REAL ESTATE PURCHASE AGREEMENT
This Real Estate Purchase Agreement (this "Agreement"), is
made and entered into this 22nd day of May 2003, by and between,
AEI Real Estate Fund XVI Limited Partnership (the "Seller") and
Xxxxxx X. Xxxxxx, (the "Purchaser").
PRELIMINARY STATEMENT
The Seller is the owner of the real estate located at 0000
Xxxxx Xxxxxx, Xxxxx, Xxxxxxx Xxxxxx, Xxxxxxxx and which is
legally described on Exhibit "A," attached hereto and by this
reference incorporated herein (the "Real Estate"). Purchaser
desires to purchase from the Seller and the Seller desires to
sell to the Purchaser, on the terms and conditions set forth in
this Agreement, the Real Estate, together with all improvements
thereon, and all other rights, privileges, and easements
appurtenant to the Real Estate (collectively, the "Property").
TERMS AND CONDITIONS
1. PURCHASE AND SALE. The Seller agrees to sell to the
Purchaser, and the Purchaser agrees to purchase from the Seller
the Property on the terms and conditions set forth in this
Agreement.
2. PURCHASE PRICE. The purchase price for the Property
(the "Purchase Price") shall be One Million Six Hundred Thirty-
two Thousand and No/100 Dollars ($1,632,000.00) and shall be
payable by the Purchaser to the Seller as follows:
(a) DEPOSIT. Upon execution of this Agreement, the
Purchaser shall deliver and deposit, in cash or immediately
available funds, the sum of Twenty-five Thousand and No/100
Dollars ($25,000.00) (the "Initial Deposit"), to and with
the Escrow Agent (hereafter specified) as xxxxxxx money. In
the event that the Purchaser does not terminate this
Agreement within the Investigation Period (hereafter
specified), the Purchaser shall deliver and deposit, in cash
or immediately available funds, an additional sum of Fifty
Thousand and No/100 Dollars ($50,000.00) (the "Additional
Deposit"), to and with the Escrow Agent as additional
xxxxxxx money. The Initial Deposit and the Additional
Deposit shall be collectively referred to herein as the
"Deposit." At the Closing, the Deposit shall be a credit
against the Purchase Price.
(b) BALANCE. The Purchaser shall pay the remaining
Purchase Price, after adjustments and prorations to be made
at the Closing, to the Seller at the Closing in cash or
immediately available funds.
3. SPECIAL WARRANTY DEED. At the Closing, the Seller shall
execute and deliver to the Purchaser a special warranty deed (the
"Deed") conveying fee simple title to the Property subject to all
easements, restrictions, covenants of record and any other
matters disclosed in the Commitment (identified in Section 5)
(the "Standard Exceptions"), except deeds of trust and any other
liens for an ascertainable amount which the Seller at its option
shall remove at or before Closing, and subject to the Lease, the
Sublease, the Billboard Lease, the License Agreement, the
Litigation and the Litigation II (all as hereinafter defined and
collectively referred to as "Special Exceptions").
4. INVESTIGATION PERIOD. Commencing on the date of this
Agreement, and for a period of sixty (60) days thereafter (herein
the "Investigation Period"), the Purchaser shall have the right
and opportunity, at its sole cost and expense, to investigate
various matters relating to the Property. During the
Investigation Period the Purchaser may, in his sole discretion,
at any time, terminate this Agreement, by giving written notice
to the Seller, whereupon, the Seller shall immediately authorize
the return of the Initial Deposit to the Purchaser and neither
party shall have further liability or obligation to the other
under this Agreement. The Purchaser's right to terminate this
Agreement shall terminate at the end of the Inspection Period.
In regard to the Purchaser's investigation:
(a) SELLER'S INSPECTION DOCUMENTS. Within ten (10)
days after the execution of the Agreement, the Seller shall
deliver to the Purchaser complete copies of all
documentation in Seller's possession or under its control
relating to the physical characteristics of the Property,
including, but not limited to surveys and engineering,
testing, inspections, and environmental assessments, reports
and recommendations, if any, with respect to the Property,
any notices of investigations or violations, any orders,
recommendations or requests for remediation, response or
other action with respect to the environmental condition of
the Property received by the Seller from any governmental
agency, and any environmental remediation, response or other
action plans or agreements which have been or are intended
to be implemented by or on behalf of the Seller with respect
to the Property. In addition, the Seller shall deliver to
the Purchaser copies of all leases or tenancy agreements
that are currently associated with the Property, including
the Contracts (defined below). The Seller certifies to the
Purchaser that Seller has no other leases or tenancies,
either written or oral, concerning the Property which extend
longer than month to month except the Contracts. The
Purchaser will use such information only for the purpose of
evaluating the condition of the Property, and will return
all such information to the Seller if the transaction
contemplated by this Agreement does not close for any
reason.
