PURCHASE AGREEMENT
THIS AGREEMENT, entered into effective as of this 19th day
of November, 1999.
1. PARTIES. The buyer is Boulevard East, LLC or related
assigns, (such assignment to be effective only if buyer shall
remain liable for the full performance of Buyer hereunder),
("Buyer"), and the seller is AEI Real Estate Fund XVI Limited
Partnership, ("Seller").
2. PROPERTY. The Property consists of the real property
legally described on Exhibit A attached hereto, all buildings and
improvements, and fixtures on the land, (including, but not
limited to, that certain building and related improvements)
appurtenances, mineral and similar rights (to the extent owned by
Seller), and personal property, if any, presently owned by Seller
and used by Seller in connection with the land or the
improvements, all of Seller's interest in all leases, prepaid
rents, security deposits and other contract rights, guaranties
and warranties or other rights related to the use and operation
of the Property and all assignable governmental licenses and
permits.
3. PURCHASE PRICE. The purchase price for the Property is
$1,493,084, all cash.
4. TERMS. The purchase price for the Property will be
paid by Buyer as follows:
(a) When this agreement is executed, Buyer will pay
$5,000 to Seller (the "First Payment"). The
First Payment will be forwarded to the Escrowee per
paragraph 7 hereof, and 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, $1,488,084, (the "Final Payment") into
escrow in sufficient time to allow escrow to close
on the closing date.
5. CLOSING DATE. Escrow is scheduled to close (i.e., the
deed will be recorded and the purchase price transferred to
Seller) on the fifteenth (15th) day after the expiration of the
Due Diligence Period, or such earlier time as the parties may
mutually agree. In no event shall the Closing Date extend beyond
February 15, 2000.
6. DUE DILIGENCE. Buyer will have until the latter of (i)
forty-five (45) days after the full execution of this Agreement
by both parties hereto, or (ii) forty-five (45) days after
delivery of each of the following items (the "Due Diligence
Period") to conduct all of its inspections and due diligence and
satisfy itself regarding each item, the Property and this
transaction.
a. The original and one copy of a title insurance
commitment for an ALTA owner's title insurance
policy (see paragraph 8 below)
b. Copies of such "as built" plans and specifications
for the Property as Seller can locate after
diligent search.
c. Copies of an "as built" survey of the Property
done concurrent with Seller's acquisition of
the Property.
d. Current lease, and rent payment history showing
occupancy date, lease expiration date, rent,
and security deposit, if any, accompanied by such
tenant financial statements as may have been
provided to Seller by the Tenant.
e. Copies of any and all existing soil tests and
environmental tests previously done by or for
Seller relating to the Property.
During the Due Diligence Period, Buyer and Seller as a
condition to both parties' obligations hereunder, shall attempt
to agree upon a mutually acceptable form of assignment and
assumption of lease and personalty of Seller on the Property, if
any, with respective pre and post closing indemnification
clauses, and an Estoppel Certificate executed by existing tenant
on such form reasonably approved by Buyer.
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 Due Diligence Period
to complete such physical inspection.
Buyer shall indemnify 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.
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 overnight delivery service to
Seller and escrow holder before the expiration of the Due
Diligence Period. Such notice shall be deemed effective only
upon receipt by Seller.
If Buyer cancels this Agreement as permitted under this
Section, except for any escrow cancellation fees and any
liabilities under Sections 15(a) of this Agreement (which will
survive), Buyer (after execution of such documents reasonably
requested by Seller to evidence the termination hereof) shall be
returned the 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.
After passage of the Due Diligence Period and Buyer's
failure to terminate this Agreement as provided above, Buyer
shall have been deemed to have waived its right to terminate this
Agreement based upon the items received by Buyer and its
inspection of the property during the Due Diligence Period.
Buyer shall have ten (10) business days, from written notice to
Buyer, to review any adverse material changes in any of the due
diligence items received prior to the Closing Date to terminate
this Agreement. Except for the foregoing, if this Agreement is
not canceled, all of Buyer's conditions and contingencies will be
deemed satisfied.
7. ESCROW. The escrow holder will be an agent for a
nationally-recognized title insurance company reasonably
acceptable to Seller ("the Escrowee"), with offices in or near
Atlanta, Georgia. A copy of this Agreement and the First Payment
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. Escrow will be deemed opened only
upon Seller's execution of this Agreement and the deposit with
Escrowee of the Buyer's First Payment by Seller.
