ASSIGNMENT AND ASSUMPTION
OF
PURCHASE AND SALE AGREEMENT
THIS ASSIGNMENT made and entered into this 2nd day of
March, 2006, by and between AEI FUND MANAGEMENT, INC., a
Minnesota corporation, ("Assignor") and AEI NET LEASE INCOME &
GROWTH FUND XIX LIMITED PARTNERSHIP, a Minnesota limited
partnership, and AEI NET LEASE INCOME & GROWTH FUND XX LIMITED
PARTNERSHIP, a Minnesota limited partnership (as tenants in
common, together collectively referred to as "Assignee");
WITNESSETH, that:
WHEREAS, on the 31st day of January, 2006, Assignor
entered into a Purchase and Sale Agreement (as subsequently
amended, hereinafter together collectively referred to as the
"Agreement") for that certain property located at ▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ (the "Property") with VR Partners I,
L.P., a Texas limited partnership, as Seller; and
WHEREAS, Assignor desires to assign to AEI Net Lease
Income & Growth Fund XIX Limited Partnership, an undivided
fifty percent (50.0%) interest as a tenant in common, and AEI
Net Lease Income & Growth Fund XX Limited Partnership, an
undivided fifty percent (50.0%) interest as a tenant in
common, all of its rights, title and interest in, to and under
the Agreement as hereinafter provided;
NOW, THEREFORE, for One Dollar ($1.00) and other good and
valuable consideration, receipt of which is hereby
acknowledged, it is hereby agreed between the parties as
follows:
1. Assignor assigns all of its rights, title and
interest in, to and under the Agreement to Assignee, to
have and to hold the same unto the Assignee, its
successors and assigns;
2. Assignee hereby assumes all rights, promises,
covenants, conditions and obligations under the Agreement
to be performed by the Assignor thereunder, and agrees to
be bound for all of the obligations of Assignor under the
Agreement.
All other terms and conditions of the Agreement shall remain
unchanged and continue in full force and effect.
ASSIGNOR:
AEI FUND MANAGEMENT, INC.,
a Minnesota corporation
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, its President
ASSIGNEE:
AEI NET LEASE INCOME & GROWTH
FUND XIX LIMITED PARTNERSHIP,
a Minnesota limited partnership
By: AEI Fund Management XIX, Inc.,
a Minnesota corporation, its General Partner
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, its President
AEI NET LEASE INCOME & GROWTH
FUND XX LIMITED PARTNERSHIP,
a Minnesota limited partnership
By: AEI Fund Management XX, Inc.,
a Minnesota corporation, its General Partner
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, its President
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (the "Agreement")
entered into by and between VR PARTNERS I, L.P., a Texas
limited partnership (the "Seller") and AEI FUND MANAGEMENT,
INC., a Minnesota corporation, or its assigns (the "Buyer").
The date on which last party hereto executes this Agreement is
hereafter referred to as the "Effective Date".
In consideration of the mutual covenants set forth herein
and other good and valuable consideration, the receipt and
sufficiency of which are herby mutually acknowledged, the
parties hereto covenant and agree as follows:
1. Property. Seller is the owner of a parcel of
real property, with all improvements thereon, known generally
as ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇., currently leased for
use as a Tractor Supply, such property being more particularly
described on Exhibit "A" attached hereto (collectively, the
"Property"). The Property includes all of Seller's rights and
interests in and to all buildings and other improvements on or
within the appurtenant thereto, including easements,
warranties, guaranties, indemnities, and covenants. Seller
wishes to sell and Buyer wishes to purchase the Property on
the terms and conditions set forth herein.
2. Lease. The Property is being sold subject to an
existing Lease of the Property, dated September 16, 1997 (the
"Lease"), by and between Seller, as lessor, and Tractor Supply
Company, as lessee (the "Tenant"). Buyer shall have the right
to review and approve such Lease during the Due Diligence
Period, in Buyer's sole discretion.
3. Closing Date. The closing of the Buyer's purchase
of the Property (the "Closing") shall be on February 24, 2006,
or 10 business days from receipt of the Adverse Change Due
Diligence Documents, if any should be occasioned as set forth
below in Article 8.03, whichever is later (the "Closing
Date").
4. Purchase Price. The purchase price for the Property
is $2,429,600.00 (the "Purchase Price"), If all conditions
precedent to Buyer's obligations to purchase have been
satisfied, Buyer shall deposit the Purchase Price with the
title company acceptable to Buyer as described in Article 6
hereof on or before the Closing Date.
