PURCHASE AGREEMENT ("Agreement")
Property: 0000 X. Xxxxxxxxxxxx Xxxx
Xxxxxx, XX
This AGREEMENT, entered into effective as of the 23rd of December
2003. The effective date of this Agreement ("Effective Date")
shall be the date Buyer receives a fully executed original
counterpart of this Agreement.
I. Parties. Seller is AEI Real Estate Fund XVI Limited
Partnership and AEI Real Estate Fund XVII Limited Partnership
(collectively "Seller"). Seller holds an undivided 100% interest
in the fee title to that certain real property legally described
in the attached Exhibit "A" (the "Property"), commonly known as
0000 X. Xxxxxxxxxxxx Xxxx, Xxxxxx, Xxxxx. Buyer is Xxxx Rusbforth
("Buyer"). Seller wishes to sell and Buyer wishes to buy the
Property.
a. The term "Property" shall be deemed to include the
following:
0.XXXX: All that certain tract or parcel of land described
in Exhibit A (the "Land") attached hereto and made a part
of this Agreement;
ii. APPURTENANCES: All easements, rights of way,
licenses, privileges, hereditaments and appurtenances, if
any, belonging to or inuring to the benefit of the Land,
and all right, title and interest in and to any land
lying in the bed of any highway, street, road or avenue,
opened or proposed, in front of or abutting or adjoining
the Land (collectively, the "Appurtenances");
iii. IMPROVEMENTS: The buildings and other improvements
located on the Land, including all fixtures, electrical,
heating, ventilating, air conditioning, plumbing,
security, fire suppression and other mechanical systems
free of liens (the "Improvements");
iv. LEASES: Seller's interest in any leases of all or
any portion of the Property ("Leases", or individually,
"Lease"), all guaranties applicable to the Leases, and
all security deposits, advance rentals and like payments,
if any, held by Seller in connection with the Leases;
v.PERSONAL PROPERTY: All tangible personal property owned
by Seller and used in connection with the ownership,
operation, maintenance, use or occupancy of the Property
(the "Personal Property"), including, without limitation
all furniture, furnishings, machinery, equipment,
materials and supplies owned by Seller and located at or
appurtenant to the Property; and
vi. Intangibles: All intangible personal property owned
by Seller and used in connection with the ownership,
operation, maintenance, use or occupancy of the Property
(the "Intangibles"), including but not limited to all
licenses, authorizations, approvals, permits and
certificates of occupancy issued by any governmental
authority and relating to the ownership; use, operation
or occupancy of the Property (the "Permits"), and all
currently effective warranties and guaranties given by
any contractor, supplier or manufacturer of any Personal
Property or Improvements, or of any work performed on any
Personal Property or Improvements (The "Warranties").
EXCLUDED fixtures and items are limited to the following
items: NONE
2. PROPERTY. The Property to be sold to Buyer in this
transaction is legally described on Exhibit A attached hereto,
subject to the provisions of Buyer review of title as set forth
below in paragraph 8,
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including that certain Net Lease Agreement between Seller and
Jiffy Lube International of Maryland, Inc.
3.PURCHASE PRICE. The purchase price for this Property is Four
Hundred Ninety Thousand and 00/100 dollars ($490,000) cash
plus Fifty and 00/100 dollars ($50) independent consideration,
based on the following terms:
4. TERMS. The purchase price for the Property will be paid by
Buyer as follows:
(a) When this agreement is executed, Buyer will pay Twenty
Thousand and 00/100 dollars ($20,000) in cash or good funds
(the "First Payment") to Chicago Title Insurance Company,
000 X. 0000 Xxxx, Xxxxx 000, Xxx Xxxxxxx, XX 00000,
Attention: Xxxx Xxxxxxxx ("Escrowee"). The First Payment
will be credited against the purchase price when and if
escrow closes and the sale is completed, or otherwise
disbursed pursuant to the terms of this Agreement. After the
expiration of the Review Period as defined in paragraph 6
below, the First Payment held for the account of Seller
shall become non-refundable unless Seller shall default
hereunder or this agreement is properly cancelled by Buyer
pursuant to the terms hereof. All interest accruing on
deposits made by Buyer shall belong to Buyer.
(b) Buyer will pay the balance of purchase price for the
Property, $470,000 in cash or good funds (the "Second
Payment"), at closing to the Escrowee who shall close the
transaction according to the terms hereof.
(c) When this Agreement is executed, Buyer will also pay
$50 in cash in good funds directly to Seller ("Option
Consideration"), which shall be in consideration for
Seller's execution of this Agreement, but will be credited
against the purchase price when and if escrow closes and the
sale is completed. The Option Consideration shall be
considered non-refundable if this Agreement is terminated
for any reason.
