PURCHASE AGREEMENT
0000 X. Xxxxx Xxxx
Xxxx Xxxxx, XX
This AGREEMENT, entered into effective as of the 20 of December,
2001.
l. PARTIES. Seller is AEI Real Estate Fund 85-B Limited
Partnership ("Seller"). Seller holds an undivided 100% interest
in the fee title to that certain real property legally described
in the attached Exhibit "A" (the "Property"). Buyer is Omni
Group, Inc., and/or its assigns ("Buyer"). Seller wishes to sell
and Buyer wishes to buy the Property.
2. PROPERTY. The Property to be sold to Buyer in this transaction
is legally described on Exhibit A attached hereto, subject to the
provisions of Buyer review of title as set forth below in
paragraph 8.
3. PURCHASE PRICE. The purchase price for this Property is
$625,000 cash plus $50 independent consideration, based on the
following terms:
4. TERMS. The purchase price for the Property will be paid by
Buyer as follows:
(a) When this agreement is executed, Buyer will pay $10,000
in cash or good funds (the "First Payment") to Commonwealth
Land Title Company, Attn: Xxxxxxxx Xxxxxx, 000 X. Xxxxxx,
Xxxxxxxxx, Xxxxx 00000 ("Escrowee"). The First Payment will
be credited against the purchase price when and if escrow
closes and the sale is completed, or otherwise disbursed
pursuant to the terms of this Agreement. After the
expiration of the Review Period as defined in paragraph 6
below, the First Payment held for the account of Seller
shall become non-refundable unless Seller shall default
hereunder or this agreement is properly cancelled by Buyer
pursuant to the terms hereof.
(b) Buyer will pay the balance of purchase price for the
Property, $615,000 in cash or good funds (the "Second
Payment"), at closing to the Escrowee who shall close the
transaction according to the terms hereof.
(c) When this Agreement is executed, Buyer will also pay $50
in cash in good funds directly to Seller ("Option
Consideration"),which shall be in consideration for Seller's
execution of this Agreement, but will be credited against
the purchase price when and if escrow closes and the sale is
completed. The Option Consideration shall be considered non-
refundable if this Agreement is terminated for any reason.
5. CLOSING DATE. Escrow shall close on or before the thirtieth
day after the Inspection and Feasibility Study Period (as
extended, if applicable) is completed.
6. DUE DILIGENCE. Buyer will have until the expiration of the
120th day after the Effective Date of this "Agreement" (the
"Inspection and Feasibility Study Period"), to conduct all of its
inspections and due diligence and satisfy itself regarding title
to the Property, and to inspect the Property at Buyer's sole
expense. Buyer shall have the right to extend the Inspection and
Feasibility Study Period by an additional thirty (30) days by
paying Escrowee an additional $2,000, thereby increasing the
First Payment by an additional $2,000, before expiration of the
initial 120 day Inspection and Feasibility Study Period. Buyer
agrees to indemnify and hold Seller harmless for any loss or
damage to the Property or persons caused by Buyer or its agents
arising out of such physical inspections of the Property. Buyer
expressly acknowledges that the sale of the Property as provided
for herein is made on an "AS IS" basis, and such provision shall
survive closing.
Buyer may cancel this Agreement for ANY REASON in its sole
discretion by delivering a cancellation notice by certified mail,
return receipt requested, or by personal delivery to Seller and
escrow holder before the expiration of the Inspection and
Feasibility Study Period. If this Agreement is not canceled as
set forth herein, the First Payment shall be non-refundable
unless Seller shall default hereunder or this Agreement is
properly cancelled by Buyer pursuant to the terms hereof.
If Buyer cancels this Agreement as permitted under this
Section or Section 16, except for any liabilities under sections
15(a)(iii) and 16(b) of this Agreement (which will survive),
Buyer (after execution of such documents reasonably requested by
Seller to evidence the termination hereof) shall be promptly
returned its First Payment, and Buyer will have absolutely no
rights, claims or interest of any type in connection with the
Property or this transaction, regardless of any alleged conduct
by Seller or anyone else.
Unless Seller shall be in default of any obligation
hereunder, or this Agreement is canceled by Buyer pursuant to the
terms hereof, if Buyer fails to make the Second Payment, Seller
shall be entitled to retain the First Payment and Buyer
irrevocably will be deemed to have canceled this Agreement and
relinquished all rights in and to the Property. If this Agreement
is not canceled and the Second Payment is made when required, all
of Buyer's conditions and contingencies will be deemed satisfied.
