PURCHASE AGREEMENT
0000 Xxxx Xxxx
Xxxx Xxxxx, Xxxxxxx
This AGREEMENT, entered into effective as of the 11 of May,
2006.
l. PARTIES. Seller is AEI INCOME & GROWTH FUND XXII 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 TUMBLEWEED,
INC. 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 an undivided 100% interest in the
Property. Seller owns no interest in any personalty in
connection with the Property.
3. PURCHASE PRICE. The purchase price for this 100% interest in
the Property is $1,200,000, payable as set forth in paragraph 4
below.
4. TERMS. The purchase price for the Property will be paid by
Buyer as follows:
(A). When this agreement is executed, Buyer will pay $100,000
cash to Seller (which shall be deposited into escrow according to
the terms 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). Buyer will deposit the balance of the purchase price in the
following manner, $936,000 cash, and a Promissory Note from
Tumbleweed, Inc. (and NOT any assignee of Buyer's interest in
this Agreement) in the amount of $164,000, payable according to
the terms of the Promissory Note attached hereto as Exhibit B
(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 May 11, 2006.
6. DUE DILIGENCE. Buyer will have 45 days from 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. Within ten 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
Buyer at Buyer's expense immediately upon both parties hereto
having executed this agreement, with a copy of the same being
delivered to Seller as soon as the third party title insurance
company provides it to Buyer.
B. A copy of a Certificate of Occupancy or other such document
certifying completion and granting permission to permanently
occupy the improvements on the Property as are in Seller's
possession.
C. A copy of an "as built" survey of the Property completed
concurrent with Seller's acquisition of the Property, if
available in Seller's possession.
D. A copy of any Phase I Environmental Report on the Property,
if available 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 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.
Notwithstanding anything in this Agreement to the contrary, the
Buyer's obligations under this Agreement shall be conditioned on
the full and complete performance by Xxxx & Xxxx, LLC (the
"Assignee") under that certain Purchase Agreement dated April
___, 2006 (the "Other Purchase Agreement") by and among the
Assignee as buyer and Buyer as seller, by which the Buyer agrees
to sell the Property to the Assignee immediately upon the
consummation of the transactions set forth in this Agreement.
Seller agrees to consent to the assignment of Buyer's purchase
rights hereunder to the Assignee simultaneously with closing, and
to deed the property directly to such Assignee at Buyer's
direction. If at any time prior to closing, Buyer notifies
Seller that the Assignee is unable to perform any of Assignee's
obligations under the Other Purchase Agreement, (i) this
Agreement shall be cancelled and of no further force and effect,
(ii) the Seller shall return immediately the First Payment, and
(iii) neither Buyer nor Seller shall have any further liability
or obligation under this Agreement.
If Buyer cancels this Agreement as permitted under this Section,
except for any escrow cancellation fees and any liabilities under
the first paragraph of section 6 of this Agreement (which will
survive), Seller (after execution of such documents reasonably
requested by Seller to evidence the termination hereof) 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,
at its option, 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, or Seller may exercise its rights under Section 14
hereof. 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 upon acceptance of this Agreement by both
parties. The escrow holder will be a nationally-recognized escrow
company selected by Seller. 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 a
national 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
exceptions; current real property taxes and assessments; survey
exceptions; the rights of parties in possession pursuant to the
lease defined in paragraph 11 below; all matters of public
record; and other items disclosed to Buyer during the Review
Period.
Buyer shall be allowed five (5) business days after receipt of
said commitment for examination and the making of any objections
to marketability thereto, said objections to be made in writing
or deemed waived. If any objections are so made, Seller shall be
allowed sixty (60) days to cure such objections and make such
title marketable 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 make title marketable, or is
unable to make title marketable or obtain insurable title, (after
execution by Buyer of such documents reasonably requested by
Seller to evidence the termination hereof) Buyer's First Payment
will be returned and 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 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 perform this Agreement according to its terms.
9. CLOSING COSTS. If Buyer shall decide to purchase title
insurance, then Buyer will pay the cost of obtaining a Standard
Owners Title Insurance Policy in the full amount of the purchase
price. Buyer will pay all recording fees, transfer taxes, and
clerk's fees imposed upon the recording of the deed, the escrow
fees, the cost of the title commitment and the cost of an update
to the Survey in Seller's possession (if an update is required by
Buyer.) Seller will pay 3% of the sale price at closing as a
brokerage commission to Houston Xxxxx. 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). Because the Property is subject to a net lease (as
further set forth in paragraph 11(A)(1)), the parties acknowledge
that there shall be no need for a real estate tax proration.
Unpaid real estate taxes and unpaid levied and pending special
assessments existing on the date of Closing shall be the
responsibility of Buyer, pro-rated, however, to the date of
closing for the period prior to closing, which shall be the
responsibility of Lessee and not Seller. Buyer or Assignee shall
likewise 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
Lessee of the Property
(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 prior to the date of Closing. Buyer or Assignee shall be
entitled to all income earned on or after the date of closing and
shall be responsible for all operating expenses of the Property
incurred on and after the date of closing.
11. SELLER'S REPRESENTATION AND AGREEMENTS.
(A). Seller represents and warrants as of this date that:
1. Except for the Lease Agreement in existence between Seller
(as Lessor) and Buyer ("Lessee"), dated November 25, 1998, Seller
is not aware of any leases of the Property. If the Buyer desires
to terminate the Lease, Buyer may do so only after closing of the
transaction contemplated herein; in the event Buyer shall assign
its interest herein as set forth below in paragraph 11(A)2, Buyer
shall make separate arrangements with the Assignee to such
effect.