5. CLOSING DATE. Escrow shall close on or before the tenth
(10th) day after the Inspection and Feasibility Study Period (as
hereinafter defined) (as extended, if applicable) is completed.
Closing shall be at Buyer's title insurer or at some other
mutually agreeable location.
6. DUE DILIGENCE. Buyer, including but not limited to Buyer's
agents, employees, contractors and consultants, will have until
the expiration of the 30th day after the Effective Date of this
Agreement (the "Inspection and Feasibility Study Period"), to
conduct all of its inspections and due diligence and satisfy
itself regarding title to the Property, and to inspect the
Property at Buyer's sole expense. Buyer shall take all steps
necessary to minimize any disruption to Seller's tenant. Buyer
agrees he will utilize reasonable efforts to keep and maintain
all sensitive or confidential information from disclosure to
third parties (except to the extent such disclosure is required
by Buyer's lender, title insurer or similar entity or otherwise
required to assist Buyer in completing the purchase of the
subject property). Buyer agrees to indemnify and hold Seller
harmless for any loss or damage to the Property or persons caused
by Buyer or its agents arising out of such physical inspections
of the Property. Buyer expressly acknowledges that the sale of
the Property as provided for herein is made on an "AS IS" basis,
and such provision shall survive closing.
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b. Review of Books and Records: Within five (5) days after
the Effective Date, Seller shall deliver copies of the
following documents to Buyer, to the extent the same
are in Seller's possession or control:
i. All Leases all service contracts; all equipment
leases; all plans and specification for the
Improvements; all architectural and engineering
reports; all environmental studies; all insurance
policies; all real estate tax bills and assessments
for the past five (5) years; all permits; all
warranties and all operating statements relating to
the Property.
In addition (and without limiting the foregoing), Seller shall
provide Buyer with copies of any ancillary agreements or
correspondence relating to tenant fights, (i.e., right of first
refusal), including information relating to delinquent rent,
outstanding "free rent" periods, outstanding tenant improvement
allowances due to tenant, additional rent and other charges and
interest accrued on security deposits, guaranty of existing
tenant's leasehold interest at the Property, any documentation
supporting the current tenant's financial position (i.e.,
tenant's financial statements), any documentation relating to
tenant's intentions with respect to renewal or termination
(whether early or otherwise) of the Lease, any available survey
information, and any warranties or guarantees for building system
components (e.g., HVAC, etc.)
Buyer may cancel this Agreement for ANY REASON in its sole,
subjective, and absolute discretion by delivering a cancellation
notice (the "Cancellation Notice") by U.S. certified mail, return
receipt requested, or by personal delivery to Seller and escrow
holder before the expiration of the Inspection and Feasibility
Study Period. If delivery is by mail, the date on which Buyer
deposits the Cancellation Notice in the U.S. Mail shall, for
purposes of this section 6, be deemed to be the date of delivery
to Seller, notwithstanding the date on which it is actually
received by Seller. If Buyer exercises its right to cancel via
the Cancellation Notice, this Agreement shall become null and
void and neither Seller nor Buyer shall have any further
liability or obligation to the other, except for the obligation
to pay any amounts in escrow to Buyer. If this Agreement is not
canceled as set forth herein, the First Payment shall be non-
refundable unless Seller shall default hereunder or this
Agreement is properly cancelled by Buyer pursuant to the terms
hereof.
If Buyer cancels this Agreement as permitted under this
Section or Section 16, except for any liabilities under sections
15(a)iii) and 16(b) of this Agreement (which will survive), Buyer
(after execution of such documents reasonably requested by Seller
to evidence the termination hereof) shall be promptly returned
its First Payment, and Buyer will have absolutely no rights,
claims or interest of any type in connection with the Property or
this transaction, regardless of any alleged conduct by Seller or
anyone else.
Unless Seller shall be in default of any obligation
hereunder, or this Agreement is canceled by Buyer pursuant to the
terms hereof, if Buyer fails to make the Second Payment, Seller
shall be entitled to retain the First Payment and Buyer
irrevocably will be deemed to have canceled this Agreement and
relinquished all rights in and to the Property. If this Agreement
is not canceled and the Second Payment is made when required, all
of Buyer's conditions and contingencies will be deemed satisfied.
7. ESCROW. Escrow shall be opened by Buyer and the First Payment
shall be deposited by Buyer with Escrowee. A copy of this
Agreement will be delivered to the escrow holder and will serve
as
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escrow instructions together with the escrow holder's standard
instructions and any additional instructions required by the
escrow holder to clarify its rights and duties. The parties agree
to sign these additional instructions of the Escrowee, if any. If
there is any conflict between these other instructions and this
Agreement, this Agreement will control. Seller shall notify
Escrowee upon Seller's acceptance of this Agreement.