7. ESCROW. Escrow shall be opened by Buyer and the First Payment
shall be deposited by Buyer with Escrowee. A copy of this
Agreement will be delivered to the escrow holder and will serve
as escrow instructions together with the escrow holder's standard
instructions and any additional instructions required by the
escrow holder to clarify its rights and duties. The parties
agree to sign these additional instructions of the Escrowee, if
any. If there is any conflict between these other instructions
and this Agreement, this Agreement will control. Escrow will be
opened upon acceptance of this Agreement by Seller.
8. TITLE. Closing will be conditioned on the commitment of
Escrowee to issue an Owner's policy of title insurance, dated as
of the close of escrow, in an amount equal to the purchase price,
insuring that Buyer will own marketable and insurable fee simple
title to the Property subject only to: the exceptions reflected
in the title commitment reasonably acceptable to Buyer (the
"Permitted Exceptions", current real property taxes and
assessments; and survey exceptions. Seller shall have a Title
Commitment issued and tendered to Buyer within twenty (20) days
of the date this Purchase Agreement is delivered to Escrowee.
Buyer shall be allowed until the expiration of the
"Inspection and Feasibility Study Period" for examination and the
making of any objections to the survey and to any exception
contained in the Title Commitment, said objections to be made in
writing or deemed waived. If any objections are so made, the
Seller shall be allowed thirty (30) days to cure Buyer's
objections, or in the alternative to obtain a commitment for
insurable title insuring over Buyer's objections. If within such
30-day period Seller fails to cure Buyer's objections, or is
unable to obtain insurable title to Buyer's reasonable
satisfaction, Buyer may elect to cancel this Agreement and (after
execution by Buyer of such documents reasonably requested by
Seller to evidence the termination hereof) Buyer's First Payment
shall be returned and this agreement shall be null and void and
of no further force and effect.
If Buyer shall make no written objection to Seller within
the Review Period setting forth Buyer's objections to the status
of title, Buyer shall have been deemed to have waived any such
objections.
9. CLOSING COSTS. Seller will pay the deed stamp taxes, if any,
and one-half of escrow fees attributable to the closing services
for this transaction, and any brokerage commissions payable to
KemJay Real Estate only. Seller shall pay for the cost of
issuing the title commitment and the cost of the title insurance
premium for an Owner's policy. Buyer will pay one-half of the
escrow fees, the costs of a new survey or an update to the Survey
in Seller's possession (if an update is required by Buyer). All
other closing costs shall be paid by Seller and Buyer in the
manner in which such costs are customarily paid by such parties
in transactions involving real property in Tarrant County, Texas.
Each party will pay its own attorneys' fees and costs to document
and close this transaction.
10. REAL ESTATE TAXES, SPECIAL ASSESSMENTS AND PRORATIONS.
Seller represents that to the best of its knowledge, all real
estate taxes and assessments due and payable in all years prior
to the year of Closing have been paid in full. Responsibility
for real estate taxes and special assessments shall be prorated
as of the date of closing based upon the most recently available
tax xxxx and any known increase in the assessed valuation or the
tax rate. All real estate taxes and special assessments due and
payable in the years following the year in which closing occurs
shall otherwise be the responsibility of Buyer. However, Seller
shall remain responsible for the pro-rata share of taxes prior to
closing and Buyer assumes the responsibility for the pro-rata
share of taxes after closing. Seller and Buyer agree that the
parties shall, if necessary, re-prorate the taxes when actual tax
bills for the year of closing are available. This agreement to
re-prorate taxes shall survive closing.
11. SELLER'S REPRESENTATION AND AGREEMENTS.
Seller represents and warrants as of this date that:
(i) The Property is subject to a Net Lease Agreement dated
January 1, 1997, (the "Lease"). Prior to the Closing Date,
Seller shall obtain a written lease termination agreement
from the tenant under the Lease. Buyer's obligation to
close is subject to Seller's conveyance of the Property free
and clear of the Lease (and any other leases) and the rights
and claims of any tenants thereunder.
(ii) It is not aware of any pending litigation or
condemnation proceedings against the Property or Seller's
interest in the Property that have not been disclosed to
Buyer.
(iii) It is not aware of any contracts affecting this
Property and potentially or actually binding on Buyer after
the closing date.
(iv) Seller has all requisite power and authority to
consummate the transaction contemplated by this Agreement
and has by proper proceedings duly authorized the execution
and delivery of this Agreement and the consummation of the
transaction contemplated hereby.
12. DISCLOSURES.
(a) Seller has been an absentee landlord. Consequently,
Seller has little, if any, knowledge of the physical
characteristics of the Property.