2. Seller agrees to consent to the assignment of Buyer's
purchase rights hereunder to the Assignee simultaneously with
closing, and to deed the property directly to such Assignee at
Buyer's direction.
3. It is not aware of any pending litigation or condemnation
proceedings against the Property or Seller's interest in the
Property.
4. Seller is not aware of any contracts Seller has executed
that would be binding on Seller after the closing date.
(B). Provided that Buyer performs its obligations as required,
Seller agrees that it will not enter into any new contracts that
would materially affect the Property and be binding on Seller
after the Closing Date without Buyer's prior 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.
(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.
(C). Seller knows of no facts, nor has Seller failed to disclose
to Buyer any fact known to Seller, which would prevent the Lessee
from using and operating the Property after the Closing in the
manner in which the Property has been used and operated prior to
the date of this Agreement. If Seller shall receive any notice to
the contrary prior to Closing, Seller will inform Buyer prior to
Closing.
(D). 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. If Seller shall receive any notice to
the contrary prior to Closing, Seller will inform Buyer prior to
Closing.
(E). BUYER AGREES THAT IT SHALL BE PURCHASING THE PROPERTY IN ITS
PRESENT 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 AS SET FORTH HEREIN. 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 AS HEREIN SET FORTH. 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 HEREIN
IN PARAGRAPH 11(A) AND (B) ABOVE AND THIS PARAGRAPH 12, 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 CANNOT, AND DOES NOT, MAKE
ANY REPRESENTATION AS TO (A) THE SUCCESS, OR LACK THEREOF, OF THE
ENTIRE PROPERTY, (B) THE LESSEE AND ANY GUARANTORS OF THE LEASE
OR THEIR ABILITY TO FULFILL THEIR LEASE OBLIGATIONS, OR (C) THE
APPROPRIATENESS OF PURCHASING THE ENTIRE PROPERTY FOR THE BUYER'S
INDIVIDUAL TAX OR FINANCIAL SITUATION OR TAX OR FINANCIAL
OBJECTIVES. BUYER ACKNOWLEDGES THAT HE OR SHE IS RELYING SOLELY
UPON HIS OR HER OWN EXAMINATION OF THE ENTIRE PROPERTY AND ALL
FACTS SURROUNDING THE PURCHASE OF THE ENTIRE PROPERTY INCLUDING
THE MERITS AND RISKS INVOLVED THEREIN.
The provisions (D) - (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, or the Assignee as Buyer may direct, subject to the
exceptions contained in paragraph 8 above.
(B). On or before the closing date, Buyer will deposit into
escrow the balance of the Purchase Price when required under
Section 4, including the executed Promissory Note 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.
(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) and the executed Promissory Note of Tumbleweed, Inc.;
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. In addition, Seller shall retain all remedies available to
Seller at law or in equity. Provided, however, that in no event
shall Buyer be liable for any actual, punitive, consequential or
speculative damages arising out of any default by Buyer
hereunder.
If Seller shall default, Seller shall immediately pay the First
Payment to Buyer, and Buyer shall retain all remedies available
to Buyer at law or in equity. Provided, however, that in no
event shall Seller be liable for any actual, punitive,
consequential or speculative damages arising out of any default
by Seller hereunder.
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. 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 said
destruction or damage, and Seller shall pay the First Payment to
Buyer. 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 16a 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 Lessee of the Property.
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 pro-rata in relation to the Property, subject to rights
of any Lessee of the Property.
(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 Lessee 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.)
17. 1031 EXCHANGE. - Not Applicable
18. CANCELLATION
If any party elects to cancel this Agreement because of any
breach by another party or because escrow fails to close by the
agreed date, the party electing to cancel shall deliver to escrow
agent a notice containing the address of the party in breach and
stating that this Agreement shall be cancelled unless the breach
is cured within 13 days following the delivery of the notice to
the escrow agent. Within three days after receipt of such notice,
the escrow agent shall send it by United States Mail to the party
in breach at the address contained in the Notice and no further
notice shall be required. If the breach is not cured within the
13 days following the delivery of the notice to the escrow agent,
this Agreement shall be cancelled.
19. 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 if sent by first class certified mail, return
receipt requested, postage prepaid, or 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 Income & Growth Fund XXII Limited Partnership
Attention: Xxxxxx Xxxxxxx
00 Xxxx Xxxxxxx Xxxxxx, #0000
Xx. Xxxx, XX 00000
If to Buyer:
Attention: Xxxxxxx X. Xxxxxxxxx
Tumbleweed, Inc.
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 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. Seller has five (5) business days from
receipt within which to accept this offer.
This Agreement shall be governed by, and interpreted in
accordance with, the laws of the State of Indiana.
IN WITNESS WHEREOF, the Seller and Buyer have executed this
Agreement effective as of the day and year above first written.
BUYER:
TUMBLEWEED, INC.
By: /s/ Xxxxxxx X Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx, Vice President and
Chief Financial Officer
SELLER:
AEI INCOME & GROWTH FUND XXII LIMITED PARTNERSHIP, a Minnesota
limited partnership
By: AEI Fund Management XXI, Inc., a Minnesota corporation
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, its President