8. TITLE. Closing will be conditioned on the agreement of
the Escrowee to issue an ALTA 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; and other items of record disclosed to Buyer during
the Due Diligence Period.
Buyer shall be allowed ten (10) business days after receipt
of said commitment for examination and for the making of any
objections thereto, said objections to be made in writing or
deemed waived. If any objections are so made, the Seller shall
be allowed sixty (60) days to remove or cure such objection to
Buyer's satisfaction and make such title marketable. If Seller
shall decide to make no efforts to make title marketable, or is
unable to make title marketable, (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.
Pending correction of title, the payments hereunder required
shall be postponed, but upon correction of title and within ten
(10) days after written notice of correction to the Buyer, the
parties shall perform this Agreement according to its terms.
Seller shall pay for the cost of issuing the title commitment and
Buyer shall pay the owner's title insurance premium for an
Owner's policy.
9. CLOSING COSTS. Subject to paragraph 4(c) above, Seller
will pay the deed stamp taxes and one-half of escrow fees, and
any brokerage commissions payable. Buyer will pay all recording
fees, one-half of the escrow fees, the costs of a survey or
survey update (if required by Buyer) and the title premium. Each
party will pay its own attorneys' fees and costs to document and
close of this transaction.
10. REAL ESTATE TAXES, SPECIAL ASSESSMENTS AND PRORATIONS.
(a) Because the Property is subject to a
triple net lease, the parties acknowledge that
there shall be no need for a real estate tax
prorations. However, Seller represents that to
the best of its knowledge, all real estate taxes
and installments of special assessments due and
payable in all years prior to the year of Closing
have been paid in full. Unpaid levied and pending
special assessments existing on the date of
Closing shall be pro-rated between Buyer and
Seller as of the date of Closing. Buyer shall pay
all taxes due and payable in the year after
Closing and any unpaid installments of special
assessments payable therewith and thereafter.
(b) All income and all operating expenses
from the Property shall be prorated between the
parties and adjusted by them as of the date of
Closing. Seller shall be entitled to all income
earned and shall be responsible for all expenses
incurred prior to the date of Closing, and Buyer
shall be entitled to all income earned and shall
be responsible for all operating expenses of the
Property incurred on and after the date of
closing. To the extent any of said items cannot
be determined at Closing after reasonable efforts,
Seller and Buyer shall compute such prorations as
soon as possible after Closing and settle such
adjustment as of the Closing date.
11. SELLER'S COVENANTS, REPRESENTATIONS AND AGREEMENTS.
(a) Seller represents and warrants as of this date that:
(i) Except for the Net Lease
Agreement with Caribou Coffee and its
sublessees or concessionaires, there are no
other leases of the property. The Caribou
Coffee Net Lease Agreement is in full force
and effect and neither party is in default
thereunder and the tenant is not entitled to
any credits or offsets thereunder.
(ii) It is not aware of any pending
litigation, condemnation, or rezoning
proceedings against the Property or Seller's
interest in the Property.
(iii) It is not aware of any contracts it has
executed that would be binding on Buyer after
the closing date.
(iv) Seller is validly existing and duly qualified
to transact business in the State of Georgia.
(v) To the best of Seller's knowledge the
Property is not subject to any claim, demand,
suit, unfiled lien or other proceeding of any
kind which affects or may affect the Property.
(vi) There are no leasing commissions, fees or
other compensation owed in connection with the
leasing of the Property.
(vii) Provided that Buyer performs its obligations
when required, Seller agrees that it will not
enter into any new contracts or amend or modify
any current leases that would materially affect
the Property and be binding on Buyer after the
closing date without Buyer's prior consent, which
will not be unreasonably withheld.
(viii) Seller is not a "foreign person" which would
subject Buyer to the withholding tax provisions
of Section 1445 of the Internal Revenue Code.
(ix) To Seller's best knowledge, the Property and
all business operations thereon are in compliance
with all applicable federal, state and local statutes,
laws and regulations.
(x) Seller is not aware of, and has received no
notice of, the presence, disposal, leakage or
migration on to the Property of any hazardous
waste or toxic substances regulated by
any federal, state or local governmental
authorities which may be in violation of any
applicable law, rule or regulation.
(xi) In addition to the acts and deeds recited
herein and contemplated to be performed,
executed, and delivered by Seller, Seller
shall perform, execute, and deliver or cause
to be performed, executed, and delivered at
the Closing or after the Closing, any and all
further acts, deeds, and assurances, as
Buyer or the Title Company may require and
Seller deems to be reasonable in order to
consummate the transactions contemplated
herein.
