SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
Quarterly Report Under Section 13 or 15(d)
of The Securities Exchange Act of 1934
For the Quarter Ended: September 30, 1997
Commission file number: 0-23778
AEI NET LEASE INCOME & GROWTH FUND XX LIMITED PARTNERSHIP
(Exact Name of Small Business Issuer as Specified in its Charter)
State of Minnesota 41-1729121
(State or other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1300 Minnesota World Trade Center, St. Paul, Minnesota 55101
(Address of Principal Executive Offices)
(612) 227-7333
(Issuer's telephone number)
Not Applicable
(Former name, former address and former fiscal year, if changed
since last report)
Check whether the issuer (1) filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period
that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90
days.
Yes [X] No
Transitional Small Business Disclosure Format:
Yes No [X]
AEI NET LEASE INCOME & GROWTH FUND XX LIMITED PARTNERSHIP
INDEX
PART I. Financial Information
Item 1. Balance Sheet as of September 30, 1997 and December 31, 1996
Statements for the Periods ended September 30, 1997 and 1996:
Income
Cash Flows
Changes in Partners' Capital
Notes to Financial Statements
Item 2. Management's Discussion and Analysis
PART II. Other Information
Item 1. Legal Proceedings
Item 2. Changes in Securities
Item 3. Defaults Upon Senior Securities
Item 4. Submission of Matters to a Vote of Security Holders
Item 5. Other Information
Item 6. Exhibits and Reports on Form 8-K
<PAGE>
AEI NET LEASE INCOME & GROWTH FUND XX LIMITED PARTNERSHIP
BALANCE SHEET
SEPTEMBER 30, 1997 AND DECEMBER 31, 1996
(Unaudited)
ASSETS
1997 1996
CURRENT ASSETS:
Cash and Cash Equivalents $ 2,108,818 $ 2,177,670
Receivables 28,878 95
----------- -----------
Total Current Assets 2,137,696 2,177,765
----------- -----------
INVESTMENTS IN REAL ESTATE:
Land 7,067,612 6,809,341
Buildings and Equipment 10,945,158 11,426,434
Construction in Progress 217,412 0
Property Acquisition Costs 60,299 54,410
Accumulated Depreciation (955,767) (710,971)
----------- -----------
Net Investments in Real Estate 17,334,714 17,579,214
----------- -----------
Total Assets $19,472,410 $19,756,979
=========== ===========
LIABILITIES AND PARTNERS' CAPITAL
CURRENT LIABILITIES:
Payable to AEI Fund Management, Inc. $ 101,243 $ 77,446
Distributions Payable 424,431 468,755
Unearned Rent 43,490 0
----------- -----------
Total Current Liabilities 569,164 546,201
----------- -----------
PARTNERS' CAPITAL (DEFICIT):
General Partners (17,908) (14,833)
Limited Partners, $1,000 Unit Value;
24,000 Units authorized and issued;
23,652 Units outstanding 18,921,154 19,225,611
----------- -----------
Total Partners' Capital 18,903,246 19,210,778
----------- -----------
Total Liabilities and Partners' Capital $19,472,410 $19,756,979
=========== ===========
The accompanying notes to financial statements are an integral
part of this statement.
</PAGE>
<PAGE>
AEI NET LEASE INCOME & GROWTH FUND XX LIMITED PARTNERSHIP
STATEMENT OF INCOME
FOR THE PERIODS ENDED SEPTEMBER 30
(Unaudited)
Three Months Ended Nine Months Ended
9/30/97 9/30/96 9/30/97 9/30/96
INCOME:
Rent $ 473,724 $ 525,527 $ 1,423,412 $ 1,474,543
Investment Income 25,412 43,383 82,001 159,627
---------- ----------- ----------- ----------
Total Income 499,136 568,910 1,505,413 1,634,170
---------- ----------- ----------- ----------
EXPENSES:
Partnership Administration -
Affiliates 66,354 60,315 187,505 171,081
Partnership Administration
and Property Management -
Unrelated Parties 30,425 6,973 80,627 30,917
Depreciation 98,041 102,210 296,482 284,023
---------- ---------- ---------- ----------
Total Expenses 194,820 169,498 564,614 486,021
---------- ---------- ---------- ----------
OPERATING INCOME 304,316 399,412 940,799 1,148,149
GAIN ON SALE OF REAL ESTATE 122,066 35,944 160,760 35,944
MINORITY INTEREST IN
OPERATING INCOME 0 (23,047) 0 (66,426)
--------- ---------- ---------- ----------
NET INCOME $ 426,382 $ 412,309 $ 1,101,559 $ 1,117,667
========= ========== ========== ==========
NET INCOME ALLOCATED:
General Partners $ 4,264 $ 4,124 $ 11,016 $ 11,177
Limited Partners 422,118 408,185 1,090,543 1,106,490
--------- ---------- ---------- ----------
$ 426,382 $ 412,309 $ 1,101,559 $1,117,667
========= ========== ========== ==========
NET INCOME PER
LIMITED PARTNERSHIP UNIT
(23,652 and 23,869 weighted
average Units outstanding in 1997
and 1996, respectively) $ 17.85 $ 17.10 $ 46.11 $ 46.36
========= ========= ========= =========
The accompanying Notes to Financial Statements are an integral
part of this statement.