8. TITLE. Closing will be conditioned on the commitment of
Escrowee to issue an Owner's policy of title insurance, dated as
of the close of escrow, in an amount equal to the purchase price,
insuring that Buyer will own marketable and insurable (at regular
rates) fee simple title to the Property subject only to: the
exceptions reflected in the title commitment reasonably
acceptable to Buyer (the "Permitted Exceptions"), current real
property taxes and assessments. Seller shall have a Title
Commitment issued and tendered to Buyer within twenty (20) days
of the date this Purchase Agreement is delivered to Escrowee. No
adverse matter that is added to the Title Commitment or the
survey after its original issuance shall be a Permitted
Exception.
Buyer shall be allowed until the expiration of the
Inspection and Feasibility Study Period for examination and the
making of any objections to the survey and to any exception
contained in the Title Commitment, said objections to be made in
writing or deemed waived. If any objections are so made, the
Seller shall be allowed thirty (30) days to cure Buyer's
objections, or in the alternative to obtain a commitment for
insurable title at regular rates insuring over Buyer's
objections. If Within such 30-day period Seller fails to cure
Buyer's objections, or is unable to obtain insurable title (with
title insurance issued at regular rates) to Buyer's reasonable
satisfaction, Buyer may elect to cancel this Agreement and (after
execution by Buyer of such documents reasonably requested by
Seller to evidence the termination hereof) Buyer's First Payment
shall be returned and this agreement shall be null and void and
of no further force and effect.
if Buyer shall make no written objection to Seller within
the Review Period setting forth Buyer's objections to the status
of title, Buyer shall have been deemed to have waived any such
objections.
9. CLOSING COSTS. Seller will pay the deed stamp taxes, if any,
and one-half of escrow fees attributable to the closing services
for this transaction, and any brokerage commissions payable to
Xxxxxxxx Xxxx Services, Inc. only. Seller shall pay for the cost
of issuing the title commitment and the cost of the title
insurance premium for an Owner's policy. Buyer will pay one-half
of the escrow fees, the costs of a new survey or an update to the
Survey in Seller's possession (if an update is required by
Buyer). All other closing costs shall be paid by Seller and Buyer
in the manner in which such costs are customarily paid by such
parties in transactions involving real property in Dallas County,
Texas. Each party will pay its own attorneys' fees and costs to
document and close this transaction.
10. REAL ESTATE TAXES. SPECIAL ASSESSMENTS AND PRORATIONS.
Seller represents that to the best of its knowledge, all real
estate taxes and assessments due and payable in all years prior
to the year of Closing have been paid in full. All real estate
taxes and special assessments due and payable in the years
following the year in which closing occurs shall otherwise be the
responsibility of Buyer. The parties acknowledge and agree that
the tenant of the property is responsible for payment of taxes
and special assessments and thus no actual proration of funds at
closing shall occur.
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11. SELLER'S REPRESENTATION AND AGREEMENTS.
Seller represents and warrants as of this date that:
(i) It is not aware of any pending litigation or
condemnation proceedings against the Property or Seller's
interest in the Property that have not been disclosed to
Buyer.
(ii) The Property is subject to a NetLease Agreement as
follows:
(a) Net Lease Agreement entered into July 23, 1987
("Lease"), as assigned, by and between Seller and Jiffy
Lube International of Maryland, Inc., a true and
accurate copy of which is attached hereto as Exhibit B.
Seller warrants that, following the Effective Date
until termination hereof, it shall not, without Buyer's
written consent, enter into any modification,
amendment, renewal, termination or other change of the
terms of the Lease without Buyer's written consent.
(iii) Seller has all requisite power and authority to
consummate the transaction contemplated by this Agreement
and has by proper proceedings duly authorized the execution
and delivery of this Agreement and the consummation of the
transaction contemplated hereby.
12. DISCLOSURES.
(a) Seller has been an absentee landlord. Consequently,
Seller has little, if any, knowledge of the physical
characteristics of the Property.
Accordingly, except as otherwise specifically stated in the
Agreement, Seller hereby specifically disclaims any
warranty, guaranty, or representation, oral or written,
past, present, or future of, as to, or concerning `(i) the
nature and condition of the Property, including, without
limitation, the water, soil, and geology, and the
suitability thereof and of the Property for any and all
activities and uses which Buyer may elect to conduct
thereon; (ii) except for the warranty of title contained in
the Deed to be delivered by Seller at the closing, the
nature and extent of any right of way, lease, possession,
lien, encumbrance, license, reservation, condition, or
otherwise, and (iii) the compliance of the Property or its
operation with any laws, ordinances, or regulations of any
government or other body.