Within three (3) business days of Effective Date of this
Agreement, Buyer will deposit $25,000 (the "▇▇▇▇▇▇▇ Money") in
an interest bearing account with Republic Title of Texas,
Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Closing Agent"). The
Closing Agent shall provide an insured closing letter for this
transaction for the benefit of the Buyer issued through its
underwriter, First American Title Insurance Company (the
"Title Underwriter").
If for any reason this Agreement is terminated prior to
the expiration of the Due Diligence Period, or the Adverse
Change Review Period if such occurs because of the
unanticipated occurrence of Adverse Change Due Diligence
Documents as defined above, then the ▇▇▇▇▇▇▇ Money and any
interest accrued thereon shall be immediately returned to
Buyer. If the transaction contemplated hereby proceeds to
Closing, the ▇▇▇▇▇▇▇ Money shall be paid to Seller at Closing
and Buyer shall receive a credit against the Purchase Price
payable hereunder in the amount of the ▇▇▇▇▇▇▇ Money plus
interest accrued thereon. If the Buyer does not terminate
this Agreement as set forth herein, and when allowed in
Articles 6, 7, 8, 12, 16 or 18 hereof, or otherwise as
expressly allowed hereunder, the ▇▇▇▇▇▇▇ Money shall
thereafter be deemed non-refundable, except to the extent any
of the contingencies to Buyer's performance hereunder
(including without limitation, Seller's performance of its
obligations hereunder) shall not be satisfied.
The balance of the Purchase Price in cash is to be
deposited by Buyer into an escrow account with the Closing
Agent on or before the Closing Date.
5. Escrow. Escrow shall be opened by Seller with the
Closing Agent upon execution of this Agreement. A copy of this
Agreement will be delivered to the Closing Agent by Seller and
will serve as escrow instructions together with any additional
instructions required by Seller and/or Buyer or their
respective counsels. Seller and Buyer agree to cooperate with
the Closing Agent and sign any additional instructions
reasonably required by the Closing Agent to close escrow. If
there is any conflict between any other instructions and this
Agreement, this Agreement shall control.
6. Title. Seller shall order upon the Effective Date of
this Agreement, at its sole expense, a commitment for an Texas
Form T-1 Owner's Policy of Title Insurance (most recent
edition) issued by the Closing Agent (the "Title Company")
through the Title Underwriter, insuring fee simple title in
the Property, subject only to such matters as Buyer may
approve and contain such endorsements as Buyer may require
that are available for a property in Texas (the "Title
Commitment"). The Title Commitment shall show Seller as the
present fee owner of the Property and show Buyer as the fee
owner to be insured.
All easements, restrictions, documents and other items
affecting title shall be listed in Schedule "B" of the Title
Commitment. Copies of all instruments creating such
exceptions must be attached to the Title Commitment. The
Title Company shall also provide to Buyer a current tax
certificate relative to the Property.
Buyer shall be allowed ten (10) business days after
receipt of the Title Commitment and copies of all underlying
documents, for examination and 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 ten (10) business days to cure such objections 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 cure Buyer's objections, or is unable to
obtain insurable title within said ten (10) business day
period, this Agreement shall be null and void and of no
further force and effect (and the ▇▇▇▇▇▇▇ Money shall be
returned in full to Buyer immediately and neither party shall
have any further duties or obligations to the other hereunder
except as expressly provided herein).
The Buyer shall also have five (5) business days to
review and approve any easement, lien, hypothecation or other
encumbrance placed of record affecting the Property after the
date of the Title Commitment. If necessary, the Closing Date
shall be extended by the number of days necessary for the
Buyer to have five (5) business days to review any such items.
Such five (5) business day review period shall commence on the
date the Buyer is provided with a legible copy of the
instrument creating such exception to title.
The Seller agrees to inform the Buyer of any item
executed by the Seller placed of record affecting the Property
after the date of the Title Commitment. If any objections are
so made, the Seller shall be allowed five (5) business days to
cure such objections 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 cure
Buyer's objections, or is unable to obtain insurable title
within said five (5) business day period, this Agreement shall
be null and void and of no further force and effect (and the
▇▇▇▇▇▇▇ Money shall be returned in full to Buyer immediately
and neither party shall have any further duties or obligations
to the other hereunder except as expressly provided herein).