Accordingly, except as otherwise specifically stated in the
Agreement, Seller hereby specifically disclaims any
warranty, guaranty, or representation, oral or written,
past, present, or future of, as to, or concerning (i) the
nature and condition of the Property, including, without
limitation, the water, soil, and geology, and the
suitability thereof and of the Property for any and all
activities and uses which Buyer may elect to conduct
thereon; (ii) except for the warranty of title contained in
the Deed to be delivered by Seller at the closing, the
nature and extent of any right of way, lease, possession,
lien, encumbrance, license, reservation, condition, or
otherwise, and (iii) the compliance of the Property or its
operation with any laws, ordinances, or regulations of any
government or other body.
(b) This Agreement is subject to an inspection contingency
as set forth in Section 5, 6 and 16. Buyer acknowledges and
agrees that Buyer is not relying upon any representation or
warranties made by Seller or Seller's Agent except those
provided herein.
(c) Buyer acknowledges that, having been given the
opportunity to inspect the Property, Buyer is relying solely
on its own investigation of the Property and not on any
information provided by Seller or to be provided except as
set forth herein. Buyer expressly acknowledges that, in
consideration of the agreements of the Seller herein, except
as otherwise specified herein, Seller makes no Warranty or
representation, express or implied, or arising by operation
of law, including, but not limited to, any warranty of
condition, habitability, tenantability, suitability for
commercial purposes, merchantability, profitability, or
fitness for a particular purpose, in respect of the
Property.
(d) BUYER AGREES THAT IT SHALL BE PURCHASING THE PROPERTY IN
ITS THEN PRESENT CONDITION, AS IS, WHERE IS, AND SELLER HAS
NO OBLIGATION TO CONSTRUCT OR REPAIR ANY IMPROVEMENTS
THEREON, OR TO PERFORM ANY OTHER ACT REGARDING THE PROPERTY.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER ALSO
AGREES THAT SELLER WILL HAVE NO LIABILITY OF ANY TYPE,
DIRECT OR INDIRECT, TO BUYER OR BUYER'S SUCCESSORS, ASSIGNS,
LENDERS OR AFFILIATES IN CONNECTION WITH ANY HAZARDOUS,
TOXIC, DANGEROUS, FLAMMABLE, EXPLOSIVE OR CHEMICAL
SUBSTANCES OF ANY TYPE (WHETHER OR NOT DEFINED AS SUCH UNDER
ANY APPLICABLE LAWS) ON OR IN CONNECTION WITH THE PROPERTY
EITHER BEFORE OR AFTER THE CLOSING DATE.
The provisions (a) through (d) shall survive closing.
13. CLOSING.
(a) Before the closing date, Seller will deposit into escrow
an executed special warranty deed subject to the Permitted
Exceptions conveying good and indefeasible title of the
Property to Buyer. At Closing, Seller shall deliver to
Buyer and the Title Company a standard Seller's Affidavit
regarding liens and judgments. Buyer will be given five (5)
business days, prior to closing, to review and approve all
closing documents.
(b) On or before the closing date, Buyer will deposit into
escrow: the balance of the purchase price when required
under Section 4; any additional funds required of Buyer,
(pursuant to this agreement or any other agreement executed
by Buyer) to close escrow. Both parties will sign and
deliver to the escrow holder any other documents reasonably
required by the escrow holder to close escrow.
(c) On the closing date, if escrow is in a position to
close, the escrow holder will: record the deed in the
official records of the county where the Property is located;
cause the title company to commit to issue the title policy;
immediately deliver to Seller the portion of the purchase
price deposited into escrow by cashier's check or wire
transfer (less debits and prorations, if any); deliver to
Seller and Buyer a signed counterpart of the escrow holder's
certified closing statement and take all other actions
necessary to close escrow.
14. DEFAULTS. If Buyer defaults, Buyer will forfeit all rights
and claims to the Property and Seller will be relieved of all
obligations and will be entitled to retain all monies heretofore
paid by the Buyer as Seller's sole remedy.
If Seller shall default, Buyer may, at its option, either
terminate this Agreement and receive a full and immediate refund
of the First Payment or seek to enforce specific performance of
this Agreement. Provided, however, that in no event shall Seller
be liable for any consequential, punitive or speculative damages
arising out of any default by Seller hereunder.
15. BUYER'S REPRESENTATIONS AND WARRANTIES.
a. Buyer represents and warrants to Seller as follows:
(i) Buyer has all requisite power and authority to
consummate the transaction contemplated by this Agreement
and has by proper proceedings duly authorized the execution
and delivery of this Agreement and the consummation of the
transaction contemplated hereby.