(b) Buyer acknowledges and agrees that Buyer is not relying
upon any representation or warranties made by Seller or
Seller's Agent except those provided herein.
(c) Buyer acknowledges that, having been given the
opportunity to inspect the Property, Buyer is relying solely
on its own investigation of the Property and not on any
information provided by Seller or to be provided except as
set forth herein. Buyer expressly acknowledges that, in
consideration of the agreements of the Seller herein, except
as otherwise specified herein, Seller makes no Warranty or
representation, express or implied, or arising by operation
of law, including, but not limited to, any warranty of
condition, habitability, tenantability, suitability for
commercial purposes, merchantability, profitability, or
fitness for a particular purpose, in respect of the
Property.
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(d) BUYER AGREES THAT IT SHALL BE PURCHASING THE PROPERTY
IN ITS THEN PRESENT CONDITION, AS IS, WHERE IS, AND SELLER
HAS NO OBLIGATION TO CONSTRUCT OR REPAIR ANY IMPROVEMENTS
THEREON, OR TO PERFORM ANY OTHER ACT REGARDING THE PROPERTY.
WITHOUT LIMITIIIG THE GENERALITY OF THE FOREGOING, BUYER
ALSO AGREES THAT SELLER WILL HAVE NO LIABILITY OF ANY TYPE,
DIRECT OR INDIRECT, TO BUYER OR BUYER'S SUCCESSORS, ASSIGNS,
LENDERS OR AFFILIATES IN CONNECTION WITH: ANY HAZARDOUS,
TOXIC, DANGEROUS, FLAMMABLE, EXPLOSIVE OR CHEMICAL
SUBSTANCES OF ANY TYPE (WHETHER OR NOT DEFINED AS SUCH UNDER
ANY APPLICABLE LAWS) ON OR IN CONNECTION WITH THE PROPERTY
EITHER BEFORE OR AFTER THECLOSLNG DATE.
(e) Notwithstanding the foregoing, Seller represents and
warrants that Seller has no actual knowledge, without
investigation, except as noted in this Agreement that: (1)
The Property has been contaminated by any substance in any
manner which requires remediation; (2) The Property contains
wetlands, flood plains, or any other environmentally
sensitive areas, development of which is limited or
precluded by law; (3) The Property contains asbestos,
polychlorinated biphenyls, lead-based paint or any other
substance, the removal or disposal of which is subject to
any law or regulation; (4) Any law has been violated in the
handling or disposing of any material or waste or the
discharge of any material into the soil, air, surface water,
or ground water; and (5) Seller shall deliver to Buyer
contemporaneously herewith information in Seller's files
constituting its knowledge respecting the possible presence
of underground storage tanks on the Property. Seller has
received no notice from any governmental authority of a
violation of Federal, state or local law, regulation or
ordinance affecting any portion of the Premises. To the best
of Seller's knowledge without inquiry, no permits, approvals
and licenses are necessary for the Seller's ownership of the
Premises and, to the best of Seller's knowledge without
inquiry, Tenant has obtained all such permits, approvals and
licenses for the use and operation of the Premises. In
addition, no notice by or from any government or public
authority has been served upon Seller or anyone on Seller's
behalf, including notices relating to violations of zoning,
housing, building, safety or fire ordinances which remain
uncorrected, and that Seller knows of no condition that
would constitute violation of any such ordinances which, to
the best of Seller's knowledge, remains uncorrected, unless
otherwise specified here: NONE
The provisions (a) through (e) shall survive closing. -
13. CLOSING
(a) Before the closing date ("Closing"), Seller will
deposit into escrow an executed special warranty deed
subject to the Permitted Exceptions conveying good and
indefeasible title of the Property to Buyer. At Closing,
Seller shall deliver to Buyer and the Title Company a
standard Seller's Affidavit regarding liens and judgments.
Buyer will be given five (5) business days, prior to
closing, to review and approve all closing documents.
(b) On or before the closing date, Buyer will deposit into
escrow: the balance of the purchase price when required
under Section 4; any additional funds required of Buyer,
(pursuant to
(PAGE)
this agreement or any other agreement executed by Buyer) to
close escrow. Both parties will sign and deliver to the
escrow holder any other documents reasonably required by the
escrow holder to close escrow.
(c) On the closing date, if escrow is in a position to
close, the escrow holder will: record the deed in the
official records of the county where the Property is
located; cause the title company to commit to issue the
title policy; immediately deliver to Seller the portion of
the purchase price deposited into escrow by cashier's check
or `wire transfer less debits and prorations, if any);
deliver to Seller and Buyer a signed counterpart of the
escrow holder's certified closing statement and take all
other actions necessary to close escrow.