7. Site Inspection. As a condition precedent to
Buyer's obligations hereunder, the Property shall be inspected
and approved by Buyer, in Buyer's sole discretion. Said
inspection shall be completed within the Due Diligence Period,
and Buyer shall provide Seller with its written notice of any
disapproval of the Property at the expiration of the Due
Diligence Period.
8. Due Diligence and Due Diligence Periods.
8.01 Due Diligence Documents and Due Diligence Period.
Buyer shall have until the end of the fifteenth (15th)
business day after the delivery of the last of the Due
Diligence Documents, as described below, or receipt from
Seller of written notice that it has provided all of the Due
Diligence Documents in its possession or control (the "Due
Diligence Period") to conduct all of its inspections, due
diligence and review to satisfy itself regarding each item,
the Property and this transaction. The Buyer shall indemnify
Seller and hold Seller harmless from all costs, expenses,
claims, damages and liabilities arising, directly or
indirectly, from any tests, investigations or studies
conducted by Buyer or its agents, representatives or employees
on the Property. Such indemnity shall expressly survive the
Closing or any earlier termination of this Agreement. Further,
all such inspections or tests shall be conducted by Buyer in
accordance with the requirements of the Lease and in a manner
reasonably calculated to minimize any interference with the
Tenant's conduct of business at the Property. The following
Due Diligence Documents are to be delivered by Seller at
Seller's expense (unless specifically designated herein to be
obtained by Buyer), and such documents to be of current or
recent date and certified to Buyer, or otherwise the most
recent of such item in Seller's possession:
a) A copy of Seller's existing Owner's Title Policy for the
Property (with the coverage amount redacted);
b) An updated as-built ALTA survey (the "Survey"), certified
to Buyer and Title Company, and in substantial accordance with
the requirements set forth in Exhibit "B" attached hereto. At
Closing, or upon any earlier termination of the Agreement as
provided herein, the Buyer shall reimburse Seller for all
costs of obtaining the Survey in excess of $1,500;
c) A complete copy of the Lease, and any amendments thereto,
including but not limited to amendments, assignments and/or
letter agreements, and any current estoppel currently in
Seller's possession;
d) The most recent Phase I environmental report covering the
Property, if any, in Seller's possession;
e) If in Seller's possession, a copy of the Tenant's
existing insurance policies or insurance certificate for the
Property;
f) If in Seller's possession, any zoning information
concerning the current zoning of the Property;
g) A copy of the soils report, if any, if in Seller's
possession;
h) If in Seller's possession, a copy of the Certificate of
Occupancy from the governing municipality and, if in Seller's
possession, Certificate of Substantial Completion executed by
the project architect and/or general contractor for the
improvements on the Property;
i) A copy of the existing final building plans and
specifications for the improvements and a copy of any roof or
other structural warranties for the improvements given
following completion thereof, if in Seller's possession;
j) A copy of the most recent real estate tax statement for
the Property;
k) A rent accounting for the last twelve (12) months showing
when Seller received each check from Tenant; and
l) Proposed Special Warranty Deed.
(All of the above described documents (a) through (l) are
hereinafter collectively the "Due Diligence Documents").
After receipt and review of the Due Diligence Documents
or after Buyer's inspection of the Property, Buyer may cancel
this Agreement for any reason, in its sole discretion, by
delivering a cancellation notice, return receipt requested, to
Seller and Closing Agent on or before the expiration of the
Due Diligence Period and the ▇▇▇▇▇▇▇ Money shall be returned
in full to Buyer immediately and neither party shall have any
further duties or obligations to the other hereunder, except
as expressly provided herein. Such notice shall be deemed
effective upon receipt by Seller.
If notice of termination is not given on or before the
expiration of the Due Diligence Period, all such matters shall
be deemed acceptable and all such conditions satisfied and/or
waived and the right to termination under Article 8.01 shall
be extinguished and the ▇▇▇▇▇▇▇ Money shall be non-refundable
to Buyer and Closing Agent shall release the ▇▇▇▇▇▇▇ Money to
Seller, except in the event: of Seller's default; based upon
receipt of materially adverse information as set forth in
Article 8.03; or except as otherwise set forth herein, in
which case the ▇▇▇▇▇▇▇ Money shall be retained by the Closing
Agent pending receipt of instructions for the disposition
thereof executed by Buyer and Seller.