(ii) To Buyer's knowledge, neither the execution and
delivery of this Agreement nor the consummation of the
transaction contemplated hereby will violate or be in
conflict with (a) any applicable provisions of law, (b) any
order of any court or other agency of government having
jurisdiction hereof, or (c) any agreement or instrument to
which Buyer is a party or by which Buyer is bound.
(iii) Buyer agrees to indemnify and hold Seller harmless
from any and all claim of any persons or entities claiming a
brokerage or other fee arising out of representation of
Buyer other than KemJay Real Estate.
16. PROPERTY INSPECTION AND ENVIRONMENTAL.
(a) Seller shall provide Buyer access to the Property from
time to time for the purpose of conducting inspections
thereof including mechanical, structural, electrical and
other physical inspections. Buyer has until the end of the
Inspection and Feasibility Study Period to complete such
physical inspections.
(b) Buyer shall indemnify, defend, and hold harmless Seller
from and against any and all losses, claims, causes of
action, liabilities, and costs to the extent caused by the
actions of Buyer, its agents, employees, contractors, or
invitees, during any such entry upon the Property. The
foregoing duty of indemnification shall include the duty to
pay all reasonable attorney's fees incurred by the Seller in
responding to or defending any such claims or proceedings.
(c) Buyer shall pay for any Phase I Environmental studies it
wants to be performed on the Property. If Buyer desires a
Phase I Environmental, Buyer shall obtain and review the
same within the Inspection and Feasibility Study Period. If
Buyer terminates this Agreement prior to the expiration of
the Inspection and Feasibility Study Period, Buyer will
provide Seller with copies of all reports and test results
Buyer had performed on the Property.
(d) Seller shall deliver to Buyer, on or before ten (10)
days following the date Seller signs this Agreement, the
following items to the extent within Seller's possession, or
if such item(s) do not exist or Seller does not possess such
items, a statement to that effect:
(a.) Any Environmental reports affecting the Property;
(b.) Any leases on the Property;
(c.) All surveys of the property currently in the
possession of Seller.
If this transaction does not close as scheduled, Purchaser
shall return the items set forth in (a.)-(c.) to Seller
within a reasonable time following termination of this
Agreement.
The Inspection and Feasibility Study Period shall be
extended for one (1) day for each day by which Seller is
late in delivering the items (a.)-(c.).
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
$20,000, 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. Seller,
however, shall have the right to adjust or settle any
insured loss until (i) all contingencies set forth in
Paragraph 6 hereof have been satisfied, or waived; and (ii)
any period provided for above in this Subparagraph 17a for
Buyer to elect to terminate this Agreement has expired or
Buyer has, by written notice to Seller, waived Buyer's right
to terminate this Agreement. If Buyer elects to proceed and
to consummate the purchase despite said damage or
destruction, there shall be no reduction in or abatement of
the purchase price, and Seller shall assign to Buyer the
Seller's right, title, and interest in and to all insurance
proceeds resulting from said damage or destruction to the
extent that the same are payable with respect to damage to
the Property.
If the cost of repair is less than $20,000.00, Buyer shall
be obligated to otherwise perform hereinunder with no
adjustment to the Purchase Price, reduction or abatement,
and Seller shall assign Seller's right, title and interest
in and to all insurance proceeds in relation to the
Property.
(b) If, prior to closing, the Property, or any part thereof,
is taken or notice of a taking is received from any
condemning authority (other than as disclosed in writing to
Buyer prior to the date of this Agreement) by eminent
domain, this Agreement shall become null and void, at
Buyer's option. If Buyer elects to proceed and to
consummate the purchase despite said taking, there shall be
no reduction in, or abatement of, the purchase price, and
Seller shall assign to Buyer all the Seller's right, title,
and interest in and to any award made, or to be made, in the
condemnation proceeding in relation to the Property.
In the event that this Agreement is terminated by Buyer as
provided above in Subparagraph 17(a) or 17(b), the First Payment
shall be immediately returned to Buyer (after execution by Buyer
of such documents reasonably requested by Seller to evidence the
termination hereof).
18. SELLER'S AND BUYER'S BROKERS. Xxx Xxxxxxx of KemJay Real
Estate is the broker representing the Buyer (and the Buyer only)
in this transaction. The Seller is not represented by a broker in
this transaction. Other than KemJay Real Estate whose $37,500
commission is to be paid solely by Seller (and only shall be paid
commission if this transaction as contemplated shall close); both
parties represent and warrant that no other broker has been
involved on behalf of the warranting party, and both parties
agree to indemnify the other and hold harmless from any claim
through or on behalf of such other party.
