PURCHASE AGREEMENT
Taco Cabana - San Antonio, TX
This AGREEMENT, entered into effective as of the 10 day of February, 2009
(the "effective date" hereof.)
1. PARTIES. Seller is AEI Net Lease Income & Growth Fund XIX Limited
Partnership which owns an undivided 100% interest in the fee simple title to
that certain real property legally described in the attached Exhibit "A"
(the "Property"). Buyer is Xxxxxxx Living Trust. Seller wishes to sell and
Buyer wishes to buy the Property.
2. Property. The Property to be sold to Buyer in this transaction consists
of (i) an undivided 100% interest in the Taco Cabana property located at
0000 Xxxxxxx Xxxx in San Antonio, TX, (ii) no personalty; Seller has no
personalty in the Property per the terms of the Taco Cabana lease encumbering
the Property (the "Lease") and therefore no personalty is being sold
hereunder, and (iii) all of the landlord's interest in and to the Lease and
the Xxxxxxxx Guaranty.
3. PURCHASE PRICE. The purchase price for this 100% interest in the Property
is $1,364,000, all cash.
4. TERMS. The purchase price for the Property will be paid by Buyer as
follows:
(A). When this agreement is executed, Buyer will pay $20,000.00 to Title
Company (which shall be deposited into escrow according to the terms of
paragraph 7 hereof) (the "First Payment"). The First Payment will be credited
against the purchase price when and if escrow closes and the sale is
completed.
(B). If Buyer terminates this agreement pursuant to Buyer's rights hereunder,
the First Payment will be refunded to Buyer less a $100.00 portion thereof
that Seller will retain as independent consideration for Buyer's unrestricted
right to terminate (the "Independent Consideration"). Hereinafter, whenever in
this agreement Buyer shall receive a return of the First Payment, the parties
agree that the Independent Consideration shall first be paid to Seller and the
balance of the First Payment returned to Buyer . Buyer has tendered the
Independent Consideration to Seller upon payment of the amount specified in
Paragraph 4A to the escrow agent. The Independent Consideration is to be
credited to the sales price only upon closing of the sale.
(C). Buyer will deposit the balance of the purchase price, $1,344,000 (the
"Second Payment") into escrow in sufficient time to allow escrow to close on
the closing date.
5. CLOSING DATE. Escrow shall close on or before thirty (30) days from the
effective date.
6. DUE DILIGENCE. Buyer will have twenty-one (21) days commencing on the
effective date of this agreement (the "Review Period") to conduct all of its
inspections and due diligence and satisfy itself regarding the Property and
this transaction. 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 and this indemnity
shall survive closing or termination of this agreement. Within five days of
the Effective Date of this Agreement, Seller shall provide (except as
explained below, in Item A):
A. One copy of a title insurance commitment for an Owner's Title insurance
policy (see paragraph 8 below), to be ordered by Seller immediately upon both
parties hereto having executed this agreement, and said commitment to be
delivered to Buyer as soon as the third party title insurance company provides
it to Seller.
B. A copy of a Certificate of Occupancy from the City of Xxxx Valley dated
February 3, 1992.
C. A copy of an "as built" survey of the Property completed by Xxxxxxx X.
Xxxxxxxx Surveying Company dated February 8, 1992 (the "Survey").
D. A copy of the Environmental Assessment Report on the Property completed
by Xxxx-Xxxxxxx Consultants, Inc. (Project #ASF91-070-00) dated July 31, 1991.
E. A copy of the Zoning letter from X.X. Xxxxxxxxx, Development
Coordinator for the City of Xxxx Valley dated August 6, 1991.
F. A true and complete copy of the Net Lease Agreement by and between AEI
Net Lease Income & Growth Fund XIX Limited Partnership and Taco Cabana, Inc.
dated March 16, 1992.
