REAL ESTATE PURCHASE AND SALE AGREEMENT
This Real Estate Purchase and Sale Agreement (this
"Agreement"), dated December 17, 1997, is by and between AEI Real
Estate Fund XVII Limited Partnership, a Minnesota limited
partnership ("Seller"), and Atlantic Richfield Company, a
Delaware corporation ("Buyer").
RECITALS
A. Seller is the owner of the real estate (the "Realty")
in the County of Washoe, State of Nevada, described in Exhibit
"A" attached hereto.
B. The Realty and certain equipment located on the Realty
are subject to a Net Lease Agreement dated November 9, 1988,
between Seller, as landlord, and X. Xxxxx X'Xxxxx & Co., a Nevada
corporation ("Tenant"), as tenant. (The Net Lease Agreement will
be referred to below as the "Lease.")
C. Concurrently with the execution of this Agreement,
Tenant and ARCO Products Company, a division of Buyer, intend to
execute a Business Purchase and Sale Agreement (the "Business
Agreement"). The Business Agreement covers ARCO Products
Company's purchase from Tenant of certain furnishings, fixtures,
equipment, inventory and supplies located at the Realty
(collectively, the "Business Property"). The Business Agreement
provides that the purchase and sale of the Business Property will
be consummated through an escrow (the "Business Escrow ") with
Western Title Company, 0000 Xxxxx XxXxxxxx Xxxx., Xxxxxxxx X,
Xxxxx 00, Xxxx, Xxxxxx 00000.
D. The Business Agreement also provides for the Tenant's
assigning its interest under the Lease to Buyer at the closing of
the Business Escrow.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the
parties agree as follows:
1. PURCHASE AND SALE. Subject to the terms herein, Seller
agrees to sell to Buyer, and Buyer agrees to purchase from
Seller, the Realty.
2. DEFINITION OF REALTY. For purposes of this Agreement,
the term "Realty" shall be deemed to include the real property
described on Exhibit "A" attached hereto, together with (a) all
equipment and other items affixed to such real property in such a
manner as to constitute fixtures that pass with title to such
real property and (b) those items of equipment that are leased by
Seller to Tenant under the Lease.
3. PURCHASE PRICE. The purchase price for the Realty
shall be $856,250.00. The purchase price includes improvements,
benefits and appurtenances to the Realty. The conveyance of the
Realty shall be by Grant, Bargain, Sale Deed (the "Deed"), free
of encumbrances, except those accepted by Buyer in writing. The
assignment of the Access Leasehold Interest shall also be free of
encumbrances, except those accepted by Buyer in writing.
4. ESCROW. The escrow (the "Escrow") shall be with
Commonwealth Land Title Company, 000 X. 0xx Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxx Xx Xxxxx, Escrow Officer
("Escrow Holder"). Following the execution of this Agreement by
Seller and Buyer, Buyer shall open the Escrow. Escrow shall be
deemed opened on the date that this Agreement is executed by
Escrow Holder. Buyer and Seller shall each pay one-half (1/2) of
the Escrow fee.
5. CONTINGENCIES TO CLOSING. Buyer shall not be
obligated to close until the following contingencies have been
satisfied or waived by Buyer:
A. ACQUISITION OF TENANT'S BUSINESS. The Business
Escrow is ready to close.
B. TITLE. Title to the Realty to be conveyed
to Buyer is satisfactory to Buyer, and Commonwealth Land Title
Insurance Company (the "Title Company") is committed to issue to
Buyer an A.L.T.A. owner's extended coverage policy of title
insurance, insuring Buyer's title in a condition satisfactory to
Buyer.
C. ASSIGNMENT OF LANDLORD'S LEASE. Seller shall
have executed, acknowledged and delivered to Escrow Holder an
assignment (the "Landlord's Lease Assignment") to Buyer of
Seller's interest as lessor in and to the Lease. The Landlord's
Lease Assignment shall be in the form of Exhibit "B" attached
hereto. Escrow Holder shall record the Landlord's Lease
Assignment as part of the close of Escrow.
D. TERMINATION OF FINANCING STATEMENT. Seller shall
have executed and delivered to Escrow Holder a termination (the
"UCC-1 Termination") of the Financing Statement that was filed on
November 9, 1988, as Document No. 78217 in the Official Records
of Carson City, Nevada, which names Seller as the secured party
and Tenant as the debtor.
