PURCHASE AND SALE AGREEMENT
AND
ESCROW INSTRUCTIONS
DATE OF AGREEMENT: March 27, 2001
SELLER: ARAMARK Educational Resources, Inc.
d/b/a Children's World Learning Centers,
Inc.
a Delaware corporation
Address: 573 Park Point Drive
Golden, CO 80401
Attn.: John Rosen, Exec.VP
Telephone: (303) 526-3254
Facsimile: (303) 526-3394
PURCHASER:
AEI Real Estate Fund 85-A Limited
Partnership as to an undivided 20%
interest as tenant in common, AEI Income
& Growth Fund XXII Limited Partnership
as to an undivided 25% interest as
tenant in common, and AEI Private Net
Lease Millennium Fund Limited
Partnership as to an undivided 55%
interest as tenant in common for:
CWLC # 668, 15950 FREDRICK DRIVE,
PLAINFIELD, IL :
AEI Fund Management XVII, Inc.
CWLC #00561, 7901 OAKMONT BLVD, FT. WORTH,
TX:
AEI Net Lease Income & Growth Fund XX
Limited Partnership as to an undivided
35% interest as tenant in common, AEI
Income & Growth Fund 23LLC as to an
undivided 30% interest as tenant in
common, and AEI Fund Management XVII,
Inc as to an undivided 35% interest as
tenant in common for:
CWLC #0556, 5524 NEW ALBANY RD, NEW
ALBANY, OH
AEI Income & Growth Fund XXI Limited
Partnership CWLC #0496, 800 SOUTH
ROUTE 83, MUNDELEIN, IL
AEI Fund Management XVII, Inc
CWLC #0667, 1512 N. ROUTE 83, ROUND LAKE
BEACH, IL
Address: 1300 MN World Trade Center
30 East Seventh Street
St. Paul, MN 55101
Attn: Robert P. Johnson, President
Telephone: (651)227-7333
Facsimile: (651) 227-7705
ESCROW AGENT: Lawyers Title Insurance Corporation
Address: 3636 North Central Avenue
Suite 350
Phoenix, AZ 85012
Attn.: David Nowlin
Telephone: (602) 287-3500
Facsimile: (602) 263-0433
PROPERTIES: Those real properties, individually or
collectively, listed below and described
on EXHIBIT "A", together with all
improvements thereon, and all the
rights, easements, and appurtenances
pertaining thereto, including, without
limitation, any right, title, and
interest of Seller in and to adjacent
streets, alleys, or right of way.
PRICES: The purchase price of each property
shall be as described on Exhibit A
hereto.
CENTER NAME & NUMBER LOCATION
1. CWLC #0668 15950 Fredrick Drive
Plainfield, Il.
2. CWLC #0561 7901 Oakmont Blvd
Ft. Worth, TX
3. CWLC #0556 5524 New Albany Road
New Albany, OH
4. CWLC #0496 800 South Route 83
Mundelein, IL
5. CWLC #0667 1512 North Route 83
Round Lake Beach, IL
ESCROW OPENING DATE:
(To Be Inserted By Escrow Agent)
RECITALS
A. Seller is the owner of the Properties, each of which
consists of improved real property.
B. Seller desires to sell the Properties to Purchaser, and
Purchaser desires to purchase the Properties from Seller,
upon the terms and conditions set forth herein.
C. It is the intent of the parties that, contemporaneous with
the Closing as defined on page 4 of this Agreement, Seller
shall lease the Properties from the Purchaser pursuant to
the terms and conditions stated in the form net lease
attached hereto as Exhibit B. A separate lease will be
signed for each Property purchased, subject only to those
modifications of the attached form lease, which are
necessary for the lease to be legally binding in the state
in which the property is located.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. PURCHASE AND SALE; PURCHASE PRICE; TERMS OF PAYMENT.
1.1 PURCHASE AND SALE. Seller agrees to sell and
Purchaser agrees to purchase the Properties on the terms and
conditions set forth in this Agreement and further agree that
Purchaser may purchase all, none, or some, of the Properties.
1.2 PURCHASE PRICE. The purchase price, which
Purchaser agrees to pay for each Property, is described on
Exhibit A hereto (the "Purchase Price(s)"):
1.3 TERMS OF PAYMENT. The Purchase Price shall be
payable as follows:
1.3.1 EARNEST MONEY DEPOSIT. Upon execution of
this document by both parties and receipt of a Seller-signed
copy by Purchaser, $20,000 in immediately available funds shall
be deposited for each property (a total of $ 100,000) with
Escrow Agent as an earnest money deposit ("Earnest Money
Deposit"). Upon receipt of the Earnest Money Deposit, Escrow
Agent shall immediately deposit it in a federally insured
account and open an escrow account for the transactions
contemplated hereby. Any interest earned on escrowed funds
shall remain the property of, and be paid to, Purchaser.
