PURCHASE AGREEMENT
This AGREEMENT, entered into effective as of the 3rd day of
March, 2008 (the "Effective Date").
l. PARTIES. Seller is AEI Income & Growth Fund XXI Limited
Partnership which owns an undivided 100% interest in the fee
simple title to that certain real property legally described in
the attached Exhibit "A" as Parcel 1 and AEI Net Lease Income &
Growth Fund XIX Limited Partnership which owns an undivided 100%
interest in the fee simple title to that certain real property
legally described in the attached Exhibit "A" Parcel 2. Buyer is
Healthfirst Real Estate III LP and/or its assigns. Seller wishes
to sell and Buyer wishes to buy the Property. The closing of the
purchase of Parcel 1 and Parcel 2 by Buyer must be simultaneous.
Buyer must purchase both Parcels and neither Parcel.
2. PROPERTY. The Property to be sold to Buyer in this
transaction consists of an undivided 100% interest in the
property located at 0000 Xxx Xxxxx Xxxxxx, Xxxxxx, XX 00000
("Parcel 1") and an undivided 100% interest in the property
located at 0000 Xxxxx Xxxxxxxxxx, Xxxxxxxxxxx, XX 00000 (Parcel
2"). Seller owns no interest in any personalty in connection with
the Property.
3. PURCHASE PRICE. The purchase price for this 100% interest in
Parcel 1 shall be $3,085,833 and the purchase price for this 100%
interest in Parcel 2 shall be $2,747,667 for a total purchase
price for the Property of $5,833,500,000 all cash.
4. TERMS. The purchase price for the Property will be paid by
Buyer as follows:
(A). When this agreement is executed, Buyer will pay $100,000 to
Seller (which shall be deposited into escrow according to the
terms hereof) (the "First Payment"). The First Payment will be
credited against the purchase price when and if escrow closes and
the sale is completed.
(B). Buyer will deposit the balance of the purchase price,
$5,733,500 (the Second Payment") into escrow in sufficient time
to allow escrow to close on the closing date.
5. CLOSING DATE. Closing shall occur within Thirty (30) days
after expiration of the Due Diligence Period (but in no event
later than Sixty (60) days from the Effective Date).
6. DUE DILIGENCE. Buyer will have Thirty (30) days commencing
on the date that Buyer receives notice that the rights of first
refusal and the restrictions on transfer have been waived. (the
"Review Period") to conduct all of its inspections and due
diligence and satisfy itself regarding the Property and this
transaction. 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 and this indemnity shall survive closing or termination
of this agreement. Within ten days of the Effective Date of this
Agreement, Seller shall provide (except as explained below, in
Item A):
A. One copy of a title insurance commitment for an Owner's
Title insurance policy (see paragraph 8 below), to be ordered by
Buyer immediately upon both parties hereto having executed this
agreement.
B. Current Financial Information on the Tenant(s)/Lease
Guarantor(s) as may be in Seller's possession.
C. A copy of a Certificate of Occupancy or other such document
certifying completion and granting permission to permanently
occupy the improvements on the Property as are in Seller's
possession.
D. A copy of an "as built" survey of the Property completed
concurrent with Seller's acquisition of the Property, if
available in Seller's possession.
E. A copy of any Phase I Environmental Report on the Property,
if available in Seller's possession.
F. Lease, and any amendments or modifications thereto (as
further set forth in paragraph 11(A) below) of the Property
showing occupancy date, lease expiration date, rent, and
Guarantees, if any, accompanied by such tenant financial
statements as may have been provided most recently to Seller by
the Tenant and/or Guarantors.
G. Sales Reports or Profit & Loss Statements on the unit if and
as may be in Seller's possession.
Buyer may cancel this agreement for any reason in its sole
discretion by delivering a cancellation notice, return receipt
requested, to Seller and escrow holder before the expiration of
the Review Period. Such notice shall be deemed effective only
upon receipt by Seller. If this Agreement is not cancelled as set
forth above, the First Payment shall be non-refundable unless
Seller shall default hereunder.