(b) INSPECTION AND INDEMNIFICATION. During the
Investigation Period, with reasonable prior notice (but not
to exceed 24 hours) to the Seller and subject to such
conditions and restrictions as the Seller may impose (which
may include having a representative of the Seller present
with the Purchaser, or his agents or contractors, during any
entry onto the Property), the Purchaser, and his agents and
contractors, shall have the right to entry on to the
Property to investigate various matters regarding the
Property that the Purchaser deems relevant. Such matters
may include building inspections, soil and environmental
testing, property appraisal, topographic studies, etc. Such
investigations shall be at the Purchaser's sole cost and
expense. The Purchaser shall indemnify, defend and hold the
Seller harmless from any liability or claims associated with
the Purchaser, and/or his agents or contractors, incurred
during the inspection(s) of the Property prior to the
Closing. In the event that the Purchaser or its agents
cause damage to the Property due to such inspections or
cause any liens against the Property, the Purchaser shall
immediately return the Property to the condition it was in
prior to such damage or inspection and have all liens
released. The Seller shall have the right to cause the
Initial Deposit to be used to satisfy the Purchaser's
indemnification obligations of this Section.
(c) Within a reasonable time after receipt, the
Purchaser shall deliver to the Seller copies of any and all
reports and documents, including appraisals, environmental
studies, title searches, the Commitment, survey and all
other inspection reports.
5. TITLE POLICY. Within fifteen (15) days after the
execution of this Agreement, the Purchaser shall acquire a title
commitment (the "Commitment") for the issuance of a Seller's
(ALTA Form B) policy of title insurance to be issued at the
Closing through Xxxxxx Title Company (the "Escrow Agent"). The
Commitment shall assure that the title company will insure, for
the benefit of the Purchaser, the title of the Property for an
amount equal to the Purchase Price, and shall exclude all
standard exceptions to coverage shown on Schedule B, and shall
include an extended coverage endorsement reasonably acceptable to
the Purchaser. The Purchaser shall bear all costs and expenses
of any survey. The cost of the title insurance policy shall be
the sole obligation of the Purchaser. Within the Investigation
Period, the Purchaser may deliver to the Seller a written
statement of any objection the Purchaser has to title, and the
Seller may, but is not obligated to, take steps to correct any
defect in title identified by such objection, and to request the
title insurer to reissue its Commitment. The Purchaser must
provided to the Seller written objection to any title defects or
exceptions prior to the end of the Investigation Period, or the
Purchaser shall be deeded to have excepted such defects and
exceptions and shall take the Property and title thereto subject
to said defects and exceptions.
6. ASSUMPTION OF LEASE AND INDEMNIFICATION. The Property
is subject to that certain Net Lease Agreement dated November 16,
1987, by and between Discus of Omaha, Inc. ("Discus"), which has
been amended from time to time and which, on or about June 7,
1994, was assigned by Discus and assumed by Fuddrucker's, Inc.
("Fuddruckers"), as tenant, and the Seller, as landlord, (the
"Lease"). Without the prior consent of the Seller, Fuddruckers
sublet the Property to Xxxxxxxx, Inc. ("Xxxxxxxx"), under a
sublease agreement dated June 5, 1995 (the "Sublease"). Further,
the Property is subject to a lease agreement, dated January 28,
1985, and amended on August 31, 1987, for the use of the
billboard sign located on the Property (the "Billboard Lease").
The Billboard Lease is subject to that certain License Agreement
dated August 31, 1987, which was assigned to the Seller on or
about October 22, 1987 (the "License Agreement"). The Purchaser
acknowledges receipt of the Lease, the Sublease (if any), the
Billboard Lease and the License Agreement (collectively, the
"Contracts").