1.3.2 CLOSING PAYMENT. An amount equal to the
difference between the Purchase Price and the Earnest Money
Deposit shall be paid by Purchaser in immediately available
funds at Closing (the "Closing Payment").
1.3.3 RENTAL RATE. The initial annual rent for
each Property will be equal to 9.50% of the Purchase Price as
defined in Exhibit "A". Beginning in the sixth lease year, and
every fifth lease year thereafter, the annual rent will increase
by an amount equal to the lesser of the prior year's scheduled
rent multiplied by 10.0%, or the prior year's scheduled rent
increased by 200% of the cumulative change in the consumer price
index over the previous five (5) lease years.
2. CLOSING. The closing of this transaction ("Closing") shall
occur, at the offices of Escrow Agent located at Lawyers Title
Insurance Company ("Title Company"), 3636 North Central Avenue
Suite 350, Phoenix, Arizona 85012, attention David Nowlin,
unless another location is mutually agreed to by the parties, on
the date twenty (20) business days following the expiration of
the Properties Review Period ("Closing Date"). Either party may
participate in the Closing by mail.
3. DEED. At the Closing, Seller shall convey title to
the Properties to Purchaser by form of Special Warranty Deed
customarily used in the County where the Properties are located
("Deed"), subject only to those specific matters approved by
Purchaser as herein provided in connection with the title
insurance policy to be issued by Lawyers Title Insurance
Corporation (the "Title Insurer").
4. TITLE AND TITLE INSURANCE.
4.1 TITLE REPORT. Within twenty (20) days from each
Opening Date, Escrow Agent shall deliver a current Commitment for
Title Insurance or a Preliminary Title Report ("Title Report") on
the Properties from Title Insurer (as defined below) to both
Purchaser and Seller. Such Title Report shall show the status of
title to the Properties as of the date of the Title Report and
shall be accompanied by legible copies of all title exceptions
documents referred to in the Title Report.
4.2 TITLE REVIEW PERIOD. With respect to each Property
separately, Purchaser shall have a period of time beginning upon
Purchaser's receipt of the Title Report and copies of all
documents referred to therein and ending at 5:00 p.m., Central
Standard time, fifteen (15) business days thereafter (the "Title
Review Period"), to review the Title Report and to give Seller
and Escrow Agent notice of any title exceptions which are
unacceptable to Purchaser. If Purchaser gives notice of
dissatisfaction as to any exception to title as shown in the
Title Report, or any amendment thereto, Seller may, but shall not
be obligated to, attempt to eliminate the disapproved exception
from the Title Report or any amendment thereto prior to the
Closing Date. If Seller does not eliminate the disapproved
exception prior to the Closing Date, Purchaser's sole and
exclusive remedies shall be to either cancel this Agreement with
respect to such Property only by giving Seller and Escrow Agent
written notice of cancellation, or to close such transaction with
respect to such Property only subject to such previously
disapproved exception. Notwithstanding the foregoing, if Seller
notifies Purchaser in writing of its election not to eliminate a
disapproved exception to title, Purchaser shall have until the
earlier of the Closing Date or five (5) business days after
receiving Seller's notice of making its election in writing as
described above to either cancel this transaction or proceed to
Closing with respect to such Property only. Purchaser's failure
to make a timely election shall be deemed its election to close
this transaction with respect to such Property only, taking title
subject to any previously disapproved title exception. With
respect to any amendments or updates to the Title Report or
previous amendments or updates thereto, the same provisions and
procedures described above shall apply with respect to
Purchaser's review and approval of, and Seller's option to
eliminate, disapproved exceptions, except that Purchaser shall
have five (5) business days after its receipt of the amendment or
update to give its notice of dissatisfaction of any new title
exception..
4.3 APPROVAL OR DISAPPROVAL OF STATUS OF TITLE.
Purchaser's failure to approve or disapprove any exception during
the Title Review Period as to a specific Property shall be deemed
an approval of title as described in the Title Report and a
waiver of Purchaser's right to cancel this Agreement according to
this Article. Upon any cancellation of this Agreement in full in
accordance with this Article, Escrow Agent shall, without further
instruction from either party, return the Earnest Money Deposit
to Purchaser and this Agreement and the escrow shall terminate.
Upon any cancellation of this Agreement in part, Escrow Agent
shall return to Purchaser, along with a pro-rata share of any
interest earned thereon, a pro-rata share of the Earnest Money
Deposit.
4.4 OWNER'S TITLE POLICY. Provided Purchaser approves,
or is deemed to have approved, the status of title to each of the
Properties during the Title Review Period, Seller shall cause
Escrow Agent to provide Purchaser with a standard coverage
owner's policy of title insurance (the "Owner's Title Policy") at
the Closing or as soon thereafter as is reasonably possible. The
Owner's Title Policy shall be issued by the Title Insurer in the
full amount of the Purchase Price, be effective as of the Closing
Date, and shall insure Purchaser that fee simple title to the
Properties is vested in Purchaser, subject only (i) to the
exceptions to title approved by Purchaser as provided for in
ARTICLES 4.2 AND 4.3 of this Agreement (ii) any exceptions
regarding survey matters; and (iii) any other matter approved in
writing by Purchaser or resulting from the acts of Purchaser or
Purchaser's agents. The cost of any endorsement to the Owner's
Title Policy shall be paid in by Purchaser.
