" attached hereto and made a part hereof
Together with all and singular the tenements, hereditaments and appurtenances
thereto belonging or otherwise appertaining for the sum of: $_______________
THE GRANTOR HEREIN WARRANTS TITLE AGAINST ITS ACTS OR OMISSIONS ONLY AND NONE
OTHER, EXCEPT FOR THE MATTERS SHOWN ON EXHIBIT B ATTACHED HERETO AND MADE A PART
THEREOF.
B-1
IN WITNESS WHEREOF, this Warranty Deed is executed as of the ___ day of
__________________, 2005.
CAPTEC FRANCHISE CAPITAL PARTNERS L.P. IV
Signed in the presence of: By: GP 4 Asset Acquisition, LLC
Its: General Partner
______________________________ By: _________________________
______________________________ Its: ________________________
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this ___ day of
_________________, 2005, by ________________, who is personally known to me, as
Vice President of GP 4 Asset Acquisition LLC, a Michigan limited liability
company and the general partner of Captec Franchise Capital Partners L.P. IV, a
Delaware limited partnership, on behalf of the limited partnership.
______________________________________________
Name: ________________________________________
State of Michigan, County of Washtenaw
My Commission Expires: _______________________
Acting in the County of Washtenaw
When recorded return to:
Grantee
This instrument prepared by:
Captec Financial Group, Inc.
24 Frank Lloyd Wright Drive
Lobby L, 4th Floor
Ann Arbor, MI 48106-0544
B-2
EXHIBIT "A"
LEGAL DESCRIPTION
Land situated in the State of Michigan, County of Wayne, City of Southgate,
being in the Northwest 1/4 of Section 26, Township 3 South, Range 10 East,
being more particularly described as follows:
Beginning, for reference, at a point at the North 1/4 corner of said Section
26; thence North 89 degrees 41 minutes 10 seconds West, with the North line of
said Section 26, a distance of 1311.72 feet to a point; thence South 0 degrees
36 minutes 40 seconds West, a distance of 60.00 feet to a point in the Southerly
right-of-way line of Northline Road; thence North 89 degrees 47 minutes 50
seconds West, with the Southerly right-of-way line of said Northline Road, a
distance of 150.00 feet to the true point of beginning; thence, from said true
point of beginning, South 0 degrees 12 minutes 10 seconds West, a distance of
224.56 feet to a point; thence South 43 degrees 14 minutes 13 seconds East, a
distance of 58.07 feet to a point in the Northwesterly right-of-way line of West
Frontage Road; thence South 46 degrees 45 minutes 47 seconds West, with the
Northwesterly right-of-way line of said West Frontage Road, a distance of 240.00
feet to a point; thence North 43 degrees 14 minutes 13 seconds West, a distance
of 6.52 feet to a point; thence North 0 degrees 18 minutes 50 seconds East, a
distance of 136.22 feet to a point; thence North 89 degrees 41 minutes 10
seconds West, a distance of 25.00 feet to a point; thence North 0 degrees 18
minutes 50 seconds East, a distance of 291.05 feet to a point in the Southerly
right-of-way line of said Northline Road; thence South 89 degrees 47 minutes 50
seconds East, with a Southerly right-of-way line of said Northline Road, a
distance of 162.99 feet to the true point of beginning.
B-3
EXHIBIT "B"
Permitted Exceptions
B-4
EXHIBIT C
FORM OF ASSIGNMENT OF LEASE AND GUARANTY
[Note: Modify to conform to recording/other requirements of the State of Texas.]
ASSIGNMENT OF LEASE AND GUARANTY
THIS ASSIGNMENT OF LEASE ("Assignment") is made as of ________________, 2005, by
and between CAPTEC FRANCHISE CAPITAL PARTNERS L.P. IV a Delaware limited
partnership, whose address is 24 Frank Lloyd Wright Drive, Lobby L, 4th Floor,
P.O. Box 544, Ann Arbor, Michigan 48106-0544 ("Assignor") and AEI FUND
MANAGEMENT, INC, a Minnesota corporation, of 1300 Wells Fargo Place, 30 Seventh
Street East, St. Paul, Minnesota 55101 ("Assignee").
RECITALS:
Assignor leases to Sybra, Inc., a Michigan corporation ("Tenant"), the
Leased Premises (as defined in the Lease described below), located at 18767
Northline, Southgate, MI ("Premises"), pursuant to a Lease dated as of August 4,
1998, as amended, a true and complete copy of which is attached as Exhibit 1
("Lease").
In connection with, and in consideration of, the acquisition of the Leased
Premises by the Assignee, Assignor has agreed to assign, transfer and convey to
Assignee all of Assignor's right, title and interest in and to: (a) the Lease,
and (b) the security deposit(s), if any, paid by Tenant under the Lease
("Security Deposit") and (c) the guaranty of Tenant's duties and obligations
under the Lease, given by ICH Corporation dated April, 2001, as amended, a true
and complete copy of which is attached as Exhibit 2 ("Guaranty").
Assignee agrees to accept the assignment of those items described above
and Assignee further agrees to perform all of the Assignor's obligations under
or relating to the Lease and the Security Deposit, if any, and the Guaranty,
arising from and after the date of this Assignment.
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, Assignor
and Assignee agree as follows:
1. Assignment and Assumption. Assignor hereby assigns to Assignee all of
Assignor's right, title and interest in, to and under the Lease and the Security
Deposit and the Guaranty, and Assignee assumes all of Assignor's duties and
obligations under the Lease and the Security Deposit and the Guaranty and agrees
to perform and to be bound by all of the terms and provisions of the Lease and
the Security Deposit and the Guaranty in the place and stead of Assignor arising
from and after the date of this Assignment. Assignee further agrees to indemnify
and hold harmless Assignor from and against all claims, awards, liabilities or
damages resulting from the acts and/or omissions of Assignee from and after the
date of this Assignment.
