ASSIGNMENT OF
DEVELOPMENT FINANCING AND LEASING COMMITMENT
THIS ASSIGNMENT made and entered into this 10th day of
November, 2003, by and between AEI FUND MANAGEMENT, INC., a
Minnesota corporation, ("Assignor") and AEI INCOME & GROWTH FUND
25 LLC, a Delaware limited liability company ("Assignee");
WITNESSETH, that:
WHEREAS, on the 30th day of September, 2003, Assignor
entered into a Development Financing and Leasing Commitment ("the
Commitment") for that certain property located at 0000 X. Xxxxxxx
Xxxx, Xxxxxx, Xxxx, XX (the "Property") with SWH Corporation., as
Lessee; and
WHEREAS, Assignor desires to assign an undivided fifty
percent (50.0%) of its rights, title and interest in, to and
under the Commitment to Assignee as hereinafter provided;
NOW, THEREFORE, for One Dollar ($1.00) and other good and
valuable consideration, receipt of which is hereby acknowledged,
it is hereby agreed between the parties as follows:
1. Assignor assigns all of its rights, title and interest
in, to and under the Commitment to Assignee, to have and to
hold the same unto the Assignee, its successors and assigns;
2. Assignee hereby assumes all rights, promises,
covenants, conditions and obligations under the Commitment
to be performed by the Assignor thereunder, and agrees to be
bound for all of the obligations of Assignor under the
Commitment.
All other terms and conditions of the Commitment 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 25 LLC ("Assignee")
BY: AEI FUND MANAGEMENT XXI, INC.
By:/s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, its President
DEVELOPMENT FINANCING AND LEASING COMMITMENT
(the "Commitment")
September 30, 2003
AEI Fund Management, Inc., or its assigns, ("AEI"), agrees
to purchase, and you, SWH Corporation ("Lessee"), agree to sell
to and simultaneously lease from AEI, a parcel of land in the
City of Kansas City, Platte County, Missouri, legally described
on Exhibit "A" attached hereto (together with the "Improvements"
as defined below, the "Parcel"), with the understanding that the
building, site improvements, fixtures, HVAC, non-trade fixture
items financed by AEI, constituting a Mimi's Cafe restaurant (the
"Improvements") is to be developed by you on the Parcel after
AEI's purchase of the Parcel from the party with whom you have a
binding purchase agreement ("Seller"), which Parcel's development
and lease will be subject to the provisions and conditions herein
contained:
A. LESSEE
Lessee Name: SWH Corporation
00000 X 00xx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
B. ACQUISITION OF PARCEL
This Commitment is contingent upon AEI's purchase of the
Parcel from Seller (as defined below), pursuant to an
assignment to AEI of the purchaser's interest in a Purchase
and Sale Agreement ("Purchase Agreement") dated August 19,
2003 by and between Lessee and Zona Xxxx Development, LLC
("Seller"). Said purchase agreement and assignment shall be
in a form and substance reasonably satisfactory to AEI. The
assignment of the purchase agreement to AEI would not be
effective until the Closing Date, defined in Article D.2.
C. FEES AND COSTS
1. A commitment fee of $22,000, equal to One percent
(1.0%) of the "Land and Hard Costs" shown on Exhibit
"B" (the "Commitment Fee"), will be payable by Lessee
to AEI upon the signing and delivery of this Commitment
by Lessee to AEI. Lessee's estimate of the total
project cost that will be incurred to acquire the land
and complete the Improvements, is set forth on Exhibit
"B" ("Estimated Total Project Cost"). A complete and
accurate Total Project Cost Budget shall be submitted
by Lessee and approved by AEI and attached to the
Development Financing Agreement (as set forth below)
between Lessee and AEI as a condition precedent to
AEI's obligations hereunder. AEI shall fund up
$2,200,000 of the Total Project Cost. AEI shall
purchase the Parcel and thereafter AEI shall fund all
hard construction costs for completion of the
Improvements up to the aggregate AEI funding amount of
$2,200,000. Lessee shall thereafter fund the
difference between $2,200,000 and the Total Project
Cost Budget ("Lessee Equity Contribution"). Lessee
Equity Contributions shall not give Lessee any
ownership interest in any of the real property fixtures
or Improvements paid for with such contributions.
Subject to Article L hereof, the Commitment Fee shall
be considered earned upon AEI's execution and delivery
of this Commitment to Lessee.