5. FEASIBILITY CONDITION.
5.1 PROPERTIES REVIEW PERIOD. During the period of time
beginning upon the date that Seller has met its obligations as
defined in ARTICLE 5.4 HEREOF, and ending at 5:00 PM Central
Standard time sixty (60) business days thereafter ("Properties
Review Period"), Purchaser shall have the right to enter upon the
Properties, (only if accompanied by Seller's representative or
agent) for the purpose of further examination and investigation
of the Properties. Purchaser, its representatives and agents
shall have the right during this Properties Review Period to
conduct all testing and examinations it deems necessary to
determine the desirability of purchasing the Properties.
Purchaser shall have the right during this Properties Review
Period to cancel this Agreement in whole or in part if Purchaser
is dissatisfied, in its sole and absolute discretion, with the
results of its examination of the Properties or any documentation
related thereto, or for any other reason. If this Agreement is
canceled with respect to one or more of the Properties, but not
all of them, then, upon written notice by Purchaser to the Escrow
Agent, a pro-rata portion of the earnest money deposit, along
with any interest earned or accrued thereon, shall be immediately
paid by the Escrow Agent to the Purchaser and this Agreement and
the Escrow Account shall remain in effect for the balance of any
remaining, non-canceled, Properties.
5.2 WHEN EARNEST MONEY BECOMES NON-REFUNDABLE. On or
before expiration of the Properties Review Period, Purchaser
shall give written notice to Seller and Escrow Agent of its
election to either cancel this Agreement or to proceed to close
the transaction upon the terms and conditions herein. If
Purchaser elects to cancel this Agreement in accordance with this
Article, Escrow Agent shall, without further instruction from
either party, return the Earnest Money Deposit to Purchaser and
the escrow shall terminate. If Purchaser elects to proceed to
close this transaction, the Earnest Money Deposit shall become
nonrefundable to Purchaser, except if Seller fails to perform
when due any act required of it by this Agreement. Purchaser's
failure to give written notice of its election to either cancel
or proceed to close this transaction shall be deemed a waiver of
its election to cancel this Agreement.
5.3 INDEMNIFICATION. All entries on, and inspections or
studies of, the Properties shall be at the expense of Purchaser
and Purchaser shall indemnify and hold Seller harmless from and
against any and all liens, claims, demands, injuries, damages,
losses, costs, expenses (including all reasonable attorney fees),
or liability incurred by or asserted against the Seller or any of
the Properties as a result of any of those entries, inspections
or studies, which Purchaser's indemnification shall survive the
Closing or any termination of this Agreement.
5.4. DUE DILIGENCE.
5.4.1 DUE DILIGENCE DOCUMENTS. Purchaser shall have
until the later of 1) the end of the business day on April 16,
2001, or 2) the end of the tenth (10th) business day after the
delivery of all of the First Due Diligence Documents, as
described below, to be delivered by Seller at Seller's expense
unless specifically designated herein to be obtained by
Purchaser, and such documents to be of current or recent date and
certified to Buyer, (the "First Contingency Period") to conduct
all of its inspections, due diligence and review to satisfy
itself regarding each item, the Property and this transaction:
(a) The Title Commitment and policy;
(b) As-Built ALTA boundary survey of the Property as described
on Exhibit "C" attached hereto;
(c) Phase I environmental assessment report and reliance
letter prepared by a company satisfactory to Buyer
containing evidence that the Property complies with all
federal, state and local environmental regulations,
current within the last 6 months;
(d) Copies of the certificates of insurance for Lessee;
(e) Final plans and specifications for the Improvements;
(f) Zoning compliance letter from the municipality or
county exercising land use control over the Property in
form and substance satisfactory to Purchaser, to be
obtained by Purchaser at Purchaser's cost;
(g) Financial statements of the Lessee as described on
Exhibit "D" attached hereto; and financial statements
of Seller and Lessee and to the extent Seller prepares
the following documents: (1) evidence of a profitable
operation of each Property, which has been operation
more than one year, (2) or a proforma operating
statement for each Property in operation less than one
year. Annual corporate financial statements are
required of Lessee thereafter, in the form of an
audited, if available, reviewed or consolidated
statement and requested by Purchaser. Reviewed or
consolidated statements must be certified to Purchaser
by an the Chief Financial Officer of the Seller;
(h) Copies of the Articles of Incorporation, the By-Laws
and a current Certificate of Good Standing for the
Lessee, together with all other documents Purchaser or
Title Company deem necessary to support the authority
of the persons executing any documents on behalf of the
Seller, or Lessee;
(i) Soils report;
(j) Appraisal, current within the last 12 months, to be
obtained by Purchaser at Purchaser's expense;
(k) Certificate of Occupancy;
(l) Proposed warranty deed;
(m) Verification of zoning classification, to be obtained
by Purchaser at Purchaser's expense;
(n) Notwithstanding the other items in this paragraph 5.4.1
(a) - ( m), if conditions listed below are met, then
Seller shall be under a duty to disclose certain facts
and conditions relating to the Properties if:
(i) Such facts and conditions are not known to
Purchaser;
(ii) Such facts and conditions materially and adversely
affect Purchaser's investment in the Property
(iii) It is commercially reasonable to expect
Seller to disclose such facts and conditions,
(iv) Such facts and conditions arise after the
execution of this Agreement; and
(v) Seller, to its knowledge, has received written or
oral notice of such facts and conditions. Knowledge being
defined as and limited to the actual knowledge of John
Rosen, or those persons immediately under his supervision
limited to Chris Bardwell and Leslie Armstrong.
