ASSIGNMENT
OF
COMMERCIAL PURCHASE AND SALE CONTRACT
THIS ASSIGNMENT made and entered into this 16th day of
January, 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.
WITNESSETH, that:
WHEREAS, on the 16th day of November, 2005, Assignor entered
into a Commercial Purchase and Sale Contract (referred to as the
"Agreement") for that certain property located at ▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ (the "Property") with ▇▇▇▇▇-
▇▇▇▇▇ Development Group, Ltd., a Texas limited partnership, as
Seller; and
WHEREAS, Assignor desires to assign to AEI Net Lease Income
& Growth Fund XIX Limited Partnership ("Assignee") all of
Assignor's rights, title and interest in, to and under the
Agreement regarding the Property and Assignee desires to assume
all of Assignor's rights, title and interest in, to and under the
Agreement regarding the Property 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
[SIGNATURES TO CONTINUE ON THE FOLLOWING PAGE]
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
COMMERCIAL PURCHASE AND SALE CONTRACT
Advance Auto Parts
This Purchase and Sale Contract ("Agreement") is entered into
this 16th day of November, 2005, between ▇▇▇▇▇-▇▇▇▇▇ DEVELOPMENT
GROUP, LTD., a Texas Limited Partnership,
(hereinafter referred to as "Seller") and AEI FUND MANAGEMENT,
INC., a Minnesota corporation, or its assigns ("Buyer"). The
date on which the last party hereto executes this Agreement is
hereafter referred to as the "Effective Date".
Seller is the owner of that certain real property, and
improvements thereon, referred to as Advance Auto
Parts generally located at 621 South 77 Sunshine Strip in the
City of Harlingen, County of Cameron, State of Texas, and more
particularly described on Exhibit "A" attached hereto and
incorporated herein (the "Property").
The Property shall also include Seller's interests in the
following items:
1. Any and all privileges and appurtenances pertaining to the
Property, including any right, title and interest of Seller in or
to adjacent streets, easements, alleys or right(s)-of-way;
2. Any and all trade names used in connection with the
Property;
3. All personal property utilized by Seller in the operation of
the Property that is currently located on the Property;
4. All of Seller's interest in and rights and obligations under
the Lease dated January 28, 2005, by and between Seller and
Advance Stores Company, Incorporated, a Virginia corporation (the
"Tenant"), providing for the use and occupancy of the Property
(the "Lease"), and all rents prepaid for any period subsequent to
the Closing date (defined below); and
5. To the extent assignable by Seller and not previously
assigned to Tenant as required under the Lease, all of the
following, if any, relating solely to the Property; (1)
warranties, guaranties, indemnities, and claims (all subject to
Seller's reservation of its rights with respect to claims
thereunder which arise from facts or circumstances existing prior
to the Closing Date or during any period when Seller remains
liable to Tenant or Buyer with respect to the Property), (2)
plans, drawings, specifications, surveys, engineering reports,
and other technical information, and (3) other property (real,
personal, or any other) relating to the leasing, maintenance,
service, or operation of the Property, or the Lease (such
assignment to be subject to Seller's reservation of its rights
with respect to claims thereunder which arise from facts or
circumstances existing prior to the Closing Date or during any
period when Seller remains liable to Tenant or Buyer with respect
to the Property).
Save and Except; any Oil, Gas, and other Minerals which have not
been previously reserved. Said Oil, Gas, and other Minerals, if
any, will be reserved by Seller.
All of the Property shall be sold, conveyed, and assigned to
Buyer at Closing (defined below) free and clear of all liens
except for the lien of real property taxes not yet due and
payable, and subject to the Permitted Encumbrances (defined
below).
TERMS AND CONDITIONS
For the mutual covenants contained in this Agreement, Seller
agrees to convey the Property to Buyer, and Buyer agrees to
purchase the Property from Seller, on the following terms and
conditions:
1) PURCHASE PRICE: The total purchase price for the Property
is One Million, Five Hundred Sixty One Thousand, Nine Hundred
Dollars ($1,561,900) (the "Purchase Price").
2) ▇▇▇▇▇▇▇ MONEY DEPOSIT: Within two (2) business days after
the Effective Date of this Agreement, Buyer shall deposit
$25,000.00 (the "▇▇▇▇▇▇▇ Money") in an interest bearing
account with First American Title Insurance Company, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ (the "Closing Agent") in its capacity as escrow agent
in one or more fully insured accounts of Federally insured
banking or savings institution(s), pursuant to the terms of
this Agreement.
If this Agreement is timely terminated pursuant to any right
contained herein, the ▇▇▇▇▇▇▇ Money shall be immediately
returned to Buyer. With the removal of the contingencies
set forth in Paragraph(s) 4 and 8 hereof, or any other right
of termination herein reserved to Buyer, and if this
Agreement is not terminated prior to expiration of the
Feasibility Period (as defined below), Buyer shall deposit
an additional $25,000.00 with the Closing Agent, increasing
the ▇▇▇▇▇▇▇ Money to $50,000.00 and the entire ▇▇▇▇▇▇▇ Money
shall be non-refundable. The entire ▇▇▇▇▇▇▇ Money, any
additions thereto and any interest earned thereon, shall be
credited to the Purchase Price at the Closing Date (as
defined below), unless otherwise provided herein. If Buyer
fails to timely deliver the additional ▇▇▇▇▇▇▇ Money
deposit, Seller may, at Seller's option, terminate this
Agreement by delivering a written termination notice to
Buyer.