G. A true and complete copy of the Guarantee of Lease by and between AEI Net
Lease Income & Growth Fund XIX Limited Partnership and Xxxxx X. Xxxxxxxx and
Xxxxxx Xx Xxxxxxxx, dated March 16, 1992 ("Xxxxxxxx Guaranty").
H.A true and complete copy of a letter from Xxxxxxx Xxxxxx, Assistant
General Counsel to Taco Cabana, Inc., dated March 16, 1994, with proposed
Guaranty of Lease by Taco Cabana, Inc., Taco Cabana Management, Inc., and
T.C. Management, Inc.
I. A true and complete copy of the Consent and Acknowledgments
Concerning Net Lease Agreement by and between AEI Net Lease Income & Growth
Fund XIX Limited Partnership and Taco Cabana, Inc. and Xxxxx X. Xxxxxxxx and
Xxxxxx Xx Xxxxxxxx dated June 2, 1994.
X.X true and complete copy of a letter from Xxxxx X. Xxxx, Real Estate
Coordinator of Carrols Corporation, dated December 17, 2002.
K. A true and complete copy of the First Amendment to Net Lease
Agreement AEI Net Lease Income & Growth Fund XIX Limited Partnership and Taco
Cabana, LP, dated October 1, 2006.
L. A copy of the Taco Cabana Confidential Unaudited Financial Information -
Combined Financial Statements (Balance Sheet and Income Statement) as of
December 30, 2007 for Taco Cabana, Inc., and the Taco Cabana Store Sales-
Statement of Income dated December 2007.
M. Copies of building plans and specifications, if any, in Seller's
possession.
Buyer may cancel this agreement for any reason in its sole discretion by
delivering a cancellation notice, return receipt requested, to Seller and its
real estate representative, and the escrow holder before the expiration of the
Review Period. Such notice shall be deemed effective only upon receipt by
Seller. If this Agreement is not cancelled as set forth above, the First
Payment shall be non-refundable unless Seller shall default hereunder.
If Buyer cancels this Agreement as permitted under this Section, except for
any liabilities under the first paragraph of section 6 of this Agreement and
those provisions stating otherwise (which will survive), Title Company shall
return to Buyer 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 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 be in default under this
Agreement. Seller then may, as its sole remedy, retain the First Payment and
declare this Agreement null and void, in which event Buyer will be deemed
to have canceled this Agreement and relinquish all rights in and to the
Property. If this Agreement is not canceled and the First Payment 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 Seller and the funds will be deposited
in escrow with First American Title Insurance Company, 000 Xxxxxxxx Xxxx, 0000
Xxxxxxx Xxxxx, Xxxxxxxxxxx, Mn., Attn: Xxxxxxx Xxxxxxxxxx ("Title Company")
upon acceptance of this Agreement by both parties. A copy of this Agreement
will be delivered to the escrow holder and will serve as 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
(and the parties agree to sign these additional instructions). If there is any
conflict between these other instructions and this Agreement, this Agreement
will control.
8. TITLE. Closing will be conditioned on the agreement of Title Company 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 insurable
title to the Property subject only to: the title company's standard
printed exceptions; current real property taxes and assessments; survey
exceptions; the rights of parties in possession pursuant to the Lease; and
all matters of public record listed in Schedule "B" of the title insurance
commitment provided to Buyer by Title Company during the Review Period.
Buyer shall be allowed five (5) business days after receipt of said
commitment and legible copies of Schedule B exceptions, and the survey
referenced in Paragraph 6B above, for examination and the making of any
objections thereto, said objections to be made in writing or deemed
waived. If any objections are so made, Seller shall be allowed thirty
(30) days to cure such objections or, in the alternative, to obtain a
commitment for insurable title insuring over Buyer's objections. If Seller
shall decide to make no efforts to cure the objections or is unable to cure
same or insure oversame. within said 30 day period, this Agreement shall
automatically terminate and Title Company shall return Buyer's First
Paymentand this Agreement shall be null and void and of no further force
and effect. Seller has no obligation to spend any funds or make any effort to
satisfy Buyer's objections, if any.