(All of the above-described documents (a) through (n) are
hereinafter collectively the "Due Diligence Documents").
After receipt and review of the Due Diligence Documents or
after Purchaser's inspection of the Property, Purchaser may
cancel this Agreement for any reason in its sole discretion by
delivering a cancellation notice, return receipt requested, to
Seller and Closing Agent prior to the end of the Properties
Review Period, but in no event subsequent to the Properties
Review Period, and the Earnest Money shall be returned in full to
Purchaser immediately and neither party shall have any further
duties or obligations to the other hereunder. Such notice shall
be deemed effective upon receipt by Seller.
5.4. 2. SITE INSPECTION. Purchaser may conduct an
inspection of each Property and may, in its sole discretion,
terminate this Agreement as a result thereof. Within 10 days
after any inspection of the Properties, the Seller shall pay a
site inspection fee to Purchaser in the amount of $2500 for the
Ohio site, $2500 for the Mundelein, IL and Round Lake Beach, IL
sites, $2500 for the Plainfield, IL site and $2500 for the Texas
site for a grand total of $10,000. As a result, at the request
of Seller, the purchase price of the Properties may be increase
by the appropriate amount, at the sole discretion of Purchaser,
and the annual base rent for each Property may be increased
appropriately. No refund will be given to Seller for the
inspection fee paid for any Property not purchased by Purchaser.
If Purchaser has inspected one or both properties the inspection
fee is due from Seller regardless if Purchaser purchases all or
none of the properties.
5.5 NONINTERFERENCE WITH BUSINESS. The Properties are
presently being used as daycare centers. Notwithstanding anything
to the contrary, Purchaser may not conduct any of its tests or
examinations during normal business hours except with the prior
written permission of Seller, which may be arbitrarily withheld
by Seller. No chemicals or hazardous substances shall be used in
any testing or examination except with the prior written
permission of Seller. No tools or materials shall be left or
stored in or around the Properties during the Properties Review
Period. Purchaser agrees to indemnify Seller and hold Seller
harmless from the cost, liability, expense or injury to person or
property arising out of any violation of this Paragraph 5.5
including but not limited to attorney fees.
5.6 FINANCING CONDITIONS AND OBLIGATIONS. There shall be no
financing contingency connected with this Agreement. If Purchaser
obtains financing to purchase the Properties, then the total
Purchase Price shall be increased by Twenty-five Thousand and
No/100 Dollars ($25,000.00). This increase is due to the extra
time, money, effort, and problems that Seller experiences and may
experience due to a financed sale.
6. ESCROW.
6.1 ESTABLISHMENT OF ESCROW. An escrow for this transaction
shall be established with Escrow Agent and Escrow Agent is hereby
employed by the parties to handle the escrow. This Agreement
shall constitute escrow instructions and an original or fully
executed copy shall be deposited with Escrow Agent for this
purpose. Should Escrow Agent require the execution of its
standard form printed escrow instructions, Purchaser and Seller
agree to execute the same; however, such instructions shall be
construed as applying only to Escrow Agent's employment, and if
there are conflicts between the terms of this Agreement and the
terms of the printed escrow instructions, the terms of this
Agreement shall control.
6.2 CANCELLATION OF ESCROW. If the escrow fails to close
because of Seller's default, Seller shall be liable for all
customary escrow cancellation charges. If the escrow fails to
close because of Purchaser's default, Purchaser shall be liable
for all customary escrow cancellation charges. If the escrow
fails to close for any other reason, Seller and Purchaser shall
each be liable for one-half (1/2) of all customary escrow
cancellation charges.