If Buyer cancels this Agreement as permitted under this Section,
except for any escrow cancellation fees and any liabilities under
the first paragraph of section 6 of this Agreement and those
provisions stating otherwise (which will survive termination
hereof), Seller (after execution of such documents reasonably
requested by Seller to evidence the termination hereof) shall
return to Buyer 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.
Unless this Agreement is canceled by Buyer pursuant to the terms
hereof, if Buyer fails to make the Second Payment, Seller shall
be entitled to retain the First Payment and Buyer irrevocably
will be deemed to be in default under this Agreement. Seller then
may, at its option, retain the First Payment and declare this
Agreement null and void, in which event Buyer will be deemed to
have canceled this Agreement and relinquish all rights in and to
the Property, or Seller may exercise its rights under Section 14
hereof. If this Agreement is not canceled and the First Payment
and the Second Payment is made when required, all of Buyer's
conditions and contingencies will be deemed satisfied.
7. ESCROW. Escrow shall be opened by Buyer and the funds will
be deposited in escrow upon acceptance of this Agreement by both
parties. The escrow holder will be a nationally-recognized title
company selected by Buyer. A copy of this Agreement will be
delivered to the escrow holder and will serve as escrow
instructions together with the escrow holder's standard
instructions and any additional instructions required by the
escrow holder to clarify its rights and duties (and the parties
agree to sign these additional instructions). If there is any
conflict between these other instructions and this Agreement,
this Agreement will control.
8. TITLE. Closing will be conditioned on the agreement of the
national title company selected by Buyer, to issue an 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
insurable title to the Property subject only to: the title
company's standard exceptions; current real property taxes and
assessments; survey exceptions; the rights of parties in
possession pursuant to the lease defined in paragraph 11 below;
all matters of public record; and other items disclosed to Buyer
during the Review Period.
Buyer shall be allowed five (5) business days after receipt of
said commitment for examination and the making of any objections
to marketability thereto, said objections to be made in writing
or deemed waived. If any objections are so made, Seller shall be
allowed sixty (60) days to cure such objections and make such
title marketable 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 make title marketable, or is
unable to make title marketable or obtain insurable title, (after
execution by Buyer of such documents reasonably requested by
Seller to evidence the termination hereof) Buyer's First Payment
will be returned and this Agreement shall be null and void and of
no further force and effect. Seller has no obligation to spend
any funds or make any effort to satisfy Buyer's objections, if
any.
Pending satisfaction of Buyer's objections, the payments
hereunder required shall be postponed, but upon satisfaction of
Buyer's objections and within ten (10) days after written notice
to the Buyer of satisfaction of Buyer's objections, the parties
shall perform this Agreement according to its terms.
9.CLOSING COSTS. Seller will pay 1/2 the escrow fee and 1/2 of the
recording fees. If Buyer shall decide to purchase title
insurance, then Seller will pay the cost of obtaining a Standard
Owners Title Insurance Policy in the full amount of the purchase
price. Buyer will pay 1/2 the escrow fee, 1/2 of the recording fee,
the cost of an update to the Survey in Sellers possession (if an
update is required by Buyer) and the cost of updating any due
diligence provided by Seller, if Buyer requires the same be
updated. Seller will pay, at closing, a 4% brokerage commission
to be shared between Xxxxxxxxx Properties c/o Commercial
Investment Advisors and Xxxxxxx Xxxxxxxxx of Xxx Xxxxxx Company,
Inc., pursuant to Seller's separate written agreement with these
brokers. Except as set forth above, both parties represent to the
other that they have not been represented by a broker, and agree
to hold the other harmless from any claim of brokerage commission
by, through, or as a result of representation of the other party.
Each party will pay its own attorney's fees and costs to document
and close this transaction.