Pending satisfaction of Buyer's objections, the Purchase Price payments
hereunder required shall be postponed, but upon satisfaction of Buyer's
objections and within ten (10) days after written notice to the Buyer of
satisfaction of Buyer's objections, the parties shall close and perform this
Agreement according to its terms.
9. CLOSING COSTS. Seller will pay one-half of escrow fees and the cost
of obtaining a Standard Owners Title Insurance Policy in the full amount of
the purchase price. Buyer will pay one-half of escrow fees, recording costs,
the cost of an update to the Survey (if an update is required by Buyer), the
cost of updating any due diligence provided by Seller, if Buyer requires
the same be updated, and any endorsements to the Standard Owners Title
Insurance Policy Buyer may require. At closing, if and when closing occurs,
Seller will pay 4% of the sale price at closing as a brokerage commission
to be split equally between Xxxx X. Xxxxxx, Inc. and Xxxxxxxxx Properties,
Inc. Except as set forth above both parties represent to the other that they
have not been represented by any third party, and agree to hold the other
harmless from any claim of brokerage commission by, through, or as a result
of representation of the other party. Each party will pay its own
attorney's fees and costs to document and close this transaction.
10. REAL ESTATE TAXES, SPECIAL ASSESSMENTS AND PRORATIONS.
(A). Seller warrants that all real estate taxes and installments of special
assessments due and payable in all years prior to the year of Closing have
been paid in full. Unpaid real estate taxes and unpaid levied and pending
special assessments existing on the date of Closing shall be the
responsibility of Buyer, if Tenant is obligated to pay same but has not
done so. Buyer shall also pay all taxes due and payable in the
year after Closing and any unpaid installments of special assessments payable
therewith and thereafter, if such unpaid levied and pending special
assessments and real estate taxes are not paid by any tenant of the Property.
If Tenant HAS paid taxes and/or special assessments to Seller attributable
in whole or in part to a period prior to closing, then Seller shall give
Buyer a credit for same at closing.
(B). All income and all operating expenses from the Property, if any, shall
be prorated between the parties and adjusted by them as of the date of
Closing. Seller shall be entitled to all income earned, and shall be
responsible for all expenses incurred, prior to the date of Closing. Buyer
shall be entitled to all income earned and shall be responsible for all
operating expenses of the Property incurred on and after the date of closing.
If Seller has received, from Tenant, lease payments (CAM, taxes, insurance,
base rent etc.) attributable to a period following closing, Seller shall give
Buyer a credit at closing for same. Seller waives any right to make claims,
post-closing, for alleged underpayement by Tenant of sums due under the Lease
for any period prior to closing.
11.SELLER'S REPRESENTATION AND AGREEMENTS.
(A). Seller represents and warrants as of this date that:
1. Except for the Lease, Guarantee and other documents listed herein,
Seller is not aware of any leases or contracts affecting the Property.
2. Seller is not aware of any pending litigation or condemnation
proceedings against the Property or Seller's interest in the Property.
3. Except as previously disclosed to Buyer and as permitted in paragraph B
below, Seller hasnot executed any contracts that would be binding on Buyer or
the Property after the closing date.
(B). From and after the Effective Date, while this agreement is in effect,
Seller agrees that it will not enter into any new contracts that would
materially affect the Property and be binding on Buyer after the Closing Date
without Buyer's prior written consent, which will not be unreasonably
withheld.
12. Disclosures.
(A). Seller has not received any notice of any material, physical, or
mechanical defects of the Property, including without limitation, the
plumbing, heating, air conditioning, and ventilating, electrical system.
To the best of Seller's knowledge without inquiry, all such items are in
good operating condition and repair and in compliance with all applicable
governmental, zoning, and land use laws, ordinances, regulations and
requirements. If Seller shall receive any notice to the contrary prior to
Closing, Seller will inform Buyer prior to Closing, and Buyer may terminate
this agreement and the First Payment will be returned.
