REAL ESTATE PURCHASE AGREEMENT
1. PARTIES. The parties to this Real Estate Purchase
Agreement (this "Agreement") are AEI Real Estate Fund
XVI Limited Partnership, a Minnesota limited partnership
("Seller"),whose address is 00 Xxxx Xxxxxxx Xxxxxx,
0000 Xxxx. Xxxxx Xxxxx Xxxxxx, Xx. Xxxx, XX 00000, and
JIFFY LUBE INTERNATIONAL OF MARYLAND, INC., a Maryland
corporation (the "Purchaser"), whose principal address
is 700 Xxxxx, Xxxxxxx, Xxxxx 00000.
2. PURPOSE/PROPERTY. Pursuant to the terms of this
Agreement, Seller will sell and the Purchaser will
purchase those certain tracts of land identified as:
(a) 0000 Xxxxxxx Xxxx., Xxxx xx Xxxxxx, Xxxxxx of Dallas,
State of Texas, and
(b) 000 Xxxxx Xxxxx Xxxxxx, Xxxx xx Xxxxxxx, Xxxxxx of
Dallas, State of Texas,
(each of which is called a "Property" in this Agreement"),
being more fully described by metes and bounds on
Exhibit A-1 and Exhibit A-2, respectively, attached hereto
and made a part hereof for all purposes, together with
any and all personal property located thereon as of the
date of closing.
3. PURCHASE PRICE. The total purchase price for each
of the Properties (including the consideration for any
improvements or fixtures located at each of the Properties,
if any) is SIX HUNDRED FIFTY THOUSAND and NO/100 DOLLARS
($650,000.00) (the "Purchase Price"), of which SIX HUNDRED
THOUSAND and NO/100 DOLLARS is to be paid by wire
transfer into Seller's account, subject to the
adjustments described below, if any, at Closing, and
FIFTY THOUSAND and NO/100 DOLLARS ($50,000.00) is to be
evidenced by a promissory note delivered by the
Purchaser to the Seller at Closing and is to be paid
by the Purchaser's check or, at the Purchaser's option,
by wire transfer into Seller's account upon the earlier
of the following events: (a) the expiration of one year
from the date of Closing, or (b) the expiration of ten days
after the closing of the sale of the Property in
question by Purchaser to a third party. The obligation
to pay such FIFTY THOUSAND and NO/100 DOLLARS as part of
the Purchase Price of each Property shall be secured by
deeds of trust.
4. XXXXXXX MONEY DEPOSIT AND RATIFICATION OF LEASE. In
lieu of Xxxxxxx Money Deposit, both Seller and
Purchaser ratify and confirm that the properties are
currently encumbered by Lease Agreements ("Lease") dated
July 23, 1987 by and between Seller (as "Landlord") and
Purchaser (as "Tenant"). In accordance with Paragraph
15 herein, should this Agreement terminate for any
reason, the Lease shall continue in full force and
effect throughout the term of the Lease. The parties
confirm that the Lease shall remain in full force and
effect from the date hereof until this Agreement is either
terminated or Closing shall occur as contemplated
hereunder.
5. TITLE. Title to the Properties is to be conveyed by a
General Warranty Deed, in a form commonly used in the state
in which the Property is located. The Properties will
be conveyed in fee simple, subject to:
(a) local and/or municipal zoning regulations, ordinances,
building restrictions, regulations and any violations
thereof;
(b) all assessments, costs and charges for any and all
municipal improvements affecting or benefiting the
Property; and
(c) covenants, restrictions, easements, agreements,
encumbrances and defects in title of record,
affecting or benefiting the Property, same being
specifically described as indicated in the Title
Report.
6. TITLE REPORT/COMMITMENT. Seller shall deliver to
Purchaser, at Seller's sole cost and expense, a Commitment
for Title Insurance ("the Title Commitment") indicating
the present status of the title to the Properties
within thirty (30) days of the effective date of this
Agreement. The Title Commitment shall show all matters
affecting title to the Properties, including all
exceptions, easements, restrictions, right-of ways,
covenant, reservations, encumbrances, and other conditions
affecting the Properties which will appear in the Title
Commitment. Within fifteen (15) days of the receipt of
such Title Policy, Purchaser, if unsatisfied with the status
of title, shall provide Seller with a written statement
setting forth Purchaser's title objections (the "Notice of
Title Objections"). In the event Seller elects to do so,
Seller shall have fifteen (15) days from the receipt of the
Notice of Title Objections within which to take such
actions as are necessary to discharge the objections. If
Seller is unable or unwilling to discharge the objections
within the aforesaid fifteen (15) day period, Purchaser
shall elect to (a) accept such title as Seller may be able
to deliver or (b) terminate this Agreement by providing
Seller with written notice of termination. Upon Seller's
receipt of a notice of termination, this Agreement shall be
deemed null and void, with neither party having any
further rights, obligations or liabilities hereunder, and
thereafter the Lease shall continue in full force and
effect throughout the term of the Lease. If Seller does
not receive a Notice of Title Objections within the
aforementioned fifteen (15) day review period, then it
shall be conclusively deemed that Purchaser is satisfied
with the condition of title as shown on the Title Report
and Purchaser shall have waived its right to object to the
status of title.