10. REAL ESTATE TAXES, SPECIAL ASSESSMENTS AND PRORATIONS.
(A). Because the Property is subject to a net lease (as
further set forth in paragraph 11(A)(1)), the parties acknowledge
that there shall be no need for a real estate tax proration.
However, Seller warrants that all real estate taxes and
installments of special assessments due and payable in all years
prior to the year of Closing have been paid in full. Unpaid real
estate taxes and unpaid levied and pending special assessments
existing on the date of Closing shall be the responsibility of
Buyer, pro-rated, however, to the date of closing for the period
prior to closing, which shall be the responsibility of Seller if
Tenant shall not pay the same. Buyer shall likewise pay all taxes
due and payable in the year after Closing and any unpaid
installments of special assessments payable therewith and
thereafter, if such unpaid levied and pending special assessments
and real estate taxes are not paid by any tenant of the Property.
(B). All income and all operating expenses from the Property, if
any, shall be prorated between the parties and adjusted by them
as of the date of Closing. Seller shall be entitled to all income
earned, and shall be responsible for all expenses incurred, prior
to the date of Closing. Buyer shall be entitled to all income
earned and shall be responsible for all operating expenses of the
Property incurred on and after the date of closing.
11. SELLER'S REPRESENTATION AND AGREEMENTS.
(A). Seller represents and warrants as of this date that:
1. Except for the Lease and amendments listed on Exhibit "B",
Seller is not aware of any leases of the Property.
2. As to Parcel 1, Seller has signed a Landlord's Agreement
Regarding Equipment, dated 12/22/2003, recognizing that the
equipment in the property is to be considered personal property
and is not owned by the Landlord. As to Parcel 2, Seller has
signed a Landlord's Agreement Regarding Equipment, dated
12/22/2003, recognizing that the equipment in the property is to
be considered personal property and is not owned by the Landlord.
3. Seller is not aware of any pending litigation or
condemnation proceedings against the Property or Seller's
interest in the Property.
4. The Lease contains a Right of First Refusal to the benefit
of the Lessee for the duration of the Lease, including any
renewal terms. Seller's obligations hereunder are contingent upon
Seller successfully obtaining Lessee's waiver of such right of
first refusal with respect to this transaction. Seller agrees to
request such a waiver of right of first refusal within three (3)
business days of the Effective Date hereof, and shall notify
Buyer upon receipt of Lessee's waiver or notice of exercise of
said right of first refusal. As to Parcel 1, the Operating and
Easement Agreement dated 9/17/1991, as amended, may contain
restrictions on transfer. As to Parcel 2, the Outparcel
Restrictions dated 6/30/1999, as amended, may contain
restrictions on transfer. Seller's obligations hereunder are
contingent upon Seller successfully obtaining a waiver of such
restrictions, if any.
5. Except as previously disclosed to Buyer and as permitted in
paragraph (b) below, Seller is not aware of any contracts Seller
has executed that would be binding on Buyer after the closing
date, except, as to Parcel 1, such restrictions on transfer or
other covenants as contained in matters of record, including, but
not limited to, the Operating and Easement Agreement dated
9/17/1991 by and between Xxxxxx Xxxxxx Corporation and Codam
Investments and Del Mar Investments Group, as amended and except
as to Parcel 2, such restrictions on transfer or other covenants
as contained in matters of record, including, but not limited to,
the Outparcel Restrictions dated 6/30/1999, as amended, made by
Brownsville Sunrise Developers, L.P., together with the consent
of Xxxxxxx Texas, LP and FFCA Acquisition Corp.
(B). Provided that Buyer performs its obligations as required,
Seller agrees that it will not enter into any new contracts that
would materially affect the Property and be binding on Buyer
after the Closing Date without Buyer's prior consent, which will
not be unreasonably withheld.