E. TERMINATION OF THE LEASE. Tenant shall have
executed, acknowledged and delivered to Escrow Holder an
assignment (the "Tenant's Lease Assignment") to Buyer of Tenant's
interest as lessee in and to the Lease, in the form required
under the Business Agreement. Escrow Holder shall record the
Tenant's Lease Assignment as a part of the close of Escrow.
F. SELLER'S OBLIGATIONS. Buyer is satisfied, in its
sole discretion, that Seller has fulfilled all of its obligations
under this Agreement that are to be performed before closing.
6. CLOSING. Closing shall occur simultaneously with the
closing of the Business Escrow, provided that the contingencies
set forth in Provision 5 above have all been satisfied or waived
by Buyer, or will be satisfied or waived by Buyer at closing, and
the parties have satisfied all of their obligations set forth in
this Agreement or will do so at closing.
7. FAILURE TO CLOSE. If for any reason other than
the default of Buyer, closing does not occur, Buyer may cancel
this Agreement and the Escrow, and Buyer shall be entitled to
receive back any payments placed into Escrow or paid to Seller.
Buyer shall not be obligated to litigate to satisfy any of the
contingencies set forth in Provision 5 above. Seller shall not be
obligated to clear any matters affecting title to the Realty,
except for (i) termination of the Financing Statement that is the
subject of the UCC-1 Termination, and (ii) any monetary
encumbrances that Seller has placed on title.
8. TITLE INSURANCE COSTS. Title insurance shall be
paid by Seller.
9. PRORATIONS; COSTS. Items of expense (including
taxes) and income pertaining to the Realty shall be prorated to
the date of closing. Taxes shall be prorated based on the latest
available tax statements. If not previously paid, Escrow Holder
shall pay to the appropriate taxing authority the semi-annual
installment of the current fiscal year's taxes applicable to the
six (6) month period during which the closing occurs, whether or
not then due. Any credits or additional taxes imposed after
closing shall be applied to Buyer's account outside of Escrow.
For purposes of this Agreement, closing shall be the date that
the Deed and the documents contemplated by Provisions 5.C through
E above are accepted by the County Recorder's Office for
recording or filing, as applicable. Buyer shall pay the cost of
recording and filing the documents described in the immediately
preceding sentence. Seller shall pay real estate transfer taxes.
Assessments, including but not limited to public improvements,
and all monetary liens, whether private or governmental, shall be
extinguished, at Seller's expense, by Escrow Holder at closing,
except real estate taxes not yet payable, which shall be prorated
as aforesaid. All prorations shall be based on a thirty (30) day
month.
10. TITLE AND POSSESSION. Title and vacant
possession shall pass at closing.
11. SELLER'S REPRESENTATIONS AND COVENANTS.
A. REPRESENTATIONS AND WARRANTIES. Seller makes the
following representations and warranties to Buyer as of the date
of this Agreement and as of the close of Escrow.
(1) LEGAL PARCEL. To the best of Seller's
knowledge, the Realty constitutes a legal parcel that has been
subdivided in compliance with all applicable laws, ordinances,
and other requirements of the State of Nevada and local
governmental authorities.
(2) CORPORATE EXISTENCE. Seller is a limited
partnership duly organized, validly existing and in good standing
under the laws of the State of Delaware. The persons signing on
behalf of Seller have the full right, power and authority to bind
Seller under this Agreement, and the transactions contemplated by
this Agreement have been duly authorized by all necessary
partnership action of Seller and all necessary corporate action
of Seller's sole general partner.
(3) LEGALITY OF CONTRACT. Neither the execution
and delivery of this Agreement by Seller, nor Seller's incurring
of the obligations set forth herein, nor the consummation of the
transactions contemplated herein, nor Seller's compliance with
the terms of this Agreement will (a) conflict with or result in a
breach of any of the terms, conditions or provisions of, or
constitute a default (or an event which, with the giving of
notice or the passage of time, would constitute a default) under,
any law, regulation, ordinance, judgment, order or decree to
which Seller or the Realty is subject, or any contract, agreement
or instrument to which Seller is a party or by which Seller or
the Realty may be bound, or (b) require the consent or approval
of any governmental entity or other third party.
(4) NO LITIGATION. To the best of Seller's
knowledge, there is no litigation, condemnation or administrative
enforcement proceeding pending or threatened against or
concerning the Realty, nor any litigation or other legal
proceedings pending or threatened against Seller that might, if
successful, interfere with the consummation of the transactions
contemplated herein.
(5) ENVIRONMENTAL CONDITION. To the best of
Seller's knowledge, the Realty and the operation of the Realty
are in compliance with all federal, state and local laws relating
to the use, disposal, storage and release of hazardous or toxic
materials; and no such materials exist on, in or under any
portions of the Realty.