7. HAZARDOUS MATERIALS. (a) Definition. As used in this Section
7, the phrase "Hazardous Materials" shall mean (1) any "hazardous
waste" as defined by the resource Conversation and Recovery Act of
1976, as amended from time to time, and the regulations promulgated
under that act; (2) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended from time to time, and the regulations
promulgated under that act; (3) any oil, petroleum products, or
their byproducts; and (4) any substance now regulated by
any federal, state, or local governmental authority.
(b) Purchaser's indemnity. The Purchaser shall defend, indemnify
and hold the Seller harmless from any and all claims, demands,
actions and causes of action, including reasonable attorney's fees,
connected with or related to contamination of either Property by
any Hazardous Materials which occurs or occurred at any time
before the Purchaser sells such Property to a third party
unrelated to Purchaser, provided that Seller gives Purchaser
timely notice of such claims and a reasonable opportunity to
defend against such claim and/or to conduct appropriate remedial
measures, and provided further that under no circumstances shall
the Purchaser be required to conduct remediation efforts not
required by applicable governmental regulation.
8. DEFAULT; REMEDIES. If the conditions, if any, to
Purchaser's obligation to close this transaction are satisfied
or waived by Purchaser and Purchaser nevertheless fails,
through no fault of Seller, to close the purchase of the
Properties, Seller's sole remedy shall consist of the termination
of this Agreement and thereafter the Lease Agreement shall
continue in full force and effect throughout the term of the
Lease. In the event Seller fails, through no fault of
Purchaser, to close the sale of the Properties, Purchaser shall
be entitled to termination of this Agreement and, thereafter the
Lease Agreement shall continue in full force and effect throughout
the term of the Lease.
9. POSSESSION. Purchaser is currently in possession of the
Properties as Tenant under the Lease. Seller will transfer title of
ownership at closing and the Lease between Seller (as "Landlord")
and Purchaser (as "Tenant) shall be deemed to be terminated
without the need for the parties to execute any formal
documentation, unless otherwise agreed to by the parties.
10. TAXES AND UTILITY ASSESSMENTS. Real and personal property
taxes, water and sewer assessments are currently paid by
Purchaser, as Tenant under the Lease. Seller shall assist
Purchaser with changing all taxes and utilities over to
Purchaser's name.
11. TRANSFER TAXES AND OTHER CHARGES. Seller shall pay the cost
of preparation of the General Warranty Deed,(text deleted RPJ/RAH)
and shall pay its own attorney's fees. Purchaser shall pay the cost
of(section revised pursuant to the agreement RPJ/RAH) any Deed of
Trust recording fees, any Deed of Trust registration fees,
any , investigations performed for the Properties by
Purchaser, wire transfer fees (if applicable) and any attorney's
fees incurred by Purchaser. Except as otherwise specified in
Paragraph 12, Seller and Purchaser shall pay the customary costs
as designated by the specific City and County the property is
situated in, as setforth in Paragraph 2, which are incurred in
connection with the purchase contemplated hereby, including any
recording fees incurred in recording the deed and any other
conveyance documents and any applicable realty transfer taxes.
12. TITLE INSURANCE. Seller, at its expense, shall provide
Purchaser with a Title Commitment and a title insurance policy,
if such policy is desired by Purchaser. Purchaser is responsible
for the payment of any other costs and expenses, including costs
incurred by Purchaser for title examination.
13. BROKER'S COMMISSION. Both Seller and Purchaser acknowledge
that there is no real estate broker involved in this transaction
and no commission is due to any party.