At the Closing, the Purchaser agrees to assume from the
Seller and the Seller shall assign to the Purchaser all of the
Seller's rights, benefits, obligations and responsibilities under
the Contracts, accruing on and after the date of Closing. Except
as provided in this Agreement, including Section 7, the Purchaser
shall indemnify, defend and hold the Seller harmless from and
against any and all losses, claims, causes of action,
liabilities, and costs arising under or of the Contracts or which
may be brought pursuant to the Contracts, accruing on and after
the date of Closing. Except as provided in this Agreement,
including Section 7, the Seller shall indemnify, defend and hold
the Purchaser harmless from and against any and all losses,
claims, causes of action, liabilities, and costs arising under or
out of the Contracts or which may be brought pursuant to the
Contracts accruing prior to the date of Closing. The foregoing
duty of indemnification shall include the duty to pay all
reasonable attorney's fee and costs incurred by the indemnified
party in responding to or defending any such claims or
proceedings, and shall survive Closing. At Closing, the parties
shall execute and deliver to each other an assignment and
assumption agreement assigning the Contracts to the Purchaser.
7. ASSUMPTION OF LITIGATION/CLAIMS AND INDEMNIFICATION.
(a) The Purchaser acknowledges that litigation is
pending in the District Court of Xxxxxxx County, Nebraska,
Case No. 1014-723, concerning the Lease and the Sublease
(the "Litigation I"). The Litigation I seeks a
determination of whether Fuddruckers is liable to Xxxxxxxx
for an adjustment in base rental because of alleged material
interference with the business of Xxxxxxxx as a result of
property taken from the Property by condemnation by the City
of Omaha, Nebraska. In turn, Fuddruckers seeks an
adjustment in the base rental it owes to the Seller. The
Purchaser and Seller acknowledge that it is uncertain how
the Litigation I will be resolved, and whether any
adjustment in base rental will be owed by the Seller. The
Seller agrees to defend the Litigation I at the Seller's
expense until the time of the Closing and shall indemnify,
defend and hold the Purchaser harmless from liability for
any amount determined to be owed from the Seller to
Fuddruckers or Xxxxxxxx for the period prior to Closing.
From and after the Closing, the Purchaser agrees to defend
at the Purchaser's expense the Litigation I, and any amounts
determined to be owed for the period beginning the day of
Closing and afterward shall be the sole liability of the
Purchaser. The Purchaser agrees to indemnify, defend and
hold the Seller harmless from liability for any amounts
determined to be owed to Fuddruckers or Xxxxxxxx for the
period beginning the day of closing and afterward.
(b) The Purchaser acknowledges that litigation is
pending in the District Court of Xxxxxxx County, Nebraska,
Case No. 1020-061, concerning the Billboard Lease and the
License Agreement (the "Litigation II"). The Litigation II
seeks a declaratory judgment stating the respective rights
of the Seller and several other parties in a dispute over
leasing billboard space on the Property. Both the current
tenant on the Property and the Seller claim to own the right
to lease billboard space on the Property. The Purchaser
acknowledges that it is uncertain how the Litigation II will
be resolved. The Seller agrees to defend the Litigation II
at the Seller's expense until the time of the Closing and
indemnify and hold the Purchaser harmless from liability for
any amount determined to be owed by the Seller for the
period prior to the Closing. From and after the Closing,
the Purchaser agrees to defend at the Purchaser's expense
the Litigation II, and any amounts determined to be owed for
the period beginning the day of the Closing and afterward
shall be the sole liability of the Purchaser. The Purchaser
agrees to indemnify, defend and hold the Seller harmless
from liability for any amounts determined to be owed by the
Seller for the period beginning the day of Closing and
afterward.
(c) Regarding the Purchaser's obligation to defend the
Litigation I and Litigation II claims after the Closing, the
Purchaser, and his attorneys, shall do so diligently and
timely. In the event that the Seller determines in its sole
discretion that the Purchaser is not diligently or timely
defending the lawsuits and claims, the Seller may assume the
defense of either Litigation I and/or Litigation II and the
Purchaser shall still be liable for all attorney's fees and
costs associated therewith. The Seller may at all times
after the Closing engage its own attorneys to review and
monitor all matters related to Litigation I and/or
Litigation II and the Purchaser and its attorneys shall
cooperate with the Seller, and its attorney, regarding the
defense, such attorney fees and costs for such review and
monitoring shall be at the expense of the Seller. After the
Closing, the Seller and the Purchaser shall cooperate in
formulating a mutual defense of the lawsuits and claims.
After Closing, the Purchaser may not settle either
Litigation I or Litigation II without the prior written
consent of the Seller, unless such settlement is a complete
release of any claims against the Seller and the Seller will
not have any liability to any third party or the Purchaser
regarding the claims.