2. All outstanding real estate taxes, and levied and
pending special assessments, due and payable prior to
the Closing Date, as defined in Article D.2 hereof, or
assessed for the year in which closing shall occur, if
due and payable in the year in which closing shall
occur, shall be paid by Seller or Lessee in full at or
prior to the Closing Date (pro-rated in the Seller's
Purchase Agreement for the Parcel as of the Closing
Date).
3. Lessee shall pay all expenses incident to the Closing
and necessary to comply with the requirements herein,
as consistent with this Commitment, including AEI's
legal costs incurred by AEI (capped at $5,000) and
reimburseable to Lessee in such amounts as agreed to by
AEI as set forth on the Estimated Total Project Cost
Budget, to be agreed upon between the parties in
connection with the Development Financing Agreement,
and itemized substantially in the form as set forth on
Exhibit B .
4. AEI shall permit Lessee to construct the Improvements
on the Parcel owned by AEI, according to the plans and
specifications submitted to AEI, and pursuant to a
construction contract between Lessee and its contractor
("General Contractor"), a copy of which shall be
provided in advance of the Closing Date to AEI. Subject
to the terms of the Development Financing Agreement, to
be negotiated between the parties, funds will be
advanced for the construction of the Improvements,
capped by the limitations set forth below (the
"Development Financing").
The portion of the Actual Total Project Cost (defined
in Article D.1 hereof) to be funded by AEI, shall not
exceed the lesser of $2,200,000, or the approved MAI
appraised value. Provided, however, that the
Development Financing Agreement shall provide that upon
uncured default by Lessee (after the expiration of
applicable notice and cure periods), in order to
complete the Improvements, AEI may fund up to
$3,000,000 in Development Financing for which Lessee
shall be responsible under the terms of the Development
Financing Agreement.
D. CLOSING TERMS
1. Actual Total Project Cost: The portion of the Actual
Total Project Cost to be funded by AEI as set forth in
paragraph C(4) above will include only all verifiable
project costs actually incurred, either as part of the
Estimated Total Project Cost Budget, or subsequently
(the "Actual Total Project Cost"), being those costs
described on Exhibit "B" attached hereto.
2. Closing Date: The closing date for AEI's purchase of
the Parcel from Seller and the commencement of the
Lease described in Article F. hereof shall coincide
with the date set forth in the Purchase Agreement
whereby Lessee and Seller are obligated to close escrow
(the "Closing Date"), provided, AEI shall not be
obligated to close until after delivery and approval of
all of the items contemplated hereunder including, but
not limited to, the execution of the documents
described in Article H. hereof. If Lessee has not
performed under this Commitment by April 1, 2004, this
Commitment shall be null and void at the option of AEI.
In the event Lessee requests an extension of this
Commitment, and said extension is approved by AEI in
its sole discretion, a written addendum to this
Commitment shall be required.
3. Closing Agent: The closing contemplated hereunder
shall be handled by LandAmerica National Commercial
Services, 0000 Xxxxx Xxxxxxx Xxx., Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000, Attn: Escrow No. X03-28492 ("Escrowee"),
acting under instructions from Lessee's and AEI's
counsel.
4. This Commitment shall not be assignable by Lessee
without AEI's prior written approval, by law, or
otherwise, but may be assigned by AEI at its option, in
whole or in part, in such manner as AEI may determine,
to an affiliate or affiliates of AEI. Notwithstanding
the foregoing, at Lessee's option, and upon Lessee's
request, AEI shall consent to the assignment of this
Commitment by Lessee to a wholly-owned subsidiary of
Lessee formed by Lessee for the purpose of operating
Lessee's restaurants within the State of Missouri. If
this Commitment shall be so assigned, Lessee shall
agree to be a Guarantor of the Development Financing
Agreement and of the Lease.
5. Parcel Inspection: As a condition precedent to AEI's
obligations hereunder, the Parcel shall be inspected
and approved by AEI. AEI shall be paid a $2,000 Site
Inspection Fee to be paid upon return of this signed
Commitment by Lessee.
