PURCHASE AGREEMENT
Irving, Texas
This AGREEMENT, entered into effective as of the 24th of
October, 1997.
l. Parties. Seller is AEI Real Estate Fund XVI Limited
Partnership, ("Seller"). Seller holds an undivided 100%
interest in the fee title to that certain real property
legally described in the attached Exhibit "A", which sale to
Buyer shall include:
All improvements situated on, over, and under the real
estate (the "Improvements"), and all and singular the rights
and appurtenances pertaining to the real estate and the
Improvements, including: all the right, title and interest
of Seller in and to adjacent streets, roads, alleys, strips,
gores, easements, rights of ingress or egress, rights-of-way
and any other interests in, on, or to any land, highway,
street, road or avenue, open or proposed, in, on, across, in
front of, abutting or adjoining the real estate, and any awards
made or to be made in connection therewith (the "Property");
All of the furniture, furnishings, fixtures, fittings,
appliances, apparatus, equipment, tools, machinery,
maintenance supplies, heating, ventilating, air-
conditioning, incinerating, lighting, plumbing and
electrical fixtures, hot water heaters, furnaces, heating
controls, motors and boiler pressure systems and equipment,
contract rights, claims, systems, names, goodwill,
warranties, bonds, guaranties and other items of tangible
and intangible personal property and replacements thereto,
affixed or attached to, or situated upon, or acquired or
used in connection with, the real estate and the
Improvements (to be conveyed by Quit Claim Bill of Sale
attached hereto as Exhibit B) (the "Personalty");
All site and as-built plans, surveys, tests, soil and
substrata studies, environmental assessments or studies,
architectural renderings, plans and specifications,
engineering plans and studies, floor plans, landscape plans
and other plans, diagrams or studies of any kind, if any,
now or hereafter in the possession of Seller which relate to
the real estate, the Improvements or Personalty;
All of Seller's right, title and interest in and to all
licenses, permits, certificates of occupancy, franchises,
approvals, authorizations and consents now and/or hereafter
issued by any federal, state, county or municipal authority
relating to the real estate, the Improvements and/or the
Personalty, running to, or in favor of, Seller or the properties
described above, and all other rights, privileges and appurtenances
owned by Seller and in any way related to the properties described
above, and such other rights, interests and properties as
may be specified in this Agreement to be sold, transferred,
assigned or conveyed by Seller to Buyer.
Buyer is Spaghetti Warehouse of Texas, L.P., and/or its
assigns, provided Buyer agrees to remain liable hereunder
("Buyer"). Seller wishes to sell and Buyer wishes to buy
the Property, Personalty, and the other items listed in
paragraph 1 above.
2. Property. The Property to be sold to Buyer in this
transaction is legally described on Exhibit A attached
hereto and as listed in paragraph 1 above, subject to all
easements, covenants, conditions, restrictions and
agreements of record that do not affect marketability of
title or affect adversely the use of the Property accepted
by Buyer after Buyer's review of title as set forth below
in paragraph 9 ("Permitted Exceptions").
3. Purchase Price. The purchase price for this Property
and Personalty is $792,500 cash subject to prorations, based
on the following terms:
4. Terms. The purchase price for the Property and
Personalty will be paid by Buyer as follows:
(a) When this Agreement is executed, Buyer will deposit
$10,000 in cash or good funds (the "First Payment") in
escrow, to be deposited into Escrow with Chicago Title
Insurance Company, Attn: Mary Furgason, 14607 San Pedro,
Suite 175, San Antonio, Texas 78232 ("Escrowee"). The First
Payment will be credited against the Purchase Price when and
if escrow closes and the sale is completed, or otherwise
disbursed pursuant to the terms of this Agreement. The
First Payment shall be deposited by the Escrowee in an
interest bearing account (with risk of loss born by Buyer)
and all interest thereon shall be paid to Buyer free and
clear of any claim by Seller, Escrowee, or any other party
irrespective of how the First Payment is disbursed
hereunder.
(b) When this Agreement is executed, Buyer will also
pay $50 in cash or good funds directly to Seller ("Option
Consideration"), which shall be in consideration for
Seller's execution of this Agreement, but will be credited
against the purchase price when and if escrow closes and the
sale is completed. The Option Consideration shall be
considered non-refundable if this Agreement is terminated
for any reason.