6.3 LEASE. The parties hereby agree upon the form of
the Lease and memorandum of lease as attached as Exhibit B
hereto. At closing, duplicate copies of such form lease will be
signed for each Property purchased, subject only to changes
necessary for each lease to be legally binding in the state in
which the Property is located. Upon Closing, the Escrow Agent
shall insert into the Lease, and the parties hereby give the
Escrow Agent Power of Attorney to insert, the Lease Commencement
Date that shall be the Closing Date. If closing does not occur
for any reason whatsoever, the Escrow Agent shall destroy the
Leases. The Escrow Agent is further instructed upon Closing to
record that certain Memorandum of Lease referred to in Exhibit C
of Exhibit B. Such Memorandum shall be recorded in the office of
the clerk and recorder, register of deeds or analogous office
immediately subsequent to the recording of the Deed, with no
intervening documents being recorded.
7. CLOSING COSTS.
7.1 SELLER'S CLOSING COSTS. Seller will pay for and
provide AEI with a standard title policy and pay any recording
fees charged by the Title Company or taxing authority. All other
closing costs for each Parcel shall be borne equally by Seller
and AEI. Seller will pay AEI a due diligence expense allowance
(the "Allowance") of $23,500 per Parcel, payable at the closing
of the purchase of each Parcel. No Allowance shall be payable to
AEI for any Parcel not purchased by AEI. Each party shall pay
its own attorney fees and costs. AS A RESULT, UPON THE PURCHASE
OF THE PROPERTY BY AEI THE PURCHASE PRICE OF THE INDIVIDUAL
PROPERTY WILL BE INCREASED BY $23,500 AND THE ANNUAL BASE RENT
FOR EACH PROPERTY WILL BE INCREASED PROPORTIONATELY.
7.2 PRORATIONS. Real estate taxes, personal property
taxes and assessments, if any, shall be prorated through escrow,
as of the Closing Date, and be based upon the latest available
information. Any other closing costs shall be paid equally by
Purchaser and Seller.
8. POSSESSION. Possession of the Properties sold shall be
delivered to Purchaser upon Closing, subject to a lease executed
between the parties.
9. BROKERAGE. Purchaser and Seller warrant and represent to
each other that neither has dealt with any real estate broker or
salesperson in connection with this transaction. If any person
shall assert a claim to a finder's fee, brokerage commission, or
any other compensation on account of alleged employment as a
finder or broker or performance of services as a finder or broker
in connection with this transaction, the party under whom the
finder or broker is claiming shall indemnify and hold the other
party harmless from and against any such claim and all costs,
expenses and liabilities incurred in connection with such claim
or any action or proceeding brought on such claim, including, but
not limited to, counsel and witness fees and court costs in
defending against such claim. This indemnity shall survive the
Closing or cancellation and termination of this Agreement and the
escrow.
10. REMEDIES.
10.1 SELLER'S REMEDIES. If Purchaser fails to perform as
required by this Agreement, in the time and manner set forth in
this Agreement, and provided Seller is not then in default,
Seller, as Seller's sole and exclusive remedy, may cancel this
Agreement and the escrow, such cancellation to be effective
immediately upon Seller giving written notice of cancellation to
Purchaser and Escrow Agent. Upon such cancellation, Seller shall
be entitled to, and Escrow Agent shall deliver to Seller, the
Earnest Money Deposit, as consideration for acceptance of this
Agreement, for taking the Properties off the market, and as the
parties' best estimate of Seller's damages resulting from
Purchaser's default, but not as a penalty. Subject to 16.5
hereof, the Earnest Money Deposit released to Seller upon such
cancellation shall be retained by Seller as its sole and
exclusive remedy against Purchaser in all respects. Any accrued
interest shall be paid to Purchaser.
10.2 PURCHASER'S REMEDIES. Only if Seller fails to close
any transaction(s) as required by this Agreement, in the time and
manner set forth in this Agreement, and provided Purchaser is not
in default, Purchaser, as its sole and exclusive remedy, may
cancel this Agreement and the Escrow, such cancellation to be
effective immediately upon Purchaser giving written notice of
cancellation to Seller and Escrow Agent. Upon such cancellation,
Purchaser shall be entitled to, and Escrow Agent shall deliver to
Purchaser, the Earnest Money Deposit and any interest earned
thereon, and Seller shall pay to Purchaser $20,000 per Property
as to any Property not closed due to Seller's failure to Close as
required by this Agreement as consideration for entering into
this Agreement and as the parties' best estimate of Purchaser's
damages resulting from Seller's default, but not as a penalty.
Subject to 16.5 hereof, the Earnest Money Deposit and any
interest earned thereon released to Purchaser and the $20,000 TO
BE PAID BY SELLER shall be retained by Purchaser as its sole and
exclusive remedy against Seller in all respects.
10.3 LIQUIDATED DAMAGES: After endeavoring to estimate what
the actual loss would be in the event of a default and as a
material inducement to execution hereof, the parties agree that
it would be impractical and extremely difficult to fix actual
damages in case of a default. The amount of the Earnest Money
Deposited is a reasonable estimate of Seller's damages and Seller
shall retain the Earnest Money Deposit as stated above, and
Purchaser shall be entitled to payment from Seller of $20,000 per
Property as set forth in Article 10.2 above, as their sole remedy
against each other in case of default. The parties shall also be
entitled to attorney fees pursuant to 16.5.