12. DISCLOSURES.
(A). Seller has not received any notice of any material,
physical, or mechanical defects of the Property, including
without limitation, the plumbing, heating, air conditioning, and
ventilating, electrical system. To the best of Seller's knowledge
without inquiry, all such items are in good operating condition
and repair and in compliance with all applicable governmental,
zoning, and land use laws, ordinances, regulations and
requirements. If Seller shall receive any notice to the contrary
prior to Closing, Seller will inform Buyer prior to Closing, and
Buyer may terminate this agreement and the First Payment will be
returned.
(B). Seller has not received any notice that the use and
operation of the Property is not in full compliance with
applicable building codes, safety, fire, zoning, and land use
laws, and other applicable local, state and federal laws,
ordinances, regulations and requirements. If Seller shall receive
any such notice prior to Closing, Seller will inform Buyer prior
to Closing, and Buyer may terminate this agreement and the First
Payment will be returned.
(C). Seller has not received any notice that the Property is in
violation of any federal, state or local law, ordinance, or
regulations relating to industrial hygiene or the environmental
conditions on, under, or about the Property, including, but not
limited to, soil, and groundwater conditions. To the best of
Seller's knowledge, there is no proceeding or inquiry by any
governmental authority with respect to the presence of Hazardous
Materials on the Property or the migration of Hazardous Materials
from or to other property. 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 Materials on or in
connection with the Property either before or after the Closing
Date, except such Hazardous Materials on or in connection with
the Property arising out of Seller's gross negligence or
intentional misconduct. If Seller shall receive any notice to the
contrary prior to Closing, Seller will inform Buyer prior to
Closing, and Buyer may terminate this agreement and the First
Payment will be returned.
(D). BUYER AGREES THAT IT SHALL BE PURCHASING THE PROPERTY IN ITS
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.
(E). BUYER ACKNOWLEDGES THAT, HAVING BEEN GIVEN THE OPPORTUNITY
TO INSPECT THE PROPERTY AND SUCH FINANCIAL INFORMATION CONCERNING
THE LESSEE AND ANY GUARANTORS OF THE LEASE AS BUYER OR ITS
ADVISORS SHALL REQUEST AND AS MAY BE IN SELLER'S POSSESSION,
BUYER IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY
AND NOT ON ANY REPRESENTATIONS OR INFORMATION PROVIDED BY SELLER
OR TO BE PROVIDED BY SELLER, EXCEPT AS SET FORTH HEREIN. BUYER
FURTHER ACKNOWLEDGES THAT THE INFORMATION PROVIDED, OR TO BE
PROVIDED, BY SELLER WITH RESPECT TO THE PROPERTY, THE PROPERTY
AND TO THE LESSEE AND ANY GUARANTORS OF LEASE, WAS OBTAINED FROM
A VARIETY OF SOURCES AND SELLER HAS NOT (A) MADE INDEPENDENT
INVESTIGATION OR VERIFICATION OF SUCH INFORMATION, AND (B) MAKES
NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH
INFORMATION, EXCEPT AS HEREIN SET FORTH. THE SALE OF THE PROPERTY
AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS - WHERE IS" BASIS AND
BUYER EXPRESSLY ACKNOWLEDGES THAT, IN CONSIDERATION OF THE
AGREEMENTS OF SELLER HEREIN, EXCEPT AS OTHERWISE SPECIFIED HEREIN
IN PARAGRAPH 11(A) AND (B) ABOVE AND THIS PARAGRAPH 12, SELLER
MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR
ARISING BY OPERATION OF LAW, INCLUDING, BUT NOT LIMITED TO, ANY
WARRANTY OF CONDITION, HABITABILITY, SUITABILITY FOR LEASE,
SUITABILITY FOR COMMERCIAL PURPOSES, MERCHANTABILITY, OR FITNESS
FOR A PARTICULAR PURPOSE, IN RESPECT OF THE PROPERTY. SELLER
MAKES NO REPRESENTATIONS OF ANY SORT THAT OWNERSHIP OF THE
PROPERTY WILL RESULT IN A PROFIT TO ANY BUYER.