(c) Thirty days after the delivery of the Due Diligence
Materials (as defined below) required to be delivered by
Seller hereunder, Buyer must deposit an additional $15,000
in cash or good funds (the "Second Payment") with the
Escrowee. At such time, the entire First and Second Payment
shall be non-refundable, unless Seller shall default
hereunder. The Second Payment will be credited against the
Purchase Price when and if escrow closes and the sale is
completed, or otherwise disbursed pursuant to the terms of
this Agreement. The First and Second Payment shall be
deposited by the Escrowee in an interest bearing account
(with risk of loss born by Buyer) and all interest thereon
shall be paid to Buyer free and clear of any claim by
Seller, Escrowee, or any other party irrespective of how the
First and Second Payment is disbursed hereunder.
(d) At the Closing, Buyer will pay the balance of the
purchase price for the Property in cash or good funds (the
"Final Payment") at closing to the Escrowee who shall close
the transaction according to the terms hereof.
(e) Seller and Buyer agree to allocate $500,000 of the
Purchase Price to the real estate and $292,500 of the
Purchase Price to the Improvements.
5. Closing Date. Escrow shall close at the Title Company
on the earlier to occur of 15 days after the expiration of
the Review Period (as defined below) or upon 5 days written
notice from the Buyer to the Seller. Buyer shall
acknowledge in writing the tolling of the Review
Period upon the submission by Seller of the last of the Due
Diligence Materials.
6. Not Applicable - Intentionally left blank.
7. Due Diligence. Buyer will have until thirty days after
the delivery of each of the following documents to be
delivered by Seller as set forth below (the "Review
Period"), to conduct all of its inspections and due
diligence and satisfy itself regarding title to the
Property, and to inspect the condition of the Property. The
Closing Date shall be automatically extended by the number
of days necessary to give Buyer thirty days to review any
item required to be delivered by the Seller to the Buyer
hereunder. Buyer agrees to indemnify and hold Seller
harmless for any loss or damage to the Property or persons
caused by Buyer or its agents arising out of such physical
inspections of the Property. Except for warranties of title
and as otherwise set forth herein, Buyer expressly
acknowledges that the sale of the Property as provided for
herein is made on an "AS IS" basis, and such provision shall
survive closing.
Seller at Seller's cost and expense agrees to provide
to Buyer the following items, to which Buyer's right to
object absent subsequent material change to the same, shall
extend for thirty days from the date such item has been
deposited in recognized overnight courier:
(a) A current commitment for an Owner's TLTA Policy of
title insurance (see paragraph 9 below) dated after the date
hereof, issued to Buyer in the amount of the Purchase Price,
accompanied by copies of all documents constituting
exceptions to title.
(b) Copies of a Certificate of Occupancy and other such
documentation in Seller's possession certifying as to the
completion of the original structure and improvements on the
Property;
(c) Copy of an "as-built" survey of the Property dated
May 15, 1997, updated to a date after the date hereof and
certified to Buyer.
(d) Any evidence in Seller's possession respecting
inventory of and ownership of the Personalty on the
Property, which Seller's interest in such Personalty is
being transferred to Buyer by Quit Claim Bill of Sale.
(e) To the extent in Seller's possession, a set of the
"as-built" plans and specifications for the improvements on
the Property, provided, in the event that the Closing does
not occur, Buyer shall return such plans and specifications
to Seller.
(f) Copies of the most recent tax statement for the
Property as may be in Seller's possession.
Buyer may cancel this Agreement for any reason in its
sole discretion by delivering a cancellation notice by
certified mail, return receipt requested, or by personal
delivery to Seller and Escrowee, if delivered on or before
the expiration of the Review Period. Such notice shall be
deemed effective only upon receipt (as defined by
Subparagraph 19(d)) by Seller. Subject to Section 17 below,
if this Agreement is not canceled as set forth above, the
FirstPayment shall be non-refundable unless Seller shall
default hereunder.
If Buyer cancels this Agreement as permitted under this
Section, except for one-half of any escrow cancellation
fees; and any liabilities under Section 11 or 16 of this
Agreement (which will survive), Buyer (after execution of
such documents reasonably requested by Seller to evidence
the termination hereof) shall be returned its First Payment,
and Buyer will have absolutely no rights, claims or interest
of any type in connection with the Property or this
transaction, regardless of any alleged conduct by Seller or
anyone else. Notwithstanding the foregoing, the First and
Second Payment shall become non-refundable in accordance
with paragraph 4(c) above.
Unless Seller shall be in default of any obligation
hereunder, or this Agreement is canceled by Buyer pursuant
to the terms hereof, if Buyer fails to make the Final
Payment, Seller shall be entitled to retain the First and
Second Payment and Buyer irrevocably will be deemed to have
canceled this Agreement and relinquish all rights in and to
the Property. If this Agreement is not canceled and the
Final Payment is made when required, all of Buyer's
conditions and contingencies will be deemed satisfied.