6. As a condition precedent to closing on AEI's
acquisition of the Parcel and AEI's first disbursement
for the Development Financing, the supporting
documentation listed below must be submitted to AEI not
less than ten (10) business days prior to the Closing
Date, in form and content satisfactory to AEI and its
counsel:
a. Lessee is to furnish AEI with an acceptable cost
breakdown itemizing estimated construction costs,
including, but not limited to, land acquisition,
building and landscaping construction costs,
reflected on an Estimated Total Project Cost
Budget;
b. The Lessee shall submit to AEI current financial
statements as described on Exhibit "C".
c. The Lessee shall furnish a commitment for an ALTA
Owner's Policy of Title Insurance insuring
marketable title in the Parcel, subject only to
such matters as AEI may approve and excluding
exceptions for mechanic's liens, survey and
parties in possession (the "Title Commitment") The
policy shall be issued by the national office of
Lawyer's Title Insurance Corporation (the "Title
Company") and shall contain such endorsements as
AEI may require including, a future disbursements
endorsement up to the Estimated Total Project
Cost, an extended coverage endorsement, creditor's
rights endorsement, and an owners comprehensive
coverage endorsement. The Title Commitment shall
list Seller as the present fee owner and should
show AEI as the fee owner to be insured. The
Title Commitment shall also include an itemization
of all outstanding and pending special assessments
or should state that there are none, if such is
the case, and state the manner in which any
outstanding assessments are payable, that is,
whether they are payable in monthly or yearly
installments, setting forth the amount of each
such installment and its duration. The Title
Commitment shall also include an itemization of
taxes affecting the Parcel and the tax year to
which they relate; should state whether taxes are
current and, if not, shall show the amounts
unpaid, the tax parcel numbers, and whether the
tax parcel includes property other than the Parcel
to be purchased. All easements, restrictions,
documents, and other items affecting title should
be listed in Schedule "B" of the Title Commitment.
COPIES OF ALL INSTRUMENTS CREATING SUCH EXCEPTIONS
MUST BE ATTACHED TO THE TITLE COMMITMENT. During
construction of the Improvements, AEI is to be
furnished with down-date endorsements to the
owner's title insurance policy with continuing
affirmative mechanic's lien coverage pursuant to
acceptable endorsements increasing coverage to the
aggregate of all disbursements made by AEI to the
date thereof.
d. AEI is to be furnished with a policy of builder's
risk insurance by Lessee, as well as public
liability coverage, hazard insurance,and xxxxxxx'x
compensation coverage by the General Contractor,
all in such amounts and placed with such companies
as may be reasonably acceptable to AEI, in
accordance with the Instructions to Insurance
Agent set forth on Exhibit "D-1" attached hereto.
In addition, AEI shall be furnished with
reasonably satisfactory flood and earthquake
insurance, unless reasonably satisfactory evidence
is given that the Parcel is not located within a
federally designated flood plain area or is above
the applicable 100 year flood plain level, and not
in a federally designated earthquake prone area or
is not in an ISO High Risk Earthquake Zone
respectively.
All policies of insurance must name as
additional named insureds: AEI or its specific
assigns and the Corporate General Partners of AEI
and of said assignee, and Xxxxxx X. Xxxxxxx, as
the Individual General Partner of said assignee,
and Lessee as insured or additional insured, as
their respective interests may appear, and shall
provide that the policies cannot be canceled
without thirty (30) days written notice to the
parties. In addition, all policies shall contain
endorsements by the respective insurance companies
waiving all rights of subrogation, if any, against
the parties named as insured or additional
insured. All insurance companies must be approved
in writing by AEI. No closing will occur without
all insurance policies completed and in place.
e. Preliminary survey acceptable to AEI prepared by a
licensed surveyor, complying with the guidelines
set forth on Exhibit "E-1" attached hereto.
f. Final plans and specifications for the
Improvements upon which construction shall
commence, prepared by an architect or engineer
reasonably acceptable to AEI.
g. A soils report prepared by an engineer reasonably
acceptable to AEI.
h. Appraisal of the Parcel by an independent MAI
appraiser acceptable to AEI at the expense of
Lessee (AEI shall make the initial attempts to
obtain such appraisal in a form satisfactory to
AEI).
i. AEI shall procure (with Lessee's cooperation) a
letter from the appropriate officer of the
municipality or county exercising land use control
over the Parcel (if it is the policy of such
municipality or county to issue such a letter)
stating: (a) the zoning code affecting the
Parcel; (b) that the Parcel and its intended use
complies with such zoning code, city ordinances
and building and use restrictions; (c) that there
are no variances, conditional use permits or
special use permits required for use of the
Improvements on the Parcel, or if such permits are
required, specifying the existence of same and
their terms, and (d) that the Parcel complies with
the platting ordinances affecting them and can be
conveyed without the requirement of a plat or
replat of the Parcel. If the Parcel falls within
any subdivision rules or regulations, evidence of
compliance with such subdivision regulations, or
waiver of the same by the appropriate officials,
is required.