If for any reason this Agreement is terminated prior to the
expiration of the Feasibility Period, or the Second
Feasibility Period (as defined below) if such occurs, 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, or as allowed in Paragraphs 4, 8, 9, 14, 15, and 37
hereof, or otherwise as expressly allowed hereunder, then
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).
Buyer has paid Seller $0.00 as independent consideration for
Buyer's right to terminate by tendering such amount directly
to Seller or Seller's agent. If Buyer terminates under this
paragraph, the deposit will be refunded to Buyer and Seller
will retain the independent consideration. The independent
consideration will be credited to the sales price upon
closing of the sale, if Buyer does not terminate within the
time required. In the event of termination, pursuant to the
terms and rights contained herein, Buyer to return all due
diligence to broker within 5 calendar days.
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.
3) CLOSING DATE: Closing of this transaction shall occur within
fifteen (15) business days following the expiration of the
Feasibility Period (as defined below), or to the extent
additional time is needed to review the Updated Survey per
Paragraph 4(B), whichever is latter (the "Closing Date").
If either party fails to close by the Closing Date, the non-
defaulting party may exercise the remedies set forth in
Paragraph 15.
A. At closing, Seller will execute and deliver, at
Seller's expense, a special warranty deed, in form and
substance as agreed upon by Seller and Buyer during the
Feasibility Period. The deed must include a vendor's lien
if any part of the sales price is financed. The deed must
convey good and indefeasible title to the Property and show
no exceptions other than those permitted under Paragraph 4
or any other provisions of the Agreement. Seller must
convey the Property at closing:
1. with no liens, assessments, or Uniform Commercial Code or
other security interest against the Property which will not be
satisfied out of the sales price, unless the Buyer is assuming
existing loans;
2. without any assumed loans in default; and
3. with no persons in possession of any part of the Property as
lessees, tenants at sufferance, or trespassers except tenants
under the written leases assigned to Buyer under this Agreement.
B. On or before the Closing Date, Seller, at Seller's
expense, will also deliver:
1. tax statements showing no delinquent taxes on the Property;
2. a ▇▇▇▇ of Sale with warranties to title conveying title,
free and clear of all liens, to any personal property defined as
part of the Property above, or sold under this Agreement, in form
and substance as agreed upon by Seller and Buyer during the
Feasibility Period;
3. an Assignment and Assumption of Lease in the form attached
hereto and incorporated herein as Exhibit "B" (the "Assignment
and Assumption of Lease");
4. to the extent that the following items are assignable, an
Assignment and Assumption of Warranties, Guaranties, Indemnities
and Intangibles (the form of said Assignment and Assumption of
Warranties, Guaranties, Indemnities and Intangibles shall be in
the form attached hereto and incorporated herein as Exhibit "C")
to Buyer of the following items as they relate to the Property or
its operations:
(a) licenses and permits;
(b) maintenance, management, and other contracts;
(c) warranties and guaranties; and
(d) consent to such warranties and guaranties, in the event that
assignment of such is prohibited.
5. evidence that the person executing this Agreement is legally
capable and authorized to bind Seller; and
6. Owner's/Seller's Affidavit, in form and substance as agreed
upon by Seller and Buyer during the Feasibility Period;
7. FIRPTA Affidavit, in form and substance as agreed upon by
Seller and Buyer during the Feasibility Period;
8. Estoppel from Tenant, in form and substance as defined in
the Lease. Buyer must decide during the Feasibility Period if
this form is satisfactory to Buyer.
9. The original Lease and any and all documentation modifying
the Lease, including but not limited to, assignments, amendments,
and letter agreements;
10. Any notices, statements, certificates, affidavits,
releases, and other documents required by this Agreement, the
title commitment, or applicable law that is necessary for the
closing of the sale and the issuance of the title policy;
11. an Owner's Policy of Title Insurance issued by the Title
Company in the amount of the Sales Price dated at or after the
Closing, insuring Buyer against all loss under the Title Policy,
subject only to only permitted exceptions approved by Buyer
during the Feasibility Period by Buyer pursuant to Paragraph 4;
12. Certificate of Insurance of Lessee naming Buyer as
additional insured and/or loss payee, as required by the Lease;
13. A project cost letter, signed by Seller, itemizing in
percentages totaling 100%, the following costs: land
acquisition, building construction, and site work.
Until Closing, Seller will operate the Property in the same
manner as on the Effective Date and will not transfer or
dispose of any of the personal property described in this
Agreement or to be sold under this Agreement before Closing
that is not authorized by separate agreement.
C. On or before the Closing Date, Buyer will:
1. deposit the Purchase Price with the Closing Agent;
2. deliver evidence that the person executing this Agreement is
legally capable and authorized to bind Buyer;
3. execute and deliver any notices, statements, certificates,
or other documents required by this Agreement, Title Company, or
law necessary to close the sale.
D. 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
Lessee and shall be the responsibility of the Lessee under
the Lease after the Closing Date.
In the event Lessee 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.