8. Escrow. Escrow shall be opened by Seller and the First
Payment (delivered herewith by Buyer to Escrowee) shall be
deposited by Buyer with Escrowee upon presentation of this
agreement executed by Buyer for Seller's acceptance.
9. Title. Closing will be conditioned on the commitment of
a title company issued by the Escrowee to issue a TLTA
Owner's policy of title insurance, dated as of the close of
escrow, in an amount equal to the Purchase Price, insuring
that Buyer will own indefeasible and insurable fee simple
title to the Property subject only to: the Permitted
Exceptions; current real property taxes and assessments;
and survey exceptions on the Survey.
Buyer shall be allowed until the expiration of the
Review Period for examination of the commitment and survey
and the making of any objections to title and survey
thereto, or that an exception to title adversely affects the
use of the Property, said objections to be made in
writing or deemed waived. Escrowee shall provide Seller with
a copy of said title commitment. If any objections thereto
are so made by Buyer, the Seller shall be allowed ten (10)
days to cure Buyer's 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 such objections, (after execution by Buyer
of such documents reasonably requested by Seller to evidence
the termination hereof) Buyer's First Payment shall be
returned and this agreement shall be null and void and of no
further force and effect.
Pending correction of title, the payments after the
First Payment hereunder required shall be postponed, but
upon correction of title and within ten (10) days after
written notice of correction to the Buyer, the parties shall
perform this agreement according to its terms.
If Buyer shall make no written objection to Seller
within the Review Period setting forth Buyer's objections to
the status of title reflected by the Commitment and/or the
Survey, Buyer shall have been deemed to have waived any such
objections.
10. Closing Costs. Seller will pay the cost of the current
updated survey certified to Buyer (with the cost of any
revisions thereto to correct inaccuracies or omissions being
borne by the Seller, but all other costs of revisions to be
born by Buyer), state deed tax stamps, if any, and one-half
of escrow fees, and any brokerage commissions payable except
those brokerage commissions incurred by Buyer. Buyer shall
pay for the cost of the standard TLTA Owner's Policy in
favor of Buyer in the amount of the Purchase Price, if Buyer
shall decide to purchase the same. Buyer will pay the cost
of any recording fees for the deed, endorsements to the Owner's
policy, (if Buyer shall decide to purchase the same) and one-half
of the escrow fees. Each party will pay its own attorneys' fees
and costs to document and close this transaction.
11. Real Estate Taxes, Special Assessments and Prorations.
Seller represents that all real estate taxes and
installments of special or other assessments due and payable
in 1996, for 1996 and all years prior to the year of Closing
have been paid in full. Responsibility for real estate
taxes and special assessments shall be prorated as of the
Closing Date based upon the most recently available tax bill
for taxes for the year in which Closing shall occur, with
readjustment for the taxes for the year in which Closing
shall occur if the same are not presently known in the year
in which Closing shall occur. All real estate taxes and
special or other assessments assessed and due and payable
for the years following the year in which closing occurs
shall otherwise be the responsibility of Buyer. The parties
agree to execute a tax proration agreement at closing
reflecting the above understanding. All operating expenses
relating to the Property incurred for or arising out of any
period prior to (or if incurred by Seller, after) Closing
shall be paid by Seller, and any operating expenses relating
to the Property incurred for the period after closing
(unless incurred by Seller) shall be the responsibility of
Buyer. If during the Buyer's Review Period, utility expenses
for the Property shall exceed the average monthly utility
charges for the Property in the prior three month period as a
direct result of Buyer's or Buyer's agent's review of the
Property, Buyer shall be responsible for such excess and shall
promptly pay such excess upon presentation by Seller of
reasonable written evidence of such charges. Buyer's liability
for such excess utility charges shall survive closing or the
termination of this Agreement.
12. Seller's Representation and Agreements.
(a) Seller represents and warrants as of this date
that:
(i) The Property is not subject to any oral or written
leases, service contracts, brokerage or other agreements
which shall survive closing or parties in possession, other
than the Permitted Exceptions.
(ii) It is not aware of any pending or threatened
litigation or condemnation proceedings or assessments,
special or otherwise, against the Property, Seller, or
Seller's interest in the Property.
(iii) Seller has not entered into any oral contracts
or executed any contracts or any other agreement of any
nature that would be binding on Buyer after the closing
date.
(iv) In addition to the acts and deeds recited herein
and contemplated to be performed, executed, and delivered by
Seller, Seller shall perform, execute and deliver or cause
to be performed, executed, and delivered at the Closing or
after the Closing, any and all further acts, deeds and
assurances the Escrowee may require and Seller deems to be
reasonable in order to consummate the transactions
contemplated herein.