(d) At Closing, Seller shall deliver or cause to be
delivered to Buyer the following:
An Assignment and Assumption of Lease substantially in
the form attached to this
Agreement as Exhibit C (the "Assignment of Leases"); -
An estoppel certificate from the tenant under the
Lease, dated not more than thirty (30) days prior to
Closing, substantially in the form attached to this
Agreement as Exhibit D (the "Tenant Estoppel
Certificates"). If for reasons beyond Seller's control
Tenant shall not execute the Estoppel attached hereto,
Buyer may terminate this agreement and receive the
return of its First Payment and this Agreement shall
be terminated without farther liability between the
parties.
A letter to the tenant in form prepared by Buyer,
advising it of the sale of the Property and advising
the tenant to recognize Buyer as the landlord under
the Lease.
(e) Adjustments
SUMS PRORATED. Except to the extent that any of the
following items are the responsibility of the tenant
under the Lease, the following items shall be prorated as
of 12:01 a.m. prevailing Central Time on the Closing
date, on the basis of a 365-day year, with Seller deemed
the owner of the Property on the entire Closing date:
x.Xxxx, additional tent, escalations, and other
amounts paid by the tenant under the Lease;
water, sewer and utility charges; charges under
any operating contracts assumed by Buyer; and
any other expenses relating to the Property
which are customarily adjusted at settlement.
ii. RENTS. Without limiting the generality of
the preceding section, credit shall be given to
Buyer at Closing for (a) fixed rents paid by
the tenant for the month in which the Closing
occurs which are allocable to the period from
and after Closing; (b) amounts paid by the
tenant, if any, for operating expenses and all
other items of additional rent and other
payments for the year or period in which
Closing occurs which are allocable to the
period from and after Closing; and (c) fixed
rent, operating expenses and all other items of
additional rent and other payments which have
been prepaid by the tenant for any period after
Closing.
(f) As provided in section 6 of this Agreement, at Closing,
Seller shall deliver a statement setting forth, among other
things, delinquent rent, additional rent and other charges
under the Lease (collectively, "Delinquent Rent"). There
shall be no
(PAGE)
apportionment of the Delinquent Rent at Closing. All
payment received from the tenant after Closing shall be
applied first to the amounts owing for the months
subsequent to the month in which Closing occurs, next to
amounts owing for the month in which Closing occurs, and
last to amounts owing for periods prior to the xxxx of
Closing. Credit shall be given to Buyer at Closing for
all tenant security deposits (including any interest
required to be paid to tenant pursuant to the terms of
the Lease or by law).
(g) METER READINGS. Unless the tenant has direct and
sole responsibility for all utilities, arrangements shall
be made for the reading of meters for all utilities on or
about the Closing date. If such meter readings take place
on a date other than the Closing-date, a pro rata
adjustment will be made when the bills are received, such
adjustment to be made on a day-to-day basis, with Seller
being responsible for any time periods prior to the
Closing date and with Buyer being responsible for any
time periods on and after the Closing date.
14. Period Prior to Closing:
(a) Between the date of this Agreement and the Closing,
Seller agrees to:
1.AFFIRMATIVE COVENANTS.
a.Maintain the Property, and any personal property
specified herein, in its present condition, normal
wear and tear excepted and make all necessaiy
repairs and replacements, and deliver the Property
on the closing date in the same condition they are
on the date of this Agreement; maintain the
existing insurance policies in full force and
effect; continue to manage and operate the Property
in the same manner in which they are presently
managed and operated; deliver to Buyer, promptly
after receipt by Seller, copies of all notices of
violation issued by any board, bureau, commission,
department or body of any municipal, county, state
or Federal government entity with respect to the
Property received by Seller after the date of this
Agreement; advise Buyer promptly of any litigation,
arbitration or other judicial or administrative
proceeding which concerns or affects the Property;
comply with the requirements of all Leases;
x.Xx the event Seller becomes aware that any
representation or warranty made by Seller in this
Agreement will not be true and correct on the
Closing date, as if made at and as of the Closing
date, give prompt written notice thereof to Buyer,
which notice shall include all information related
thereto that is in Seller's possession or control.