8. STREET VACANCY. Attached hereto as Exhibit "B" is a
copy of a letter dated April 14, 2003, from the City of Omaha,
Public Works Department, and attached hereto as Exhibit "C" is a
copy of an Inter-Office Communication, dated April 10, 2003, both
regarding the City of Omaha's vacation of Xxxxxxx Street between
71st Street and 72nd Street. The Purchaser acknowledges that the
owner of the Property may have the option to purchase the North
Half of the vacated street. The Seller has no obligation and
makes no representations, warranties or covenants regarding the
street vacancy or to acquire the same. In the event that the
Purchaser desires to acquire the vacated property in conjunction
with its purchase of the Property, then the Purchaser will
indemnify, defend and hold the Seller harmless from any and all
liabilities, obligations, claims, including any and all costs and
expenses to acquire the vacated property, and attorney's fees and
costs, and no adjustment shall be made to the Purchase Price.
9. CONFIDENTIALITY. The Purchaser shall not disclose the
terms and conditions of this Agreement or any matters or results
of his findings regarding the Property due to his inspection(s),
except to potential lenders, legal counsel, accountants and
other consultants reasonably required to perform Purchaser's
inspection of the Property, unless such matters are in the
public domain by reason other then breach of this provision by
the Purchaser or as required by law or court order. This
covenant shall terminate upon the Closing or in the event that
this Agreement is terminated prior to the Closing, then this
provision shall survive the termination of this Agreement.
10. ACCEPTANCE OF PROPERTY. Except for the Seller's
representation and warranties specifically set forth herein, the
Purchaser acknowledges and agrees he is purchasing the Property
in its present condition, "AS IS" and "WHERE IS" and that the
Purchaser is not relying upon any representations or warranties
made by the Seller, its representatives or agents. The Seller
has no obligation to construct or repair any improvements on the
Property or to perform any other act regarding the Property.
Without limiting the generality of the foregoing, the Purchaser
also agrees that the Seller will have no liability of any type,
direct or indirect, to the Purchaser or the Purchaser'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 the Closing Date. Further, the Purchaser
acknowledges that, having been given the opportunity to inspect
the Property, the Purchaser is relying solely on his own
investigation of the Property and not on any information
provided by the Seller or to be provided except as set forth
herein. The Purchaser expressly acknowledges that, in
consideration of the agreements of the Seller herein, except as
otherwise specified herein, the Seller makes no representation
or warranty, 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.
11. COVENANTS AND WARRANTIES. The Seller hereby makes the
following representations, warranties and covenants to the
Purchaser, which are made as of the date of this Agreement, and
shall continue through and survive the Closing:
(a) TITLE. It is the owner of the Property with full
authority to sell the Property in accordance with the terms
of this Agreement.
(b) NEW AGREEMENTS. After the execution of this
Agreement and until Closing, Seller will not enter into,
modify or terminate any leases, contracts, management
agreements, obligations or other agreements which in any
manner affect the Property or the business operated on the
Property, without the written consent of Purchaser.
(c) DISCLAIMER. The Seller has been an absentee
landlord. Consequently, the Seller has little, if any,
knowledge of the physical characteristics of the Property.
Accordingly, except as otherwise specifically stated in the
Agreement, the 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 of the Property for any and all activities and
uses which the Purchaser may elect to conduct thereon; (ii)
except for the warranty of title contained in the Deed to be
delivered by the 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.
12. DAMAGE. In the event the Property is damaged or
destroyed between the date of this Agreement and the Closing, the
Purchaser shall have the option of either:
(a) terminating this Agreement, or
(b) proceeding with the Closing and thus be entitled
to an assignment or collection of all insurance proceeds
payable to the Seller as an exclusive remedy to the
Purchaser with respect to the damage and destruction to the
Property that have not been expended prior to the Closing
for repair and restoration of the Property and any insurance
for loss of rents for any period subsequent to the Closing.
In this regard, the Seller shall provide the Purchaser with
insurance information reasonably requested by the Purchaser.
In this event, the Seller shall pay to the Purchaser the
amount of any applicable deductible.