8.02 Form of Closing Documents. Prior to the end of the
Due Diligence Period, Seller shall, at its sole expense,
provide to Buyer the following documents, and Seller and Buyer
shall agree on the form of the following documents to be
delivered to Buyer on the Closing Date by Seller as set forth
in Article 14 hereof:
(a) Special Warranty Deed;
(b) Seller's Affidavit;
(c) FIRPTA Affidavit;
(d) Assignment and Assumption of the Lease, wherein Seller
shall indemnify Buyer from and against any and all obligations
accruing under the Lease prior to the Closing Date and Buyer
shall indemnify Seller from and against any and all
obligations accruing under the Lease from and after the
Closing Date; and
(e) Estoppel from Tenant, in a form reasonably satisfactory
to Buyer and consistent with the requirements in the Lease.
In the event that Seller and Buyer do not reach mutual
agreement on the form of the above described documents (a)
through (e) prior to the end of the Due Diligence Period, this
Agreement may be terminated by either Seller or Buyer and the
▇▇▇▇▇▇▇ Money shall be returned in full to the Buyer
immediately and neither party shall have any further duties or
obligations to the other hereunder, except as expressly
provided herein.
8.03 Adverse Change Due Diligence Documents and Adverse
Change Review Period. As soon as available, but in any event
no later than at least ten (10) business days prior to the
Closing Date (the "Adverse Change Review Period"), Seller
shall deliver to Buyer any documents or written summary of
facts known to Seller that materially change or render
incomplete, invalid, or inaccurate any of the Due Diligence
Documents (collectively, if any, the "Adverse Change Due
Diligence Documents").
Buyer shall have ten (10) business days to examine and to
accept all of the above-described Adverse Change Due Diligence
Documents. After Buyer's receipt and review of the Adverse
Change Due Diligence Documents, Buyer may cancel this
Agreement if any of the Adverse Change Due Diligence Documents
are not acceptable to Buyer, in its sole discretion, by
delivering a cancellation notice, as provided herein, to
Seller and Closing Agent prior to the end of the Adverse
Change Review Period. Such notice shall be deemed effective
upon receipt by Seller. If Buyer so terminates this Agreement,
the ▇▇▇▇▇▇▇ Money shall be returned in full to Buyer
immediately and thereafter neither party shall have any
further duties or obligations to the other hereunder, except
as expressly provided herein.
It shall be a condition precedent to Buyer's obligations
to close hereunder that there have been no material changes in
any of the information reflected in the Due Diligence
Documents or Adverse Change Due Diligence Documents after the
date of such document and prior to Closing.
Until this Agreement is terminated or the Closing has
occurred, the Seller shall deliver to the Buyer any
documentation that comes in the Seller's possession that
modifies any of the Due Diligence Documents or Adverse Change
Due Diligence Documents, including the Lease and the Guaranty,
or could render any of the Due Diligence Documents or Adverse
Change Due Diligence Documents materially inaccurate,
incomplete or invalid. The Buyer shall, in any event, have
five (5) business days before the Closing Date to review any
such document and, if necessary, the Closing Date shall be
extended by the number of days necessary for the Buyer to have
five (5) business days to review any such document or
documents.
9. Closing Costs. Seller shall pay the following costs of
Closing: any transfer taxes and/or transfer fees, any escrow
fees charged by the Title Company, the recording fee for the
Special Warranty Deed, the recording fees for any documents or
instruments necessary to cure any title objections raised by
the Buyer that the Seller has agreed to cure, a brokerage fee
in the amount of $40,000 payable to ▇.▇. ▇▇▇▇▇ Real Estate by
Seller, the basic premium of the Owner's Title Policy, and any
of the costs of the updating and certifying all Due Diligence
Documents unless otherwise designated herein to be paid by
Buyer. Buyer shall pay the following costs of Closing: the
recording costs for any other documents Buyer requires to be
recorded other than those specified in the preceding sentence,
and the fees or premiums to obtain any endorsements to the
Owner's Title Policy requested or required by Buyer. Each
party will pay its own attorneys' fees to close this
transaction.
10. Real Estate Taxes and Assessments. Seller
represents to Buyer that to the best of its knowledge, all
real estate taxes and installments of special assessments due
and payable on or before the Closing Date have been or will be
paid in full as of the Closing Date. It is understood between
Seller and Buyer that all unpaid levied and pending special
assessments are paid by the Tenant and shall be the
responsibility of the Tenant under the Lease after the Closing
Date.