(v) Seller has all requisite power and authority to
consummate the transaction contemplated by this Agreement
and has by proper proceedings duly authorized the execution
and delivery of this Agreement and the consummation of the
transaction contemplated hereby and all documents
contemplated thereby.
(vi) To best of Seller's knowledge, neither the
execution and delivery of this Agreement nor the
consummation of the transaction contemplated hereby will
violate or be in conflict with (a) any applicable provisions
of law, (b) any order of any court or other agency of
government having jurisdiction hereof, or (c) any agreement
or instrument to which Seller is a party or by which Seller
is bound.
(vii) Seller agrees to indemnify and hold Buyer
harmless from any and all claim of any persons or entities
claiming a brokerage or other fee arising prior to the date
hereof and/or out of representation of Seller or through or
on behalf of Seller, specifically, a commission due and
payable to The Forman Company, but no other broker or agent,
unless the same shall claim such commission arising out of
representation of Seller or through or on behalf of Seller.
(viii) At all times from the date hereof to the
Closing, Seller shall cause to be maintained in force fire
and extended coverage insurance upon the Property and public
liability insurance with respect to damage or injury to
person or property occurring on the Property in at least
such amounts as are maintained by Seller on the date of this
Contract;
(xix) At all times from the date of this Contract
until Closing, Seller shall operate, maintain, repair, and
manage the Property in substantially the same manner as the
Property has been managed up to and including the date
hereof, subject, however, to all relevant provisions of this
Contract;
(x) At all times from the date of this Contract until
Closing, Seller shall maintain the Improvements and Personal
Property in good condition and repair, except for normal
wear and tear and any casualty or condemnation, or theft,
and Seller shall not remove any fixtures, equipment,
furnishings or other personalty therefrom, nor shall Seller
in any manner neglect the Property;
(xi) Seller shall cause all trade accounts and costs
and expenses of operation and maintenance of the Property
incurred prior to the Closing to be promptly paid when due;
(b) Seller agrees that it will not enter into any
new contracts prior to the Closing Date that would
materially affect the Property and be binding on Buyer after
the Closing Date without Buyer's prior consent. Seller
further agrees that it shall not create or voluntarily
permit to be created any liens, easements, or other
conditions affecting the Property after the Closing Date
without the Buyer's prior written consent.
Seller's representations and warranties herein shall
survive closing for a period of one year from Closing.
13. Disclosures.
(a) To the best of Seller's knowledge: the Property is
not, and as of the Closing will not be, 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 ground water conditions. To the
best of Seller's knowledge, Seller, nor its predecessors in
interest or lessees, have not generated, manufactured,
refined, transported, treated, stored, handled, disposed of,
transferred, produced, or processed any Hazardous Substance
or toxic materials to, on, under, from, or in the Property,
except incidental to the operation of a restaurant on the
Property and then only in accordance with applicable law and
regulation. To the best of Seller's knowledge: there is no
proceeding or inquiry by any governmental authority pending
or threatened with respect to the presence of Hazardous
Substance on the Property or the migration of Hazardous
Substance from or to other property and there are no
underground storage tanks on the Property. Except as
otherwise provided in this Agreement and except to the
extent that Seller has knowledge of any hazardous substances
or materials on or in connection with the Property which
Seller is not disclosing to Buyer hereunder, Buyer agrees
that Seller will have no liability of any type to Buyer or
Buyer's successors, assigns, or affiliates in connection
with any Hazardous Substance on or in connection with the
Property either before or after the Closing Date. The term
"Hazardous Substance" shall mean hazardous substance or
waste, toxic substances, polychlorinated biphenyls, asbestos
or related materials, including but not limited to,
substances defined as "hazardous substance(s)," "toxic
substance(s)," "hazardous waste," "pollutant," or
"contaminant" in the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, 42
U.S.C. Sec. 9061, et seq. ("CERCLA"), the Hazardous
Materials Transportation Act, 49 U.S.C. Sec. 6901, et seq.,
the Federal Resource Conservation and Recovery Act of 1976
("RCRA") and any other federal, state or local environmental
laws, statutes, regulations, requirements and ordinances.
The term does include petroleum, including crude oil or any
fraction thereof, natural gas and natural gas liquids,
liquefied natural gas, and synthetic gas usable for fuel or
mixtures thereof.
(b) Subject to Seller's representations contained in
this Agreement, including subparagraphs 13(a) above, Buyer
agrees that it shall be purchasing the Property in its then
present condition, as is, where is, and Seller has no
obligations to construct or repair any improvements thereon
or to perform any other act regarding the Property, except
as expressly provided herein.