11. OPENING DATE. The "Opening Date" shall be the date on which
the Earnest Money Deposit, together with a fully executed copy or
counterpart copies of the Purchase Agreement are received by the
Escrow Agent. Escrow Agent is hereby instructed to enter that
Opening Date on the first page of this Agreement and return a
copy to both Seller and Purchaser.
12. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller
represents and warrants to Purchaser (and on the Closing Date
shall be deemed to represent and warrants) as follows:
12.1 LEGAL, VALID AND BINDING. This Agreement and all
other instruments or documents executed or delivered with this
transaction each constitute legal, valid and binding obligations
of Seller, enforceable against Seller in accordance with their
respective terms.
12.2 NO APPROVAL BY GOVERNMENTAL AUTHORITY. No consent,
approval, authorization, registration, qualification,
designation, declaration or filing with any governmental
authority is required in connection with the execution and
delivery of this Agreement by Seller.
12.3 NO CONFLICT. The execution, delivery and performance
of this Agreement by Seller and the consummation of the
transaction contemplated herein will not: (i) result in a breach
or acceleration of or constitute a default or event of
termination under the provisions of any agreement or instrument
by which the Properties is bound or affected; (ii) result in the
creation or imposition of any lien, charges or encumbrance, not
provided for herein, on or against the Properties or any portion
thereof; (iii) constitute or result in the violation or breach by
Seller of any judgment, order, writ, injunction or decree issued
against or imposed upon Seller, or result in the violation of any
applicable law, rule or regulation of any governmental authority.
12.4 NO LAWSUITS. Seller, having undertaken no independent
inquiry, there are no actions, suits, proceedings or
investigations pending, to the best of Seller's knowledge or
threatened, with respect to or in any manner affecting Seller's
ownership of the Properties or otherwise affecting any portion
thereof, or which will become a cloud on the title to the
Properties or question the validity or enforceability of the
transaction contemplated herein.
12.5 NO LEASES. There will be no existing leases and/or
tenancies affecting all or any portion of the Properties as of
the Closing Date, except for that certain lease between the
parties attached as Exhibit "B".
12.6 NO MECHANICS LIENS. No work has been performed or is in
progress at, and no materials have been furnished to, the
Properties or any portion thereof, which might give rise to
mechanics', materialmen's or other lien against Purchaser's
interest in the Properties or any portion thereof, except as
disclosed in Exhibit "E" attached hereto and incorporated herein
by reference. Seller hereby agrees to indemnify Purchaser from
and against any and all claims of third parties, and from all
mechanics' liens in connection with the Properties whose claim of
lien arises from labor or material provided to the Properties
prior to Closing or pursuant to a contract entered into with
Seller prior to Closing, including all costs and attorneys' fees.
12.7 NON-FOREIGN AFFIDAVIT. Seller is not, and as of the
Closing Date will not be, a "foreign person" within the meaning
of Internal Revenue Code Section 1445, and Seller shall deliver
to Purchaser at Closing a Non-Foreign Affidavit pursuant to
Section 1445(b)(2) of the Internal Revenue Code (the "Non-Foreign
Affidavit").
13. AS IS. Except for the express representations and
warranties contained in this Article 12, Seller has made no
representations or warranties of any kind, and will at the
Closing make no representations or warranties of any kind, in
connection with the physical condition of the Properties. Except
for the representations and warranties contained in Article 12
and the covenants and warranties to be contained in the Deed,
Seller shall have no responsibility, liability or obligations
subsequent to the Closing with respect to any conditions or as to
any matters whatsoever respecting in any way the Properties,
which Purchaser acknowledges is being purchased in an "AS IS,
WHERE IS" condition. Seller does represent and warrant that it
has given Purchaser all environmental reports (Phase I or
otherwise) in Seller's possession, which relate to the
Properties.