C. NEGATIVE COVENANTS. Between the date of this
Agreement and the Closing Date, Seller agrees that,
without Buyer's prior written consent, Seller will
not grant, create, assume or permit to be created
any mortgage, lien, encumbrance, lease, easement,
covenant, condition, right-of-way or restriction
upon the Property or take or permit any action
adversely affecting the title to the Property as it
exists on the date of this Agreement; nor cancel,
modify, extend or amend any Lease, Service Contract
or equipment lease, or enter into any (a) new lease
of any portion of the Property,(b) service contract
(including, without limitation, any management,
listing, service, equipment, supply, maintenance or
concession agreement), or (c) equipment lease;
remove any Personal Property
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from the Property except in the ordinary course of
business and provided such personal property is
replaced with items of the same or better quality,
which replacement items shall then constitute and
be included as part of the Personal Property, nor
make any alterations to the Property.
15. DEFAULTS. If Buyer defaults, Buyer will forfeit all
rights and claims to the Property and Seller will be relieved of
all obligations and will be entitled to retain all monies
heretofore paid by the Buyer as Seller's sole remedy.
If Seller shall default, Buyer may, at its option, either
terminate this Agreement and receive a full and immediate refund
of all amounts paid as deposits, or seek to enforce specific
performance of this Agreement. Provided, however, that in no
event shall Seller be liable for any consequential, punitive or
speculative damages arising out of any default by Seller
hereunder.
16. BUYER'S REPRESENTATIONS AND WARRANTIES.
a. Buyer represents and warrants to Seller as follows:
(i)Buyer has all requisite power and authority to
consummate the transaction contemplated by this Agreement and has
by proper proceedings duly authorized the execution and delivery
of this Agreement and the consummation of the transaction
contemplated hereby.
(ii) To Buyer's knowledge, neither the execution and delivery
of this Agreement nor the consummation of the transaction
contemplated hereby will violate or be in conflict with
(a) any applicable provisions of law, (b) any order of any
court or other agency of government having jurisdiction
hereof, or (c) any agreement or instrument to which Buyer
is a party or by which Buyer is bound.
(iii) Buyer and Seller agree to indemnify and hold each
other harmless from any and all claims of any persons or
entities claiming a brokerage or other fee arising out of
representation of the other party.
17. PROPERTY INSPECTION AND ENVIRONMENTAL.
(a) Seller shall provide Buyer access to the Property from
time to time for the purpose of conducting inspections
thereof including mechanical, structural, electrical and
other physical inspections. Buyer has until the end of the
Inspection and Feasibility Study Period to complete such
physical inspections.
(b) Buyer shall indemnify, defend, and hold harmless
Seller from and against any and all losses, claims, causes
of action, liabilities, and costs to the extent caused by
the actions of Buyer, its agents, employees, contractors,
or invitees, during any such entry upon the Property. The
foregoing duty of indemnification shall include the duty
to pay all reasonable attorney's fees incurred by the
Seller in responding to or defending any such claims or
proceedings, and shall survive closing.
(PAGE)
(c) Buyer shall pay for any Phase I or Phase II
Environmental studies it wants to be performed on the
Property. If Buyer desires a Phase I or Phase II
Environmental, Buyer shall obtain and review the same within
the Inspection and Feasibility Study Period. If Buyer
terminates this Agreement prior to the expiration of the
Inspection and Feasibility Study Period, Buyer will provide
Seller with copies of all reports and test results Buyer had
performed on the Property.
18. DAMAGES. DESTRUCTION AND EMINENT DOMAIN.
(a) If, prior to closing, the Property or any part thereof
be destroyed or further damaged by fire, the elements, or
any cause, due to events occurring subsequent to the date of
this Agreement to the extent that the cost ef repair exceeds
$10,000.00, this Agreement shall become null and void, at
Buyer's option exercised, if at all, by written notice to
Seller within ten (10J days after Buyer has received written
notice from Seller of said destruction or damage. Seller,
however, shall have the right to adjust or settle any
insured loss until (i) all contingencies set forth in
Paragraph 6 hereof have been satisfied, or waived; and (II)
any period provided for above in this Subparagraph 17a for
Buyer to elect to terminate this Agreement has expired or
Buyer has, by written notice to Seller, waived Buyer's right
to terminate this Agreement. If Buyer elects to proceed and
to consummate the purchase despite said damage or
destruction, there shall be no reduction in or abatement of
the purchase price, and Seller shall assign to Buyer the
Seller's right, title, and interest in and to all insurance
proceeds resulting from said damage or destruction to the
extent that the same are payable with respect to damage to
the Property. In the event that Buyer opts to receive such
insurance proceeds, Seller agrees it will cooperate with and
take all reasonable steps to assist Buyer and ensure the
timely collection of said proceeds by Buyer.
If the cost of repair is less than $10,000.00, Buyer shall
be obligated to otherwise perform hereinunder with no
adjustment to the Purchase Price, reduction or abatement,
and Seller shall assign Seller's right, title and interest
in and to all insurance proceeds in relation to the
Property. Seller agrees it will cooperate with and take all
reasonable steps to assist Buyer and ensure the timely
collection of said proceeds by Buyer.