The Buyer and the Seller, as of the Closing Date, shall
prorate: (i) all rent due under the Lease, if any, (ii) ad
valorem taxes, personal property taxes, charges or
assignments affecting the Property (on a calendar year
basis), (iii) utility charges, including charges for water,
gas, electricity, and sewer, if any, (iv) other expenses
relating to the Property which have accrued but not paid as
of the Closing Date, based upon the most current
ascertainable tax ▇▇▇▇ and other relevant billing
information, including any charges arising under any of the
encumbrances to the Property. To the extent that
information for any such proration is not available on the
Closing Date or if the actual amount of such taxes, 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 taxes, charges or
expenses. The parties agree to make such reprorations as
soon as possible after the actual amount of real estate
taxes, charges or expenses prorated at closing becomes
available. This provision and the respective obligations of
the parties shall survive closing.
E. SALES EXPENSES:
1. Seller's Expenses: Seller will pay for the following costs,
at or before closing, unless otherwise designated herein:
a) any and all costs associated with obtaining any releases of
existing liens, other than those liens assumed by Buyer,
including prepayment penalties and recording fees:
b) any and all costs associated with obtaining a release of
Seller's loan liability, if applicable;
c) any and all costs associated with obtaining any tax
statements or certificates and any and all costs associated with
bring all real estate taxes current except those due and payable
in the year of closing and payable by Tenant under the Lease;
d) any and all costs associated with the preparation of the
Deed and any ▇▇▇▇ of Sale as described in Paragraph 3;
e) any and all costs associated with obtaining the updated
title commitment/search and exam fee;
f) any and all costs associated the Owner's Title policy
premium;
g) one-half of any and all costs of any escrow fee;
h) one-half of any and all costs of the transfer taxes and/or
transfer fees;
i) one-half of any and all costs associated with the recording
of the Deed and Assignment and Assumption of Lease;
j) any and all costs to record any documents to cure title
objections that Seller must cure;
k) any and all costs associated with the assignment of
warranties and guaranties described in Paragraph 3(B)(4) or the
costs associated with obtaining the consent to such assignments
where required;
l) any and all costs relating to any brokerage commissions; and
m) any and all other expenses that Seller will pay under other
provisions of this Agreement.
2. Buyer's Expenses: Buyer will pay for the following costs, at
or before closing:
a) one-half of any and all costs of the transfer taxes and/or
transfer fees,
b) one-half of any and all costs associated with the recording
of the Deed and Assignment and Assumption of Lease;
c) one-half of any and all costs of any escrow fee;
d) any and all costs associated with obtaining Buyer's required
title policy endorsements;
e) any and all costs of the updating and certifying the Due
Diligence Documents unless otherwise designated herein to be
paid by Seller; and
f) any and all other expenses that Buyer will pay under other
provisions of this Agreement
Each party will pay its own attorneys' fees incurred
during this transaction.
4) TITLE AND SURVEY:
A. Title. Seller shall order upon the Effective Date of
this Agreement, at its sole expense, a commitment for an
ALTA Owner's Policy of Title Insurance (most recent edition)
issued by the Closing Agent (the "Title Company"), insuring
marketable 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, including extended coverage and owner's comprehensive
coverage (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.
The Title Commitment shall also include:
a) an itemization of all outstanding and pending special
assessments and an itemization of taxes affecting the Property
and the tax year to which they relate;
b) shall state whether taxes are current and if not, show the
amounts unpaid;
c) the tax parcel identification numbers and whether the tax
parcel includes property other than the Property to be purchased.
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.
Buyer shall be allowed ten (10) business days after receipt
of the Title Commitment and copies of all underlying
documents or until the end of the Feasibility Period,
whichever is later to be consistent with Article 8 hereof,
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
thirty (30) 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 thirty (30) 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).
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 thirty (30) 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 thirty (30) 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).
B. Survey: Within two (2) business days from receipt of
Seller's existing ALTA survey, Buyer shall, at its sole
expense, order an updated as-built ALTA Survey (the "Updated
Survey").
Prior to the expiration of the Feasibility Period, or within
seven (7) business days from receipt of the Updated Survey,
whichever occurs latter, Buyer shall specify in writing any
survey matters to which Buyer reasonably objects. If Buyer
fails to object within this time period, all of Buyer's
survey objections shall be deemed to be waived and the
▇▇▇▇▇▇▇ Money shall be deemed non-refundable. If Buyer
objects to any survey matter(s), Seller shall, within five
(5) business days after receipt of Buyer's survey
objections, deliver to Buyer written notice that either (i)
Seller will, at Seller's expense, attempt to remove the
survey matter(s) to which Buyer has objected before the
Closing Date or (ii) Seller is unwilling or unable to
eliminate said matter(s). If Seller fails to so notify
Buyer or is unwilling or unable to remove any such matter(s)
by the Closing Date, Buyer may either (i) elect to terminate
this Agreement and receive back the entire ▇▇▇▇▇▇▇ Money, in
which event Buyer and Seller shall have no further
obligations under this Agreement; or, alternatively, (ii)
Buyer may elect to purchase the Property hereunder subject
to such matter(s).