(G) BUYER ACKNOWLEDGES THAT SELLER CANNOT, AND DOES NOT, MAKE
ANY REPRESENTATION AS TO (A) THE SUCCESS, OR LACK THEREOF, OF THE
PROPERTY, (B) THE LESSEE AND ANY GUARANTORS OF THE LEASE OR THEIR
ABILITY TO FULFILL THEIR LEASE OBLIGATIONS, OR (C) THE
APPROPRIATENESS OF PURCHASING THE PROPERTY FOR THE BUYER'S
INDIVIDUAL TAX OR FINANCIAL SITUATION OR TAX OR FINANCIAL
OBJECTIVES. BUYER ACKNOWLEDGES THAT HE OR SHE IS RELYING SOLELY
UPON HIS OR HER OWN EXAMINATION OF THE PROPERTY AND ALL FACTS
SURROUNDING THE PURCHASE OF THE PROPERTY INCLUDING THE MERITS AND
RISKS INVOLVED THEREIN.
The provisions (D) - (G) above shall survive Closing.
13. CLOSING.
(A). Before the closing date, Seller will deposit into escrow an
executed special warranty deed warranting title against lawful
claims by, through, or under a conveyance from Seller, but not
further or otherwise, conveying insurable title of the Property
to Buyer, subject to the exceptions contained in paragraph 8
above. Seller will also deliver an Estoppel Certificate certified
by Seller (or if available, by Lessee) as to the absence of known
defaults by Lessee and Lessor under the Lease
(B). On or before the closing date, Buyer will deposit into
escrow the balance of the Purchase Price when required under
Section 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 deliver to the escrow holder any other
documents reasonably required by the escrow holder to close
escrow.
(C). On the closing date, if escrow is ready to close, the escrow
holder will: record the deed in the official records of the
county where the Property is located; 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
escrow holder's certified closing statement and take all other
actions necessary to close escrow.
14. DEFAULTS. If Buyer defaults, Buyer will forfeit all rights
and claims and Seller will be relieved of all obligations and
will be entitled to retain all monies heretofore paid by the
Buyer. In addition, Seller shall retain all remedies available to
Seller at law or in equity.
If Seller shall default, Seller will forfeit all rights and
claims and Buyer will be relieved of all obligations and will be
entitled to the return of its Xxxxxxx Money, which shall be
promptly returned to Buyer. In addition, Buyer shall retain all
remedies available to Buyer at law or in equity.
15. BUYER'S REPRESENTATIONS AND WARRANTIES.
(A). Buyer represents and warrants to Seller as follows:
(1). 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 Seller
or the Title Company may require and be reasonable in order to
consummate the transactions contemplated herein.
(2). 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.
(3). 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.
16. DAMAGES, DESTRUCTION AND EMINENT DOMAIN.
(A). If, prior to closing, the Property or any part thereof be
destroyed or further 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 $10,000.00, 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. Seller, however, shall have the right to
adjust or settle any insured loss until (i) all contingencies set
forth in Paragraph 6 hereof have been satisfied, or waived; and
(ii) any ten-day period provided for above in this Subparagraph
16A for Buyer to elect to terminate this Agreement has expired or
Buyer has, by written notice to Seller, waived Buyer's right to
terminate this Agreement. If Buyer elects to proceed and to
consummate the purchase despite said damage or destruction, there
shall be no reduction in or abatement of the purchase price, and
Seller shall assign to Buyer the Seller's right, title, and
interest in and to all insurance proceeds (pro-rata in relation
to the Property) resulting from said damage or destruction to the
extent that the same are payable with respect to damage to the
Property, subject to rights of any Tenant of the Property.
If the cost of repair is less than $10,000.00, Seller shall
credit Buyer for the cost of the repairs. Buyer shall then be
obligated to otherwise perform hereunder.
(B). If, prior to closing, the Property, or any part thereof, is
taken by eminent domain, this Agreement shall become null and
void at Buyer's option. If Buyer elects to proceed 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 the Seller's right, title, and interest in and to any award
made, or to be made, in the condemnation proceeding pro-rata in
relation to the Property, subject to rights of any Tenant of the
Property.