In the event Tenant does not pay any special assessments
or real estate taxes that are the responsibility of the Lessee
under the Lease, Seller and Buyer agreed to each pay its
prorata share of said assessments or taxes as of the Closing
Date.
11. Prorations. The Buyer and the Seller, as of the
Closing Date, shall prorate all rent due under the Lease.
Further, to the extent there are any ad valorem taxes, utility
charges, or other expenses relative to the Property which are
not paid by the Tenant pursuant to the Lease, all of such
items shall also be prorated between Buyer and Seller,
effective as of the Closing Date. To the extent that
information for such rent proration or any other applicable
charges or expenses are not available on the Closing Date or
if the actual amount of such rent or other charges or expenses
differs from the amount used in the prorations at Closing,
then the parties shall make any adjustments necessary so that
the prorations at closing are adjusted based upon the actual
amount of such rent or other applicable charges or expenses.
The parties agree to make such reprorations as soon as
possible after the actual amount of rent or other charges or
expenses prorated at Closing become available. This provision
and the respective obligations of the parties shall survive
Closing.
12. Seller's Representations and Warranties. Seller
represents and warrants as of this date and to the best of
Seller's knowledge after due inquiry that:
(a) Except for this Agreement and the Lease between
Seller and Tenant, and those matters disclosed in
the materials delivered to Buyer pursuant to
Articles 6 and 8, it is not aware of any other
agreements or leases with respect to the Property.
(b) 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 hereunder.
(c) It does not have any actions or proceedings pending,
which would materially affect the Property or
Tenant, except matters fully covered by insurance;
(d) The consummation of the transactions contemplated
hereunder, and the performance of this Agreement and
the delivery of the Special Warranty Deed to Buyer,
will not result in any breach of, or constitute a
default under, any instrument to which Seller is a
party or by which Seller may be bound or affected;
e) The Property is in good condition, substantially
undamaged by fire and other hazards, and has not
been made the subject of any condemnation
proceeding;
(f) The use and operation of the Property now is in full
compliance with applicable local, state and federal
laws, ordinances, regulations and requirements, and
Seller has not caused, and has no notice that the
Property is in violation of, any federal, state or
local law, ordinance or regulation relating to
industrial hygiene or to the environmental
conditions, on, under or about the Property,
including, but not limited to, soil and groundwater
conditions;
(g) 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;
(h) The transaction contemplated herein does not
represent a fraudulent conveyance by Seller; and
These Seller's representations and warranties deemed to
be true and correct as of the Closing Date. If the Seller
shall notify Buyer of a material adverse change in its
representation and warranties prior to the Closing Date, the
Buyer shall get five (5) business days to review such material
adverse change and terminate this Agreement if Buyer deems
necessary. If Buyer so terminates this Agreement, the ▇▇▇▇▇▇▇
Money shall be returned in full to Buyer immediately. These
representations and warranties shall survive the Closing for a
period of one (1) year, after which time they shall expire and
terminate and be of no further force and effect.
13. Buyer's Representations and Warranties. Buyer
represents and warrants to Seller that:
(a) 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 hereunder;
(b) To Buyer's knowledge, neither the execution and
delivery of this Agreement nor the consummation of
the transaction contemplated hereunder will violate
or be in conflict with any agreement or instrument
to which Buyer is a party or by which Buyer is
bound;
These Buyer's representations and warranties deemed to be
true and correct as of the Closing Date and shall survive the
Closing for a period of one (1) year, after which time they
shall expire and terminate and be of no further force and
effect.
14. Closing.
(a) On or before the Closing Date, with simultaneous
copy to Buyer, Seller will deposit into escrow with the
Closing Agent the following documents on or before the Closing
Date:
(1) A Special Warranty Deed conveying title to the Property
to Buyer, in form and substance as agreed to between Seller
and Buyer during the Due Diligence Period;
(2) Estoppel letter from Tenant, in form and substance as
agreed to between Seller and Buyer during the Due Diligence
Period;
(3) Affidavit of Seller, in form and substance as agreed to
between Seller and Buyer during the Due Diligence Period;
(4) FIRPTA Affidavit, in form and substance as agreed to
between Seller and Buyer during the Due Diligence Period;
(5) Seller's counterpart to the Assignment and Assumption of
the Lease, in form and substance as agreed to between Seller
and Buyer during the Due Diligence Period;
(6) The original Lease, and any and all documentation
modifying he Lease, including but not limited, assignments,
amendments, and letter agreements;
(7) Tenant's Certificate of Insurance naming Buyer as
additional insured and/or loss payee, as required by the
Lease;
(8) A down-dated title commitment for an owner's title
insurance policy, reflecting only permitted exceptions
approved (or deemed approved) by Buyer during the Due
Diligence Period and including all endorsements required by
Buyer; and
(9) Copies of any and all certificates, permits, licenses and
other authorizations of any governmental body or authority, if
any, which are in the possession of Seller and are necessary
to permit the use and occupancy of the improvements.