19. CANCELLATION If either party elects to cancel this Contract
because of any breach by the other party, the party electing to
cancel shall deliver to the defaulting party and the escrow agent
a notice stating that this Contract shall be canceled unless the
breach is cured within 5 days following the delivery of the
notice to the defaulting party. If the breach is not cured
within the 5 days following the delivery of the notice to the
defaulting party, this Contract shall be canceled.
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) FUNDS TO BE DEPOSITED OR PAID BY BUYER WILL BE GOOD AND
CLEAR FUNDS IN THE FORM OF CASH, CASHIER'S CHECKS OR WIRE
TRANSFERS.
(c) All notices from either of the parties hereto to the
other shall be in writing and shall be considered to have
been duly given or served if sent by first class certified
mail, return receipt requested, postage prepaid, or by a
nationally recognized courier service guaranteeing overnight
delivery to the party at his or its address set forth below,
or to such other address as such party may hereafter
designate by written notice to the other party.
If to Seller:
Attention: Xxxxxx X. Xxxxxxx
AEI Real Estate Fund 85-B Limited Partnership
1300 Minnesota World Trade Center
00 X. 0xx Xxxxxx
Xx. Xxxx, XX 00000-0000
If to Buyer:
Attention: Xxxxxx X. Xxxxxx
Omni Group, Inc.
0000 Xxxxxx Xxxx
Xxxx Xxxxx, XX 00000
(d) Buyer may assign this Agreement at any time without the
consent or prior approval of Seller, and following any such
assignment, Seller agrees to close this transaction with the
assignee of Buyer. The original Buyer named herein shall
remain liable for any indemnity obligations hereunder.
When accepted, this offer will be a binding agreement for valid
and sufficient consideration which will bind and benefit Buyer,
Seller and their respective successors and assigns. Buyer is
submitting this offer by signing a copy of this offer and
delivering it to Seller along with the Option Consideration, and
delivering a copy of this Agreement signed by Buyer and the
$10,000.00 First Payment to Escrowee; Escrowee shall sign below
acknowledging receipt of this Agreement signed by Buyer and the
First Payment, which will be deposited in to escrow by Escrowee.
Seller has five (5) business days after receipt of the executed
offer, Option Consideration, and acknowledgment of receipt of the
First Payment by Escrowee within which to accept this offer by
fully executing this contract and giving both Buyer and Escrowee
written notice thereof; if not accepted by Seller, Escrowee shall
immediately return the First Payment to Buyer and shall not
require any releases by the Seller. The Effective Date of this
Agreement shall be the date Buyer receives a fully executed
original counterpart of this Agreement.
IN WITNESS WHEREOF, the Seller and Buyer have executed this
Agreement effective as of the day and year above first written,
and Broker has executed this agreement confirming the amount and
manner of commission payable to it.
BUYER: BROKER:
Omni Group, Inc. KemJay Real Estate
By:/s/ Xxxxxx X Xxxxxx By:/s/Xxxxxx X Xxxxxx /s/ Xxx Xxxxxxx
Its: Vice President Its: Broker agent
Title Title
SELLER:
AEI REAL ESTATE FUND 85-B LIMITED PARTNERSHIP, a Minnesota
limited partnership.
By: Net Lease Management 85-B, Inc., its corporate general
partner
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, President
EXHIBIT A
Approximately 45,873 square feet of land situated in Tarrant
County, Texas, and being XXX 0-X, XXXXX 0, XXXXX XXXX, an
Addition to the City of Fort Worth, Tarrant County, Texas,
according to the Revised Plat thereof recorded in Volume 388-182,
Page 66, Plat Records, Tarrant County, Texas.
Subject to the burdens and obligations and together with the
rights, benefits and appurtenant easement rights contained in
Declaration of Covenants and Assessments dated 1-4-84, filled 1-
10-84, executed by Xxxxx Street Venture, a Texas joint venture
comprised of F/S Xxxxx Partners, a Texas general partnership, and
Hulen Land Partners, a Texas general partnership, recorded in
Volume 7713, Page 000, Xxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxx,
Xxxxx and Deed of Declaration dated 12-19-84, filed 1-31-
85,executed by Xxxxx Center, Ltd., a Georgia limited partnership,
having Xxxxxxx X. Xxxx, Xx. as its Managing General Partner;
Cardinal Federal Savings Banks; and Xxxxxxxx'x, Inc. recorded in
Volume 8080, Page 888, Tarrant County Records, Tarrant County,
Texas and amended by instrument entitled Acknowledgement of
Scrivener's Error dated July 16, 1985, filed October 9, 1985,
recorded in Volume 8366, Page 0432, Tarrant County Records,
Tarrant County, Texas.