In the event that this Agreement is terminated by Buyer as
provided above in Subparagraph 16A or 16B, the First Payment
shall be immediately returned to Buyer (after execution by Buyer
of such documents reasonably requested by Seller to evidence the
termination hereof.)
17. 1031 EXCHANGE.
If Buyer is purchasing the Property as "replacement property" to
for purposes of a tax free exchange, Buyer acknowledges that
Seller has made no representations, warranties, or agreements to
Buyer or Buyer's agents that the transaction contemplated by the
Agreement will qualify for such tax treatment, nor has there been
any reliance thereon by Buyer respecting the legal or tax
implications of the transactions contemplated hereby. Buyer
further represents that it has sought and obtained such third
party advice and counsel as it deems necessary in regards to the
tax implications of this transaction.
Buyer wishes to novate/assign the ownership rights and interest
of this Purchase Agreement to a third party who will act as
Accommodator to perfect the 1031 exchange by preparing an
agreement of exchange of Real Property whereby such party will be
an independent third party purchasing the ownership interest in
subject property from Seller and selling the ownership interest
in subject property to Buyer under the same terms and conditions
as documented in this Purchase Agreement. Buyer asks the Seller,
and Seller agrees to cooperate in the perfection of such an
exchange if at no additional cost or expense to Seller or delay
in time. Buyer hereby indemnifies and holds Seller harmless from
any claims and/or actions resulting from said exchange. Pursuant
to the direction of the designated third party, Seller will deed
the property to Buyer.
18. CANCELLATION
If any party elects to cancel this Contract because of any breach
by another party or because escrow fails to close by the agreed
date, the party electing to cancel shall deliver to escrow agent
a notice containing the address of the party in breach and
stating that this Contract shall be cancelled unless the breach
is cured within 10 days following the delivery of the notice to
the escrow agent. Within three days after receipt of such notice,
the escrow agent 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. If the breach is not cured within the
10 days following the delivery of the notice to the escrow agent,
this Contract shall be cancelled.
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.
(B). If this escrow has not closed by the Closing Date through no
fault of Seller, Seller may, at its election, extend the closing
date or exercise any remedy available to it by law, including
terminating this Agreement.
(C). Funds to be deposited or paid by Buyer must 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 a nationally recognized
courier service guaranteeing overnight delivery to the party at
his or its address set forth below, or to such other address as
such party may hereafter designate by written notice to the other
party.
IF TO SELLER:
AEI Fund Management XXI, Inc.
AEI Fund Management XIX, Inc.
Attn: Xxxxx Xxxxxx
0000 Xxxxx Xxxxx Xxxxx
00 Xxxx Xxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
IF TO BUYER:
Healthfirst Real Estate III LP
Healthfirst Real Estate III LP
Attn: Xxxxx Xxxxxx
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
xxxxxxxxxxx@xxxxxxx.xxx
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. Seller has one (1) business days from
receipt within which to accept this offer.
This Agreement shall be governed by, and interpreted in
accordance with, the laws of the State of Texas.
IN WITNESS WHEREOF, the Seller and Buyer have executed this
Agreement effective as of the day and year above first written.