</PAGE>
<PAGE>
AEI NET LEASE INCOME & GROWTH FUND XX LIMITED PARTNERSHIP
STATEMENT OF CASH FLOWS
FOR THE PERIODS ENDED SEPTEMBER 30
(Unaudited)
1997 1996
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Income $ 1,101,559 $ 1,117,667
Adjustments to Reconcile Net Income to Net Cash
Provided by Operating Activities:
Depreciation 296,482 284,023
Gain on Sale of Real Estate (160,760) (35,944)
Increase in Receivables (28,783) (24,511)
Increase in Payable to
AEI Fund Management, Inc. 23,797 7,558
Increase in Unearned Rent 43,490 34,862
Minority Interest 0 (11,812)
----------- -----------
Total Adjustments 174,226 254,176
----------- -----------
Net Cash Provided By
Operating Activities 1,275,785 1,371,843
----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Investments in Real Estate (877,057) (3,854,189)
Proceeds from Sale of Real Estate 985,835 181,496
----------- -----------
Net Cash Provided By (Used For)
Investing Activities 108,778 (3,672,693)
----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Decrease in Distributions Payable (44,324) 0
Distributions to Partners (1,409,091) (1,454,541)
----------- -----------
Net Cash Used For
Financing Activities (1,453,415) (1,454,541)
----------- -----------
NET DECREASE IN CASH AND CASH EQUIVALENTS (68,852) (3,755,391)
CASH AND CASH EQUIVALENTS, beginning of period 2,177,670 4,833,630
----------- -----------
CASH AND CASH EQUIVALENTS, end of period $ 2,108,818 $ 1,078,239
=========== ===========
The accompanying Notes to Financial Statements are an integral
part of this statement.
</PAGE>
<PAGE>
AEI NET LEASE INCOME & GROWTH FUND XX LIMITED PARTNERSHIP
STATEMENT OF CHANGES IN PARTNERS' CAPITAL
FOR THE PERIODS ENDED SEPTEMBER 30
(Unaudited)
Limited
Partnership
General Limited Units
Partners Partners Total Outstanding
BALANCE, December 31, 1995 $ (11,576) $19,548,040 $19,536,464 23,868.50
Distributions (14,545) (1,439,996) (1,454,541)
Net Income 11,177 1,106,490 1,117,667
--------- ----------- ----------- ----------
BALANCE, September 30, 1996 $ (14,944) $19,214,534 $19,199,590 23,868.50
========= =========== =========== ==========
BALANCE, December 31, 1996 $ (14,833) $19,225,611 $19,210,778 23,652.30
Distributions (14,091) (1,395,000) (1,409,091)
Net Income 11,016 1,090,543 1,101,559
--------- ----------- ----------- ----------
BALANCE, September 30, 1997 $ (17,908) $18,921,154 $18,903,246 23,652.30
========= =========== =========== ==========
The accompanying Notes to Financial Statements are an integral
part of this statement.
</PAGE>
AEI NET LEASE INCOME & GROWTH FUND XX LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
SEPTEMBER 30, 1997
(Unaudited)
(1) The condensed statements included herein have been prepared
by the Partnership, without audit, pursuant to the rules and
regulations of the Securities and Exchange Commission, and
reflect all adjustments which are, in the opinion of
management, necessary to a fair statement of the results of
operations for the interim period, on a basis consistent with
the annual audited statements. The adjustments made to these
condensed statements consist only of normal recurring
adjustments. Certain information, accounting policies, and
footnote disclosures normally included in financial
statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted pursuant
to such rules and regulations, although the Partnership
believes that the disclosures are adequate to make the
information presented not misleading. It is suggested that
these condensed financial statements be read in conjunction
with the financial statements and the summary of significant
accounting policies and notes thereto included in the
Partnership's latest annual report on Form 10-KSB.
(2) Organization -
AEI Net Lease Income & Growth Fund XX Limited Partnership
(Partnership) was formed to acquire and lease commercial
properties to operating tenants. The Partnership's
operations are managed by AEI Fund Management XX, Inc.
(AFM), the Managing General Partner of the Partnership.
Robert P. Johnson, the President and sole shareholder of
AFM, serves as the Individual General Partner of the
Partnership. An affiliate of AFM, AEI Fund Management,
Inc., performs the administrative and operating functions
for the Partnership.
The terms of the Partnership offering call for a
subscription price of $1,000 per Limited Partnership Unit,
payable on acceptance of the offer. The Partnership
commenced operations on June 30, 1993 when minimum
subscriptions of 1,500 Limited Partnership Units
($1,500,000) were accepted. On January 19, 1995, the
Partnership's offering terminated when the maximum
subscription limit of 24,000 Limited Partnership Units
($24,000,000) was reached.
Under the terms of the Limited Partnership Agreement, the
Limited Partners and General Partners contributed funds of
$24,000,000 and $1,000, respectively. During the operation
of the Partnership, any Net Cash Flow, as defined, which the
General Partners determine to distribute will be distributed
90% to the Limited Partners and 10% to the General Partners;
provided, however, that such distributions to the General
Partners will be subordinated to the Limited Partners first
receiving an annual, noncumulative distribution of Net Cash
Flow equal to 10% of their Adjusted Capital Contribution, as
defined, and, provided further, that in no event will the
General Partners receive less than 1% of such Net Cash Flow
per annum. Distributions to Limited Partners will be made
pro rata by Units.