(c) Buyer acknowledges that, having been given the
opportunity to inspect the Property as Buyer or its advisors
shall request, Buyer is relying solely on its own
investigation of the Property and not on any information
provided by Seller or to be provided except as set forth
herein. Buyer expressly acknowledges that, in consideration
of the agreements of Seller herein, except as otherwise
specified herein, Seller makes no warranty or
representation, express or implied, or arising by operation
of law, including, but not limited to, any warranty or
condition, habitability, tenantability, suitability for
commercial purposes, merchantability, profitability or
fitness for a particular purpose, in respect of the
Property.
The provisions (a) through (c) shall survive closing.
14. Closing.
(a) Before the Closing Date, Seller will deposit into
escrow a Quit Claim Bill of Sale, a standard Seller's
Affidavit regarding liens and judgments and an executed
Special Warranty Deed in the form attached hereto as Exhibit
C (with the list of Permitted Exceptions to be attached when
determined according to the terms hereof) conveying
indefeasible and insurable fee simple title of the Property
to Buyer, subject to the Permitted Exceptions, and will
provide Buyer with an affidavit that Seller is not a
"foreign person".
(b) On or before the Closing Date, Buyer will deposit
into escrow: the balance of the Purchase Price when required
under paragraph 4 and any additional funds required of
Buyer, (pursuant to this agreement or any other agreement
executed by Buyer) to close escrow. Both parties will sign
and deliver to the Escrowee any other documents reasonably
required by the Escrowee to close escrow.
(c) On the Closing Date, if escrow is in a position to
close, the Escrowee will: cause the title company to commit
to issue the title policy; immediately deliver to Seller the
portion of the purchase price deposited into escrow by
cashier's check or wire transfer (less debits and
prorations, if any); deliver to Seller and Buyer a signed
counterpart of the Escrowee's certified closing statement
and take all other actions necessary to close escrow.
15. Defaults. If Buyer defaults beyond 10 days notice and
opportunity to cure, Buyer will forfeit all rights and
claims and Seller will be relieved of all obligations and
will be entitled as its sole and exclusive remedy to retain
the First and\or if made the Second Payment heretofore paid
by the Buyer,
If Seller shall default, Buyer may terminate this
Agreement and receive the return of the First and/or if made
the Second Payment or evoke specific performance of this
Agreement. Buyer irrevocably waives any rights to file a
lis pendens, or any other claim, action or proceeding of any
type in connection with the Property or this or any other
transaction involving the Property, and will not do anything
to affect title to the Property or hinder, delay or prevent
any other sale, lease or other transaction involving the
Property (any and all of which will be null and void), unless:
it has paid the First and Second ayment, deposited the balance
of the Final Payment for the purchase price into escrow,
performed all of its other obligations and satisfied all
conditions under this Agreement, and unconditionally
notifies Seller that it stands ready to tender full
performance, purchase the Property and close escrow as per
this Agreement. Provided, however, that in no event shall
Seller be liable for any actual, punitive, consequential or
speculative damages arising out of any default by Seller hereunder.
16. Buyer's Representations and Warranties.
Buyer represents and warrants to Seller as follows:
(i) In addition to the acts and deeds recited herein
and contemplated to be performed, executed, and delivered by
Buyer, Buyer shall perform, execute and deliver or cause to
be performed, executed, and delivered at the Closing or
after the Closing, any and all further acts, deeds and
assurances as the Escrowee may require and Buyer deems to be
reasonable in order to consummate the transactions
contemplated herein.
(ii) Buyer has all requisite power and authority to
consummate the transaction contemplated by this Agreement
and has by proper proceedings duly authorized the execution
and delivery of this Agreement and the consummation of the
transaction contemplated hereby.
(iii) To Buyer's knowledge, neither the execution and
delivery of this Agreement nor the consummation of the
transaction contemplated hereby will violate or be in
conflict with (a) any applicable provisions of law, (b) any
order of any court or other agency of government having
jurisdiction hereof, or (c) any agreement or instrument to
which Buyer is a party or by which Buyer is bound.
(iv) Buyer agrees to indemnify and hold Seller
harmless from any and all claim of any persons or entities
claiming a brokerage or other fee arising out of
representation of Buyer or through or on behalf of Buyer
with respect to this Agreement or the transactions
contemplated hereby.