BUYER:
Healthfirst Real Estate III LP
By: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
SELLER:
[As to Parcel 1 Only]
AEI Income & Growth Fund XXI Limited Partnership
By AEI Fund Management XXI, Inc., Its Managing Member
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx - President
[As to Parcel 2 Only]
AEI Income & Growth Fund XIX Limited Partnership
By AEI Fund Management XIX, Inc., Its Managing Member
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx - President
Exhibit A
Legal Description
Parcel 1:
TRACT I:
Situated in Xxxx County, Texas, and being THE SURFACE ONLY of Xxx
0X, Xxxxx 0, Xxxxx Xxxxx Xxxxx Xxxxx 0, as per Replat recorded in
Volume 18, Page 78, Xxxx County Plat Records; more particularly
described as follows:
Being a tract of land that is caluculated to contain 1.2786
acres, more or less, in the City of Laredo, Xxxx County, Texas,
this 1.2786 acre tract id identified as Lot 8A, block 1, as per
the Replat of Xx 0, Xxxxx 0, Xxxxx Xxxxx Xxxxx Xxxxx 0 that is
recorded in Volume 13, Page 24 of the Plat Records of Xxxx
County, Texas, and Xxx 0X, Xxxxx 0, Xxxxx Xxxxx Xxxxx Xxxxx 0 as
per the Replat of Lots 9A, 9B, 9C and 00X, Xxxxx 0, Xxxxx Xxxxx
Xxxxx Xxxxx 0 into Xxx 0X xxx Xxx 0X, Xxxxx 0, Xxxxx Xxxxx Xxxxx
Xxxxx 0 which is recorded in Volume 18, Page 78 of the Plat
Records of Xxxx County, Texas, this 1.2786 acre tract is more
particularly described by metes and bounds as follows, to-wit
BEGINNING at an "X" xxxx that was found in concrete sidewalk on
the easterly right-of-way line of Interstate Highway No 55
(variable right-of-way width, minimum width = 400 feet), this
being a southwesterly exterior corner of Xxx 0X, Xxxxx 0, Xxxxx
Xxxxx Xxxxx Xxxxx 0 as per the Replat that is recorded in Volume
19, Page 40 of the Plat Records of Xxxx County Texas, this being
the northwest corner of the aforementioned Xxx 0X, Xxxxx 0, Xxxxx
Xxxxx Xxxxx Xxxxx 0 and the northwest corner of this 1.2786 acre
tract:
THENCE North 89 57' 02" East, 245.77 Feet with a southerly line
of Xxx 0X, Xxxxx 0, Xxxxx Xxxxx Xxxxx Xxxxx 0, the north line of
Lot 8A and north line hereof, to a 1/2 inch diameter iron rod
that was set to replace a bent 1/2 inch diameter iron rod that
was found at an interior corner of said Lot 9F, the northeast
corner of the aforementioned Lot 8A and the north east corner of
this tract;
THENCE South 00 02' 58" East, 222.48 Feet with a westerly line of
said Lot 9F and east line of said Lot 8A, the east line hereof,
to a 1/2 inch diameter iron rod that was set to replace a bent
1/2 inch diameter iron rod that was found at an interior corner
of said Lot 9F the southeast corner of the aforementioned Lot 8A,
and the southeast corner of this tract;
THENCE south 89 57' 02" West with a north line of said Lot 9F and
south line of said Lot 8A, passing at 59.58 Feet a northwesterly
exterior corner of said Lot 9F and the northeast corner of Xxx 0,
Xxxxx 0, Xxxxx Xxxxx Xxxxx Xxxxx 0 as shown on the plat that is
recorded in Volume 13, Page 24 of the Plat Records of Xxxx
County, Texas, and continuing on with the north line of said Lot
7 and south line of said lot 8A, the south line hereof 254.91
feet in all to a 1/2 inch diameter iron rod that found on the
easterly right-of-way line of Xxxxxxxxxx Xxxxxxx Xx. 00 for the
northwest corner of said Lot 7 the southwest corner of said Lot
8A and the southwest corner of this tract:
THENCE North 02 18' 09" East, 222.67 Feet with the easterly right-
of-way line of Xxxxxxxxxx Xxxxxxx Xx. 00 and the westerly line of
said Lot 8A, the westerly line hereof to the PLACE OF BEGINNING
and containing 1.2786 acres of land, more or less.