AEI NET LEASE INCOME & GROWTH FUND XX LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
(Continued)
(2) Organization - (Continued)
Any Net Proceeds of Sale, as defined, from the sale or
financing of the Partnership's properties which the General
Partners determine to distribute will, after provisions for
debts and reserves, be paid in the following manner: (i)
first, 99% to the Limited Partners and 1% to the General
Partners until the Limited Partners receive an amount equal
to: (a) their Adjusted Capital Contribution plus (b) an
amount equal to 12% of their Adjusted Capital Contribution
per annum, cumulative but not compounded, to the extent not
previously distributed from Net Cash Flow; (ii) any
remaining balance will be distributed 90% to the Limited
Partners and 10% to the General Partners. Distributions to
the Limited Partners will be made pro rata by Units.
For tax purposes, profits from operations, other than
profits attributable to the sale, exchange, financing,
refinancing or other disposition of the Partnership's
property, will be allocated first in the same ratio in
which, and to the extent, Net Cash Flow is distributed to
the Partners for such year. Any additional profits will be
allocated in the same ratio as the last dollar of Net Cash
Flow is distributed. Net losses from operations will be
allocated 99% to the Limited Partners and 1% to the General
Partners.
For tax purposes, profits arising from the sale, financing,
or other disposition of the Partnership's property will be
allocated in accordance with the Partnership Agreement as
follows: (i) first, to those partners with deficit balances
in their capital accounts in an amount equal to the sum of
such deficit balances; (ii) second, 99% to the Limited
Partners and 1% to the General Partners until the aggregate
balance in the Limited Partners' capital accounts equals the
sum of the Limited Partners' Adjusted Capital Contributions
plus an amount equal to 12% of their Adjusted Capital
Contributions per annum, cumulative but not compounded, to
the extent not previously allocated; (iii) third, the
balance of any remaining gain will then be allocated 90% to
the Limited Partners and 10% to the General Partners.
Losses will be allocated 98% to the Limited Partners and 2%
to the General Partners.
The General Partners are not required to currently fund a
deficit capital balance. Upon liquidation of the
Partnership or withdrawal by a General Partner, the General
Partners will contribute to the Partnership an amount equal
to the lesser of the deficit balances in their capital
accounts or 1% of total Limited Partners' and General
Partners' capital contributions.
AEI NET LEASE INCOME & GROWTH FUND XX LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
(Continued)
(3) Investments in Real Estate -
The Partnership leases its properties to various tenants
through non-cancelable triple net leases, which are
classified as operating leases. Under a triple net lease,
the lessee is responsible for all real estate taxes,
insurance, maintenance, repairs and operating expenses of
the property. The initial Lease terms are 20 years for the
Garden Ridge store and Champps, HomeTown Buffet, Arby's/Mrs.
Winner's, Denny's and Applebee's restaurants. The Red Robin
restaurants' Lease Agreements expire on November 30, 2004,
and December 31, 2007. The Leases contain renewal options
which may extend the Lease term an additional 10 years
except for the Denny's restaurants and the Applebee's and
Champps restaurants in Ohio which have renewal options that
may extend the Lease term an additional 15 years and the
Garden Ridge retail store which has renewal options that may
extend the Lease term an additional 25 years. The Leases
contain rent clauses which entitle the Partnership to
receive additional rent in future years based on stated rent
increases. Certain lessees have been granted options to
purchase the property. Depending on the lease, the purchase
price is either determined by a formula, or is the greater
of the fair market value of the property or the amount
determined by a formula. In all cases, if the option were
to be exercised by the lessee, the purchase price would be
greater than the original cost of the property.
The Partnership's properties are all commercial, single-
tenant buildings. The cost of the property and related
accumulated depreciation at September 30, 1997 are as
follows:
Buildings and Accumulated
Property Land Equipment Total Depreciation
HomeTown Buffet,
Albuquerque, NM $ 241,960 $ 289,371 $ 531,331 $ 38,583
Red Robin,
Colorado Springs, CO 905,980 1,323,210 2,229,190 159,888
Red Robin,
Colorado Springs, CO 721,168 1,034,273 1,755,441 124,975
Arby's/Mrs. Winner's,
Smyrna, GA 62,822 87,998 150,820 10,182
Applebee's, Middletown, OH 298,128 690,317 988,445 86,248
Denny's, Burleson, TX 374,721 548,759 923,480 53,531
Applebee's, McAllen, TX 463,553 856,551 1,320,104 92,682
Applebee's, Lafayette, LA 416,197 760,362 1,176,559 73,592
Applebee's, Brownsville, TX 523,042 855,694 1,378,736 70,186
Denny's, Grapevine, TX 722,668 632,053 1,354,721 41,749
Media Play, Apple Valley, MN 425,360 997,341 1,422,701 61,354
Garden Ridge, Pineville, NC 540,354 1,126,738 1,667,092 56,337
Champps, Lyndhurst, OH 717,903 1,742,491 2,460,394 86,460
Champps, Schaumburg, IL 653,756 0 653,756 0
---------- ---------- ---------- ----------
$7,067,612 $10,945,158 $18,012,770 $ 955,767
========== ========== ========== ==========
AEI NET LEASE INCOME & GROWTH FUND XX LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
(Continued)
(3) Investments in Real Estate - (Continued)
On March 28, 1996, the Partnership purchased a 18.50%
interest in a Garden Ridge store in Pineville, North
Carolina for $1,667,092. The property is leased to Garden
Ridge, L.P. under a Lease Agreement with a primary term of
20 years and annual rental payments of $174,319. The
remaining interests in the property are owned by AEI Net
Lease Income & Growth Fund XIX Limited Partnership and AEI
Income & Growth Fund XXI Limited Partnership, affiliates of
the Partnership.