j. AEI shall procure (with Lessee's cooperation)
written advice from all proper public utilities
and municipal authorities, that utility services
are available to the Parcel for gas, electricity,
telephone, water and sewer. Lessee shall provide
AEI a copy of Lessee's site investigation report
for the Parcel.
k. Copy (which is acceptable if transmitted to AEI
via telecopier) of the building permit for
construction of the Improvements on the Parcel.
l. Copies of all construction contracts or accepted
bid(s) constituting the same.
m. Copy of architect's contract or letter agreement
constituting the same, to be collaterally assigned
to AEI during the construction of the Improvements
contemplated for the Parcel; AEI understands that
the architect's costs are not being funded by AEI,
but AEI shall have an enforceable right to engage
the Architect at Lessee's expense to complete the
Improvements in the event of default by Lessee.
n. Copy of purchase agreement for the land between
Lessee and Seller and all amendments and
assignments of said purchase agreement, including
the assignment of the purchase agreement to AEI.
o. Photographs of all sides of the Parcel.
p. To the extent not already furnished to AEI in
connection with previous transactions between
Lessee and AEI, copies of the Articles of
Formation or Incorporation, By-Laws (and/or
Operating or Membership Agreement) and Good
Standing Certificate for the Lessee and any
Corporate or Partnership Guarantor, and at
closing, Lessee and Guarantors shall deliver the
certificate of the corporate secretary that the
documents previously supplied to Lessor remain in
full force and effect. Such certificate shall be
delivered at closing together with all other
documents AEI deems necessary to support the
authority of the persons executing any documents
on behalf of the corporation, including encumbancy
certificates and corporate resolutions of the
directors and shareholders (or of the Partnership,
including resolution of the partners).
q. UCC searches on Seller and Lessee from the offices
of the Secretary of State and the county recorder
for the state and county in which the Parcel is
located.
r. Reliance letter in favor of AEI allowing AEI to
rely upon that certain Phase I Environmental
Assessment Report prepared by Kingston
Environmental Services, dated January 2002, which
Report AEI has reviewed and approved for its
purposes .
At closing, Lessee shall deliver:
s. Executed documents described in Article H. hereof.
7. At the completion of construction of the Improvements
on the Parcel and prior to the Final Disbursement of the
Development Financing, Lessee shall deliver the following
documents to AEI:
a. Certificate of Completion executed by the Project
Architect having inspected the Parcel during the
course of construction, and executed by the
General Contractor. Said Certificate shall be in
a form reasonably satisfactory to AEI, and
substantially similar to the form previously
delivered by Lessee in prior transactions with
Lessor or its affiliates.
b. Certificate of Occupancy.
c. Copies of all necessary permits and licenses of
any governmental body or authority which are
necessary to permit the use and occupancy of the
Improvements on the Parcel, specifically
including, but not limited to, liquor licenses.
d. Certified cost statement itemizing the Actual
Total Project Costs signed by the Lessee and
related documentation supporting said project
costs.
e. Insurance policies issued by companies reasonably
acceptable to AEI for coverage as required by the
lease, with AEI named as additional named insured,
complying with the guidelines set forth on Exhibit
"D-2" attached hereto.
f. As-built survey, complying with the requirements
of Exhibit "E-2" attached hereto.
g. Final date-down endorsement to title policy.
h. Final draw documentation as required by the
development financing documentation described in
Article E. hereof.
i. Estoppel from Lessee.
j. Lease amendment setting forth the second full
lease year's commencement date, the rent for the
remainder of the term and terminating the
Development Financing Agreement (as described in
Article E. hereof).
E. DEVELOPMENT FINANCING TERMS
Disbursements for construction of the Improvements, the
Development Financing, will be made in accordance with the
provisions of the Development Financing Agreement and Development
Financing Disbursement Agreement to be negotiated between the
parties prior to the closing date, in form and substance
reasonably satisfactory to AEI, which forms shall be deemed to be
reasonable if used by AEI with like parties similar in credit and
size to Lessee.