(b) If, prior to closing, the Property, or any part thereof,
is taken or notice of a taking is received from any
condemning authority (other than as disclosed in writing to
Buyer prior to the date of this Agreement) by eminent
domain, this Agreement shall become null and void, at
Buyer's option. If Buyer elects to proceed and to consummate
the purchase despite said taking, there shall be no
reduction in, or abatement of, the purchase price, and
Seller shall assign to Buyer all the Seller's right, title,
and interest in and to any award made, or to be made, in the
condemnation proceeding in relation to the Property. Seller
agrees it will cooperate with and take all reasonable steps
to assist Buyer and ensure the timely collection of said
condemnation proceeds by Buyer
In the event that this Agreement is terminated by Buyer as
provided above in Subparagraph 17(a) or 17(b), the First Payment
shall be immediately returned to Buyer (after execution by Buyer
of such documents reasonably requested by Seller to evidence the
termination hereof).
(PAGE)
19. SELLER'S AND BUYER'S BROKERS. Xxxxxxx Xxxxx of Tranimell
Crow Services, Inc. is the broker representing the Seller (and
the Seller only) in this transaction. Seller will pay Xxxxxxxx
Xxxx Services, Inc. a six percent (6%) commission (and only shall
be paid commission if this transaction as contemplated shall
close). Seller will not be responsible for any commission payable
to Buyer's broker, if any. The Buyer and Seller both represent
and warrant that no other brokers have been involved on behalf of
the warranting party and both parties agree to indemnify the
other and hold harmless from any claim through or on behalf of
such other party.
20. CANCELLATION. If either party elects to cancel this Contract
because of any breach by the other party, the party electing to
cancel shall deliver to the defaulting party and the escrow agent
a notice (via certified U.S. Mail, return receipt requested or
via overnight delivery service [such as Federal Express] that
provides for tracking and a receipt reflecting date of delivery)
stating that this Contract shall be canceled unless the breach is
cured within five (5) days following the delivery of the notice
to the defaulting party. If the breach is not cured within the
five (5) days following the delivery of the notice to the
defaulting party, this Contract shall be canceled.
21. Severability. If any provision of this Agreement, or the
application thereof to any person, place or circumstance, shall
be held by a court of competent jurisdiction to be invalid,
unenforceable or void, the remainder of this Agreement and such
provisions as applied to other persons, places and circumstances
shall remain in full force and effect.
22. MISCELLANEOUS.
(a) This Agreement may be amended only by written agreement
signed by both Seller and Buyer, and all waivers must be in
writing and signed by the waiving party. Time is of the
essence. This Agreement will not be construed for or against
a party whether or not that party has drafted this
Agreement. If there is any action or proceeding between the
parties relating to this Agreement the prevailing party will
be entitled to recover attorney's fees and costs. This is an
integrated agreement containing all agreements of the
parties about the Property and the other matters described,
and it supersedes any other agreements or understandings.
Exhibits attached to this Agreement are incorporated into
this Agreement.
(b) Funds to be deposited or paid by Buyer will be aood and
clear funds in the form of cash, cashier's checks or wire
transfers.
(c) All notices from either of the parties hereto to the
other shall be in writing and shall be considered to have
been duly given or served if sent by first class certified
mail, return receipt requested, postage prepaid, or by a
nationally recognized courier service guaranteeing overnight
delivery and confirmation of receipt to the party at his or
its address set forth below, or to such other address as
such party may hereafter designate by written notice to the
other party.
If to Seller:
Attention: Xxxxxx X. Xxxxxxx
AEI Fund Management, Inc.
0000 Xxxxx Xxxxx Xxxxx
(PAGE)
00 Xxxxxxx Xxxxxx Xxxx
Xx.Xxxx,XX 00000-0000
If to Buyer:
Xxxx Xxxxxxxxx
X0 Xxx 000
Xxxx Xxxx, XX 00000
(d) Buyer may assign this Agreement at any time without the
consent or prior approval of Seller, and following any such
assignment, Seller agrees to close this transaction with the
assignee of Buyer. The original Buyer named herein shall
remain liable for any indemnity obligations hereunder.