On April 10, 1996, the Partnership purchased a 90.71346%
interest in a Champps Americana restaurant in Lyndhurst,
Ohio for $2,460,394. The property is leased to Americana
Dining Corporation under a Lease Agreement with a primary
term of 20 years and annual rental payments of $258,886.
The remaining interests in the property were purchased by
the Individual General Partner of the Partnership, and AEI
Institutional Net Lease Fund '93, an affiliate of the
Partnership.
In August, 1995, the Partnership entered into an Agreement
to purchase an Italianni's restaurant in Columbus, Ohio for
approximately $1,440,000. The Agreement with Ristoranti
Karlo, Inc. included a Lease Agreement with a primary term
of 15 years and annual rental payments of approximately
$162,000. The Partnership advanced $1,215,483 for the
construction of the property and was charging interest on
the Note at the rate of 7.0%. On May 1, 1996, the
Partnership began charging interest on the Note at the rate
of 11.25%.
In October, 1996, the parties agreed to terminate the
Agreement. Ristoranti Karlo, Inc. reimbursed the
Partnership for all construction advances, accrued interest
and for certain expenses.
On April 21, 1997, the Partnership purchased a 37% interest
in a parcel of land in Schaumburg, Illinois for $653,756.
The land is leased to Champps Americana, Inc. (Champps)
under a Lease Agreement with a primary term of 20 years and
annual rental payments of $49,910. The Partnership also
entered into a Development Financing Agreement under which
the Partnership will advance funds to Champps for the
construction of a Champps Americana restaurant on the site.
Through September 30, 1997, the Partnership had advanced
$158,170 for the construction of the property and was
charging interest on the advances at a rate of 7.0%. The
Partnership's share of the total purchase price, including
the cost of the land, will be approximately $1,587,000.
After the construction is complete, the Lease Agreement will
be amended to require annual rental payments of
approximately $170,000. The remaining interests in the
property are owned by AEI Income & Growth Fund XXI Limited
Partnership and Net Lease Income & Growth Fund 84-A Limited
Partnership, affiliates of the Partnership.
Through September 30, 1997, the Partnership sold 87.8418% of
the Arby's/Mrs. Winner's restaurant in Smyrna, Georgia, in
six separate transactions to unrelated third parties. The
Partnership received total net sale proceeds of $1,270,244
which resulted in a total net gain of $242,586. The total
cost and related accumulated depreciation of the interests
sold was $1,089,660 and $62,002, respectively. For the nine
months ended September 30, 1997 and 1996, the net gain was
$155,305 and $35,944, respectively.
AEI NET LEASE INCOME & GROWTH FUND XX LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
(Continued)
(3) Investments in Real Estate - (Continued)
On September 30, 1997, the Partnership sold a 9.21838%
interest in the Applebee's restaurant in Middletown, Ohio to
an unrelated third party. The Partnership received net sale
proceeds of $135,839 which resulted in a net gain of
$37,703. The total cost and related accumulated
depreciation of the interest sold was $107,517 and $9,381,
respectively.
On October 9, 1997, the Partnership sold an additional
11.0405% in the Arby's/Mrs. Winner's restaurant in Smyrna,
Georgia to an unrelated third party. The Partnership
received net sale proceeds of approximately $166,000, which
resulted in a net gain of approximately $38,000.
On October 10, 1997, the Partnership sold an additional
18.6076% in the Applebee's restaurant in Middletown, Ohio to
an unrelated third party. The Partnership received net sale
proceeds of approximately $268,000, which resulted in a net
gain of approximately $70,000.
In May, 1997, the Partnership sold 3,739 square feet of land
from the Red Robin property on Jamboree Drive in Colorado
Springs, Colorado, pursuant to a Right of Way Agreement with
the state of Colorado Department of Transportation. The
Partnership received net proceeds of $40,829 which resulted
in a net loss of $32,248. The original cost of the parcel
of land was $73,077. The Partnership believes the state of
Colorado has undervalued the land and is currently
negotiating to receive additional proceeds.
During the first nine months of 1997 and the year 1996, the
Partnership distributed net sale proceeds of $102,413 and
$100,570, respectively, to the Limited and General Partners
as part of their regular quarterly distributions which
represented a return of capital of $4.29 and $4.17 per
Limited Partnership Unit, respectively. The remaining net
sale proceeds will either be re-invested in additional
properties or distributed to the Partners in the future.