(B). Seller has not received any notice that the use and operation of the
Property is not in full compliance with applicable building codes, safety,
fire, zoning, and land use laws, and other applicable local, state and
federal laws, ordinances, regulations and requirements. If Seller shall
receive any such notice prior to Closing, Seller will inform Buyer prior
to Closing, and Buyer may terminate this agreement and the First Payment
will be returned.
(C). Seller has not received any notice that the Property is in violation of
any federal, state or local law, ordinance, or regulations relating to
industrial hygiene or the environmental conditions on, under, or about the
Property, including, but not limited to, soil, and groundwater conditions. To
the best of Seller's knowledge, there is no proceeding or inquiry by any
governmental authority with respect to the presence of Hazardous Materials on
the Property or the migration of Hazardous Materials from or to other
property. Buyer agrees that Seller will have no liability of any type to
Buyer or Buyer's successors, assigns, or affiliates in connection with any
Hazardous Materials on or in connection with the Property either before or
after the Closing Date, except such Hazardous Materials on or in connection
with the Property arising out of Seller's gross negligence or intentional
misconduct. If Seller shall receive any notice to the contrary prior to
Closing, Seller will inform Buyer prior to Closing, and Buyer may terminate
this agreement and the First Payment will be returned.
(D). The Lease is in full force and effect and shall continue to be in full
force and effect as of closing, and Seller is not aware of any breach of the
Lease.
(E). BUYER AGREES THAT IT SHALL BE PURCHASING THE PROPERTY IN ITS PRESENT
PHYSICAL CONDITION, "AS IS, WHERE IS", AND SELLER HAS NO OBLIGATIONS TO
CONSTRUCT OR REPAIR ANY IMPROVEMENTS THEREON OR TO PERFORM ANY OTHER ACT
REGARDING THE PROPERTY, EXCEPT AS EXPRESSLY PROVIDED HEREIN.
(F). BUYER ACKNOWLEDGES THAT, HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT
THE PROPERTY AND SUCH FINANCIAL INFORMATION CONCERNING THE LESSEE AND ANY
GUARANTORS OF THE LEASE AS BUYER OR ITS ADVISORS SHALL REQUEST AND AS MAY
BE IN SELLER'S POSSESSION, BUYER IS RELYING SOLELY ON ITS OWN INVESTIGATION
OF THE PROPERTY AND NOT ON ANY REPRESENTATIONS OR INFORMATION PROVIDED BY
SELLER OR TO BE PROVIDED BY SELLER, EXCEPT FOR THOSE EXPRESS REPRESENTATIONS
OF SELLER SET FORTH IN THIS AGREEMENT. BUYER FURTHER ACKNOWLEDGES THAT THE
INFORMATION PROVIDED, OR TO BE PROVIDED, BY SELLER WITH RESPECT TO THE
PROPERTY, THE PROPERTY AND TO THE LESSEE AND ANY GUARANTORS OF LEASE, WAS
OBTAINED FROM A VARIETY OF SOURCES AND SELLER HAS NOT (A) MADE
INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION, AND (B)
MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH
INFORMATION, EXCEPT THOSE REPRESENTATIONS MADE IN PARAGRAPH 6(F) THROUGH
6(K). THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS
IS - WHERE IS" BASIS AND BUYER EXPRESSLY ACKNOWLEDGES THAT, IN CONSIDERATION
OF THE AGREEMENTS OF SELLER HEREIN, EXCEPT AS OTHERWISE SPECIFIED IN
PARAGRAPH 6, 11, OR 12 OF THIS AGREEMENT, 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,
SUITABILITY FOR LEASE, SUITABILITY FOR COMMERCIAL PURPOSES, MERCHANTABILITY,
OR FITNESS FOR A PARTICULAR PURPOSE, IN RESPECT OF THE PROPERTY. SELLER
MAKES NO REPRESENTATIONS OF ANY SORT THAT OWNERSHIP OF THE ENTIRE PROPERTY
WILL RESULT IN A PROFIT TO ANY BUYER. (G) BUYER ACKNOWLEDGES THAT SELLER
HAS NOT, AND DOES NOT, MAKE ANY REPRESENTATION TO BUYER AS TO (A) THE SUCCESS,
OR LACK THEREOF, OF THE PROPERTY, (B) THE LESSEE OR ANY GUARANTORS OF THE
LEASE OR THEIR ABILITY TO FULFILL THEIR LEASE OR GUARANTY OBLIGATIONS,
OR (C) THE APPROPRIATENESS OF PURCHASING THEPROPERTY FOR THE BUYER'S
INDIVIDUAL TAX OR FINANCIAL SITUATION OR TAX OR FINANCIAL OBJECTIVES.