17. Damages, Destruction and Eminent Domain.
(a) If, prior to closing, the Property or any part
thereof be destroyed or damaged by fire, the elements, or
any cause, due to events occurring subsequent to the date of
this Agreement to the extent that the cost of repair exceeds
$10,000 this Agreement shall become null and void, at
Buyer's option exercised, if at all, by written notice to
Seller within ten (10) days after Buyer has received written
notice from Seller of said destruction or damage, and the
First Payment and Second Payment shall be returned to Buyer.
Seller, however, shall have the right to adjust or settle
any insured loss until any ten day period provided for above
in this Subparagraph 17a for Buyer to elect to terminate
this Agreement has expired or Buyer has, by written notice
to Seller, waived Buyer's right to terminate this Agreement.
If Buyer elects to proceed and to consummate the purchase
despite said damage or destruction, there shall be no
reduction in or abatement of the purchase price, and Seller
shall pay the deductible and deliver any proceeds actually
received by Seller (up to the amount of the Purchase Price,
with any excess proceeds, if any, belonging to Seller) and
assign to Buyer the Seller's right, title, and interest in
and to all insurance proceeds resulting from said damage or
destruction to the extent that the same are payable with
respect to damage to the Property.
If the cost of repair is less than $10,000.00, Buyer
shall be obligated to otherwise perform hereunder with no
adjustment to the Purchase Price, reduction or abatement,
and Seller shall pay the deductible and deliver any proceeds
actually received by Seller (up to the amount of the
Purchase Price, with excess proceeds, if any, remaining the
sole property of Seller) and assign Seller's right, title
and interest in and to all insurance proceeds.
(b) If, prior to closing, the Property, or any part
thereof, is taken (other than as disclosed in writing to
Buyer prior to the date of this Agreement) by eminent domain
or voluntarily conveyed by Seller in lieu of eminent domain,
this Agreement shall become null and void, at Buyer's option
and the First Payment and Second Payment shall be returned
to Buyer. If Buyer elects to proceed and to consummate the
purchase despite said taking, there shall be no reduction
in, or abatement of, the purchase price, and Seller shall
assign to Buyer all the Seller's right, title, and interest
in and to any award made, or to be made, in the condemnation
proceeding, and deliver any award actually received by
Seller up to the amount of the Purchase Price.
Notwithstanding anything herein in this Agreement to
the contrary, in the event that this Agreement is terminated
by Buyer as provided above in Subparagraph 17a or 17b, the
First and Second Payment shall be immediately returned to
Buyer (after execution by Buyer of such documents reasonably
requested by Seller to evidence the termination hereof).
18. Cancellation If any party elects to cancel this
Agreement because of any breach by another party, the party
electing to cancel shall deliver to Escrowee a notice
containing the address of the party in breach and stating
that this Agreement shall be canceled. Within three days
after receipt of such notice, the Escrowee shall send it by
United States Mail to the party in breach at the address
contained in the Notice and no further notice shall be
required.
19. 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 agreements or understandings.
Exhibits attached to this Agreement are incorporated into
this Agreement. Buyer has the right to assign this
Agreement to another party without Seller's consent, but
shall not be binding upon Seller until receipt of written
notice thereof, and provided, further, that Buyer shall
remain liable for the obligations of Buyer hereunder until
the same are fulfilled or this Agreement is terminated
according to the provisions hereof.
(b) If escrow has not closed through no fault of
Seller, by the Closing Date (if not sooner terminated by
either party according to their right to do so under the
terms hereof), Seller may either, at its election, extend
the closing date, exercise any remedy available to it by
law, including terminate this Agreement.
(c) Funds to be deposited or paid by Buyer will be
good and clear funds in the form of cash, cashier's checks
or wire transfers.
(d) All notices from either of the parties hereto to
the other shall be in writing and shall be considered to
have been duly given or served if sent by first class
certified mail, return receipt requested, postage prepaid,
or by Federal Express or UPS Overnight, or other reputable
overnight courier, 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.
If to Seller:
Attention: Robert P. Johnson
AEI Real Estate Fund XVI Limited Partnership
1300 Minnesota World Trade Center
30 E. 7th Street
St. Paul, MN 55101
with copy to Michael B. Daugherty, Esq. at the same
address above.
If to Buyer:
Attention H.G. Carrington, Jr.
Spaghetti Warehouse of Texas, L.P.
402 West Interstate 30
Garland, Texas 75043
with a copy to Jenkins & Gilchrest, Attention: Jeff Giese,
Esq. at the following address:
(e) This agreement shall be governed by and construed in
accordance with the laws of the state of Texas.