F. LEASE TERMS
The Lease, in the form to be agreed upon between the parties
hereto prior to the Closing Date (in form and substance
reasonably satisfactory to AEI, which forms shall be deemed to be
reasonable if used by AEI with like parties similar in credit and
size to Lessee), will be executed and delivered by AEI and Lessee
at Closing, to include the following terms (as further defined in
the Lease or Development Financing Agreement):
1. Base Rent:
a. Annual rent on the Disbursed Funds from date of
disbursement through the Rental Modification Date
(absent default by Lessee): Six percent (6%).
b. Initial Annual Rent as a Percentage of
Actual Total Project Cost from the Rental
Modification Date or the Final Disbursement Date
(as both are defined in the Development Financing
Agreement): Nine and one-quarter percent (9.25%).
Rent shall be payable in advance of the first day
of each month in equal monthly installments.
c. After the Final Disbursement of Development
Financing Proceeds, Annual Rent shall increase at
the beginning of the Sixth Lease Year and every
Fifth Lease Year thereafter by the lesser of Ten
Percent (10%) of the Rent payable for the prior
Lease Year, or two times the CPI increase for such
five year periods.
2. Initial Lease Term: Twenty (20) years plus the
Development Financing Period set forth in the
Development Financing Agreement.
3. Renewal Terms: Three (3) terms of five (5) years each
with rent increases as set forth above in Article
F.1.c.
4. Type of Use: Mimi's Cafe restaurant or other trade
name used by Lessee.
5. Lease effective date: The Lease shall be effective as
of the Closing Date.
6. Lessee's Right of Assignment: The Lease shall not be
assignable by Lessee until after the Final Disbursement
Date, and then only in accordance with the terms of the
Lease. However, after the Final Disbursement Date, the
Lease shall provide that Lessee may assign its interest
under the following conditions:
Except as hereinafter expressly provided, Lessee shall
not assign or sublet all or any part of this Lease or
Lessee's interest in the Leased Premises (collectively
called "Transfer") without first procuring the written
consent of the Lessor. The foregoing notwithstanding,
none of the following events shall be deemed a Transfer
hereunder: (i) the assignment of the Lease or sublease
of the Premises to Lessee's subsidiary, parent or
affiliate, (ii) the sale of a majority of Lessee's
stores in Missouri to a major national or regional
restaurant operator meeting the criteria set forth
below addressing where Lessor shall agree to consent to
a transfer of Lessee's interest, (iii) the assignment
of this Lease or sublease of the Premises to a
successor corporation as a result of a merger or
consolidation with another company, and (iv) the
assignment of the Lease or sublease of the Premises to
a corporation the stock of which is registered for
public sale with the United States Securities Exchange
Commission and whose asset base is substantially
similar to, or greater than, Lessee; provided that
within fifteen (15) days after the effective date of
any such events (i) through (iv) the assignee or
sublessee executes and delivers to Lessor an instrument
containing an express assumption of all of Lessee's
obligations under this Lease and delivers to Lessor the
written affirmation of Lessee's continuing liability
under the Lease.
Lessor agrees to consent to any proposed assignment or
sublease requiring the Lessor's prior written consent,
where each of the following criteria is reasonably
satisfied:
(a) the transferee has not less than five (5) other
operating, Strong Regional or Nationally Known Brand
Name Chain Restaurants (as defined below), each
producing annual sales above $2.1 million for the
preceding three years;
(b) the transferee has"Net Worth" of not less than one
million dollars ($1,000,000);
(c) the transferee has not less than five (5) years
experience in Strong Regional or Nationally Known Brand
Name Chain Restaurant operations. The term "Strong
Regional or Nationally Known Brand Name Chain
Restaurants" shall mean a chain of a minimum of 50
restaurants with common set standards for (i) building
design and appearance, (ii) building maintenance and
repairs, (iii) operational procedures, and (iv) store
marketing. The chain is to derive substantially all of
its revenue from the operations of full service casual
dining restaurants; and
(d) Lessee is not in default of this Lease beyond any
applicable cure period.
G. GUARANTOR(S) OF LEASE AND DEVELOPMENT FINANCING AGREEMENT
Not Applicable unless Lessee shall assign this Commitment,
in which case Lessee shall be a Guarantor of the Lease
and Development Financing Agreement.