The provisions (E) - (G) above shall survive Closing.
13. Closing.
(A). Before the closing date, Seller will deposit into escrow an executed
special warranty deed warranting title against lawful claims by, through, or
under a conveyance from Seller, but not further or otherwise, conveying
insurable title of the Property to Buyer, subject to the permitted
exceptions referenced in paragraph 8 above. Seller will also deliver an
Estoppel Certificate (signed by Lessee) in a form reasonably acceptable to
Buyer as provided by Buyer prior to the end of the Review Period Seller's
failure to deliver a Lessee's estoppel is not an event of default by Seller,
but shall afford the Buyer the right to terminate the Agreement and as its
sole remedy receive a return of its First Payment by Title Company.
(B). On or before the closing date, Buyer will deposit into escrow the
balance of the Purchase Price when required under Section 4 and any
additional funds required of Buyer (pursuant to this agreement or any
other agreement executed by Buyer) to close escrow. Both parties will
deliver to the escrow holder any other documents reasonably required by
the escrow holder to close escrow including without limitation borrowing
resolutions, affidavits of parties in possession, Assignment of Lease and
Guaranty (Seller making no warranty that the Xxxxxxxx Guaranty is legally
enforceable).
(C). On the closing date, if escrow is ready 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.
14. DEFAULTS. If Buyer defaults, Buyer will forfeit all rights and claims
and Seller will be relieved of all obligations and will be entitled to retain
all monies heretofore paid by the Buyer, as its sole remedy.
If Seller shall default, Seller will forfeit all rights and claims and
Buyer will be relieved of all obligations and will be entitled to the return
of its Xxxxxxx Money, which shall be promptly returned to Buyer. In addition,
Buyer shall retain the right, at Buyer's option, to xxx for specific
performance of this Agreement, but not for damages.
15. BUYER'S REPRESENTATIONS AND WARRANTIES.
(A). Buyer represents and warrants to Seller as follows:
(1). In addition to the acts and deeds recited herein and contemplated to be
performed, executed, and delivered by Buyer, Buyer shall perform, execute and
deliver or cause to be performed, executed, and delivered at the Closing or
after the Closing, any and all further acts, deeds and assurances as Seller or
the Title Company may require and be reasonable in order to consummate the
transactions contemplated herein.
(2). 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.
(3). 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.
16. SELLER'S REPRESENTATIONS AND WARRANTIES.
(A). Seller represents and warrants to Buyer as follows:
(1). In addition to the acts and deeds recited herein and contemplated to be
performed, executed, and delivered by Buyer, Seller shall perform, execute and
deliver or cause to be performed, executed, and delivered at the Closing or
after the Closing, any and all further acts, deeds and assurances as Buyer or
the Title Company may require and be reasonable in order to consummate the
transactions contemplated herein.
(2). 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.
(3). To Seller'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 Seller is a party or by which
Seller is bound.
17. 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 of
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 (10) days after Buyer has received written notice from Seller
of the occurrence 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 ten-day 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
(pro-rata in relation to the Property) resulting from said damage or
destruction to the extent that the same are payable with respect to
damage to the Property, subject to rights of any Tenant of the Property.