(xii) 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.
(b) All covenants, representations and warranties
of Seller contained herein are true and correct as
of the date hereof and shall be true and correct
as of the date of Closing.
12. DISCLAIMER. Seller and Buyer acknowledge and agree
that Seller acquired the Property through a sale\leaseback with
the present tenant. 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 this
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 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.
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 or to be provided by Seller except as set forth herein.
Buyer further acknowledges that the information provided and to
be provided with respect to the Property by Seller was obtained
from a variety of sources and Seller neither (a) has made
independent investigation or verification of such information, or
(b) makes any representations as to the accuracy or completeness
of such information. The sale of the Property as provided for
herein is made on an "AS IS" basis, and Buyer expressly
acknowledges that, in consideration of the agreements of 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 or
condition, habitability, tenantability, suitability for
commercial purposes, merchantability, or fitness for a particular
purpose, in respect of the Property.
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, EXCEPT AS EXPRESSLY
PROVIDED HEREIN.
13. CLOSING.
(a) Before the closing date, Seller will deposit into
escrow: an executed general warranty deed conveying
fee simple, insurable title of the Property to Buyer;
and
(i) Assignment and Assumption of the Caribou
Coffee Lease, Letter of Credit, and any other
intangible personal property.
(ii) Xxxx of sale to personal property, if any, of
Seller, on the property.
(iii) Lien waiver affidavit
(iv) Form 10995
(v) FIRPTA Certificate
(vi) Delivery of original Caribou Coffee lease,
warranties/guaranties, if any in Seller's
possession, permits/licenses, keys, if any,
in Seller's possession.
(vii) Certified copy of Partnership Agreement for
the Seller
(viii) Notice of transfer to tenant jointly signed
by Buyer and Seller.
(ix) Estoppel dated no more than 30 days prior to
the Closing from Caribou Coffee in form and
substance reasonably satisfactory to Buyer.
If Buyer and Seller cannot agree prior to
the end of the Due Diligence Period on the
form of Estoppel to be delivered, this
Agreement shall be null and void and of no
further force and effect and Buyer's First
Payment shall be returned to Buyer.
(b) On or Before the closing date, Buyer
will deposit into escrow: the Assignment and
Assumption of Lease signed by Buyer; the balance
of the purchase price when required under Section
4; any additional funds required 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. DEFAULT. If Buyer defaults and Seller has fully
performed all obligations of Seller hereunder and satisfied all
conditions to Closing to be performed by Seller, Buyer will
forfeit all rights and claims and Seller will be relieved of all
obligations and will be entitled as its sole and exclusive
remedy, to retain all monies heretofore paid by the Buyer as
liquidated damages, actual damages being difficult if not
impossible to calculate and the parties having made a good faith
effort to determine the same.
If Seller shall default, Buyer irrevocably waives any right
to file a lis pendens, a specific performance action or any other
claim, action or proceeding of any type in connection with the
Property or this or any other transaction involving the Property,
and will not do anything to affect title to the Property or
hinder, delay or prevent any other sale, lease or other
transaction involving the Property (any and all of which will be
null and void), unless: it has paid the First Payment,
performed all of its other obligations and satisfied all
conditions under this Agreement within the required time periods,
and unconditionally notified Seller that it stands ready to
tender full performance, purchase the Property and close escrow
as per this Agreement, regardless of any alleged default or
misconduct by Seller. Provided, however, that in no event shall
Seller be liable for any punitive, consequential or speculative
damages arising out of any default by Seller hereunder. Upon a
default by Seller hereunder, Buyer shall have the right to
enforce an action in equity for specific performance, xxx for
damages available at law or terminate this Agreement by written
notice to Seller and receive the immediate return of the First
Payment.
15. BUYER'S REPRESENTATIONS AND WARRANTIES.
a. Buyer represents and warrants to Seller as follows:
(i) 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 Buyer deems to be
reasonable in order to consummate the transactions
contemplated herein.
(ii) 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.
(iii) 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,
(ii) any order of any court or other agency of
government having jurisdiction hereof, or (iii) any
agreement or instrument to which Buyer is a party or by
which Buyer is bound.
16. DAMAGE, 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, 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 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 resulting from said
damage or destruction to the extent that the same are
payable with respect to damage to the Property, and are
so payable to Seller under the Caribou Coffee Lease.
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 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 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. MISCELLANEOUS.