H. DOCUMENTS
The documents listed below shall be prepared by AEI's
counsel in accordance with the terms hereof and executed at,
or prior to, the Closing Date in form and substance
satisfactory to AEI:
1. Development Financing Agreement;
2. Development Financing Disbursement Agreement;
3. Assignment of purchase agreement for the land;
4. Collateral Assignments of construction contracts
or accepted bids in lieu thereof and architect's
contract, and consents thereto signed by the
Contractor and Architect, respectively.
5. Net Lease Agreement;
6. Affidavit of Lessee;
7. Hazardous Substances
Indemnification Agreement of Lessee and
Guarantors;
8. FIRPTA Affidavit of Seller;
9. Guaranties of Development Financing Agreement (if
applicable);
10. Guaranty of Lease (if applicable);
Lessee's counsel shall submit to AEI's counsel, the
following, within 5 business days prior to closing:
Attorney's Opinion Letter to be given by Lessee's internal
and outside counsel necessarily familiar with the conduct of
Lessee's business and the jurisdiction in which the Parcel
is situated to render such opinion, as to the enforceability
of the Lease and compliance of the Lease with local law and
due authority of the signatures, in a form and substance
reasonably satisfactory to AEI. Such form of opinion shall
be satisfactory if reasonably similar in form and content
(except as to matters and documents particular to this
transaction) to opinions previously delivered to AEI or its
affiliates by similarly situated Lessees;
A copy of the proposed warranty deed and opinions to AEI's
counsel for its review and approval prior to closing and
such other documents as the Title Company deems necessary
for the terms contemplated hereunder in accordance with the
provisions of this Commitment.
I. FAIR CREDIT REPORTING ACT
Lessee warrants that all credit information submitted is
true and correct, and authorizes AEI to make credit
investigations and obtain credit reports and other financial
information, written or oral, respecting Lessee's credit and
financial positions, as it may deem necessary or expedient
at Lessee's cost and expense (to be capped at $1,000.)
J. INTERPRETATION
This Commitment and the terms of the transaction
contemplated to be made in conformity herewith, shall be
construed in accordance with all applicable governmental
regulations and in accordance with the laws of the state
where the Parcel is located.
K. CERTIFICATION
Lessee hereby certifies that:
1. It has no actions or proceedings pending, which would
materially affect the Parcel or Lessee, except matters
fully covered by insurance;
2. The consummation of the transactions contemplated
hereby, and the performance of this Commitment and the
delivery of the Lease and other security and credit
instruments contemplated hereunder, will not result in
any material breach of, or constitute a material
default under, any indenture, bank loan or credit
agreement, or other instruments to which Lessee is a
party or by which Lessee may be bound or affected,
which breach or default would have a material adverse
effect on Lessee's performance under this Commitment;
3. All of Lessee's covenants, agreements, and
representations made herein, and in any and all
documents which may be delivered pursuant hereto, shall
survive the delivery to AEI of the Lease and other
documents furnished in accordance herewith, for one
year from the Final Disbursement Date, and the
provisions hereof shall continue to inure for such
period to AEI's benefit, and its successors and
assigns;
4. The Parcel is in good condition, substantially
undamaged by fire and other hazards, and has not been
made the subject of any condemnation proceeding.
L. TERMINATION
This Commitment may be terminated in writing prior to
closing at AEI's option in such manner as AEI may reasonably
determine, if: 1) Lessee fails to comply with any of the
material terms hereof, including but not limited to,
obtaining AEI's approval of the documents listed in Article
D.6. hereof, and does not satisfactorily cure the same on or
before the Closing Date; 2) a material default exists in any
financial obligation of Lessee which would have a material
adverse effect on Lessee's performance under this
Commitment; 3) any representation made in any submission
proves to be materially untrue, materially false or
misleading, at any time prior to the Closing Date which
would have a material adverse effect on Lessee's performance
under this Commitment; 4) there has been a material adverse
change in the financial condition of Lessee or there shall
be a material action, suit or proceeding pending or
threatened against Lessee which would have a material
adverse effect on Lessee's performance under this
Commitment; 5) any bankruptcy, reorganization, insolvency,
withdrawal, or similar proceeding is instituted by or
against Lessee and such proceeding is not removed prior to
Closing; 6) Seller's financial condition gives rise to a
commercially reasonable risk that the transaction
contemplated hereby constitutes a fraudulent conveyance
subject to attack by Seller's creditors. In any of the
foregoing events (1) through (5), the Commitment Fee shall
be retained by AEI. In the foregoing event (6), the
Commitment Fee shall be returned to Lessee, less the
itemized, actual, third party costs then expended by AEI in
furtherance of this Commitment.