13. CONDITIONS TO CLOSING. The Purchaser's obligation to
purchase the Property in accordance with the terms of this
Agreement is expressly conditioned upon:
(a) The Purchaser not terminating this Agreement
during the Investigation Period;
(b) There being no material adverse change in the
operation of the Property after the execution of this
Agreement and prior to the Closing;
(c) The Seller's delivery at closing of all documents
required by this Agreement, and otherwise performing its
obligations under this Agreement; and
(d) The Seller's representations and warranties in
Section 11 of this Agreement being true and accurate in all
material respects.
In the event of the failure of any condition, which is not
waived in writing by the Purchaser, the Purchaser may elect to
terminate this Agreement, and the Seller shall promptly authorize
a refund to the Purchaser of the Deposit held by the Escrow
Agent.
14. ESCROW AGENT AND DEPOSIT. The Purchaser shall deliver
the Initial Deposit and Additional Deposit to the Escrow Agent.
The Escrow Agent shall deposit the funds in an interest bearing
account. In the event the Purchaser provides the Seller a timely
termination notice pursuant to Section 4, then the Escrow Agent,
subject to Section 4 (b), shall deliver to the Purchaser the
Initial Deposit plus any interest earned thereon. In the event
that the transactions set forth in this Agreement do not close
due to the failure of a condition to the Closing specified in
Section 13 of this Agreement, at the Purchaser's election, the
Escrow Agent shall deliver the Deposit, plus any interest earned
thereon, to the Purchaser. In the event the Purchaser does not
or fails to give timely notice to the Seller under Section 4 and
all the conditions of the Closing under Section 13 have been met,
and the Purchaser fails to close, then the Escrow Agent shall
deliver the Deposit, plus any interest earned thereon, to the
Seller.
15. CLOSING. The closing of the transaction contemplated
hereby (the "Closing") shall take place at the offices of
Xxxxxxxx & Xxxxxxxxxx, Regency Westpointe, Suite 100, 10330
Regency Parkway Drive, Omaha, Nebraska, within fifteen (15) days
of the end of the Investigation Period (the "Closing Date"). The
Purchaser may elect to close prior to the Closing Date by giving
two (2) weeks written notice to Seller.
16. CLOSING COSTS AND APPORTIONMENTS. To the extent that
the tenant of the Property is responsible for payment of taxes,
special assessments, utilities and any other items regarding the
operation of the Property (collectively, the "Net Lease Items"),
there will be no proration of the Net Lease Items at the Closing.
The following items shall be apportioned or allocated between the
Purchaser and the Seller at the Closing, with the Purchaser being
entitled to income and responsible for expenses for the date of
Closing:
(a) REAL ESTATE TRANSFER TAXES. The Seller shall pay
all real estate transfer taxes predicated on the Purchase
Price.
(b) RECORDING FEES. The Purchaser shall pay all
recording fees for the deed of conveyance on the Property
and on any financing documents related to the Purchaser's
purchase of the Property. The Seller shall pay any
recording fees related to clearing any liens or encumbrances
from the title.
(c) SECURITY DEPOSITS. All security deposits
attributable to leases or tenancies of the Property shall be
delivered to Purchaser at the Closing.
(d) RENTALS. All rentals and other income produced by
the Property within the Property shall be apportioned at
Closing.
(e) CLOSING AGENT FEE. The Escrow Agent's fee
associated with the Closing of the transactions contemplated
in this Agreement shall be divided equally between the
Seller and the Purchaser.
(f) COMMISSION. Subject to Section 19, the Purchaser
shall be solely responsible for any commissions related to
the sale of the Property pursuant to this Agreement.
17. OTHER DOCUMENTS. At the Closing, each party shall
deliver to the other party such other documents and assurances as
may be reasonably requested by the other party, including
documents to affirm the state of title of the Property, which are
requested by the title company in the Commitment, and estoppel
certificates and subordination, attornment and non-disturbance
agreements from Fuddruckers, as provided in the Lease, in form
and substance reasonably satisfactory to the Purchaser.
18. INDEMNITY. The Seller agrees to indemnify, defend and
hold the Purchaser harmless from and against any and all claims
of, demands by, or liabilities and obligations to (and any and
all reasonable expenses, attorneys' fees, and costs incurred in
connection with or defending against the same) any person,
corporation or partnership directly or indirectly engaged by the
Seller to bring about the transactions contemplated by this
Agreement, including, but not limited to, any person, corporation
or partnership entitled to a broker's commission, finder's fee or
similar compensation upon the consummation of the transactions
contemplated by this Agreement. The Purchaser agrees to
indemnify, defend and hold the Seller harmless from and against
any and all claims of, demands by, or liabilities and obligations
to (and any and all reasonable expenses, attorneys' fees, and
costs incurred in connection with or defending against the same)
any person, corporation or partnership directly or indirectly
engaged by the Purchaser to bring about the transactions
contemplated by this Agreement, including, but not limited to,
any person, corporation or partnership entitled to a broker's
commission, finder's fee or similar compensation upon the
consummation of the transactions contemplated by this Agreement.