If the cost of repair is less than $10,000.00, Seller shall credit Buyer for
the cost of the repairs. Buyer shall then be obligated to otherwise perform
hereunder.
(B). If, prior to closing, the Property, or any part thereof, is taken by
eminent domain, this Agreement shall become null and void at Buyer's option.
If Buyer elects to proceed 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 the Seller's right, title, and interest in and
to any award made, or to be made, in the condemnation proceeding pro-rata in
relation to the Property, subject to rights of any Tenant of the Property.
In the event that this Agreement is terminated by Buyer as provided above in
Subparagraph 16A or 16B, 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.)
18. 1031 EXCHANGE.
If Buyer is purchasing the Property as "replacement property" to for
purposes of a tax free exchange, Buyer acknowledges that Seller has made no
representations, warranties, or agreements to Buyer or Buyer's agents that
the transaction contemplated by the Agreement will qualify for such tax
treatment, nor has there been any reliance thereon by Buyer respecting the
legal or tax implications of the transactions contemplated hereby. Buyer
further represents that it has sought and obtained such third party advice
and counsel as it deems necessary in regards to the tax implications of this
transaction.
Buyer wishes to novate/assign the ownership rights and interest of this
Purchase Agreement to a third party who will act as Accommodator to
perfect the 1031 exchange by preparing an agreement of exchange of Real
Property whereby said third party will be an independent third party
purchasing the ownership interest in subject property from Seller and
selling the ownership interest in subject property to Buyer under the
same terms and conditions as documented in this Purchase Agreement.
Buyer asks the Seller, and Seller agrees to cooperate in the perfection
of such an exchange if at no additional cost or expense to Seller or
delay in time. Buyer hereby indemnifies and holds Seller harmless from
any claims and/or actions resulting from said exchange. Pursuant to the
direction of said Accomodator, Seller will deed the property to Buyer.
19. CANCELLATION
If any party elects to cancel this Contract because of any breach by the
other party or because escrow fails to close by the agreed date, the party
electing to cancel shall deliver to the other party a notice stating that
this Contract shall be cancelled unless the breach is cured within 13 days
following the delivery of the notice. If the breach is not cured within
the 13 days following the delivery of the notice, this Contract shall be
cancelled.
20. 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). If this escrow has not closed by the Closing Date through no fault of
Seller, Seller may, at its election, extend the closing date or exercise any
remedy available to it by law, including terminating this Agreement.
(C). Funds to be deposited or paid by Buyer must be good and clear funds
in the form of cash, cashier's checks or wire transfers.
(D). 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 on the day
of deposit in the U.S. mail if sent by first class certified mail, return
receipt requested, postage prepaid, or on the date of actual delivery if sent
by a nationally recognized courier service guaranteeing overnight delivery
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:
AEI Fund Management , Inc.
Attn: Xxxxx Xxxxxxxxx
0000 Xxxxx Xxxxx Xxxxx
00 Xxxx Xxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
If to Buyer:
Xxxxxxx Living Trust
do Xxxxxxxxx Properties, Inc.
0000 XXX Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
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.
This Agreement shall be governed by, and interpreted in accordance with, the
laws of the State of Texas.
IN WITNESS WHEREOF, the Seller and Buyer have executed this Agreement
effective as of the day and year above first written.
BUYER:
Xxxxxxx L. Trust
By: /s/ Xxxxxx Xxxxxxx Trustee
SELLER:
AEI Net Lease Income & Growth Fund XIX Limited Partnership
By AEI Fund Management XIX, Inc., Its Corporate General Partner
By: /s/ Xxxxxx X Xxxxxxx
Exhibit A
Legal Description
Description of a 1.131 acre tract of land, City of Xxxx Valley and City of
San Antonio, Bexar County, Texas.