(6) AUTHENTICITY OF DOCUMENTS. Seller has
delivered to Buyer a true and complete copy of the Lease. The
Lease has not been amended or modified prior to the date of this
Agreement, except as described in this Agreement; and the Lease
shall not be amended or modified prior to the close of Escrow.
(7) RIGHT OF POSSESSION. To the best of
Seller's knowledge, other than the Lease, there are no leases,
options to convey or other rights of possession affecting the
Realty.
(8) NO DEFAULT. Seller is not in default under
the Lease; and Seller shall remain in compliance thereunder until
the close of Escrow.
B. SELLER'S KNOWLEDGE. Where any of these
representations and warranties are stated to be "to the best of
Seller's knowledge," such limitation shall mean that such
representations and warranties are made without independent
investigation of the matters stated therein and are based solely
on the current, actual knowledge of Seller's employees, agents
and consultants. Buyer understands that Seller is not actively
engaged in the operation, management and/or marketing of the
Realty as of the date of this Agreement.
C. NO OTHER REPRESENTATIONS AND WARRANTIES. Except
as expressly set forth in this Provision 11, Seller makes no
representations or warranties of any kind, express or implied,
written or oral, as to the physical condition of the Realty; the
uses of the Realty or any limitations thereon, including without
limitation zoning, environmental or other laws, regulations or
governmental requirements; the utilities or other physical
equipment or fixtures on the Realty; the condition of the soils
or groundwaters of the Realty; the presence or absence of toxic
materials or hazardous substances on or under the Realty; or any
other matter bearing on the use, value or condition of the
Realty. Buyer specifically acknowledges that it is acquiring the
Realty in an "as is" condition, in reliance upon its own
inspection and investigation of the Realty, but subject to the
truth, completeness and accuracy of Seller's representations and
warranties made above in this Provision 11.
D. EFFECT OF THE LEASE. Buyer acknowledges that if
Buyer waives the contingency set forth in Provision 5.A and
proceeds to close the Escrow under this Agreement without closing
the Business Escrow, Buyer will be acquiring the Realty subject
to Tenant's interest under the Lease.
12. NOTICES. Notices relating to this transaction
shall be in writing and shall be deemed given when personally
delivered, or when deposited with the U.S. Postal Service,
certified mail, postage prepaid or when deposited with a common
carrier, freight prepaid, addressed as provided below or in
accordance with subsequently provided written instructions, or
when sent by electronic facsimile. Notices to Seller shall be
sent to:
AEI Real Estate Fund XVII Limited Partnership
c/o AEI Fund Management, Inc.
1300 Minnesota World Trade Center
00 Xxxx Xxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
Facsimile: (000) 000-0000
and to Buyer at:
Atlantic Richfield Company
0 Xxxxxxxxxxxx Xxxxx
Xx Xxxxx, XX 00000
Attn: X. X. Xxxxxx
Assistant Vice President
Facsimile: (000) 000-0000
13. ESCROW INSTRUCTIONS. This Agreement shall also
constitute Escrow instructions.
14. CONDEMNATION. In the event of issuance, before
closing, of notice of a partial or total condemnation of the
Realty, Buyer may cancel this Agreement and the Escrow. In such
case, Buyer shall be entitled to receive back any payments
placed into Escrow or paid to Seller. If, however, Buyer
nevertheless decides to close, Buyer shall notify Seller, and
Seller shall execute an assignment in a form acceptable to Buyer,
assigning to Buyer Seller's rights to all compensation on account
of such condemnation. Such assignment shall be delivered to
Buyer through Escrow at closing. For purposes of this provision,
"condemnation" includes rights of inverse condemnation.
15. ENTIRE AGREEMENT; AMENDMENTS. This Agreement
and the Exhibit(s) hereto contain the whole agreement of the
parties with respect to the subject matter hereof. There are no
understandings except as provided herein. Any oral promise or
inducement is void. No amendment can be made to this Agreement
except in a writing executed by the parties hereto and delivered
to Escrow Holder.
16. NO MERGER. The representations, warranties,
covenants and disclaimers shall not merge but shall survive
closing hereunder.
17. FOREIGN INVESTMENT IN REAL PROPERTY TAX ACT.
Buyer shall comply with the Foreign Investment In Real Property
Tax Act (the "Act") by either:
A. WITHHOLDING FUNDS. If Seller is a foreign
person or entity, as defined in the Act, withholding at closing
ten percent (10%) of the Provision 3 purchase price and
transmitting such withheld sum in accordance with law; or
B. AFFIDAVIT. Obtaining an affidavit from
Seller that Seller is not a foreign person or entity and
obtaining Seller's taxpayer identification number; or
C. OTHER PROOF. Obtaining proof of other
exemption from the Act.