5) NOTICES:
A. SPECIAL ASSESSMENT DISTRICTS: If the Property is
determined to be situated within a utility district or other
statutorily created district providing water, sewer,
drainage, or flood control facilities and services, Chapter
49 of the Texas Water Code requires Seller to deliver to
Buyer as part of the title documents the required written
notice ("MUD Notice") and Buyer agrees to acknowledge
receipt of the MUD Notice in writing prior to the Closing
Date. The MUD Notice shall set forth the current tax rate,
the current bonded indebtedness and the authorized
indebtedness of the district, and must comply with all other
applicable requirements of the Texas Water Code. If the
Property is subject to mandatory membership in a property
owner's association, Seller shall notify Buyer of the
current annual budget of the property owners' association,
and the current authorized fees, dues and/or assessments
relating to the Property. Buyer and Seller hereby agree and
acknowledge that Agent shall have no responsibility for
determining whether the Property is in any such district,
nor the compliance by any party with the requirements
applicable to such property. If applicable, Buyer, Seller
and their respective legal advisors shall prepare and
execute an appropriate Addendum to this Agreement as they
deem necessary.
B. TIDALLY INFLUENCED PROPERTY: If the Property abuts the
tidally influenced waters of the state, Section 33.135 of
the Texas Natural Resources Code requires a notice regarding
coastal area property to be included in this Agreement.
Buyer and Seller hereby agree and acknowledge that Agent
shall have no responsibility for determining whether the
Property is a tidally influenced property, nor the
compliance by any party with the requirements applicable to
such property. If applicable, Buyer, Seller, and their
respective legal advisors shall prepare and execute an
appropriate Addendum to this Agreement as they deem
necessary.
C. ABSTRACT: At the time of the execution of this
Agreement, Buyer acknowledges that Agent has advised and
hereby advises Buyer, by this writing, that Buyer should
have the abstract covering the Property examined by an
attorney of Buyer's own selection or that Buyer should be
furnished with or obtain a policy of title insurance.
D. DISCLOSURE OF REAL ESTATE LICENSURE: NONE
E. INTRACOASTAL WATERWAY: If the property is located
seaward of the Gulf Intracoastal Waterway, Section 61.025,
Texas Natural Resources Code, requires a notice regarding
the seaward location of the Property to be included as part
of this Agreement.
F. MOLD/ALLERGEN ADVISORY: Buyer is advised of the
possible presence within properties of toxic (or otherwise
illness-causing) molds, fungi, spores, pollens and/or other
botanical substances and/or allergens (e.g. dust, pet
dander, insect material, etc.). These substances may be
either visible or invisible, may adhere to walls and other
accessible and inaccessible surfaces, may be embedded in
carpets or other fabrics, may become airborne, and may be
mistaken for other household substances and conditions.
Exposure carries the potential of possible health
consequences. Agent strongly recommends that Buyer contact
the Texas Department of Health for further information on
this topic. Buyer is advised to consider engaging the
services of an environmental or industrial hygienist (or
similar, qualified professional) to inspect and test for the
presence of harmful mold, fungi, and botanical allergens and
substances as part of Buyer's physical condition inspection
of the Property, and Buyer is further advised to obtain from
such qualified professionals information regarding the level
of health-related risk involved and the advisability and
feasibility of eradication and abatement. Buyer is
expressly cautioned that Agent has no expertise in this area
and is, therefore, incapable of conducting any level of
inspection of the Property for the possible presence of mold
and botanical allergens. Buyer acknowledges that Agent has
not made any investigation, determination, warranty or
representation with respect to the possible presence of mold
or other botanical allergens, and Buyer agrees that the
investigation and analysis of the foregoing matters is
Buyer's sole responsibility and that Buyer shall not hold
Agent responsible therefore.
6) MATERIAL FACTS:
To the best of Seller's knowledge and belief: (Check (1) or
(2) only)
1) Seller is not aware of any material defects to the
Property except as stated in the attached Commercial
Property Condition Statement.
X 2) Seller is not aware of any of the following,
except as described otherwise in this Agreement:
a) any subsurface: structures, pits, waste, springs,
or improvements;
b) any pending or threatened litigation,
condemnation, or assessment affecting the
Property;
c) any environmental hazards or conditions that
affect the Property;
d) whether the Property is or has been used for the
storage or disposal of hazardous materials or
toxic waste, a dump site or landfill, or any
underground tanks or containers;
e) whether radon, asbestos insulation or fireproofing, urea-
formaldehyde foam insulation, lead based paint, toxic mold
(to the extent that it adversely affects the health of
ordinary occupants), or other pollutants or contaminants
of any nature now exist or ever existed on the Property;
f) whether wetlands, as defined by federal or state
law or regulation, are on the Property;
g) whether threatened or endangered species or their
habitat are on the Property; and
h) any material physical defects in the improvements
on the Property.
Seller is aware that Asbestos containing material existed
in/on a previously existing structure. Seller hereby
represents and warranties to Buyer that the previously
existing structure containing said asbestos materials was
removed in accordance with state and federal laws.
7) INTENTIONALLY OMITTED.