On December 21, 1995, the Partnership purchased a 33.0%
interest in a Media Play retail store in Apple Valley,
Minnesota for $1,422,701. The property was leased to The
Musicland Group, Inc. (MGI) under a Lease Agreement with a
primary term of 18 years and annual rental payments of
$135,482. The remaining interests in the property are owned
by AEI Net Lease Income & Growth Fund XIX Limited
Partnership and AEI Income & Growth Fund XXI Limited
Partnership, affiliates of the Partnership.
In December, 1996, the Partnership and MGI reached an
agreement in which MGI would buy out and terminate the Lease
Agreement by making a payment of $800,000, which is equal to
approximately two years' rent. The Partnership's share of
such payment was $264,000. Under the Agreement, MGI
remained in possession of the property and performed all of
its obligations under the net lease agreement through
January 31, 1997 at which time it vacated the property and
made it available for re-let to another tenant. MGI was
responsible for all maintenance and management costs of the
property through January 31, 1997 after which date the
Partnership became responsible for its share of expenses
associated with the property until it is re-let or sold. A
specialist in commercial property leasing has been retained
to locate a new tenant for the property.
AEI NET LEASE INCOME & GROWTH FUND XX LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
(Continued)
(3) Investments in Real Estate - (Continued)
The Partnership has incurred net costs of $768,384 relating
to the review of potential property acquisitions. Of these
costs, $708,085 have been capitalized and allocated to land,
building and equipment. The remaining costs of $60,299 have
been capitalized and will be allocated to property
acquisitions in future periods.
(4) Payable to AEI Fund Management, Inc. -
AEI Fund Management, Inc. performs the administrative and
operating functions for the Partnership. The payable to AEI
Fund Management represents the balance due for those
services. This balance is non-interest bearing and
unsecured and is to be paid in the normal course of
business.
ITEM 2.MANAGEMENT'S DISCUSSION AND ANALYSIS
Results of Operations
For the nine months ended September 30, 1997 and 1996,
total rental income, which in 1996, includes the minority
interests' share of rental income was $1,423,412 and $1,474,543,
respectively. The Partnership's share of 1996 rental income was
$1,396,247. In 1997, rental income increased $158,991, when
compared to 1996, as the result of three property acquisitions in
1997 and 1996. In addition, rent increases on six properties
resulted in a $16,555 increase in rental income in 1997. These
increases were partially offset by a reduction in rents due to
the restructuring of the Media Play property as discussed below.
In 1997, the Partnership received $90,321 less in rent than in
1996 from Media Play. In addition, property sales resulted in a
decrease in rental income of $58,060 in 1997. During the same
periods, the Partnership earned investment income of $82,001 and
$159,627, respectively. This investment income constituted 5%
and 10% of total income for the nine months ended September 30,
1997 and 1996, respectively. The percentage of total income
represented by investment income declines as proceeds are
invested in properties.
Musicland Group, Inc. (MGI), the lessee of the Media Play
retail store in Apple Valley, Minnesota has recently experienced
financial difficulties and has aggressively been restructuring
its organization. As part of the restructuring, the Partnership
and MGI reached an agreement in December, 1996 in which MGI would
buy out and terminate the Lease Agreement by making a payment of
$800,000, which is equal to approximately two years' rent. The
Partnership's share of such payment was $264,000. Under the
Agreement, MGI remained in possession of the property and
performed all of its obligations under the net lease agreement
through January 31, 1997 at which time it vacated the property
and made it available for re-let to another tenant. MGI was
responsible for all maintenance and management costs of the
property through January 31, 1997 after which date the
Partnership became responsible for its share of expenses
associated with the property until it is re-let or sold. A
specialist in commercial property leasing has been retained to
locate a new tenant for the property.
ITEM 2.MANAGEMENT'S DISCUSSION AND ANALYSIS (Continued)
During the nine months ended September 30, 1997 and 1996,
the Partnership paid Partnership administration expenses to
affiliated parties of $187,505 and $171,081, respectively. These
administration expenses include costs associated with the
management of the properties, processing distributions, reporting
requirements and correspondence to the Limited Partners. During
the same periods, the Partnership incurred Partnership
administration and property management expenses from unrelated
parties of $80,627 and $30,917, respectively. These expenses
represent direct payments to third parties for legal and filing
fees, direct administrative costs, outside audit and accounting
costs, taxes, insurance and other property costs. The increase
in these expenses in 1997, when compared to 1996, is the result
of expenses incurred in 1997 related to the Media Play situation
discussed above.
As of September 30, 1997, the Partnership's cash
distribution rate was 7.25% on an annualized basis.
Distributions of Net Cash Flow to the General Partners were
subordinated to the Limited Partners as required in the
Partnership Agreement. As a result, 99% of distributions and
income were allocated to Limited Partners and 1% to the General
Partners.
Inflation has had a minimal effect on income from
operations. The Leases contain cost of living increases to rent
which will result in an increase in rental income over the term
of the Leases. Inflation also may cause the Partnership's real
estate to appreciate in value. However, inflation and changing
prices may also have an adverse impact on the operating margins
of the properties' tenants which could impair their ability to
pay rent and subsequently reduce the Partnership's Net Cash Flow
available for distributions.