14. RISK OF LOSS. If prior to the Closing all of any Property
shall be taken by condemnation or eminent domain, this Agreement
shall be automatically canceled, the Earnest Money Deposit and
any interest earned thereon shall be returned to Purchaser, and
thereupon neither party shall, except as otherwise provided
herein, have any further liability or obligation to the other. If
prior to the Closing, less than all of any Property shall be
taken by condemnation or eminent domain, then Purchaser may, at
its option, cancel this Agreement as to such Property only, in
which event Escrow Agent shall return to Purchaser its Earnest
Money Deposit, and any interest earned thereon, as to such
Property [i.e., twenty thousand dollars ($20.000) plus interest]
and thereupon neither party shall have any further liability or
obligation to each other (except as otherwise stated herein) as
to such Property, or Purchaser may accept title subject to the
taking, in which event after the Closing the proceeds of the
award or payment shall be assigned by Seller to Purchaser and any
money theretofore received by Seller in connection with such
taking shall be paid over to Purchaser. Notwithstanding anything
above to the contrary, Seller hereby discloses that potential
proceeds from a condemnation relating to a right of way
acquisition for Route 83, Mundelein, Illinois, which is pending
in connection with said Property, has been assigned to the prior
fee owner of the Property. Purchaser reserves the right to
review and approve all information in Seller's possession
relating to such pending condemnation as a condition precedent to
Purchaser's obligation to purchase said Property. In the event
any Property shall be damaged by fire or other casualty prior to
the time of Closing in an amount of more than ten percent (10%)
of the total Purchase Price of said Property, either party shall
have the option to terminate this Agreement as to such Property.
Should the parties elect to carry out this Agreement regarding
such Property despite such damage, Purchaser shall be entitled to
a credit for the insurance proceeds resulting from such damage to
the Property not exceeding, however, the total Purchase Price of
said property. In all other regards, the risk of loss or damage
to the Property until the Closing shall be borne by Seller.
15. NOTICES. All notices required or permitted to be given
under this Agreement shall be in writing and shall be given by
personal delivery, recognized overnight courier services or by
deposit in the United States mail, certified mail, return receipt
requested, postage prepaid, addressed to Seller and Purchaser at
the addresses set forth on the first page of this Agreement or at
such other address as a party may designate by notice similarly
given. Notices shall be deemed effective upon delivery; if
personally delivered: on the next business day after deposit with
a recognized overnight courier service; or on the expiration of
three (3) days after deposit in the US mail, as described above.
A copy of any notice shall be given to Escrow Agent.
Copies shall be given to:
Leslie Armstrong, Esq.
ARAMARK Educational Resources, Inc.
573 Park Point Drive
Golden, CO 80401
Ph No.: 303-526-3381
16. MISCELLANEOUS.
16.1 INCORPORATION OF RECITALS. The recitals of this
Agreement are hereby affirmed by the parties as true and correct
and are incorporated herein by this reference.
16.2 WAIVERS. No waiver of any of the provisions of this
Agreement shall constitute a waiver of any other provision,
whether or not similar, nor shall any waiver be a continuing
waiver. Except as expressly provided in this Agreement, no waiver
shall be binding unless executed in writing by the party making
the waiver. Either party may waive any provision of this
Agreement intended for its sole benefit; however, unless
otherwise provided for herein, such waiver shall in no way excuse
the other party from the performance of any of its other
obligations under this Agreement.
16.3 CONSTRUCTION. This Agreement shall be interpreted
according to the law of the state where the Properties are
located, and shall be construed as a whole and in accordance with
its fair meaning and without regard to, or taking into account,
any presumption or other rule of law requiring construction
against the party preparing this Agreement or any part hereof.
16.4 TIME. Time is of the essence of this Agreement.
16.5 ATTORNEY'S FEES. If any action is brought by either
party in respect to its rights under this Agreement, the
prevailing party shall be entitled to reasonable attorneys' fees
and court costs as determined by the court.
16.6 ASSIGNMENT. Purchaser may assign its rights under
this Agreement prior to Closing without the prior written consent
of Seller.
16.7 BINDING EFFECT. This Agreement and all instruments
or documents entered into pursuant hereto are binding upon and
shall inure to the benefit of the parties and their respective
successors and assigns.
16.8 FURTHER ASSURANCES AND DOCUMENTATION. Each party
agrees in good faith to take such further actions and execute
such further documents as may be necessary or appropriate to
fully carry out the intent and purpose of this Agreement.
16.9 TIME PERIODS. If the time for the performance of any
obligation under this agreement expires on a Saturday, Sunday or
legal holiday, the time for performance shall be extended to the
next succeeding day which is not a Saturday, Sunday or legal
holiday.
16.10 HEADINGS. The headings of this Agreement are for
purposes of reference only and shall not limit or define the
meaning of any provision of this Agreement.
16.11 ENTIRE AGREEMENT. This Agreement, together with
all exhibits referred to herein, which are incorporated herein
are made a part hereof by this reference and the Lease between
the parties, constitutes the entire agreement between the parties
pertaining to the subject matter contained in this Agreement. No
supplement, modification or amendment of this Agreement shall be
binding unless in writing and executed by Purchaser and Seller.
16.12 COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an
original, but all of which shall constitute one and the same
instrument.
16.13 SURVIVAL. Each of the terms and provisions of this
Agreement, including the representations and warranties contained
in ARTICLE 12, which are not incorporated into the Deed, or which
are not satisfied by the execution and delivery of the Deed, or
which by their nature require the parties to perform certain acts
subsequent to the Closing, shall survive the Closing, except that
the representations and warranties contained in ARTICLE 12 shall
survive the Closing for a period of only six (6) months only.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.