Being a 1.131 acre tract of land out of the Xxxxx Xxxxxxxxxxx Survey Xx. 000,
Xxxxxxxx Xx. 0000, Xxxxx Xxxxxx, Xxxxx and being (1) all that certain 1.018
acre Xxx 0, XXXXXXXXXXX XXXXXXXX, as per Subdivision Plat thereof recorded in
Volume 9506 on page 81 of the Records of Deeds and Plats of Bexar County,
Texas, and being (2) all of that certain 0.164 of an acre tract and that
certain 0.967 of an acre tract described in a Substitute Trustee's Deed dated
August 6, 1991 and recorded in Volume 5125 on pages 1947-1960 of the Real
Property Records of Bexar County, Texas, said 1.131 acre tract described more
particularly by metes and bounds as follows:
BEGINNING at an iron pin found at the point of intersection of the Southeast
line of Wursbach Road with the Southwest line of State Xxxxxxx 00, Xxxxxxx
Xxxx, for the North corner of the above cited 1.018 acre Lot 2, for the North
corner of the above cited 0.164 of an acre tract, for the North corner of the
herein described 1.131 acre tract;
THENCE with the Southwest R.O.W. of Bandera Road, the Northeast line of the
said 1.018 acre Lot 2, the Northeast line of said 0.164 of an acre tract,
S. 46 02' 40" E. 94.10 feet to a concrete nail found for an East corner of
the said Lot 2, for an East corner of the said 0.164 of an acre tract, for
an East corner of this 1.131 acre tract;
THENCE with a Southeast line of the said Lot 2, a Southeast line of the said
0.164 of an acre tract, S. 44 05' 18" W. 29.50 feet to a concrete nail found
for a re-entrant corner of the said Lot 2, for a re-entrant corner of the said
0.164 of an acre tract, for a re-entrant corner of this 1.131 acre tract;
THENCE with a Northeast line of the Lot 2, a Northeast line of the said
0.164 of an acre tract, S. 45 50' 00" E. 48.69 feet to an iron pin found for
an East corner of the said Lot 2, for an East corner of the said 0.164 of an
acre tract, for an East corner of this 1.131 acre tract;
THENCE with the Southeast line of the said Lot 2, the Southeast line of the
said 0.164 of an acre tract and the Southeast line of the said 0.967 of an
acre tract, S. 44 46' 33" W., at a called distance of 30.00 feet the South
corner of the said 0.164 of an acre tract, the East corner of the said 0.967
of an acre tract, in all a total distance of 182.98 feet to a concrete nail
found in a curb;
THENCE with the Southeast line of the said Lot 2, the Southeast line of the
said 0.967 of an acre tract, S. 41 01' 45" W., at 121.89 feet the South
corner of the said Lot 2, in all a total distance of 155.68 feet to a tack
found in a lead plug for the South corner of the said 0.967 of an acre tract,
for the South corner of this 1.131 acre tract;
THENCE with the Southwest line of the said 0.967 of an acre tract, N. 48 53'
03" W. 135.15 feet to a point for the West corner of the said 0.967 of an acre
tract, for the West corner of this 1.131 acre tract;
THENCE with the Northwest line of the said 0.967 of an acre tract and the
Northwest line of the said Xxx 0, X. 00 00' 00" X., xx 40.09 feet the West
corner of the said Lot 2, in all a total distance of 154.19 feet to an iron
pin found;
THENCE with the Northwest line of the said Lot 2, the Northwest line of the
said 0.967 of an acre tract, the Northwest line of the said 0.164 of an acre
tract and partially with the Southeast line of Wursbach Road, N. 42 08' 52"
E., at a called distance of 71.16 feet the point of intersection of this line
with the Southeast line of Wursbach Road, at a called distance of 161.16 feet
the North corner of the said 0.967 of an acre tract, the West corner of the
said 0.164 of an acre tract, in all a total distance of 220.88 feet to the
Place of Beginning.