(e) In the event Buyer wishes to enter into a tax deferred
exchange relating to the Property pursuant to Section 1031
of the Internal Revenue Code, Seller agrees to cooperate
with Buyer in connection with such exchange, including the
execution of such documents as may be reasonably necessary
to conduct the exchange, provided that there shall be no
delay in the agreed-to settlement date, and that any
additional costs associated with the exchange are paid
solely by Buyer. Seller shall not be required to execute any
note, contract, deed or other document providing any
liability which would survive the exchange. Buyer shall
indemnify and hold harmless Seller against any liability
which arises or is claimed to have arisen from any aspect of
the exchange transaction -
When accepted, this offer will be a binding agreement for valid
and sufficient consideration which will bind and benefit Buyer,
Seller and their respective successors and assigns. Buyer is
submitting this offer by signing a copy of this offer and
delivering it to Seller along with the Option Consideration, and
delivering a copy of this Agreement signed by Buyer and the
$20,000.00 First Payment to Escrowee; Escrowee shall sign below
acknowledging receipt of this Agreement signed by Buyer and the
First Payment, which will be deposited in to escrow by Escrowee.
Seller has five (5) business days after receipt of the executed
offer, Option Consideration, and acknowledgment of receipt of the
First Payment by Escrowee within which to accept this offer by
fully executing this contract and giving both Buyer and Escrowee
written notice thereof; if not accepted by Seller, Escrowee shall
immediately return the First Payment to Buyer and shall not
require any releases by the Seller. The Effective Date of this
Agreement shall be the date Buyer receives a fully executed
original counterpart of this Agreement. -
THIS SECTION INTENTIONALLY LEFT BLANK
(PAGE)
IN WITNESS WHEREOF, the Seller and Buyer have executed this
Agreement effective as of the day and year above first written,
and Broker has executed this agreement confirming the amount and
manner of commission payable to it.
BUYER:
/s/ Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx
SELLER:
AEI Real Estate Fund XVI Limited Partnership, a Minnesota
limited partnership.
By AEI Fund Management XVI, its corporate general partner
By: /s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Chief Financial Officer
AEI Real Estate Fund XVII Limited Partnership, a Minnesota
limited partnership.
By AEI Fund Management XVlI, Inc., its corporate general
partner
By: /s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Chief Financial Officer
(PAGE)
ESCROWEE:
The Title Company hereby acknowledges receipt of
a copy of thus, Agreement,executed by the Buyer, and
the First Payment referred to in the Agreement on
12/23/03 2003, and agrees to accept hold, deliver and
disburse the First Payment and Second payment together
wit all interest accrued thereon mid received by the
Title Company, strictly in accordance with the terms
and provisions of this Agreement. In performing any
of its duties hereunder, the Title Company shall not
Incur any liability to anyone for any damages, losses
or expenses, except for negligence, willful default or
breach of trust, and It shall accordingly not incur
any liability with respect (I) to any action taken or
omitted In good faith upon advice of its counsel, or
(ii) to my action taken or omitted in reliance upon
any instrument, including any written notice or
lnstruction provided for in this Agreement, not only
as to its due execution and the validity and
effectiveness of its provisions, but also as to the
truth and accuracy of any information contained
therein. which-the Title Company a good faith believe
to be In., to have bean signed or presented by-a
proper person or persons and to conform with the
provisions of this Agreement Seller and Buyer hereby
agree to indemnify and hold harmless the Title Company
against any and all losses, claims, damages,
liabilities and expenses, Imposed upon the Title
Company or Incurred by the Title Company in connection
with its acceptance or the performance of Its duties
hereunder, including any litigation arising from this
Agreement or Involving the subject matter of unless
such losses, claims, damages, liabilities and expenses
arise out of Title Company's negligence, willful
default or breach of trust In the event of a dispute
between Seller and Buyer sufficient in the discretion
of the. The Company to justify Its doing so, the
Title Company shall be entitled to tender into the
registry of the District Court of Dallas County,
Texas, all money or property in its hands under this
Agreement, together with such legal pleadings as it
deems appropriate, and thereupon be discharged from
all further duties and liabilities under this
Agreement. Seller and Buyer shall bear all costs and
expanses of such legal proceedings.
Chicago Title Insurance Company
By: /s/ Xxxxx Xxxxxx
Its:Escrow Assistant
(PAGE)
Exhibit "A"
0000 X. Xxxxxxxxxxxx Xxxxxx, Xxxxxx, XX
Being Xxx 0 xx Xxxxx X/0000 xx Xxxxxxx Xxxxx Shopping Center
Phase II, an Addition to the City of Dallas, Texas, according to
the Plat thereof recorded in Volume 86072, Page 2597, Map
Records, Dallas County, Texas.
(PAGE)
Exhibit "B"
0000 X. Xxxxxxxxxxxx Xxxxxx, Xxxxxx, XX
True and Correct Copy of Land and Building Lease Agreement
Between Seller's Predecessor-in Interest & Jiffy Lube
International of Maryland, Inc. Dated July 23, 1987