SELLER:
3/27/01
Date
ARAMARK Educational Resources, Inc., d/b/a Children's World
Learning Centers, Inc., a Delaware Corporation
By: /s/ John Rosen
Its: Executive Vice President
PURCHASER:
March 28, 2001
Date
TEXAS:
PROPERTY KNOWN AS CWLC # 0668, 15950 Fredrick Drive, Plainfield,
IL.:
The following limited partnerships, in the respective percentage
designated, are obligating themselves to purchase the Plainfield,
IL. Property only, under the terms of this Agreement,:
AEI Real Estate Fund 85-A Limited Partnership 20%
BY: Net Lease Management 85-A, Inc.
By:/s/ Mark Larson
Mark Larson, Chief Financial Officer
AEI Income & Growth Fund XXII Limited Partnership 25%
BY: AEI Fund Management XXI, Inc.
By:/s/ Mark Larson
Mark Larson Chief Financial Officer
AEI Private Net Lease Millennium Fund Limited Partnership 55%
BY: AEI Fund Management XVIII, Inc.
By:/s/ Mark Larson
Mark Larson Chief Financial Officer
PROPERTY KNOWN AS CWLC # 0561 OAKMONT BOULEVARD, FT. WORTH, TX
The following corporation, in the respective percentage
designated, is obligating itself to purchase the Oakmont Property
only, under the terms of this Agreement:
AEI Fund Management XVII, Inc. 100%
By:/s/ Mark Larson
Mark Larson Chief Financial Officer
OHIO:
PROPERTY KNOWN AS CWLC # 0556 5524 NEW ALBANY RD, NEW ALBANY, OH
The following corporation, in the respective percentage
designated, is obligating itself to purchase the New Albany
Property only, under the terms of this Agreement:
AEI Net Lease Income & Growth Fund XX Limited Partnership 35%
BY: AEI Fund Management XX, Inc.
By:/s/ Mark Larson
Mark Larson Chief Financial Officer
AEI Income & Growth Fund 23LLC 30%
BY: AEI Fund Management XXI, Inc.
By: /s/ Mark Larson
Mark Larson Chief Financial Officer
AEI Fund Management XVII, Inc. 35%
By: /s/ Mark Larson
Mark Larson Chief Financial Officer
ILINOIS:
PROPERTY KNOWN AS CWLC # 0496 800 SOUTH ROUTE 83, MUNDELEIN, IL
The following corporation, in the respective percentage
designated, is obligating itself to purchase the Mundelein
Property only, under the terms of this Agreement:
AEI Income & Growth Fund XXI Limited Partnership 100%
BY: AEI Fund Management XXI, Inc.
By:/s/ Mark Larson
Mark Larson Chief Financial Officer
PROPERTY KNOWN AS CWLC # 0667 1512 NORTH ROUTE 83, ROUND LAKE
BEACH, IL
The following corporation, in the respective percentage
designated, is obligating itself to purchase the Round Lake Beach
Property only, under the terms of this Agreement:
AEI Fund Management XVII, Inc. 100%
By: /s/ Mark Larson
Mark Larson Chief Financial Officer
ACCEPTANCE BY ESCROW AGENT
Escrow Agent hereby (a) acknowledges receipt of a fully
executed copy or counterpart copies of this Agreement on this
29th day of March, 2001 and has inserted said date on the first
page of this Agreement, and (b) hereby agrees to establish an
escrow (Escrow No. N01-40086DDN*) and to administer the same in
accordance with the provisions hereof. Escrow Agent further
agrees to immediately deliver to Purchaser and Seller copies or
counterpart of this fully executed Agreement.
* master file
Lawyers Title Insurance Corporation
By: /s/ Patricia Keil
Its: National Title Officer
EXHIBIT A
TO
PURCHASE AND SALE AGREEMENT
AND
ESCROW INSTRUCTIONS
Attached to and forming a part of PURCHASE AND SALE
AGREEMENT AND ESCROW INSTRUCTIONS between AEI and ARAMARK
EDUCATIONAL RESOURCES, INC. DBA Children's World Learning
Centers, Inc., dated 3/27/01, 2001:
PURCHASE PRICE:
CWLC
Closing AEI Est. Site Purchase
Costs+ Base Price + Allowance + Inspection Price
CWLC # 0620
Plainfield, IL, $1,503,000 + $23,500 + $2,500 = $1,529,000
CWLC # 0561
Oakmont Blvd,
Ft. Worth $1,405,000 + $23,500 + $2,500 = $1,431,000
CWLC # 0556
New Albany,
New Albany $1,530,000 + $23,500 + $2,500 = $1,556,000
CWLC # 0496
S. Route 83,
Mundelein $1,593,250 + $23,500 + $1,250 = $1,618,000
CWLC # 0667
N. Route 83,
Round Lake
Beach $1,728,250 + $23,500 + $1,250 = $1,753,000