8) INSPECTION CONTINGENCIES:
8.1) DUE DILIGENCE DOCUMENTS: Within three (3) business
days after the Effective Date, Seller will deliver to Buyer,
at Seller's sole expense, the following items to the extent
that the items are in Seller's possession or readily
available to Seller. Seller shall notify Buyer, in writing,
that any item not delivered is not in Seller's possession or
readily available to Seller.
a) Copy of existing Phase I Environmental Report;
b) Copy of existing Geotechnical Soils Report;
c) Copies of Seller's existing Owner's Title Policy for the
Property, with its underlying exception documents;
d) Copy of existing MAI appraisal;
e) Copy of the Lease and all of its amendments thereto,
including but not limited to: any amendments, memorandum of
lease, commence agreement, assignments, letter agreements, or
current estoppel letter and/or certificate, and Tenant's letters
approving any items as required in the Lease, including but not
limited to, items set forth on Exhibit "B" of the Lease;
f) Copy of existing ALTA Survey property (prior to construction
of the Advance Auto Parts improvements).
g) Copy of existing building plans and specifications for the
Advance Auto Parts improvements;
h) Copy of the Certificate of Occupancy and a copy of the
Certificate of Substantial Completion executed by the project
architect and/or general contractor for the improvements located
on the Property;
i) Copies of any and all permits or license issued for the
Property;
j) Copy of current real estate tax statements for the Property;
k) Copy of Tenant's existing insurance policy, or insurance
certificate, for the Property;
l) Copy of any zoning information concerning the Property;
m) A rent accounting for the last twelve (12) months showing
when Seller received each check from Tenant;
n) Proposed Special Warranty Deed; and
o) Copies of any and all warranties (including but not limited
to, warranties relating to the roof, HVAC system, plumbing
system, and electrical system) as required in the Lease.
(All of the above-described documents (a) through (o) are
hereinafter collectively the "Due Diligence Documents").
8.2) INSPECTIONS, STUDIES, OR ASSESSMENTS:
a) Buyer shall have until the end of the fifteenth (15th )
business day after the receipt of the last of the Due
Diligence Documents, (the "Feasibility Period") to complete
or to cause to be completed any and all site inspections,
studies, or assessments of the Property, including all
improvements and fixtures. Inspections, studies, or
assessments may include, but are not limited to:
(i) physical property inspections (for example, Updated Survey,
structural pest control, mechanical, structural, electrical and
plumbing inspections);
(ii) economic feasibility studies;
(iii) environmental assessments (for example, soil tests, air
sampling, and paint sampling);
(iv) engineering studies; and
(v) compliance inspections (for example, compliance
determination with zoning ordinances, restrictions, building
codes, and statutes).
(b) Seller, at Seller's expense, will turn on all utilities
necessary for Buyer to make inspections, studies, or
assessments.
(c) Buyer must:
(i) employ only trained and qualified inspectors
and assessors;
(ii) notify Seller, in advance, of when the
inspectors or assessors will be on the Property;
(iii) abide by any reasonable entry rules or
requirements that Seller may require;
(iv) not interfere with existing operations or
occupants of the Property; and
(v) restore the Property to its original
condition if altered due to inspections, studies, or
assessments that Buyer completes or causes to be
completed.
(d) Except for those matters that arise from the negligence
of Seller or Seller's agents, Buyer is responsible for any
claim, liability, encumbrance, cause of action, and expense
resulting from Buyer's inspections, studies, or assessments,
including any property damage or personal injury. Buyer
will indemnify, hold harmless, and defend Seller and
Seller's agents against any claim involving a matter for
which Buyer is responsible under this paragraph. This
paragraph survives termination of this Agreement.
(e) Prior to the expiration of the Feasibility Period,
Seller shall have provided to Buyer, at its sole expense,
any and all closing documents as required herein, including
but not limited to the documents set forth in Paragraph
3(B)(4), and the Seller and Buyer shall have agreed on the
form of said closing documents.
8.3) FEASIBILITY PERIOD AND RIGHT TO TERMINATE:
a) As soon as available, but in no event later than at least
ten (10) business days prior to the Closing Date (the "Second
Feasibility 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 (the "Additional Due Diligence
Documents"). Buyer shall have ten (10) business days to examine
and to accept all of the Additional Due Diligence Documents.
Upon Buyer's review, Buyer may terminate this Agreement if any of
the Additional Due Diligence Documents are not acceptable to
Buyer, in its sole discretion, by delivering a termination
notice, as provided herein, to Seller and Closing Agent. Such
notice shall be deemed effective upon receipt by Seller. If the
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.
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 and Additional Due Diligence Documents after the
date of such document and prior to closing.
Until this Agreement is terminated or the Closing has
occurred, Seller shall deliver to Buyer any documentation
that comes in Seller's possession that modifies any Due
Diligence Documents or Additional Due Diligence Documents,
including the Lease, or could render any Due Diligence
Documents or Additional 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
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.
b) Buyer may terminate this Agreement for any reason within
Feasibility Period by providing Seller with written notice of
termination. If Buyer does not terminate this Agreement on or
before the expiration of the Feasibility Period, all matters
shall be deemed acceptable and all such conditions satisfied
and/or waived 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
Paragraph 8.3(a); or except as otherwise set forth herein, in
which case the ▇▇▇▇▇▇▇ Money shall be returned to Buyer.
c) 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:
1. Seller fails to comply with any of the terms hereof;
2. A default exists in any material financial obligation of
Seller or Lessee;
3. Any representation made or contained in any submission from
Seller or Lessee, or in the Due Diligence Documents, proves to be
untrue, substantially false or misleading at any time prior to
the Closing Date;
4. There has been a material adverse change in the financial
condition of Lessee 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
Lessee which affects its respective abilities to perform under
the Lease;
5. Any bankruptcy, reorganization, insolvency, withdrawal, or
similar proceeding is instituted by or against Seller or Lessee;
6. Seller or Lessee shall be dissolved, liquidated or wound up;
7. Lessee does not remain in possession of the Property and/or
commence paying rent under the Lease by the Closing Date;
8. Notice given by Buyer pursuant to Paragraphs 4, 8, 9, 14,
15, and 37 hereof.