When accepted, this offer will be a binding agreement
for valid and sufficient consideration which will bind and
benefit Buyer, Seller and their respective successors and
assigns. Buyer is submitting this offer by signing a copy
of this offer and delivering it to Seller along with the
Option Consideration, and delivering a copy of this
Agreement signed by Buyer and the First Payment to Escrowee;
Escrowee shall sign below acknowledging receipt of this
Agreement signed by Buyer and the First Payment, which, will
be deposited in to escrow by Escrowee. Seller has three (3)
business days after receipt of the executed offer, Option
Consideration, and acknowledgment of receipt of the First
Payment by Escrowee within which to accept this offer; if
not accepted by Seller, Seller shall immediately return the
Option Consideration to Buyer and Escrowee shall immediately
return the First Payment to Buyer.
IN WITNESS WHEREOF, the Seller and Buyer have executed
this Agreement effective as of the day and year above first
written.
BUYER:
Spaghetti Warehouse of Texas, L.P.
By: Spaghetti Warehouse Service Corp, General Partner
By: /s/ HG Carrington, Jr
SELLER:
AEI REAL ESTATE FUND XVI LIMITED PARTNERSHIP, a
Minnesota limited partnership.
By: AEI Fund Management XVI, Inc., its corporate
general partner
By: /s/ Robert P Johnson
Robert P. Johnson, President
ESCROWEE:
The Title Company hereby acknowledges receipt of a
fully executed copy of this Agreement and the First Payment
referred to in the Agreement on , 1997,
and agrees to accept, hold, deliver and disburse the First
Payment and Second Payment, together with all interest
accrued thereon and received by the Title Company, strictly
in accordance with the terms and provisions of this
Agreement. In performing any of its duties hereunder, the
Title Company shall not incur any liability to anyone for
any damages, losses or expenses, except for negligence,
willful default or breach of trust, and it shall accordingly
not incur any such liability with respect (i) to any action
taken or omitted in good faith upon advice of its counsel,
or (ii) to any action taken or omitted in reliance upon any
instrument, including any written notice or instruction
provided for in this Agreement, not only as to its due
execution and the validity and effectiveness of its
provisions, but also as to the truth and accuracy of any
information contained therein, which the Title Company shall
in good faith believe to be genuine, to have been signed or
presented by a proper person or persons and to conform with
the provisions of this Agreement. Seller and Buyer hereby
agree to indemnify and hold harmless the Title Company
against any and all losses, claims, damages, liabilities and
expenses, imposed upon the Title Company or incurred by the
Title Company in connection with its acceptance or the
performance of its duties hereunder, including any
litigation arising from this Agreement or involving the
subject matter hereof, unless such losses, claims, damages,
liabilities and expenses arise out of Title Company's
negligence, willful default or breach of trust. In the
event of a dispute between Seller and Buyer sufficient in
the discretion of the Title Company to justify its doing so,
the Title Company shall be entitled to tender into the
registry of the District Court of Dallas County, Texas, all
money or property in its hands under this Agreement,
together with such legal pleadings as it deems appropriate,
and thereupon be discharged from all further duties and
liabilities under this Agreement. Seller and Buyer shall
bear all costs and expenses of such legal proceedings.
Chicago Title Insurance Company
By:
EXHIBIT "A"
LEGAL DESCRIPTION
Being all of PARK OAKS VA, REPLAT OF PART OF PARK OAKS V, an
Addition to the City of Irving, Texas, according to the Map
thereof recorded in Volume 84010, Page 4758, Map Records of
Dallas County, Texas.
Subject to and together with terms, conditions and easements
created in Mutual Access and Parking Agreement, dated
October 18, 1983 and filed October 26, 1983, record in
Volume 83211, Page 2706 and amended by Amendment and
Modification of Mutual Access and Parking Agreement dated
December 23, 1983, filed December 28, 1983 and recorded in
Volume 83251, Page 5231, Deed records, Dallas County, Texas.
Exhibit "B"
QUIT CLAIM BILL OF SALE
In consideration of Ten Dollars and other good and
valuable consideration by Spaghetti Warehouse of Texas, L.P.