14. CLOSING. The closing of title to the Properties shall take
place at the offices of REPUBLIC TITLE, 0000 XXXXXXX XXXX, XXXXX
000, XXXXXX, XXXXX 00000, and may be completed via mail
transmittal of documentation and funds, at a time set forth in a
written notice to close ("Notice to Close") sent by Seller to
Purchaser. The Notice to Close shall set forth a closing date
which shall not be more than thirty (30) days after all
contingencies have been met, subject to fulfillment of the
requirements of this Agreement. In any case, the Closing Date
shall not be more than Ninety (90) days after the date of this
Agreement, unless mutually extended by both parties.
15. TERMINATION/RISK OF LOSS AND CONDEMNATION. This Agreement
will expire if there is no closing within the time specified in
the Notice of Closing, plus any mutually agreed extensions of
such time. In addition to other provisions for termination
provided for herein, this Agreement may be terminated by the
Purchaser prior to closing if:
(a) all or part of the buildings, fixtures, equipment or
improvements to be conveyed pursuant to this Agreement
(excluding any equipment which is not repairable as of the
date of this Agreement or constitutes Seller's Property)
are destroyed or damaged beyond repair prior to closing;
provided that such damage is not the result of the
negligence or willful acts or omissions of Purchaser, its
agents, representatives or visitors; or
(b) all or a substantial part of the Property is condemned or
Seller receives notice of an intended condemnation by any
governmental authority prior to closing.
If the Purchaser proceeds to closing without terminating
this Agreement, Purchaser shall be deemed to have waived any
of the grounds upon which it could have terminated this
Agreement; provided, however, in the event Purchaser
proceeds with the purchase of the Property despite a notice
of condemnation having been served on Seller, at closing
Seller shall execute any and all documentation necessary to
convey to Purchaser any and all rights that Seller may have
regarding recovery in any condemnation proceeding relating to
the Property commenced after closing. If Purchaser terminates
this Agreement pursuant to the provisions of this Agreement,
neither party shall have any claim for damages against the
other for breach of this Agreement except that each party shall
be responsible for its own out-of-pocket expenses incurred in
connection with this transaction. Should this Agreement
terminate for any reason, the Lease (as defined in Paragraph 4)
shall remain in full force and effect.
16. WARRANTIES AND REPRESENTATIONS. Each party
represents, warrants and covenants to the other party that;
(i) it has full authority to enter into this Agreement (ii) it
agrees to be bound by the terms and conditions of this
Agreement, and (iii) it agrees to perform its respective
obligations. Seller further represents and warrants to
Purchaser that all latent and patent defects relating to the
Properties has been fully disclosed by Seller to Purchaser.
17. NOTICES. All notices and other communications required
or permitted to be given or delivered hereunder shall be in
writing and shall be delivered personally, transmitted by fax,
sent by overnight courier, or by certified mail, postage
prepaid and return receipt requested, directed to the party
intended at the address set forth below, or at such other
address as may be designated by such party by notice given
to the other party in the manner described above, and shall
be effective upon receipt:
Seller: Purchaser:
AEI Real Estate Fund JIFFY LUBE INTERNATIONAL
00 Xxxx Xxxxxxx Xxxxxx XX XXXXXXXX, INC.
1300 Minn. World Trade Center 000 Xxxxx Xx.
Xx. Xxxx, XX 00000 Xxxxxxx, XX 00000
ATTN:Real Estate Department
18. SURVIVAL. Upon execution of this Agreement, this
Agreement shall survive the consummation of the
transaction and the delivery of the General Warranty Deed
and any other conveyance documents from Seller to Purchaser on
the Closing Date, and all the terms and conditions hereof
shall be and remain in full force and effect between the
parties.
19. MODIFICATION. This Agreement supersedes any and all
prior discussions and agreements between Seller and
Purchaser with respect to the purchase of the Properties
and other matters contained herein, and this Agreement
contains the sole and entire understanding between the parties
hereto with respect to the transaction contemplated
herein. This Agreement shall not be modified or amended,
except by written agreement executed by both parties.
20. APPLICABLE LAW. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the
state in which the Properties are located.
21. TIME. Time is and shall be the essence of this Agreement.
22. EXECUTION. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an
original but all of which together shall constitute one
and the same instrument.