8.4) CURRENT OPERATIONS: After Buyer's right to terminate under
Paragraph 8 expires, Seller may not enter into, amend, or
terminate any other contract that affects the operations of
the Property without Buyer's prior written approval. Seller
will continue to operate the Property in its normal course
of business, including routine maintenance, payment of
insurance premiums, and other day-to-day obligations.
9) REPRESENTATIONS AND WARRANTIES.
9A) 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, 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
Lessee or Guarantor, 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 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) All of Seller's covenants, agreements, and
representations made herein, and in any and all
documents which may be delivered pursuant hereto, shall
survive the delivery to AEI of the warranty deed and
other documents furnished in accordance with this
Agreement, and the provision hereof shall continue to
inure to Buyer's benefit and its successors and
assigns;
(f) The Property is in good condition, substantially
undamaged by fire and other hazards, and has not been
made the subject of any condemnation proceeding;
(g) The use and operation of the Property now is in
full compliance with applicable local, state and
federal laws, ordinances, regulations and requirements;
(h) Seller has not caused or permitted any, and to the
best of Seller's knowledge after due inquiry, the
Property is not in violation of any federal, state or
local law, ordinance or regulations relating to
industrial hygiene or to the environmental conditions,
on, under or about the Property, including, but not
limited to, soil and groundwater conditions. 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;
(i) 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 change in its
representation and warranties prior to the Closing
Date, the Buyer shall get five (5) business days to
review such change and terminate this Purchase
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.
9B). 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.
10). "AS IS" CONDITION OF PROPERTY: AS A MATERIAL PART OF THE
CONSIDERATION FOR THIS AGREEMENT, SELLER AND BUYER AGREE
THAT EXCEPT FOR THE EXPRESS REPRESENTATIONS IN THIS
AGREEMENT AND WARRANTIES PROVIDED FROM OR TRANSFERRED FROM
SELLER TO BUYER AT CLOSING, BUYER IS TAKING THE PROPERTY "AS
IS" WITH ANY AND ALL LATENT AND PATENT DEFECTS AND THAT
THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR
A PARTICULAR PURPOSE. BUYER ACKNOWLEDGES THAT IT IS NOT
RELYING UPON ANY REPRESENTATION, STATEMENT, ASSERTION OR
NONASSERTION BY SELLER OR SELLER'S AGENTS WITH RESPECT TO
THE PROPERTY CONDITION, BUT IS RELYING SOLELY UPON ITS OWN
EXAMINATION OF THE PROPERTY, EXCEPT FOR THE WARRANTIES AND
REPRESENTATIONS OF SELLER AS OTHERWISE SET FORTH HEREIN.
11). SELLER EXCHANGE: Buyer agrees to cooperate should Seller
elect to sell the Property as part of a like-kind exchange
under IRC Section 1031. Seller's contemplated exchange
shall not impose upon Buyer any additional liability or
financial obligation, and Seller agrees to hold Buyer
harmless from any liability that might arise from such
exchange. This Agreement is not subject to or contingent
upon Seller's ability to acquire a suitable exchange
property or effectuate an exchange. In the event any
exchange contemplated by Seller should fail to occur, for
whatever reason, the sale of the Property shall nonetheless
be consummated as provided herein.
12). POST-CLOSING COVENANTS/LICENSE:
a) For a period of one (1) year after Tenant accepts possession
of the Premises (as defined in the Lease), Seller shall be and
remain responsible for completing any warranty or other work
("hereafter, warranty work") are required by the landlord under
Section 2, Page1 of the Lease. In the event that Seller fails to
comply with said cure and warranty obligations, Buyer may, after
giving thirty (30) days written notice to Seller and Seller
having failed to commence and diligently pursue to completion
curative action within said time period, proceed to remedy such
default on its own and shall have recourse against Seller for any
expenses incurred thereby. Neither payment nor acceptance of
the Purchase Price nor any provision in this Agreement will be
deemed to constitute a waiver by Buyer of Seller's responsibility
under this Paragraph. This Paragraph and all provisions
contained therein shall survive the Closing. The obligations of
the Seller pursuant to this Section shall continue beyond the one-
year period specified herein as to warranty work required by the
landlord pursuant to the Lease if such defect is discovered
during the one-year warranty period and is not cured by the
Seller within that one-year warranty period. In other words,
defects which arise or exist prior to the date of expiration of
the one-year warranty period must be cured and corrected by the
Seller even thought the curing or corrective action may not be
commenced or completed until after the date of expiration of the
one-year warranty period.
b) Buyer grants to Seller an irrevocable license to go upon the
Property to complete all of the initial construction work and any
warranty work required by landlord under this Section and perform
any and all tasks or take any and all acts necessary to complete
said work. This license shall expire and may only be terminated
upon completion of said work required by landlord under this
Paragraph. This Paragraph shall survive Closing.