18. FURTHER ASSURANCES. Each of the parties hereto shall,
without further consideration, execute and deliver such other
documents and take such other actions as may reasonably be
requested by the other party hereto in order to effectuate the
provisions of this Agreement, including the transfer of title to
the Realty to Buyer.
19. SUCCESSORS AND ASSIGNS. The rights and obligations of
Buyer and Seller shall continue to the benefit of, and be binding
upon, their respective successors and assigns.
20. SELLER'S AUTHORITY. Within ten (10) days after
Seller's execution and delivery of this Agreement, Seller shall
provide Buyer with a copy of its governing documents (for
example, Articles of Incorporation, By-Laws, Agreement of
Partnership, Limited Liability Company Operating Agreement, or
Declaration of Trust), authorizing action (for example,
corporate resolutions, consent of partners, or consent of
members), and any other documents necessary to enable Buyer and
the Title Company to ascertain that the individual signing this
Agreement on behalf of Seller is authorized to legally bind
Seller.
21. BUSINESS AGREEMENT. Buyer shall have the right to
terminate this Agreement and the Escrow, if Buyer and Tenant do
not enter into the Business Agreement or if, after they enter
into the Business Agreement, the Business Agreement is terminated
by Buyer or Tenant for any reason. If Buyer so terminates this
Agreement, Buyer shall be entitled to receive back any payments
placed into Escrow or paid to Seller.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first set forth above.
SELLER:
AEI REAL ESTATE FUND XVII
LIMITED PARTNERSHIP,
a Minnesota limited partnership
By: AEI FUND MANAGEMENT XVII, INC.,
a Minnesota corporation, its
corporate general partner
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X Xxxxxxx President
Printed Name and Title
Seller's Tax I.D.
# 00-0000000
Seller's Telephone #(000) 000-0000
BUYER:
ATLANTIC RICHFIELD COMPANY,
a Delaware corporation
By: /s/ X X Xxxxxx
X. X. Xxxxxx
Assistant Vice President
Received and acknowledged this 30th
day of January, 1998.
Commonwealth Land Title Company
By: /s/ Xxx X. Xxxxxx
Xxx X Xxxxxx
Printed Name and Title
LEGAL DESCRIPTION OF THE REALTY
The Realty comprises all of that real property located at the
northeast corner of Lassen Drive and U.S. Highway 50 East that is
commonly known as 0000 X.X. Xxxxxxx 50 East, in Xxxxxx Xxxx,
Xxxxxx xx Xxxxxx, Xxxxx xx Xxxxxx, containing approximately
27,185 square feet with approximately 123 feet of frontage on
Lassen Drive, and approximately 170 feet of frontage on U.S.
Highway 50 East. The Realty is legally described as follows:
A certain parcel of land situate within the Southeast 1/4,
Southeast 1/4 of Section 9, Township 15 North, Range 20 East,
M.D.B. & M., Carson City, Nevada, particularly described as
follows:
Commencing at the Southwest corner of Parcel "C" of that certain
parcel map for H.S. SERVICE CORP., recorded in Book 3 of Maps,
Page 665, file No. 80913, Official Recorder of Carson City,
Nevada, as shown and located thereon; thence North 0 40' 5" East
123.00 feet; thence along a curve to the right which is tangent
to the last course, which has a radius of 20 feet, which has a
central angle of 71 37' 14" an arc distance of 25.00 feet; thence
North 72 17' 19" East 169.98 feet; thence South 0 40' 5" 195.58
feet; thence North 89 19' 55" West 175 feet to the True Point of
Beginning.
EXHIBIT A
FORM OF ASSIGNMENT OF LANDLORD'S LEASE INTEREST
Order No.: CC23448-TO
Escrow No.: 18457
AFTER RECORDING, RETURN TO:
ARCO Products Company
4 Centerpointe Drive, LPR 0-000
Xx Xxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxx, Real Estate FOR RECORDER'S USE
Department
Site No. 06380
ASSIGNMENT OF LANDLORD'S LEASE INTEREST
This Assignment of Landlord's Lease Interest (this
"Assignment") dated February 17, 1998, is entered into by
AEI Real Estate Fund XVII Limited Partnership, a Minnesota
limited partnership ("Seller"), and Atlantic Richfield
Company, a Delaware corporation ("Buyer").