(a) This Agreement may be amended only by a
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 thirty
(30) days after the end of the Due Diligence
Period, through no fault of Seller, Seller may
either, at its election, extend the closing date,
exercise any remedy available to it by law, or
terminate this Agreement and return all funds
theretofore paid by Buyer.
(c) 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. All funds
deposited into escrow and held by the escrow
holder will be held in an interest-bearing
account. Interest on the funds in this account
will accrue for Buyer's benefit, but if Buyer
defaults, interest will accrue for Seller's
benefit.
(j) 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.
(k) Further Conditions to Closing:
(i) Seller has complied with and otherwise
performed each of the covenants and obligations
of Seller set forth herein;
(ii) No adverse change to the title or to the
environmental condition of the Property occurs
after the Due Diligence Period.
(c) All representations, warranties and covenants
contained herein shall, as applicable, survive
the Closing and delivery of the deed for a
period of one (1) year.
(d) This Agreement shall be governed by end construed
in accordance with the laws of the State of Georgia.
(e) This Agreement may be executed in multiple
counterparts, each of which shall be an original
copy and together which shall constitute one
instrument.
(f) Buyer intends to effect a tax-deferred exchange
under Section 1031 of the Internal Revenue Code
in connection with the purchase of the Property
and Seller agrees to cooperate with Buyer in
carrying out said exchange; provided that, Seller
shall not be responsible for any costs associated
therewith or assume any liabilities in connection
therewith. Seller agrees to execute such
additional documents as may be required to give
effect to this provision.
If to Seller:
Attention: Xxxxxx X. Xxxxxxx
AEI Fund Management XVI, Inc.
0000 Xxxxxxxxx Xxxxx Xxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
If to Buyer:
Attention: Xxxxx X. Falls, III CCIM
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile: (000) 000-0000
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 $5,000 First Payment,
which, if accepted, will be deposited into escrow by Seller.
Seller has five (5) business days within which to accept this
offer.
IN WITNESS WHEREOF, the Seller and Buyer have executed this
Agreement effective as of the day and year first above written.
BUYER: BOULEVARD EAST, LLC
By:/s/ Xxxxx H Falls
Its: Manager
Accepted and agreed this 19th day of November, 1999.
SELLER: AEI REAL ESTATE FUND XVI LIMITED PARTNERSHIP, a
Minnesota limited partnership
By: AEI Fund Management XVI, Inc., its
corporate general partner
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, President
Caribou Coffee Company
EXHIBIT "A"
All that tract or parcel of land lying and being in Land Xxx 000 xx
xxx 00xx Xxxxxxxx, Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Xxxxxxx and being
more particularly described as follows:
To find the True Point of Beginning, commence at a point at the
corner common to Land Lots 901, 902, 971 and 972 of said District,
Section and County, said point of being located North 84" 33' 24
West a distance of 50.00 feet from a number 4 rebar found on the
Southerly line of Land Lot 901 of said District, Section and County;
thence, from said land lot corner, North 01" 48' 20 East a distance
of 325.07 feet to a point; thence North 02" 12' 51 East a distance
of 45.46 feet to a number 4 rebar set and the TRUE POINT OF BEGINNING;
thence North 01" 53' 24 East a distance of 234.23 feet to an iron
pin with plastic cap found at the Southwesterly right-of-way of
Xxxxxxx Ferry Road, said iron pin being located North 28" 40' 42
West a distance of 0.83 feet from a right of way monument found;
thence, along the Southwesterly right of way of Xxxxxxx Ferry Road,
South 63" 59' 03 East a distance of 164.20 feet to a point, said
point being located North 63" 59' 03 West a distance of 1.79 feet
from a right-of-way monument found; thence, departing said right of
way, South 02" 07' 32 West a distance of 166.85 feet to a number 4
rebar found; thence, North 88" 12' 50 West a distance of 149.18 feet
to a number 4 rebar set at the TRUE POINT OF BEGINNING, containing
0.70 acre as shown on Boundary Survey for Caribou Coffee, prepared
by Atlanta Engineering Service, Inc., dated December 1, 1994, last
revised December 12, 1996, certified to Caribou Coffee Company, Inc.,
AEI Real Estate Fund XVI Limited Partnership and Lawyers Title
Insurance Company by Xxxxx X. Xxxxxx, Ga.R.L.S. No. 2374.
TOGETHER WITH easement appurtenant to the about described property
as set forth in Easement Agreement and RElease of Existing Easement
between Lorient Corporation, N.V. and Merchant's Walk Associates
L.P. dated September 28, 1993, recorded in Deed Book 7652, Page 420,
Xxxx County, Georgia records.