Seller's Initials:/s/ DM Buyer's Initials: /s/ RPJ
13). RISK OF LOSS: Risk of loss to the Property shall be borne
by Seller until title has been conveyed to Buyer or Buyer's
designee. In the event that the improvements on the
Property are destroyed or materially damaged between the
Effective Date of this Agreement and the Closing Date, Buyer
shall have the option of demanding and receiving back the
▇▇▇▇▇▇▇ Money, with the parties being released from all
obligations of this Agreement, or, alternatively, taking
such improvements as Seller can deliver. Seller shall pay
all deductible amounts that are due under the insurance
policy and assign all insurance proceeds to Buyer and credit
the amount of the deductible due under the insurance policy
and will give Buyer a credit against the sales price at
closing. Upon Buyer's removal of all inspection
contingencies set forth in this Agreement relating to the
condition of the Property, Seller shall maintain the
Property through the Closing Date in substantially the same
condition and repair as approved by Buyer, reasonable wear
and tear excepted.
14). CONDEMNATION: If before closing, condemnation proceedings
are commenced against any part of the Property, Buyer may:
1. terminate this Agreement by providing written notice to
Seller within 15 days after Buyer is advised of the condemnation
proceedings and the ▇▇▇▇▇▇▇ money, less any independent
consideration under Paragraph 2, will be refunded to Buyer; or
2. appear and defend the condemnation proceedings and any award
will, at Buyer's election, belong to:
(a) Seller and the sales price will be reduced by the same
amount; or
(b) Buyer and the sales price will not be reduced.
15). DEFAULT:
A. If Buyer fails to comply with this Agreement, Buyer is
in default and Seller may:
(1) terminate this Agreement and receive the ▇▇▇▇▇▇▇
Money, and its accrued interest, as liquidated damages,
thereby releasing the parties from this Agreement, or
pursue any available remedy at law or equity.
B. If, without fault, Seller is unable within the time
allowed to deliver the estoppel certificate or the
commitment, Buyer may:
(1) terminate this Agreement and receive the ▇▇▇▇▇▇▇
money, less any independent consideration under
Paragraph 2, as the sole remedy; or
(2) extend the time for performance up to Thirty
(30) calendar days and the closing will be extended
as necessary (up to Thirty (30) calendar days).
C. Except as provided in Paragraph 15(B), if Seller fails
to comply with this Agreement, Seller is in default and
Buyer may:
(1) terminate this Agreement and receive the ▇▇▇▇▇▇▇
money, less any independent consideration under
Paragraph 3, as liquidated damages, thereby releasing
the parties from this Agreement, or pursue any
available remedy at law or equity.
16) ESCROW:
A. If both parties make written demand for the ▇▇▇▇▇▇▇ Money,
Closing Agent may require payment of unpaid expenses incurred on
behalf of the parties and a written release of liability of
Closing Agent from all parties.
B. If one party makes written demand for the ▇▇▇▇▇▇▇ Money,
Closing Agent will give notice of the demand by providing to the
other party a copy of the demand. If Closing Agent does not
receive written objection to the demand from the other party
within seven (7) business days after the other party's receipt of
Closing Agent's notice, Closing Agent may disburse the ▇▇▇▇▇▇▇
money to the party making demand, reduced by the amount of unpaid
expenses incurred on behalf of the party receiving the ▇▇▇▇▇▇▇
Money and Closing Agent may pay the same to the creditors.
C. Closing Agent will deduct any independent consideration
under Paragraph 3 before disbursing any ▇▇▇▇▇▇▇ Money to Buyer
and will pay the independent consideration to Seller.
D. If Closing Agent complies with this Paragraph 16, each party
hereby releases Closing Agent from all claims related to the
disbursal of the ▇▇▇▇▇▇▇ money.
E. Notices under this Paragraph 16 must be sent by certified
mail, return receipt requested; 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; or by facsimile copy transmission with printed
confirmation of receipt thereof. Notices to Closing Agent are
effective upon receipt by Closing Agent. Any notice given by
facsimile transmission shall be followed by a hard copy or by
hand delivery.
17). ROLLBACK TAXES
If Seller changes the use of the Property before Closing or
if a denial of the special evaluation of the Property
claimed by Seller results in the assessment of additional
taxes, penalties, or interest for periods before Closing,
the assessments will be the obligation of the Seller. This
paragraph 17 shall survive the Closing.
18). INTENTIONALLY OMMITTED.
19). OTHER BROKERS: Buyer and Seller agree that, in the event
any broker, other than the Listing Broker (as defined in
Paragraph 36 herein) or a broker affiliated with the Listing
Broker, is involved in the disposition of the Property,
Listing Broker shall have no liability to Buyer, Seller or
other person or entity, for the acts or omissions of such
other broker, who shall not be deemed to be a subagent of
Listing Broker.
20). INTENTIONALLY OMMITTED.
21). INTENTIONALLY OMMITTED.
22). INTENTIONALLY OMMITTED.
23). INTENTIONALLY OMMITTED.
24). SUCCESSORS & ASSIGNS: This Agreement and any addendum
hereto shall be binding upon and inure to the benefit of the
heirs, successors, agents, representatives and assigns of
the parties hereto.
25). ATTORNEYS' FEES: In any dispute arising out of this
Agreement or the transaction contemplated herein, the
prevailing party shall be entitled to recover its reasonable
attorneys' fees, experts' fees and costs, including costs of
arbitration or other legal proceeding, in addition to any
other relief to which that party may be entitled.