(b) On or before the Closing Date, Buyer will deposit
into escrow with the Closing Agent the following: i) the
Purchase Price; and ii) its counterpart to the Assignment and
Assumption of Lease.
(c) Both parties will sign and deliver to the Closing
Agent any other documents reasonably required by the Closing
Agent and/or the Title Company.
15. Termination. This Agreement may be terminated prior
to Closing at Buyer's option (and the ▇▇▇▇▇▇▇ Money returned
to Buyer in full immediately) in the event of any of the
following occurrences:
(a) Seller fails to comply with any of the terms hereof
in any material respect;
(b) A default exists in any material financial
obligation of Seller or the Tenant;
(c) Any representation made or contained in any
submission from Seller or in the Due Diligence
Documents, proves to be untrue, substantially false
or misleading in any material respect at any time
prior to the Closing Date;
(d) There has been a material adverse change in the
financial condition of Tenant or there shall be a
material action, suit or proceeding pending or
threatened against Seller which affects Seller's
ability to perform under this Agreement or against
Tenant which affects its ability to perform under
the Lease;
(e) Any bankruptcy, reorganization, insolvency,
withdrawal, or similar proceeding is instituted by
or against Seller or Tenant;
(f) Seller or Tenant shall be dissolved, liquidated or
wound up;
(g) Notice of termination given by Buyer pursuant to
Articles 6, 7, 8, 12, 16 or 18 hereof.
16. Damages, Destruction and Eminent Domain. If, prior
to the Closing Date, the Property, or any part thereof, should
be destroyed or further damaged by fire, the elements, or any
cause, due to events occurring subsequent to the date of this
Agreement (which damage exceeds 10% of the Purchase Price of
the Property or abates payment of rent by Tenant or renders
the Lease invalid), this Agreement shall terminate, at Buyer's
option, exercised by written notice to Seller within ten (10)
business 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 (a)
all contingencies set forth in Article 8 hereof have been
satisfied, or waived; and (b) any period provided for above in
Article 8 hereof 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, subject to rights of the Tenant pursuant to
the Lease.
If prior to Closing, the Property, or any part thereof,
is taken by eminent domain (which taking delays payment of
rent by the Tenant or renders the Lease invalid) this
Agreement shall terminate, at Buyer's option, by written
notice to Seller and the Closing Agent, to be given within
three (3) business days after Buyer receives written notice of
such eminent domain. 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, subject to the rights of the Tenant
pursuant to the Lease.
In the event that this Agreement is terminated by Buyer
as provided above, the ▇▇▇▇▇▇▇ Money shall be returned to
Buyer immediately after execution by Buyer of such documents
reasonably requested by Seller to evidence the termination
hereof.
17. Notices. 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 by facsimile transaction to the
respective fax number(s) set forth below with printed
confirmation of receipt thereof, or to such other address as
such party may hereafter designate by written notice to the
other party. Notice given in accordance herewith shall be
effective upon delivery to the address of the addressee. Any
notice given by facsimile transmission shall be followed by a
hard copy or by hand delivery.
If to Seller:
VR Partners I, LP
c/o ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Clements, Allen, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
If to Buyer:
AEI Fund Management, Inc.
1300 ▇▇▇▇▇ Fargo Center
▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Director of Acquisitions
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Law Firm
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
18. 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 agreement or understandings. Exhibits
attached to this Agreement are incorporated into this
Agreement.
b. If the transaction contemplated hereunder does not close
by the Closing Date, through no fault of Buyer, Buyer may
either, at it election, seek to enforce specific performance
of any requirements to be performed by Seller, or terminate
this Agreement and receive its ▇▇▇▇▇▇▇ Money back in full
immediately. If this Agreement does not close by the Closing
Date due to no fault of Seller, then Buyer shall pay its
required portion of the cost of the Survey, the Closing Agent
shall release all ▇▇▇▇▇▇▇ Money to Seller, this Contract shall
terminate and the parties shall have no further duties or
obligations hereunder, except as expressly provided herein.