RECITALS
A. Seller is the landlord under a Net Lease
Agreement dated November 4, 1998, with B Xxxxx O'Brien & Co.,
a Nevada corporation, as tenant ("Tenant"). (The Net Lease
Agreement will be referred to below as the "Lease." The
interest of the landlord under the Lease is referred to
below as the "Lease Interest.")
B. The Lease covers the real property in Carson City,
Nevada, that is described in Exhibit "A" attached hereto ( the
"Realty"), together with certain improvements and equipment
described in the Lease.
C. The Lease was made a matter of public record by the
Memorandum of Lease recorded on November 9, 1998, as Document No.
78216 in the Official Records of Carson City, Nevada.
D. In connection with the signing of this Assignment,
Seller will convey the Realty to Buyer.
E. By this Assignment, Seller and Buyer wish to effect the
assignment and assumption of the Lease Interest.
AGREEMENT
THEREFORE, Seller and Buyer agree as follows:
EXHIBIT B
1. EFFECTIVE TIME. This Assignment will become effective
when it is recorded in the Official Records of Carson City,
Nevada (the "Effective Time").
2. ASSIGNMENT. Seller assigns to Buyer all the right,
title, and interest in and to the Lease Interest. The assigned
rights include, without limitation, the balance at the Effective
Time of all deposits that Tenant has paid to Seller under the
terms of the Lease.
3. ASSUMPTION. Buyer accepts the assignment from Seller.
Buyer shall perform the obligations that the landlord under the
Lease is required to perform after the Effective Time.
4. INDEMNIFICATION.
(a) Seller shall indemnify and defend Buyer against
all claims, liabilities, losses, damages, obligations, costs, and
expenses (including without limitation reasonable attorneys'
fees) that relate to the Lease Interest and arise from any event
that occurred, or any obligation that accrued, before the Effective
Time.
(b) Buyer shall indemnify and defend Seller against
all claims, liabilities, losses, damages, obligations, costs, and
expenses (including without limitation reasonable attorneys'
fees) that relate to the Lease Interest and arise from any event
that occurs, or any obligation that accrues, after the Effective
Time.
5. GOVERNING LAW. This Assignment is governed by the laws
of the State of Nevada, without regard to conflict-of-law principles.
6. SUCCESSORS. This Assignment is binding on the
successors in interest of each party.
7. FURTHER ACTS. Each party shall do all things that the
other party reasonably requests to carry out the purpose of this
Assignment.
8. COUNTERPARTS. This Assignment may be signed by the
parties in counterparts. The signature pages from the
counterparts may be attached to one counterpart, and that
counterpart may be recorded.
SELLER: BUYER:
AEI REAL ESTATE FUND XVII ATLANTIC RICHFIELD COMPANY,
LIMITED PARTNERSHIP, a a Delaware corporation
Minnesota limited partnership
By:AEI FUND MANAGEMENT XVII, By: /s/ X.X. Xxxxxx
INC., a Minnesota corporation X.X. Xxxxxx
its corporate general partner Assistant Vice President
By: /s/ Xxxxxx X Xxxxxxx
Pres
Xxxxxx X Xxxxxxx
Printed Name and Title Attest: /s/ Xxxxxx X Xxxx
Assistant Secretary
(ATTACH NOTARY ACKNOWLEDGMENTS)
EXHIBIT A
LEGAL DESCRIPTION OF REALTY
[Legal description to be completed before this document is
signed.]
A certain parcel of land situate within the Southeast 1/4, Southeast
1/4 of Section 9, Tonwship 15 North, Range 20 East, M.D.B. & M., Carson
City, Nevada, particularly described as follows:
COMMENCING at the Southwest corner of Parcel "C" of the certain
parcel map for H.S. Service Corp., recorded in Book 3 of Maps,
Map Xx. 000, Xxxx Xx. 00000, Official Records of Carson City,
Nevada as shown and located thereon:
Thence North 0 deg 40' 05" East 313.18 feet to the TRUE POINT OF
BEGINNING, thence North 0 deg. 40' 05" East 123.00 feet, thence along
a curve to the right which is tangent to the last course, which has
a radius of 20 feet, which has a central angle of 71 deg. 37' 14"
an arc distance of 25.00 feet, thence North 72 deg 17' 19" East
169.98 feet, thence South 0 deg 40' 05" West 195.58 feet, thence
North 89 deg 19' 55" West 175.00 feet to the TRUE POINT OF BEGINNING.
Assesor's Parcel No. 00-000-00