Liquidity and Capital Resources
The Partnership's primary sources of cash are from
proceeds from the sale of Units, investment income, rental income
and proceeds from the sale of property. Its primary uses of cash
are investment in real properties, payment of expenses involved
in the sale of units, the organization of the Partnership, the
acquisition of properties, the management of properties, the
administration of the Partnership, and the payment of
distributions.
While the Partnership is purchasing properties, cash flow
from investing activities (investment in real property) will
remain negative and will constitute the principal use of the
Partnership's available cash flow. This use of cash flow for
investing activities was offset by proceeds from the sale of
property.
On March 28, 1996, the Partnership purchased a 18.50%
interest in a Garden Ridge store in Pineville, North Carolina for
$1,667,092. The property is leased to Garden Ridge, L.P. under a
Lease Agreement with a primary term of 20 years and annual rental
payments of $174,319. The remaining interests in the property
are owned by AEI Net Lease Income & Growth Fund XIX Limited
Partnership and AEI Income & Growth Fund XXI Limited Partnership,
affiliates of the Partnership.
On April 10, 1996, the Partnership purchased a 90.71346%
interest in a Champps Americana restaurant in Lyndhurst, Ohio for
$2,460,394. The property is leased to Americana Dining
Corporation under a Lease Agreement with a primary term of 20
years and annual rental payments of $258,886. The remaining
interests in the property were purchased by the Individual
General Partner of the Partnership, and AEI Institutional Net
Lease Fund '93, an affiliate of the Partnership.
ITEM 2.MANAGEMENT'S DISCUSSION AND ANALYSIS (Continued)
In August, 1995, the Partnership entered into an Agreement
to purchase an Italianni's restaurant in Columbus, Ohio for
approximately $1,440,000. The Agreement with Ristoranti Karlo,
Inc. included a Lease Agreement with a primary term of 15 years
and annual rental payments of approximately $162,000. The
Partnership advanced $1,215,483 for the construction of the
property and was charging interest on the Note at the rate of
7.0%. On May 1, 1996, the Partnership began charging interest on
the Note at the rate of 11.25%.
In October, 1996, the parties agreed to terminate the
Agreement. Ristoranti Karlo, Inc. reimbursed the Partnership for
all construction advances, accrued interest and for certain
expenses.
On April 21, 1997, the Partnership purchased a 37%
interest in a parcel of land in Schaumburg, Illinois for
$653,756. The land is leased to Champps Americana, Inc.
(Champps) under a Lease Agreement with a primary term of 20 years
and annual rental payments of $49,910. The Partnership also
entered into a Development Financing Agreement under which the
Partnership will advance funds to Champps for the construction of
a Champps Americana restaurant on the site. Through September
30, 1997, the Partnership had advanced $158,170 for the
construction of the property and was charging interest on the
advances at a rate of 7.0%. The Partnership's share of the total
purchase price, including the cost of the land, will be
approximately $1,587,000. After the construction is complete,
the Lease Agreement will be amended to require annual rental
payments of approximately $170,000. The remaining interests in
the property are owned by AEI Income & Growth Fund XXI Limited
Partnership and Net Lease Income & Growth Fund 84-A Limited
Partnership, affiliates of the Partnership.
Through September 30, 1997, the Partnership sold 87.8418%
of the Arby's/Mrs. Winner's restaurant in Smyrna, Georgia, in six
separate transactions to unrelated third parties. The
Partnership received total net sale proceeds of $1,270,244 which
resulted in a total net gain of $242,586. The total cost and
related accumulated depreciation of the interests sold was
$1,089,660 and $62,002, respectively. For the nine months ended
September 30, 1997 and 1996, the net gain was $155,305 and
$35,944, respectively.
On September 30, 1997, the Partnership sold a 9.21838%
interest in the Applebee's restaurant in Middletown, Ohio to an
unrelated third party. The Partnership received net sale
proceeds of $135,839 which resulted in a net gain of $37,703.
The total cost and related accumulated depreciation of the
interest sold was $107,517 and $9,381, respectively.
On October 9, 1997, the Partnership sold an additional
11.0405% in the Arby's/Mrs. Winner's restaurant in Smyrna,
Georgia to an unrelated third party. The Partnership received
net sale proceeds of approximately $166,000, which resulted in a
net gain of approximately $38,000.
On October 10, 1997, the Partnership sold an additional
18.6076% in the Applebee's restaurant in Middletown, Ohio to an
unrelated third party. The Partnership received net sale
proceeds of approximately $268,000, which resulted in a net gain
of approximately $70,000.
In May, 1997, the Partnership sold 3,739 square feet of
land from the Red Robin property on Jamboree Drive in Colorado
Springs, Colorado, pursuant to a Right of Way Agreement with the
state of Colorado Department of Transportation. The Partnership
received net proceeds of $40,829 which resulted in a net loss of
$32,248. The original cost of the parcel of land was $73,077.
The Partnership believes the state of Colorado has undervalued
the land and is currently negotiating to receive additional
proceeds.