2. Representation. To Assignor's knowledge, the Lease and the Guaranty are
in full force and effect and have not been modified, amended or restated (except
as identified in Exhibit 1 and/or Exhibit 2 attached hereto).
C-1
3. Miscellaneous. This Assignment shall bind and inure to the benefit of
the parties hereto, their successors and assigns. This Assignment shall be
governed by and construed in accordance with the laws of the State where the
Leased Premises is located, without giving effect to principles of conflicts of
law. This Assignment may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
This Assignment has been executed as of the day and year noted above.
WITNESSES:
CAPTEC FRANCHISE CAPITAL PARTNERS L.P. IV
By: GP4 Asset Acquisition, LLC
Its: General Partner
_______________________________ By: ________________________________
Print Name: Print Name:
_______________________________ Its: ________________________________
Print Name:
AEI FUND MANAGEMENT, INC.
_______________________________ By: ________________________________
Print Name: Print Name:
_______________________________ Its: ________________________________
Print Name:
C-2
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this __ day of
______________, 2005, by ___________________________, who is personally known to
me, as Vice President of GP4 Asset Acquisition LLC, a Michigan limited liability
company and the general partner of Captec Franchise Capital Partners L.P. IV, a
Delaware limited partnership, on behalf of the limited partnership.
_____________________________________________
Name: _______________________________________
State of Michigan, County of Washtenaw
My Commission Expires: ______________________
Acting in the County of Washtenaw
STATE OF MINNESOTA )
)ss.
COUNTY OF RAMSEY )
The foregoing instrument was acknowledged before me this __ day of ___________,
2005, by ___________________________, who is personally known to me, as
__________________ of AEI Fund Management, Inc., a Minnesota corporation, on
behalf of the company.
_____________________________________
Notary Public
County, Minnesota
My Commission Expires: __________________
[Notary's Seal]
Prepared by and recorded
at the request of: Grantor
When recorded return to: Grantee
C-3
EXHIBIT 1
TO
ASSIGNMENT OF LEASE
[Attach copy of Lease]
C-4
EXHIBIT 2
TO
ASSIGNMENT OF LEASE
-------------------
[Attach copy of Guaranty]
C-5
EXHIBIT D
FORM OF NON-FOREIGN PERSONS AFFIDAVIT
NON-FOREIGN PERSONS AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a transferee
(purchaser) of a United States real property interest must withhold tax if the
transferor (seller) is a foreign person. To inform AEI FUND MANAGEMENT, INC
("Transferee"), that withholding of tax is not required upon the disposition of
a United States real property interest by CAPTEC FRANCHISE CAPITAL PARTNERS L.P.
IV, a Delaware limited partnership ("Transferor"), the undersigned certifies the
following on behalf of Transferor:
1. Transferor is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the
Internal Revenue Code and Income Tax Regulations);
2. Transferor's United States Employer Identification Number is
38-3304096;
3. Transferor's office address is 24 Frank Lloyd Wright Drive, Lobby L,
Fourth Floor, Ann Arbor, Michigan 48105.
Transferor understands that this certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct,
and complete, and I further declare that I have authority to sign this document
on behalf of Transferor.
CAPTEC FRANCHISE CAPITAL
PARTNERS L.P. IV
By: GP4 Asset Acquisition, LLC
Its: General Partner
By:____________________________________
Print Name:
Its:___________________________________
Dated as of __________, 2005.
D-1
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this __ day of
______________, 2005, by ___________________________, who is personally known to
me, as Vice President of GP4 Asset Acquisition LLC, a Michigan limited liability
company and the general partner of Captec Franchise Capital Partners L.P. IV, a
Delaware limited partnership, on behalf of the limited partnership.
______________________________________
Name: ________________________________
State of Michigan, County of Washtenaw
My Commission Expires: _______________
Acting in the County of Washtenaw
D-2
EXHIBIT E
FORM OF NOTICE TO TENANT
_____________, 2005
Sybra, Inc.
9255 Towne Centre Dr., Ste 600
San Diego, CA 92121
Attn: Director of Real Estate
ICH Corporation
780 Third Ave., 43rd Floor
New York, NY 10017
Attn: Robert H. Drechsler
Ladies and Gentlemen:
This is to inform you that on __________________, 2005 the interest of
Captec Franchise Capital Partners L.P. IV ("Seller") in that certain Lease,
dated as of August 4, 1998, as amended ("Lease"), between Seller's predecessor
in interest, Captec Net Lease Realty, Inc., as landlord, and Tenant's
predecessor in interest, RTM, Inc., as tenant, and in that certain Guaranty,
dated April 2001 ("Guaranty") between Seller and ICH Corporation, as Guarntor,
for the real property located at 18767 Northline, Southgate, MI has been
assigned to AEI FUND MANAGEMENT, INC. Accordingly, all future payments owed, and
notices to be given, to the landlord under the Lease should be delivered to AEI
FUND MANAGEMENT, INC at the following address: Attn: Lease Management, 1300
Wells Fargo Place, 30 Seventh Street East, St. Paul, Minnesota 55101.
Very truly yours,
CAPTEC FRANCHISE CAPITAL
PARTNERS L.P. IV
By: GP4 Asset Acquisition LLC
Its: General Partner
By ____________________________________
Print Name:
Its Vice President