25. EFFECTIVE DATE. This Agreement shall be effective as of
the date on which it has been completely executed on behalf of
both Seller and the Purchaser, and null and void if not signed
by both parties before August 30, 1995. (Parties changed date from
August 24 RPJ/RAH)
26. CO-TENANCY INTERESTS. Seller holds fee title to the
Properties in co-tenancy with its affiliate AEI Real Estate Fund
XVII Limited Partnership ("Fund XVII"). Fund XVII joins herein
to evidence its consent to the sale of Fund XVII's interest
in the Property and shall join in the Deed as its respective
interests shall appear. Fund XVII holds an undivided 75%
interest in the Property described in paragraph 2(a), and an
undivided 50% interest in the Property described in
paragraph 2(b). The parties further acknowledge and agree
that Seller and Fund XVII shall be entitled to the benefits of
the sales proceeds, Notes and Deeds of Trust in proportion to
their respective interests, but for accommodation purposes the
Note and Deed of Trust shall run from Purchaser only to Seller.
AEI REAL ESTATE FUND XVI JIFFY LUBE INTERNATIONAL OF
LIMITED PARTNERSHIP MARYLAND, INC.
By: AEI FUND MANAGEMENT XVI, INC.
its corporate general partner
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxx
Title: President Vice President
Date: 8-25-95 Date: 8/28/95
AEI REAL ESTATE FUND XVII LIMITED PARTNERSHIP
By: AEI FUND MANAGEMENT XVII, INC.
its corporate general partner
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
Date: 8-25-95
EXHIBITS "A-1" & "A-2"
SEE ATTACHED LEGAL DESCRIPTIONS
EXHIBIT "A-1"
Being part of Xxx 0 xxx 0X, Xxxxx X/0000, XXXXXX XX
XXXXXXXX XXXXXX CENTRE, an addition to the City of Dallas,
a plat of same being recorded in the Deed Records of
Dallas County, Texas, in Volume 85174 at Page 5253, and
being particularly described as follows:
BEGINNING at a steel rod set in the South line of said Lot 6
a distance of 155.00 feet Westerly along said South line
from the Southeast corner of said Lot 6, said South line
being a curve having a radius of 2804.79 and chord bearing
South 89 degrees 23 minutes 37 seconds West 154.99 feet,
said beginning point being in the North line of Samuell
Boulevard;
THENCE Westerly with a curve to the right and along South
line of said Xxx 0 xxx Xxxxx xxxx xx Xxxxxxx Xxxxxxxxx,
said curve having a central angle of 01 degrees 15 minutes
59 seconds, a radius of 2804.79 feet for a total distance
of 62.00 feet to stake for corner;
THENCE North 00 degrees 28 minutes 35 seconds East 208.11
feet to iron stake set for corner, said stake also being in
a South line of said Lot 7A;
THENCE North 42 degrees 43 minutes 12 seconds East across
said Lot 7A 20.26 feet to iron stake set for corner, said
stake also being the Southwest corner of Lot 8 of said Block
A/8472;
THENCE South 89 degrees 31 minutes 25 seconds East with
the South line of said Lot 8 and a North line of said Lot 7A
48.36 feet to a steel rod set for a corner;
THENCE South 00 degrees 28 minutes 35 seconds West 224.44
feet to PLACE OF BEGINNING and containing 13,775.99 square
feet of land, more or less.
EXHIBIT "A2"
000 XXXXX XXXXX XXXXXX, XXXXXXX, XXXXX
BEING ALL of LOT 1 and all of LOT 2 except that part
conveyed by X. X. Xxxxxxx to the State of Texas by deed
filed September 3, 1969, and recorded in Volume 69171, Page
2178 of the Deed Records of Dallas County, Texas, in
Xxxxxxxx'x Subdivision, an Addition to the City of Garland,
Texas, according to the plat thereof recorded in Volume 8,
Page 427, Map Records, Dallas County, Texas, said property
being described by metes and bounds as follows:
BEGINNING at the intersection of the south line of Avenue A
with the west line of S. First Street, both 50.0 feet wide,
said beginning point being the northeast corner of said Lot
1;
THENCE south, along the west line of S. First Street, a
distance of 128.27 feet to a point for corner, the
northeast corner of said State of Texas tract, being 2.73
feet north of the southeast corner of said Lot 2;
THENCE westerly, along the north line of said State of
Texas tract, a distance of 125.0 feet to a point for
corner, being 2.74 feet north of the southeast corner of
said Lot 2;
THENCE north, along the west line of Lots 2 and 1, a
distance of 128.26 feet to a point for corner, the
northwest corner of said Xxx 0 xx xxx xxxxx xxxx xx Xxxxxx X;
THENCE east, along the south line of Avenue A, a distance
of 125.0 feet to the place of beginning;
Containing 16,033 square feet of land, more or less.