ITEM 2.MANAGEMENT'S DISCUSSION AND ANALYSIS (Continued)
During the first nine months of 1997 and the year 1996,
the Partnership distributed net sale proceeds of $102,413 and
$100,570, respectively, to the Limited and General Partners as
part of their regular quarterly distributions which represented a
return of capital of $4.29 and $4.17 per Limited Partnership
Unit, respectively. The remaining net sale proceeds will either
be re-invested in additional properties or distributed to the
Partners in the future.
The Partnership's primary use of cash flow is distribution
and redemption payments to Partners. The Partnership declares
its regular quarterly distributions before the end of each
quarter and pays the distribution in the first week after the end
of each quarter. The Partnership attempts to maintain a stable
distribution rate from quarter to quarter. Redemption payments
are paid to redeeming Partners in the fourth quarter of each
year.
The Partnership may acquire Units from Limited Partners
who have tendered their Units to the Partnership. Such Units may
be acquired at a discount. The Partnership is not obligated to
purchase in any year more than 5% of the number of Units
outstanding at the beginning of the year. In no event shall the
Partnership be obligated to purchase Units if, in the sole
discretion of the Managing General Partner, such purchase would
impair the capital or operation of the Partnership.
On October 1, 1997, sixteen Limited Partners redeemed a
total of 267.2 Partnership Units for $232,863 in accordance with
the Partnership Agreement. The Partnership acquired these Units
using Net Cash Flow from operations. In prior years, twenty-one
Limited Partners redeemed a total of 347.7 Partnership Units for
$312,466. The redemptions increase the remaining Limited
PartnersO ownership interest in the Partnership.
The continuing rent payments from the properties, together
with cash generated from the property sales, should be adequate
to fund continuing distributions and meet other Partnership
obligations on both a short-term and long-term basis.
PART II - OTHER INFORMATION
ITEM 1.LEGAL PROCEEDINGS
There are no material pending legal proceedings to which
the Partnership is a party or of which the Partnership's
property is subject.
ITEM 2.CHANGES IN SECURITIES
None.
ITEM 3.DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4.SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
ITEM 5.OTHER INFORMATION
None.
PART II - OTHER INFORMATION
(Continued)
ITEM 6.EXHIBITS AND REPORTS ON FORM 8-K
a. Exhibits -
Description
10.1 Purchase Agreement dated August 4,
1997 between the Partnership and Russell
C. Mayer, Trustee and Dixie Mayer,
Trustee, or their Successor Trustees of
the Russell C. and Dixie Mayer Trust
relating to the property at 4950 South
Cobb Drive, Smyrna, Georgia.
10.2 Property Co-tenancy Agreement dated
August 14, 1997 between the Partnership
and Russell C. Mayer, Trustee and Dixie
Mayer, Trustee, or their Successor
Trustees of the Russell C. and Dixie
Mayer Trust relating to the property at
4950 South Cobb Drive, Smyrna, Georgia.
10.3 Purchase Agreement dated September
9, 1997 between the Partnership and Nick
DeVito, Inc. relating to the property at
4950 South Cobb Drive, Smyrna, Georgia.
10.4 Purchase Agreement dated September
9, 1997 between the Partnership and Nick
DeVito, Inc. relating to the property at
3240 Towne Boulevard, Middletown, Ohio.
10.5 Purchase Agreement dated September
16, 1997 between the Partnership and
Richard J. Abbott and Marjory T. Abbott
relating to the property at 4950 South
Cobb Drive, Smyrna, Georgia.
10.6 Purchase Agreement dated September
16, 1997 between the Partnership, AEI
Institutional Net Lease Fund '93 and
Richard J. Abbott and Marjory T. Abbott
relating to the property at 3240 Towne
Boulevard, Middletown, Ohio.
10.7 Property Co-tenancy Ownership
Agreement dated September30, 1997 between
the Partnership and Richard J. Abbott and
Marjory T. Abbott relating to the
property at 4950 South Cobb Drive,
Smyrna, Georgia.
10.8 Property Co-tenancy Ownership
Agreement dated September30, 1997 between
the Partnership and Richard J. Abbott and
Marjory T. Abbott relating to the
property at 3240 Towne Boulevard,
Middletown, Ohio.
10.9 Property Co-tenancy Ownership
Agreement dated October 9, 1997 between
the Partnership and Nick DeVito, Inc.
relating to the property at 4950 South
Cobb Drive, Smyrna, Georgia.
PART II - OTHER INFORMATION
(Continued)
ITEM 6.EXHIBITS AND REPORTS ON FORM 8-K (Continued)
a. Exhibits -
Description
10.10 Property Co-tenancy Ownership
Agreement dated October 10, 1997 between
the Partnership and Nick DeVito, Inc.
relating to the property at 3240 Towne
Boulevard, Middletown, Ohio.
27 Financial Data Schedule for period
ended September 30, 1997.
b. Reports filed on Form 8-K - None.
SIGNATURES
In accordance with the requirements of the Exchange Act, the
Registrant has caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
Dated: November 7, 1997 AEI Net Lease Income & Growth Fund XX
Limited Partnership
By: AEI Fund Management XX, Inc.