26). TIME: Time is of the essence of this Agreement. The
parties require strict compliance with the times for
performance. If the last date to perform under a provision
of this Agreement falls on a Saturday, Sunday or legal
holiday, the time for performance is extended until 5:00
p.m. the next day which is not a Saturday, Sunday or legal
holiday.
27). NOTICES: All notices provided or permitted to be given
under this Agreement must be in writing and may be served by
depositing the same in the United States mail, addressed to
the party to be notified, postage prepaid and registered or
certified with return receipt requested; by delivering the
same in person to such party; by reputable overnight courier
delivery; or by facsimile copy transmission with printed
confirmation of receipt thereof. 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. For
purposes of notice, the addresses of the parties shall be as
follows:
If to Seller: ▇▇▇▇▇-▇▇▇▇▇ Development Group, LTD.
Attn: ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone No: ▇▇▇-▇▇▇-▇▇▇▇
Fax No: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
If to Buyer: AEI Fund Management, Inc.
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Director of Acquisitions
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Law Firm
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇ ▇▇ ▇▇▇▇▇
Phone No.: ▇▇▇-▇▇▇-▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Should the date upon which any act required to be performed
by this Agreement fall on a Saturday, Sunday or holiday, the
time for performance shall be extended to 5:00 p.m. the next
business day.
28). FOREIGN INVESTOR DISCLOSURE: Seller and Buyer agree to
execute and deliver any instrument, affidavit or statement,
and to perform any act reasonably necessary to carry out the
provisions of the Foreign Investment in Real Property Tax
Act and regulations promulgated thereunder.
29). INTENTIONALLY OMMITTED.
30). GOVERNING LAW: This Agreement shall be construed under and
governed by the laws of the State of Texas and, unless
otherwise provided herein, all obligations of the parties
hereunder are to be performed in the county where the
Property is located.
31). NON-DISCRIMINATION: Buyer and Seller acknowledge that it is
illegal for either Seller, Buyer or Agent to refuse to lease
or sell to any person on the basis of, without limitation,
race, color, religion, national origin, sex, age, marital
status or physical disability.
32). INTEGRATION AND SURVIVAL: This Agreement contains the
entire understanding and agreement between Buyer and Seller
concerning the subject matter herein, and supercedes any and
all prior agreements, understandings, promises and
representations, whether written or oral, between the Buyer
and Seller, concerning the subject matter hereof. There are
no other understandings, oral or written, which in any way
alter or enlarge the terms of this Agreement, and there are
no warranties or representations with respect to the
Property or this Agreement of any nature whatsoever, either
express or implied, except as set forth herein. Should any
provision of this Agreement or portion thereof be deemed
illegal, invalid or otherwise unenforceable, then to the
maximum extent permitted by law, the remainder of the
Agreement shall remain valid and binding as between the
parties.
33). INTENTIONALLY OMMITTED.
34). INTENTIONALLY OMMITTED.
35). INTENTIONALLY OMMITTED.
36). BROKERS: The Brokers (the "Listing Broker") to this sale
are as follows:
Marcus & Millichap
Real Estate Investment Brokerage Co.
Agent: ▇▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ #▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
The Listing Broker represents the Seller only. Seller
shall pay any and all real estate commission due and
payable to Listing Broker through a Separate Agreement.
37). 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, extend the Closing Date, exercise any remedy
available to it by law, or terminate this Agreement and receive
its ▇▇▇▇▇▇▇ Money (less the option consideration) back in full
immediately.
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. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original,
but all of which when taken together shall constitute one and the
same instrument.
e. Seller and Buyer agree that if it is Seller's responsibility
to continue liability under the Lease with regard to any Landlord
warranty of construction, Seller will provide, in a form
acceptable to Buyer, an indemnification of warranty construction
for the Property. Seller will further assist Buyer in obtaining
an Estoppel from the Tenant pursuant to the Lease. Failure to
satisfy this provision shall not be grounds for specific
enforcement but shall be a condition precedent to Buyer's
obligation to close hereunder and grounds for termination of this
Purchase Agreement; upon termination for Seller's failure to
satisfy this condition precedent, Buyer shall be entitle to the
immediate return of its ▇▇▇▇▇▇▇ Money and interest.
38). EXPIRATION: This offer to Purchase by Buyer shall expire
if not executed by Seller and returned to Buyer on or before
November 21, 2005.
SELLER:
▇▇▇▇▇-▇▇▇▇▇ DEVELOPMENT GROUP, LTD.,
A Texas limited partnership
By: DSL Management, L.L.C.,
a Texas limited liability company,
Its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Its: President
Date: November 16, 2005
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.
SIGNATURES TO CONTINUE ON FOLLOWING PAGE]
BUYER:
AEI FUND MANAGEMENT, INC.,
a Minnesota corporation
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
Date: November 14, 2005
EXHIBIT A
Legal description
LOT ONE (1), BLOCK ONE (1), "M-L SUNSHINE STRIP SUBDIVISION", AN
ADDITION TO THE CITY OF HARLINGEN, CAMERON COUNTY TEXAS,
ACCORDING TO THE MAP THEREOF RECORDED IN CABINET 1, SLOT 2542-A
MAP RECORDS OF CAMERON COUNTY, TEXAS.