c. This Agreement shall be assignable by Buyer, at its
option, in whole or in part, in such manner as Buyer may
determine, to an affiliate of affiliates of Buyer.
d. Seller shall pay any and all real estate commissions due
and payable to any broker claiming commission by and through
its representation of Seller. Buyer shall indemnify Seller and
hold Seller harmless from any commissions, claims for
commissions or similar fees arising out of this transaction
and based on actions of the Buyer.
e. Buyer acknowledges that Seller may utilize the sale of
the Property as part of a tax deferred exchange transaction in
accordance with Section 1031 of the Internal Revenue Code of
1986, as amended, and the regulations promulgated thereunder.
Buyer shall cooperate with Seller in effectuating such
exchange transaction, so long as Buyer is not required to
incur any liability in connection with such exchange and such
exchange does not operate to delay the Closing required
hereunder.
Buyer is submitting this offer by signing a copy of this
Agreement and delivering it to Seller. Seller has until 5:00
p.m. on January 26, 2006 within which time to accept this
offer by signing and returning this Agreement to Buyer. For
all purposes under this Agreement, facsimile signatures by
either party hereto shall be deemed effective as original
signatures by such party for all purposes. When executed by
both parties, this Agreement will be a binding agreement for
valid and sufficient consideration which will bind and benefit
Seller, Buyer and their respective successors and assigns.
[SIGNATURES ARE TO FOLLOW ON THE NEXT PAGE]
IN WITNESS WHEREOF, Seller and Buyer have executed this
Agreement effective as of the date last set forth below.
SELLER:
VR PARTNERS I, L.P.
By: VR Partners, Inc., General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
Date of Execution: January 31, 2006
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.
SIGNATURES TO CONTINUE ON THE FOLLOWING PAGE]
BUYER:
AEI FUND MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, its President
Date of Execution: January 30, 2006
EXHIBIT "A"
LEGAL DESCRIPTION
Being a tract of land situated in the ▇. ▇▇▇▇▇▇▇▇ Survey,
Abstract No. 170, Dallas County, Texas, and being a part of
that tract of land conveyed from ▇▇▇▇▇ ▇▇▇▇▇ to ▇▇▇▇▇▇
▇▇▇▇▇▇ and wife, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, by deed recorded
in Volume 4740, Page ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇, and being all that tract of land
conveyed from ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ and wife, gala ▇▇▇▇ to ▇▇▇▇
▇▇▇▇▇▇ and wife, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ by deed recorded in Volume
5727, Page ▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ and further
being all of ▇▇▇ ▇, ▇▇▇▇▇ ▇ of Belt Line U.S. BO Addition, an
addition to the City of Mesquite, Dallas County, Texas,
according to the plat thereof recorded in Volume 98001, Page
61, Map Records, Dallas County, Texas, said tract being more
particularly described as follows:
BEGINNING at a 1/2 inch iron rod found for the Southeast
corner of said ▇▇▇▇▇▇ tract and at an inside ell corner of
that tract of land owned by the City of Dallas, said point
being the Southeast corner of said Lot 3;
THENCE North 87 degrees 53 minutes 52 second; Went, along the
South line of said Lot 3, passing at 330.64 feet the
Southeast corner of said Motley tract and continuing a total
distance of 530,64 feat to a 1/2 inch iron rod found for the
East RQ line of Beltline Road;
THENCE North 02 degrees 08 minutes 49 seconds East, along
said East ROW line a distance of 302.69 feet to a 1/2 inch
iron rod set at the Northwest corner of said Motley tract
and said Lot 3;
THENCE South 87 degrees 27 minutes 35 minutes East along the
North line of said Lot 3, a distance of 200.12 feet to a 1/2
inch iron rod found at the Northeast corner of the said Motley
tract and at an angle point in the North line of said ▇▇▇ ▇/
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ degrees 53 minutes 52 seconds last, a distance
of 338.13 feet to a 1/2 inch iron rod found in the East line
of the said ▇▇▇▇▇▇ tract and at the Northeast corner of said
Lot 3;
THENCE South o3 degrees 35 minutes 36 seconds West, along the
East line Of said Lot 3 a distance of 301.27 feet to the Point
of Beginning and containing 161,108 square feet or 3.70 acres
of land.