In the event Lessee and AEI do not reach mutual agreement
prior to the Initial Disbursement of Funds on the documents
contemplated to be executed by either party hereunder, by
delivery of written notice to the other party, this
Commitment may be terminated at the option of either party.
AEI and Lessee acknowledge the unique nature of the Parcel
and agree that the mutual remedies of any party hereunder
shall be limited to the liquidated damages in the amount of
either the return of the Commitment Fee to Lessee or
retention of the Commitment Fee by AEI; provided, however,
if Lessee shall refuse to close (and being without right to
terminate this Commitment as otherwise set forth herein) and
shall not occupy the Parcel, even though AEI shall be ready,
willing, and able to do so, AEI shall as its sole remedy
retain the entire Commitment Fee and Lessee shall pay AEI
the amount of $100,000 as liquidated damages.
N. AMENDMENT OR WAIVER
Neither this Commitment nor any provision hereof may be
changed, waived, discharged or terminated orally, but only
by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination
is sought, and in the case of AEI, signed by Xxxxxx X.
Xxxxxxx, President of AEI, or his designee in writing signed
by Xx. Xxxxxxx authorizing such other party to execute a
specific change, waiver, discharge or termination instrument
on behalf of AEI.
O. FEES AND COSTS
As a condition hereof, Lessee agrees to pay the fees of
AEI's counsel (capped at $5,000), all out of pocket costs
and expenses reasonably incurred by AEI, as well as all
title and escrow charges, the cost of issuance of interim
title certifications, recording and release fees and all
other costs incurred in connection with the transaction
contemplated hereunder.
P. ADVERTISING
During construction, AEI may place a sign on the Parcel at a
location to be determined by Lessee in its reasonable
discretion, specifying that it is participating in the
financing on the Parcel, to the extent permitted by law or
private covenant, condition, or agreement affecting the
Project. Further, AEI may publicize the financing and may
include in publicity releases, if applicable, the names of
Lessee's corporate officers, principals, and a general
description of the Parcel, occupancy and rentals.
Q. EXPIRATION
This Commitment must be executed and returned to AEI no
later than October 10, 2003 for the terms to be effective.
AEI Fund Management, Inc.
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, President
This Commitment is accepted and agreed to this 3rd day of
October, 2003. I authorize the release of any information deemed
necessary by AEI to verify any and all information supplied to
AEI. Lessee shall hold AEI harmless for any damages arising from
verification of said information.
(Lessee) SWH Corporation
By:/s/ Xxxxxx X Xxxxxxxxxx Xxxxxx Xxxxxxxxxx
[Print Name of Signatory]
Its: Treasurer
EXHIBIT "A"
LEGAL DESCRIPTION
To be provided by Lessee and verified by Lawyer's Title Insurance
Corporation
A tract of land in the Northwest Quarter of Section 12, Township
51, Range 34, Kansas City, Platte County, Missouri, being bounded
and described as follows: Commencing at the Southwest corner of
said Northeast Quarter; thence North 0 10 15 East, along the West
line of said Northeast Quarter, 947.77 feet; thence South 89 49
45 East, 2066.39 feet to the True Point of Beginning of the tract
to be herein described; thence North 90 00 00 East, 136.25 feet;
thence North 0 00 00 West, 13.40 feet; thence North 90 0 00 East,
182.00 feet; thence South 0 00 00 East, 32.19 feet; thence North
89 24 10 East, 32.19 feet to a point on the Westerly Right-of-Way
line of Interstate Route 29, as established by Book 909 at Page
230, in the office of Recorder of Deeds in Platte County,
Missouri; thence Southerly, along said westerly right-of-way
line, on a course to the left, having an initial tangent bearing
of South 0 35 44 East, a radius of 990.00 feet, a central angle
of 08 43 47, an arc distance of 150.84 feet; thence North 90 00
00 West 229.91 feet; thence North 0 00 00 West, 5.50 feet; thence
North 90 00 00 West, 133.92 feet; thence North 0 00 00 East,
163.52 feet to the True Point of Beginning.