TRACT I-A (EASEMENT)
Together with and subject to Easement Estates created by that
certain Operation and Easement Agreement that is dated September
17, 1991, executed by and between Xxxxxx Xxxxxx Corporation and
Codam Investments and Del Mar Investments Group, Agreement
effective as of August 7, 1992 executed by and between
Albertson's Inc., Xxxxxx Xxxxxx Corporation, Codam Investments
and Del Mar Investment Group, recorded in Volume 51, Page 225-278
Official Public Records Xxxx County Texas, recorded in Volume 51,
Page 279-538 Official Public Records of Xxxx County Texas,
recorded in Volume 51, Page 559-599, Official Public Records of
Xxxx County, Texas, 2nd Amendment recorded in volume 149, Page 46-
540, Official Public Records of Xxxx County, Texas 3rd Amendment
recorded in Volume 701, Page 615-619, Official Public Records of
Xxxx County, Texas 4th Amendment recorded in Volume 750, Page 676-
697 Official Public Records of Xxxx County Texas.
TRACT II-B (EASEMENT)
Together with and subject to a nonexclusive easement for ingress
and egress over and upon the Grantor's parcel described on
Exhibit "C" of Easement for ingress and Egress dated September
17, 1991, executed by Xxxxxx Xxxxxx Corporation to Codam
Investments and recorded in Volume 1509, Page 64-76 of the Rea
Property Records of Xxxx County, Texas, Amended in instrument
dated August 7, 1992 and recorded in Volume 51, Page 207-211 of
the Official Public Records of Xxxx County, Texas, and Volume 55,
Pages 4775-479 of the Official Public Records of Xxxx County,
Texas
TRACT III-C (EASEMENT)
Together with and subject to a non-exclusive easement for
vehicular and pedestrian ingress and egress over and across the
Easement Parcels described in Easement Agreement dated January
29, 19999, executed by and between NCG Phase II, Ltd and North
Creek Group, Ltd and Kona Restaurant Group, Inc., recorded in
Volume 750, Page 725-754 of the Official Public Records of Xxxx
County, Texas which survey correctly shows the location of all
buildings, structures and improvements on said described Tract I,
that there are no visible encroachments onto adjoining
properties, streets, alleys, easements or set back line by any of
said buildings structures or other elements; that there are no
recorded or visible rights of way or easements on said described
Parcel except as shown on said survey, that there are no party
walls or visible encroachments on said described Parcel by
buildings, structures or other improvements situated on adjoining
property except as shown on said map or survey, and that the
described Parcel has direct access to a publicly dedicated right-
of-way through existing easements as are shown on said play or
survey.
This in the same tract of land that was conveyed to FFCA
Acquisition Corporations, a Delaware Corporation, by Kona
Restaurant Group In., by that certain Special Warranty Deed dated
may 27, 19999 and that is recorded in Volume 785, Page 777-782 of
the Official Public Records of Xxxx County, Texas
Parcel 2
Being Xxx 0, Xxxxx 0, XXXXXXX XXXXXXX XX.0 XXXXXXXXXXX, Xxxx of
Brownsville, Cameron County, Texas, according to the map thereof
recorded in Cabinet 1 Slot 1723-B, Map Records of Cameron County,
Texas. Together with a perpetual non-exclusive access easement
over and across Xxxx 0, 0, 0, xxx 0, Xxxxx 0, XXXXXXX COMMONS NO
2 SUBDIVISION, as shown on the plat of said subdivision and as
contained in the Declaration of Easements and Restrictions dated
April 21, 1999, recorded in Volume 5547, Page 196, Official
Records of Cameron County, Texas.
Exhibit B
Parcel 1:
1. Net Lease Agreement between Fund XXI Limited Partnership and
Kona Restaurant Group, Inc., dated 12/30/2003
2. Memorandum of Lease dated 12/30/2003
3. Guarantee of Lease by Fired Up, Inc.
Parcel 2:
1. Net Lease Agreement between Fund XIX Limited Partnership and
Kona Restaurant Group, Inc., dated 12/30/2003
2. Memorandum of Lease dated 12/30/2003
3. Guarantee of Lease by Fired Up, Inc., dated 12/30/2003