This indemnification provision shall survive the termination of
this Agreement or the Closing.
19. EXPENSES OF PERFORMANCE. All expenses involved in the
preparation, authorization and consummation of this Agreement,
including, without limitation, any and all claims, costs,
expenses (including reasonable attorney fees) and liabilities for
fees and expenses of brokers, agents, representatives, counsel
and accountants (collectively, the "Loss"), shall be borne solely
by the party who shall have incurred the same, and the other
party shall have no liability in that regard. Each party shall
indemnify, defend and hold the other party harmless for any Loss
incurred due to such party's breach of this Section. This
indemnification provision shall survive the termination of this
Agreement or the Closing.
20. REMEDIES. Subject to any indemnification provisions
provided for in this Agreement, in the event the Purchaser
defaults under this Agreement after the Seller shall have
satisfied all of the conditions of this Agreement, then the
Seller, as its sole remedy, shall retain the Deposit or any other
monies, including any interest earned thereon, paid by the
Purchaser under this Agreement as liquidated damages, and this
Agreement shall be considered terminated with neither party
having any further responsibility to the other. Subject to any
indemnification provisions provided for in this Agreement, in the
event the Seller defaults under this Agreement, the Purchaser, as
his sole remedy, may elect to terminate this Agreement and
receive a refund of the Deposit or any other monies, including
any interest earned thereon, which is being held by the Escrow
Agent, or may elect to institute an action for specific
performance of the Seller's duties hereunder, and the Purchaser
waives any and all other rights and remedies available to him at
law or in equity.
21. NOTICES. All notices, deliveries or tenders given or
made in connection with this Agreement shall be in writing and
delivered to the respective party for whom the same is intended
at the address which follows:
If to the Purchaser: Xxxxxx X. Xxxxxx
000 Xxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
With Copy to: Xxxxxxx X. Xxxxxx
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxxx 00000-0000
Fax: 000-000-0000
If to the Seller: AEI Real Estate Fund XVI Limited Partnership
1300 Minnesota World Trade
00 Xxxx Xxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Fax: 000-000-0000
With Copy to: Xxxxxxx X. Xxxxx, Esquire
Xxxxxxxx & Xxxxxxxxxx, PC, LLO
Regency Westpointe, Suite 100
00000 Xxxxxxx Xxxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
All notices, deliveries or tenders may be given by mail or
any other form of delivery and shall be effective when actually
delivered to the address set forth above.
22. MISCELLANEOUS. The Purchaser may assign this Agreement
to an entity in which he has ownership, provided, however,
notwithstanding any assignment, the Purchaser shall remain fully
liable for any and all of his obligations under this Agreement.
This Agreement shall be binding upon the parties, their or its
successors, personal representatives and assigns and shall not be
modified except by written agreement. The invalidity of any
provision of this Agreement shall in no way impair or affect the
remaining provisions of this Agreement. This Agreement shall be
construed in accordance with the laws of the State of Nebraska.
This Agreement constitutes the complete agreement between the
parties and supersedes any prior oral or written agreements
between the parties regarding the Property. Both parties
acknowledge that they participated in the drafting and
negotiation of the terms and conditions of this Agreement. This
Agreement may be executed in one or more counterparts, all of
which taken together shall be deemed one original. This
Agreement shall not confer any rights or remedies upon any person
other than the parties and their respective successors and
permitted assigns.
In Witness Whereof, the parties hereto have executed this
Agreement on the date first above written.
AEI Real Estate Fund XVI Limited
Partnership, Seller
By: AEI Fund Management XVI, Inc.,
General Partner
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Its: Chief Financial Officer
Xxxxxx X. Xxxxxx, Purchaser
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Its:
STATE OF NEBRASKA )
) ss.
COUNTY OF XXXXXXX )
The foregoing instrument was acknowledged before me this
20th day of May 2003, by Xxxxxx X. Xxxxxx.
/s/ X. Xxxxxxx
Notary Public [notary seal]
STATE OF MINNESOTA )
) ss.
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me the 22nd
day of May 2003, by Xxxxxxx X. Xxxxx, the Chief Financial Officer
of AEI Fund Management XVI, Inc., a Minnesota corporation,
corporate general partner of AEI Real Estate Fund XVI Limited
Partnership, on behalf of said limited partnership.
/s/ Xxxxx X. Xxxxxx
Notary Public [notary seal]
EXHIBIT "A"
LEGAL DESCRIPTION
Lot 2, except the North 17 feet thereof; Lot 3, except the North
17 feet thereof; Lot 4, except those portions thereof as have
been condemned for public purposes; and, all of Xxxx 0, 0 xxx 0,
xx Xxxxx 4, in CEDARNOLE, an Addition to the City of Omaha, as
surveyed, platted and recorded, in Xxxxxxx County, Nebraska.
NOTE: THIS LEGAL DESCRIPTION WAS PRIOR TO THE CITY TAKING AND
NEEDS TO BE AMENDED AND IS SUBJECT TO CHANGE. THIS LEGAL
DESCRIPTION SHALL BE UPDATED AND MODIFIED BASED UPON THE LEGAL
DESCRIPTION PORVIDED IN THE TITLE COMMITMENT.
EXHIBIT "B"
CITY OF OMAHA, PUBLIC WORKS DEPARTMENT LETTER
April 14, 2003
AEI Estate Fund XVI LTD Partnership
1300 Minnesota World Trade
00 Xxxx 0xx Xxxxxx
Xx. Xxxx, XX 00000
RE: Proposed vacation of Xxxxxxx Street from 71st Street to 00xx
Xxxxxx.
To Whom It May Concern:
The Planning Board of the City of Omaha has initiated the
vacation of the above referenced right-of-way at the request of
the property owner on the south, Xxxxx Partners. The Board
recommended the vacation of this right-of-way at its February 5,
2003 meeting. A resolution has been prepared to have this case
be heard before the Damages Committee comprised of Councilmembers
Xxxxxxxx Xxxxxxxx, Xxxxx Xxxxx and Xxx Xxxxx. You will be
notified of that meeting.
An Administrative Fee of $250.00 is now due from Xxxxx Partners.
Also, the value calculation fee for this vacation has been
determined and is outlined in the enclosed inter-office
communication dated April 10, 2003. This fee is payable to the
City of Omaha from parties receiving title to the vacated street
and must be paid before the Ordinance to vacate this right-of-way
is presented to the City Council. Any concerns about his fee can
be addressed to the City Council at the Public Hearing on this
Ordinance. You will be notified of the public hearing date.
If you have any questions or require additional information
regarding this matter, please feel free to contact me at 444-
5347.
Sincerely,
PUBLIC WORKS DEPARTMENT
Xxx Xxxxxxx
General Services Division
Valcalc
EXHIBIT "C"
INTER-OFFICE COMMUNICATION
April 10, 2003
TO: Xxx Xxxxxxx, General Services Division
FROM: Xxxx, Xxxxxx, Right of Way Section, Design
Division
SUBJECT: Vacation of Xxxxxxx Street, between 71st Street and
72nd Street
We now have all of the necessary information to determine the VC
fees for the two abutting property owners. Earlier this week I
received the revised tract drawings and legal descriptions from
KM, which provide the areas to be vacated. The breakdown is as
follows:
NORTH HALF: 6,702 SF x $22.00 per SF=$147,445.00. We then have
to deduct two areas of parking lot encroachment which were
constructed by the City with Phase II of 72nd Street. Xxx Xxxxx
said that we constrictively vacated these two areas of parking we
built with the project, so we cannot charge them now as part of
the formal vacation process. These two areas of encroachment
comprise a total area of 570 SF. 570 SF at $22.00 per SF =
$12,540.00. This figure is then deducted from $147,445.00, which
leaves us with $134,905.00, which we will round to $134,900.00.
SOUTH HALF: 6,791 SF x $22.00. per SF = $149,400.00. This
property owner is being required to dedicate a 5 foot strip of
land along the 00xx Xxxxxx frontage for right of way purposes.
The area of this dedication is 1,627 SF. 1,627 SF at $25.00 per
SF = $40,675.00 ($25.00 per SF is used for this dedication offset
because it is the value that the property just sold for). This
figure of $40,675.00 is then deducted from $149,400.00, which
leaves us with $108,725.00.
If you have any questions on this information, feel free to
contact me.