("Buyer") to AEI Real Estate Fund XVI Limited Partnership
("Seller"), the receipt of which is hereby acknowledged,
Seller does hereby grant, sell, transfer, convey, and
deliver to Buyer this date, by Quit Claim Bill of Sale, all
of its rights, title, and interest, IF ANY, in the following
assets located at the property described on Exhibit A of the
Purchase Agreement between Seller and Buyer, dated October
1997:
All of the furniture, furnishings, fixtures,
fittings, appliances, apparatus, equipment, tools,
machinery, maintenance supplies, heating, ventilating, air-
conditioning, incinerating, lighting, plumbing and
electrical fixtures, hot water heaters, furnaces, heating
controls, motors and boiler pressure systems and equipment,
contract rights, claims, systems, names, goodwill,
warranties, bonds, guaranties and other items of tangible
and intangible personal property and replacements thereto,
affixed or attached to, or situated upon, or acquired or
used in connection with, the real estate and the
Improvements (as defined in the Purchase Agreement between
Seller and Buyer, dated October 1997) (the "Personalty");
All site and as-built plans, surveys, tests, soil
and substrata studies, environmental assessments or studies,
architectural renderings, plans and specifications,
engineering plans and studies, floor plans, landscape plans
and other plans, diagrams or studies of any kind, if any,
now or hereafter in the possession of Seller which related
to the real estate, the Improvements or Personalty;
All of Seller's right, title and interest in and
to all licenses, permits, certificates of occupancy,
franchises, approvals, authorizations and consents now
and/or hereafter issued by any federal, state, county or
municipal authority relating to the real estate, the
Improvements and/or the Personalty, running to, or in favor
of, Seller or the properties described above, and all other
rights, privileges and appurtenances owned by Seller and in
any way related to the properties described above, and such
other rights, interests and properties as may be specifed in
this Agreement to be sold, transferred, assigned or conveyed
by Seller to Buyer.
Seller warrants that is has not granted, bargained, sold,
encumbered, or tansferred any interest it may have in the
above listed assets.
Date:
AEI REAL ESTATE FUND XVI LIMITED PARTNERSHIP
By: AEI FUND MANAGEMENT XVI, INC., its, corporate
general partner
By:
Robert P Johnson, President
STATE OF MINNESOTA )
)SS
COUNTY OF RAMSEY )
The foregoing instrument was acknowledged before me the
dat of October 1997, by Robert P Johnson, the President of
AEI Fund Management XVI, Inc., a Minnesota corporation,
corporate general partner of AEI Real Estate Fund XVI
Limited Partnership, on behalf of said limited partnership.
Notary Public
EXHIBIT "C"
SPECIAL WARRANTY DEED
(Name of Property)
STATE OF
COUNTY OF KNOW ALL MEN BY THESE
PRESENTS:
THAT , a
("Grantor"), for and in consideration of the sum of TEN AND
NO/100 DOLLARS ($10.00) and other good and valuable
consideration to it paid by
, a ("Grantee"), the
receipt and sufficiency of which are hereby acknowledged and
confessed by Grantor, has GRANTED, BARGAINED, SOLD and
CONVEYED, and by these presents does hereby GRANT, BARGAIN,
SELL and CONVEY unto Grantee:
(a) That certain tract or parcel of land (the
"Land") lying and being situated in the City of ,
County of , State of , and being more
particularly described on Exhibit "A", attached hereto and
made a part hereof for all purposes;
(b) The apartment complex, commonly known as the
,
situated on the Land, comprised of buildings
containing, in the aggregated, individual units,
swimming pools, clubhouse facilities, open parking areas,
landscaping and all other improvements situated on, over or
under the Land (the "Imporvements"); and
(c) All right, title and interest of Grantor in
and to all appurtenances pertaining to the Land and the
Improvements, including all right, title and interest of
Grantor in and to adjacent streets, roads, alleys, strips,
gores, easements, rights of ingress or egress, rights-of-
ways and any other interests in, on, or to, any land,
highway, street, road or avenue, open or proposed, in, on,
across, in front of, abudding or adjoining the Land;
(the Land, the Improvements and such rights and
appurtenances being hereinafter referred to collectively as
the "Property").
This conveyance is made and accepted subject,
subordinate and inferior to the leases, easements, covenants
and the other matters and exceptions set forth on Exhibit
"B", attached hereto and made a part hereof for all purposes
(the "Permitted Exceptions").
TO HAVE AND TO HOLD the Property, subject to the
permitted Exceptions, unto Grantee, its successors and
assigns, forever, and Grantor does hereby bind itself, its
successors and assigns, to WARRANT and FOREVER DEFEND all
and singular the Property, subject to the Permitted
Exceptions, unto Grantee, its successors and assigns,
against every person whomsoever lawfully claiming or to
claim the same or any part thereof, by, through or under
Grantor, but not otherwise.
The mailing address of Grantee is set forth below:
IN WITNESS WHEREOF, Grantor has caused this Special
Warranty Deed to be executed on this day of 199
GRANTOR:
By:
By:
Name:
Title:
STATE OF
COUNTY OF
The foregoing was acknowledged before me on the day
of 199 by of a,
, on behalf of said .
Notary Public in and for the State
of
Notary Public Printed or Typed Name
My Commission Expires: