PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement") is made and
entered into by and between AEI REAL ESTATE FUND XVI LIMITED
PARTNERSHIP, a Delaware limited partnership, acting by and
through its corporate general partner AEI Fund Management
XVI, Inc., a Minnesota corporation ("Seller") and XXXXXXXXX
XXXXXXX, doing business as Xxxx Star Antiques ("Buyer").
WITNESSETH THAT:
A. Seller is the owner of an undivided forty percent
(40%) interest in a certain outparcel located in an existing
shopping center development commonly known as "Xxxxxxx
Station Shopping Center" located at the northwest corner of
Xxxxxxx Station Road and Manchester Road in unincorporated
St. Louis County, Missouri (the "Shopping Center"), which
outparcel consists of approximately 1.4 acres currently
improved with an existing one (1) story restaurant building
approximately as depicted on the drawing attached hereto as
Exhibit A and legally described on Exhibit B attached
hereto. The outparcel described in the preceding sentence,
together with all rights, easements and appurtenances
pertaining thereto, and all buildings, improvements, trees,
bushes, landscaping, foliage and crops located thereon, is
collectively referred to herein as the "Property". The
remaining undivided sixty percent (60%) interest in the
Property is owned by AEI Real Estate Fund XV Limited
Partnership, a Delaware limited partnership ("AEI Fund XV").
The Property is currently leased to Fuddrucker's, Inc., a
Texas corporation (the "Tenant").
B. Seller now desires to sell, and Buyer desires to
buy, all of Seller's right, title and interest in and to the
Property upon and subject to the terms and conditions set
forth in this Agreement. The Tenant desires to terminate
its Lease of the Property.
NOW THEREFORE, in consideration of the foregoing
recitals, the mutual covenants and agreement herein
contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged.
Seller agrees to sell and Buyer agrees to buy the Property
from Seller, on the terms and under the conditions set forth
in this Agreement.
1. PURCHASES PRICE
The purchase price for Seller's right, title and
interest in the Property (The "Purchase Price") shall be TWO
MILLION DOLLARS ($2,000,000.00) which shall be paid by Buyer
in cash or immediately available funds at Closing (as
hereinafter defined), less any credits as stated in this
Agreement.
2. XXXXXXX MONEY
Buyer shall deposit with the Title Company (as
hereinafter defined), within five (5) business days after
the Effective Date of this Agreement (as defined in Section
16(l) hereof, an xxxxxxx money deposit of $25,000.00 TWENTY
FIVE THOUSAND DOLLARS (which deposit, together with all
interest named thereon, shall be collectively referred to
herein as the "Xxxxxxx Money"). Buyer may, at its option
direct the Title Company to invest the Xxxxxxx Money in an
interest bearing account designated by Buyer. The Xxxxxxx
Money shall be held in escrow by the Title Company to be
applied as a credit against the Purchase price at Closing or
disbursed in accordance with this Agreement. If a dispute
arises concerning distribution of the Xxxxxxx Money, the
Title Company may apply to a court of competent jurisdiction
for an order directing distribution of the Xxxxxxx Money or
other escrow funds. Except as otherwise expressly provided
in this Agreement, the Xxxxxxx Money shall be refundable to
Buyer upon termination of this Agreement pursuant to failure
to satisfy any condition precedent listed in this Agreement.
3. RIGHT OF ENTRY
At Buyer's sole cost and expense, Buyer and its agents
and representatives may, before Closing upon at least 48
hours advance notice to Tenant at a time reasonably approved
by Tenant, enter the Property for any lawful purpose,
including but not limited to the right to inspect, examine,
and perform topographical surveys, soil tests, borings,
percolation tests, environmental studies and all other tests
needed to determine surface, subsurface, topographic and
environmental conditions and the general usability of the
Property for Buyer's purposes. Buyer shall use reasonable
efforts to promptly restore the Property to its condition
existing prior to Buyer's entry. Buyer shall indemnify and
hold Seller and Tenant harmless from all loss, cost, damage
and expense (including reasonable attorneys' fees) resulting
from any of the activities conducted or authorized by Buyer
and its agents and representatives described in this SECTION
3.
4. CONDITIONS PRECEDENT
Seller acknowledges that Buyer's intended use ("Use")
of the Property is as a store for the retail sale of
furniture and antiques. The construction of improvements to
provide for the intended Use shall be referred to in this
Agreement as the "Project". This Section 4 sets forth
conditions precedent ("Conditions") to Buyer's obligation to
Close this transaction. For each Condition, if Buyer does
not expressly notify Seller in writing within the time
period stated for the Condition that Buyer is dissatisfied
with the matters covered by the Condition (which
satisfaction and the terms imposed thereon or relative
thereto shall be at the reasonable discretion of Buyer),
then the Buyer shall be deemed to have waived said
condition(s). If Buyer does so timely notify Seller of her
dissatisfaction, this Agreement shall terminate, and the
Xxxxxxx Money (including all interest accrued thereon) shall
be refunded to Buyer, and this Agreement shall be deemed of
no further force or effect. If Buyer determines that any
Condition will not be satisfied within the time period
specified, Buyer need not wait until the time period
elapses, but may so notify Seller and terminate the
Agreement at the time of Buyer's determination.
CONDITION 1 TITLE INSURANCE. Not later than twenty
(20) days after the Effective Date, Buyer shall, at its
expense, obtain a current title insurance commitment
("Title Commitment") for the Property issued by
Specialized Title Services (the "Title Company").
Within fifteen (15) days after Buyer's receipt of the
last of the following items (a) the Title Commitment,
(b) the Survey, and (c) legible copies of
plats,documents, instruments or agreements appearing as
exceptions in the Title Commitment, referenced on the
Survey or otherwise affecting title to the Property,
Buyer shall notify Seller of any exceptions or terms in
the Title Commitment which are not acceptable to Buyer
or any objections to matters appearing in or omitted
from the Survey. Title exceptions or Survey matters
which Buyer does not designate as unacceptable shall be
deemed "Permitted Exceptions". Within ten (10)
business days after receipt of Buyer's list of
Permitted Exceptions (and unacceptable exceptions and
Survey matters) which Seller does not intend to cure,
remove or cause the Title Company to delete, failing
which Seller shall be deemed to have elected to not
cure, remove or cause the Title Company to delete such
unacceptable exceptions and Survey matters.
Thereafter, if Seller and Buyer cannot agree on a final
list of Permitted Exceptions within ten (10) business
days after Buyer receives SellerOs list or by the end
of the 10 day period described in the immediately
preceding sentence, whichever occurs first, then this
Agreement shall be deemed terminated, the Xxxxxxx Money
shall be promptly returned to Buyer and neither party
shall have any further rights or obligations hereunder
except as otherwise expressly provided herein.
As a condition to Closing, the Title Company shall
be prepared to issue to Buyer at Closing at Buyer's
expense a title insurance policy ("Title Policy") in
its then current standard ALTA Form in an amount equal
to the Purchase Price, and containing no exceptions
other than the Permitted Exceptions.
CONDITION 2 SURVEY. Within sixty (60) days after
the Effective Date, Buyer shall at its expense, cause
to be prepared a topographic and boundary line survey,
surveyorOs report and surveyorOs certificate
(collectively the "Survey"). The Survey shall (I) be
prepared by a registered land surveyor licensed in the
state in which the Property is located that is
acceptable to Buyer, (ii) show the location of all
recorded easements listed on the Title Commitment and
all unrecorded easements; (iii) be certified to the
Title Company, Buyer, and Buyer's counsel in accordance
with ALTA/ACSM standards; and (iv) be sufficient for
removal of the Title Policy survey exceptions. The
Survey may, at Buyer's option and expense, be updated
prior to Closing, which updated Survey shall contain no
information that would result in any exceptions to the
Title Policy other than the Permitted Exceptions.
Buyer may waive its right to a Survey.
CONDITION 3 EXISTING DOCUMENTATION. Within five (5)
business days after the Effective Date, Seller shall
deliver to Buyer all of the following documentation
related to the Shopping Center or the Property in
Seller's possession, if any: (I) copies of all existing
surveys, title policies, documents, or instruments of
record and any other title related materials; (ii)
plans and specifications for the existing improvements
(as-builts, if available); (iii) the most recent real
estate tax bills and assessment notices; (iv) all
feasibility studies, soil reports, environmental audits
and any other appraisals, inspections, tests, reports,
studies or information; (v) as-built drawings of
underground utilities located on the Property; (vi)
copies of all leases, tenancies and rental agreements
with respect to the Property (including without
limitation, the Lease (as hereinafter defined)), and
all written modifications, extension, amendments and
guaranties thereof; (vii) copies of all written (or
written descriptions of any oral) contracts related to
the Property pursuant to which goods, services and
supplies are furnished, or persons are employed on a
continuing basis, for the operation of the Property
including, without limitation, equipment leases and
guaranties or warranties in effect with respect to the
Property or any portion thereof. [changed to conform
to the facts /s/ec /s/rpj](viii) List of itme to be
removed by seller Buyer acknowledges that the Existing
Documentation will serve to benefit Buyer in connection
with its due diligence investigations of the Property.
However, if Seller does not have any of the foregoing
materials in its possession, it shall so notify Buyer
in the correspondence transmitting the materials that
it does have in its possession, if any, and Seller
shall thereafter be released from any other delivery
obligation hereunder with respect to such materials and
shall in no event be deemed in default hereunder the
failure to produce such materials.
CONDITION 4 GENERAL FEASIBILITY. Within ninety (90)
days after the Effective Date, Buyer shall determine to
Buyer's satisfaction that the Property is otherwise
suitable for the Project and that there exists no
facts, matters or circumstances concerning the Shopping
Center or the Property that are unacceptable to Buyer
in Buyer's sole and absolute discretion.
CONDITION 5 ENVIRONMENTAL CONDITION. Within sixty
(60) days after the Effective Date, Buyer shall
determine with a Phase I Environmental Report whether
the environmental condition of the Property is
acceptable to Buyer.
CONDITION 6 LEASE TERMINATION.
(a) The parties acknowledge that the Property is
subject to that certain Net Lease Agreement dated
February 1, 1988 (the "Lease") between Seller, AEI Fund
XV and Tenant, as successor in interest to the original
named tenant, Discus of St. Louis, Inc. which Lease has
an original term fixed to expire on January 31, 2008
and after assignment to Tenant, granted Tenant an
option to purchase the Property. Buyer's and seller's
obligation to close [changed to conform to the facts
/s/ ec /s/rpj] this transaction is subject to and
conditioned upon: (I) the execution of a lease
termination agreement by Seller, Buyer and Tenant in
form and substance satisfactory to Seller, Buyer and
Tenant within the first fifteen [changed to conform to
the facts /s/ ec /s/ rpj] days after the Effective
Date; (ii) the termination of the Lease on or before
the Closing Date; and (iii) the vacation and surrender
of possession of the premises demised under the Lease
by Tenant on or before the Closing Date.
(b) Within the first thirty (30) days of the Due
Diligence Period, Seller, Buyer and Tenant shall
negotiate and execute a lease termination agreement
which shall be satisfactory in form and substance to
Seller, Buyer and Tenant and shall be held by Escrow
Agent hereunder prior to the Closing Date and shall
provide, among other things:
(i) for the unconditional termination of the
Lease and Tenant's tenancy effective upon the
closing of the transaction contemplated under this
Agreement;
(ii) that, for as long as this Agreement is
in full force and effect or any period during
which good faith negotiations of terms for this
transaction continue between Buyer and Seller,
Tenant shall not have the right to exercise the
purchase option under the Lease;
(iii) obligating Tenant to vacate and
surrender possession of the Property on the
Closing Date hereunder.
Buyer acknowledges that TenantOs failure or
refusal to execute a lease termination agreement
shall be a failure of a condition precedent
entitling Buyer to the return of its Xxxxxxx Money
hereunder, and in no event shall such failure or
refusal be deemed a Seller default hereunder.
(c) Upon Closing, Seller shall be entitled to receive
from the purchase price held by the Title Company:
$1,892,000.00, plus $12,000.00 administrative fees,
plus $60,000.00 to pay the BrokerOs commission, plus
Seller's closing costs, plus reasonable attorneys'
fees. Tenant shall be entitled to receive from the
purchase price held by the Title Company the difference
between $1,892,000.00 plus Seller's reasonable
attorneys' fees, plus Seller's closing costs, plus
$60,000.00 brokerage commission, and plus $12,000.00
administrative fee (on the one hand), and the purchase
price of $2,000,000.00 (on the other hand).
5. INTENTIONALLY DELETED
6. CLOSING
Conveyance of title and payment of the Purchase Price
as contemplated under this Agreement (the "Closing") shall
be held on a date and time mutually agreed between Seller
and Buyer and within fifteen [changed to confrom to the
facts /s/ec /s/rpj] days after Buyer's satisfaction with or
waiver of all of the Conditions set forth in this Agreement
which are to be satisfied or waived within periods stated
in this Agreement and the fulfillment of all other terms of
this Agreement. If the parties cannot agree on a date and
time for Closing, the Closing will occur fifteen [changed to
conform to the facts /s/ec /s/rpj] days after the expiration
or waiver of the last condition in paragraph 4 herein at
10:00 a.m. The Closing shall be held at an office of the
Title Company in the county in which the Property is located
or at another mutually agreed location, but may also be
effectuated by courier delivery of the Closing documents and
other Closing items to the Title Company with instructions
as to disposition. Seller shall deliver sole and exclusive
possession of the Property to Buyer at Closing, and the
Property shall be unoccupied and subject to no claim of
possession by any party other than Buyer.
7. CONVEYANCE OF TITLE
(a) Seller shall convey good and marketable fee simple
title to the Property to Buyer by a recordable statutory
from special warranty deed ("Deed") together with any
required real estate transfer valuation affidavit
("Affidavit"). For purposes of this Agreement, the phrase
"good and marketable title" shall mean ownership of
marketable title to the Property which is insurable by the
Title Company in favor of Buyer under the Title Policy at
standard rates, free of all exceptions other than the
Permitted Exceptions.
(b) Seller shall deliver to Buyer and Title Company at
Closing a title affidavit (in the Title CompanyOs customary
form) acceptable to Buyer and Title Company stating that
Seller has sole and exclusive possession of the Property and
stating, among other things reasonably required by Buyer and
Title Company, that to the best of its knowledge either (I)
there have been no improvements, repairs or changes to the
Property between the Effective Date and Closing, or (ii) if
there have been any such improvements, repairs or changes,
all lienors or potential lienors in connection with such
improvements, repairs or changes have been paid in full.
8. CLOSING COSTS
(a) Seller shall pay: (I) Seller's attorney's fees:
(ii) the cost of recording all documents necessary to
deliver good and marketable title to Buyer hereunder; and
(iii) all other costs and expenses specifically allocable to
Seller pursuant to the terms of this Agreement or any other
document or agreement to which Seller is a party in
connection with the transactions contemplated hereunder. All
to be reimbursed by buyer.
(b) Buyer shall pay: (i) Buyer's attorney's fees;
(ii) the expense of the Title Policy (including all
endorsements thereto); (iii) the expense of the Survey; (iv)
all transfer, documentary, conveyance or similar taxes, if
any: (v) the entire xxxxxxx money escrow fee; (vi) the
entire Closing escrow fee, if any; (vii) all other recording
fees with respect to documents to which Buyer is a party to
be recorded pursuant to the Closing; and (viii) all other
costs and expenses specifically allocable to Buyer pursuant
to the terms of this Agreement or any other document or
agreement to which Buyer is a party in connection with the
transactions contemplated hereunder.
9. PRORATIONS
All real property ad valorem taxes shall be prorated
(on a 365-day year basis) between Buyer and Seller as of
Closing based upon 100% of each of the most recently
available property assessment valuation and tax rate. If
there is no assessment valuation or tax rate available for
the year in which Closing occurs or for one or more years
prior to Closing, 100% of each of the last known assessment
and tax rate shall apply cumulatively to each year for which
there is no known assessment valuation or tax rate. A
reproration shall occur when actual taxes are billed for the
period up to Closing. All installments of special or
installment assessments levied against the Property and due
or mature as of Closing shall be paid in full by Seller on
or before closing.
10. CASUALTY AND CONDEMNATION
(a) If, prior to the Closing Date, the Property and
the improvements thereon shall be destroyed or damaged by
fire or other casualty costing more than $100,000 to repair,
Buyer shall have the option (to be exercised in the manner
hereinafter provided) to (l) terminate this Agreement, in
which event the Xxxxxxx Money shall be promptly returned to
Buyer, and thereupon, this Agreement shall become null and
void, and neither party shall have any further rights or
obligations hereunder, except as other expressly provided
herein; or (ii) upon the Closing Date Seller shall assign to
Buyer the interest of Seller in any to any insurance
proceeds with respect to said damage. Seller agrees to give
Buyer notice of any fire or other casualty within seventy-
two (72) hours after any such event, and Buyer may exercise
such option by delivering written notice to Seller within
twenty (2) days following the receipt of such notice. If
the Closing Date is less then twenty (20) days following the
last day on which Buyer is entitled to elect to terminate
this Agreement, then the Closing shall be delayed until
Buyer makes such election.
(b) If after the Effective Date and before Closing,
all or a substantial portion of the Property is condemned by
any legally constituted authority, a notice of intent to
condemn is issued for any portion of the Property, or any
portion of the Property is sold in lieu of contamination
(all of which actions shall generically be referred to as a
OcondemnationO), Buyer shall determine, in its reasonable
discretion, the effect of the condemnation on the Property
and the financial viability of this Agreement. Within 60
days after notice of intent to condemn is received by Buyer,
Buyer shall notify Seller in writing of BuyerOs decision to
either (i)terminate this Agreement, in which event all
Xxxxxxx Money paid by Buyer shall be immediately refunded by
Title Company to Buyer, or (ii)leave this Agreement in full
force and effect and proceed to Close, in which case Seller
shall assign to Buyer all of Seller's rights under the
condemnation, or if the amount of the award is then
ascertained or has been paid to Seller, the Purchase Price
shall be reduced by an amount equal to the award, and Seller
shall retain the rights to the award. If this Agreement is
terminated by Buyer under alternative (i)above, all Xxxxxxx
Money shall be returned to Buyer, and neither Buyer nor
Seller shall have any further obligations or rights under
this Agreement other than those which are expressly stated
to survive a termination. If Buyer does not terminate this
Agreement, the term "Property" as used herein shall refer to
the remainder of the Property after condemnation. If the
Closing Date is less than sixty (60) days following the last
day on which Buyer is entitled to elect to terminate this
Agreement, then the Closing shall be delayed until Buyer
makes such election.
11. BUYER'S REPRESENTATION AND WARRANTIES
Buyer shall defend, indemnify and hold Seller harmless
from and against any and all claims, actions, loss, cost,
damage and expense (including reasonable attorneys' fees)
resulting from any intentional misrepresentation or a
willful breach by Buyer of Buyer's representation,
warranties and covenants in this Agreement. All
representations, warranties and covenants made herein by
Buyer shall be deemed to be repeated as of Closing and shall
survive Closing. Buyer represent, warrants and covenants to
Seller that:
(a) Buyer's execution, delivery and consummation of
this Agreement is not prohibited by any agreement or
instrument to which Buyer a party.
(b) Buyer's execution, delivery and consummation of
this Agreement is not subject to any consent or approval
from or registration with any governmental authority.
12. SELLER'S REPRESENTATION AND WARRANTIES
Seller shall defend, indemnify and hold Buyer harmless
from and against any and all claims, actions, loss, cost,
damage and expenses (including reasonable attorneys' fees)
resulting from any inaccuracy or breach in any of Seller's
representations, warranties and covenants in this Agreement.
All representations, warranties and covenants made herein by
Seller shall be deemed to be repeated as of Closing and
shall survive Closing for a period of one (1) year. Seller
represents, warrants and covenants to Buyer that:
(a) Seller has complete and full authority to execute
this Agreement and to convey to Buyer an undivided 40%
interest in good and marketable fee simple title to the
Property in accordance with this Agreement, the individuals
executing this Agreement are authorized to do so, all
necessary action has been taken to authorize such execution,
and Seller will execute and deliver to Buyer and the Title
Company at or prior to Closing, as the case may require,
such other documents, instruments, agreements, including but
not limited to affidavits and certificates reasonably
required (and reasonably satisfactory to Seller) to
effectuate the transactions contemplated by this Agreement
including, without limitation, evidence of Seller's
authority to consummate the sale and the documents and
instruments required by the terms of this Agreement.
(b) Seller's execution, delivery and consummation of
this Agreement is not subject to any consent or approval
from or registration with any governmental authority.
(c) This agreement has been duly authorized, executed
and delivered by Seller is a valid and binding obligation of
Seller and is enforceable against Seller in accordance with
its terms.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, SELLER
MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
WITH RESPECT TO THE CONDITION OF THE PROPERTY CONVEYED
HEREBY, INCLUDING, WITHOUT LIMITATION, THE CONFIGURATION,
ACREAGE OR SQUARE FOOTAGE OF THE PROPERTY OR THE
HABITABILITY, CONDITION OR FITNESS FOR ANY PARTICULAR USE
OR PURPOSE, AND BUYER AGREES THAT IT IS PURCHASING THE
PROPERTY IN AN "AS-IS" WHERE-IS CONDITION. BUYER FURTHER
ACKNOWLEDGES THAT EXCEPT OTHERWISE EXPRESSLY PROVIDED
HEREIN: (1)SELLER HAS NO OBLIGATION TO PROVIDE BUYER WITH
ANY INFORMATION RELATING TO THE PROPERTY, (2)SELLER DOES NOT
GUARANTEE OR REPRESENT THE ACCURACY OR COMPLETENESS OF ANY
INFORMATION OR REPORTS RELATING TO THE PROPERTY THAT MAY
HAVE BEEN OR MAY BE PROVIDED TO BUYER; AND (3)BUYER SHALL
RELY ONLY UPON BUYEROS OWN INVESTIGATION OF THE PROPERTY IN
DECIDING WHETHER TO PURCHASE THE PROPERTY HEREUNDER.
13. DEFAULT
(a) If this transaction is not consummated due to
Seller's default, Buyer may elect to enforce the specific
performance of this Agreement or terminate this Agreement,
in which event, the Title Company shall pay the Xxxxxxx
Money to Buyer; provided, however, if specific performance
of this Agreement is frustrated due to Seller's conveyance
of all or part of the Property to a third party, or due to
Seller's encumbering all or any part of the Property to a
third party, or due to Seller's encumbering all or any part
of or interest in the Property with a lien, lease, easement,
restriction or offer encumbrance after the Effective Date
and not eliminated at or prior to the Closing, or due to any
other act or omission of Seller's, it agents, employees or
contractors, then Buyer may pursue all remedies available to
Buyer against Seller at law or in equity.
(b) If this transaction is not consummated due to
Buyer's default, the parties agree that due to the
difficulty or impossibility of ascertainment of damages
accruing to Seller, Title Company shall pay the Xxxxxxx
Money to Seller as full and final liquidated damages, in
lieu of all other legal or equitable rights or remedies
Seller may have against Buyer.
14. BROKERS
Seller represents and warrants to the Buyer that is has
dealt with no real estate broker or agent with respect to
the Property. Buyer represents and warrants to Seller that
is has dealt with no real estate broker or agent with
respect to the Property other than X.X. Xxxxx, Inc. (the
"Broker"). Seller shall pay a $60,000 commission to the
Broker, if as, and when Seller receives the full purchase
price hereunder and Buyer records Seller's deed, and not
otherwise. Each warranting party shall indemnify and save
the other party harmless from any loss, cost, or damages,
including reasonable attorney's fees, arising from the
warranting partyOs breach of its warranty.
15. SELLER'S AFFIRMATIVE COVENANTS
(a) Seller shall maintain the Property free from waste
and neglect and in good order and repair and shall keep and
perform or cause to be performed all obligations of the
owner under the Lease and the lease termination agreement
described in Condition 6 of SECTION 4 hereof, and all
obligations of the owner of the Property under any recorded
title documents or other documents affecting the Property
and under applicable laws, codes, ordinances, rules and
regulations through the Closing Date or termination of this
Agreement, and Seller shall tender possession of the
Property to the Buyer in the same environmental condition
the Property was in when last inspected by Buyer. Seller
shall only be deemed in default pursuant to the last portion
of the preceding sentence if the environmental condition
thereof has materially adversely changed by reason or any
act or omission of Seller. If any such adverse
environmental change is due to any other reason, Buyer may,
at its option, either accept such condition and proceed to
close, or terminate this Agreement, in which event the
Xxxxxxx Money shall be promptly returned to Buyer.
(b) From the date hereof to the Closing Date, Seller
shall maintain or cause to be maintained liability, casualty
and other insurance upon and in respect to the Property
against such hazard's and risks are customarily insured by
owners of similar properties.
(c) Except as otherwise expressly permitted or
required hereunder, from the date hereof to the Closing Date
or earlier termination of this Agreement, Seller shall not
do, suffer or permit, or agree to do, any of the following
(1) enter into any transaction with respect to or affecting
the Property that would in any way prevent Seller's full
performance hereunder, limit or adversely affect Buyer's
rights hereunder or as an owner of the Property following
Closing (including, without limitation, anything that may
delay or increase the cost of Buyer's development of the
Property); (ii)sell, encumber or grant any interest in the
Property or any part thereof in any form or manner
whatsoever; or (iii)enter into, amend, waive any rights
under, terminate or extend any document or instrument
affecting the Property without the prior written consent of
Buyer, which consent shall not be unreasonably withheld or
delayed. For purposes of the preceding sentence, it shall
not be unreasonable for Buyer to refuse to consent to any
matter that will impose any cost, liability or expense on
Buyer either before or after the Closing or otherwise serve
to delay or interfere with the Use or the Project.
16. MISCELLANEOUS
(a) AMENDMENT. No amendment to the Agreement shall be
effective unless in writing and signed by both parties.
(b) APPLICABLE LAW. This Agreement shall be
construed and enforced in accordance with the laws of the
state in which the Property is located.
(c) WAIVER. Failure of a party to exercise any right
under this Agreement or to insist upon strict compliance
with regard to any term, condition or covenant specified
herein shall not constitute a waiver of that right nor of
strict compliance by the other party with any term,
condition or covenant under this Agreement.
(d) COUNTERPARTS. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an
original, and all of such counterparts together shall
constitute one and the same agreement.
(e) CAPTIONS. All captions and headings are for
reference purposes and shall not be deemed to modify the
text of this Agreement.
(f) SEVERABILITY. The invalidity or unenforceability
of a particular provision of this Agreement shall not effect
the other provisions hereof, and this Agreement shall be
construed in all respects as if the invalid or unenforceable
provision were omitted.
(g) ENTIRE AGREEMENT. This Agreement constitutes the
sole and entire agreement of the parties and is binding upon
Seller and Buyer, their heirs, successors, legal
representatives and assigns.
(h) AGREEMENT, ASSIGNABLE BY BUYER. This Agreement
may be assigned or transferred by Buyer, but Buyer shall
remain liable for the obligations of Buyer under this
Agreement.
(i) EXHIBITS. All exhibits attached to this Agreement
are by reference incorporated herein and made a part of this
Agreement.
(j) NOMENCLATURE. Any reference to party shall
include the employees, officers, agents, contractors,
assigns and successors-in-interest of that party.
(k) TIMING. Time is of the essence of this Agreement.
If the time for the performance of any act, giving of
Notice, of making any payments falls on a Saturday, Sunday
or legal holiday, such time for performance shall be
extended to the next business day.
(l) EFFECTIVE DATE. The Effective Date shall be the
date upon which it is signed simultaneously by Buyer &
Seller. If this Agreement is not signed simultaneously by
both parties, the first party to execute it ("Offeror")
shall send an executed copy to the other party ("Offeree")
in the manner provided for Notices, and it shall be deemed
an offer which Offeree may accept only if Offeree delivers
to an overnight courier for next day delivery a fully
executed copy on or before the fifth (5th) day after the day
on which Offeree received the executed copy. The "Effective
Date" of this Agreement then shall be the date upon which
Offeree delivers the fully executed copy to the overnight
courier as provided in the foregoing sentence.
17. NOTICES
All notices, requests, demands, or other communications
("Notices") hereunder shall be in writing and given by
national overnight courier (e.g., Fed Ex, UPS, Airborne) and
shall be effective as of the date of delivery to the
intended recipient as shown on the courier's records;
delivery shall be deemed to have been made if the courier
was not able to deliver due to change of address for which
no notice was given. Notices (and copies as shown) shall be
addressed as shown below or to such other address as may be
specified from time to time in writing by either party:
To Seller: AEI Real Estate Fund XVI
1300 Minnesota World Trade Center
00 Xxxx Xxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
Telephone No: (000)000-0000
Fax No. (000)000-0000
with a copy to: Xxxxxxx Xxxxxxxxx, Esquire
1300 Minnesota World Trade Center
00 Xxxx Xxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Telephone No: (000)000-0000
Fax No. (000)000-0000
and to
Xxxxxx X. Xxxxx
Xxxxx & Xxxxxxx, LLP
0 Xxxxxxx Xxxx Xxxxxxxxxxx
Xxxxxx, XX 00000
Telephone No: (000)000-0000
Fax No. (000)000-0000
To Buyer: Xxxxxxxxx Xxxxxxxx
XXXXXXXXX XXXXXXX
XXXXX XXXXX ANTIQUES
00000 XXXXXXXXXX XX
XX. XXXXX XX. 00000
PH. (314) 966-0244 WK
PH. (000) 000-0000 HM
with a copy to: XXXXXXX X XXXXX
X.X. XXXXX INC.
0000 XXXXXX XX 0XX XXXXX
XX. XXXXX, XX 00000
PH. (000) 000-0000
FAX (000) 000-0000
TELEPHONE AND FAX NUMBERS SHOWN ABOVE ARE FOR
CONVENIENCE OF THE PARTIES ONLY AND DO NOT IN ANY MANNER
MODIFY THE TERMS OF THIS SECTION 17.
18. NON-FOREIGN CERTIFICATE
At Closing, Seller shall furnish Buyer with a non-
foreign certificate sufficient in form and substance to
relieve Buyer of any and all withholding obligations under
federal law, which certificate shall be reasonably
satisfactory to Buyer and Title Company.
IN WITNESS WHEREOF, Seller and Buyer have each duly
executed this Agreement as of the dates shown adjacent to
their signatures below.
SELLER: AEI REAL ESTATE FUND XV LIMITED PARTHNERSHIP
A Delaware limited partnership
By: AEI Fund Management 86-A, Inc.,
a Minnesota corporation
its general partner
By: /s/ Xxxxxx X Xxxxxxx 2-3-99
Printed Name: Xxxxxx X Xxxxxxx
Title: President
AEI REAL ESTATE FUND XVI LIMITED PARTNERSHIP
A Delaware limited partnership
By: AEI Fund Management XVI, Inc.,
a Minnesota corporation
its general partners
By: /s/ Xxxxxx X Xxxxxxx 2-3-99
Printed Name: Xxxxxx X Xxxxxxx
Title: President
BUYER: XXXXXXXXX XXXXXXX
/S/ XXXXXXXXX XXXXXXX 2-4-99
Xxxxxxxxx Xxxxxxx
BROKER: X.X. XXXXXX, INC.
BY:/s/ X.X. Xxxxx 2-4-99
EXHIBIT A
[GRAPHIC: MAP OF THE PROPERTY]
EXHIBIT B
LEGAL DESCRIPTION
PARCEL 1:
Parcel No. 4 of the Marketplace, being a Subdivision
according to the plat thereof recorded in Plat Book 253,
Page 58 of the St. Louis County Records.
PARCEL 2:
Nonexclusive easements created by (i) that certain
Easements with Covenants and Restriction Affecting Land
("ECR"), dated the 29th day of October, 1987, by and among
Wal-Mart Properties, Inc., a Delaware corporation, Xxxxxxx
Station Development Co., a Missouri general partnership, and
Discus of St. Louis, Inc., a Missouri corporation, recorded
in Book 8228 at Page 764 of the St. Louis County Records,
and (ii) that certain Restated Supplement, dated the 29th
day of October, 1987; by and between Xxxxxxx Station
Development Co., a Missouri general partnership and Discus
of St. Louis, Inc., a Missouri corporation, recorded in Book
8228 at Page 813 of the St. Louis County Records.