Its: Managing General Partner
By: /s/ Robert P Johnson
Robert P. Johnson
President
(Principal Executive Officer)
By: /s/ Mark E Larson
Mark E. Larson
Chief Financial Officer
(Principal Accounting Officer)
PURCHASE AGREEMENT
Arby's/Mrs. Winners Restaurant - Smyrna, GA
This AGREEMENT, entered into effective as of the 4th of August,
1997 .
l. Parties. Seller is AEI Net Lease Income & Growth Fund XX
Limited Partnership which owns an undivided 39.0039% interest in
the fee title to that certain real property legally described in
the attached Exhibit "A" (the "Entire Property") Buyer is
Russell C. Mayer, Trustee and Dixie R. Mayer, Trustee, or their
Successor Trustees of The Russell C. and Dixie R. Mayer Family
Trust, dated April 11, 1995 ("Buyer").Seller wishes to sell and
Buyer wishes to buy a portion as Tenant in Common of Seller's
interest in the Entire Property.
2. Property. The Property to be sold to Buyer in this transaction
consists of an undivided 12.3188% interest (hereinafter, simply
the "Property") as Tenant in Common in the Entire Property.
3. Purchase Price . The purchase price for this percentage
interest in the Entire Property is $200,000 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 $5,000
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, or otherwise
disbursed pursuant to the terms of this Agreement.
(b) Buyer will deposit the balance of the purchase price,
$195,000 (the "Second Payment") into escrow in sufficient
time to allow escrow to close on the closing date.
5. Closing Date. Escrow shall close on or before August 30 ,1997
6. Due Diligence. Buyer will have until the expiration of the
fifth business day (The "Review Period") after delivery of each
of following items, to be supplied by Seller, to conduct all of
its inspections and due diligence and satisfy itself regarding
each item, the Property, and this transaction. Buyer agrees to
indemnify and hold Seller harmless for any loss or damage to the
Leased Premises or persons caused by Buyer or its agents arising
out of such physical inspections of the Entire Property.
(a) The original and one copy of a title insurance
commitment for an Owner's Title insurance policy (see
paragraph 8 below).
(b) Copies of a Certificate of Occupancy or other such
document certifying completion and granting permission to
permanently occupy the improvements on the Entire Property
as are in Seller's possession.
(c) Copies of an "as built" survey of the Property done
concurrent with Seller's acquisition of the Property.
(d) Lease (as set forth in paragraph 11(a) below) of the
Entire Property showing occupancy date, lease expiration
date, rent, and Guarantys, if any, accompanied by such
tenant financial statements as may have been provided most
recently to Seller by the Tenant and/or Guarantors.
Buyer Initial: /s/ DM /s/ RCM
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
It is a contingency upon Seller's obligations hereunder that
two (2) originals of Co-Tenancy Agreement in the form attached
hereto duly executed by Buyer and Seller and dated on escrow
closing date be delivered to the Seller on the Closing date.
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
any 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 sections 15(a) 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.
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 have canceled this Agreement and
relinquish all rights in and to the Property unless Buyer makes
the Second Payment when required. If this Agreement is not
canceled 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 Seller and funds deposited
in escrow upon acceptance of this Agreement by both parties. The
escrow holder will be a nationally-recognized escrow company
selected by Seller. 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 a title
company selected by Seller 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; and other items of record
disclosed to Buyer during the contingency period.
Buyer shall be allowed five (5) 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, the Seller shall
be allowed eighty (80) days to 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 shall be returned and
this Agreement shall be null and void and of no further force and
effect.
Pending correction of title, the payments 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.
Buyer Initial: /s/ DM /s/ RCM
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
9. Closing Costs. Seller will pay one-half of escrow fees, the
cost of the title commitment and any brokerage commissions
payable except those brokerage commissions incurred by Buyer.
The Buyer will pay the cost of issuing a Standard Owners Title
Insurance Policy in the full amount of the purchase price, if
Buyer shall decide to purchase the same. Buyer will pay all
recording fees, one-half of the escrow fees, and the cost of an
update to the Survey in Sellers possession (if an update is
required by Buyer.) 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 Entire Property (of which the Property is a
part) is subject to a triple net lease (as further set forth
in paragraph 11(a)(i), the parties acknowledge that there
shall be no need for a real estate tax proration. However,
Seller represents that to the best of its knowledge, 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 levied and pending special
assessments existing on the date of Closing shall be the
responsibility of Buyer and Seller in proportion to their
respective Tenant in Common interests. Seller and 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 Entire Property.
(b) All income and all operating expenses from the Entire
Property 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, and Buyer
shall be entitled to its proportionate share of all income
earned and shall be responsible for its proportionate share
of 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:
(i) Except for the lease in existence between AEI Net Lease
Income & Growth Fund XX Limited Partnership and RTM Georgia,
Inc.("Tenant"), dated May 16, 1994, Seller is not aware of
any leases of the Property. The above referenced lease
agreement has an option to purchase in favor of the Tenant
as set forth in article 34 of said lease agreement. The
above referenced lease agreement also has a first right of
refusal in favor of the Tenant as set forth in Article 35 of
said lease agreement, which right shall apply to any
disposition of the property by Buyer after this transaction.
(ii) It is not aware of any pending litigation or
condemnation proceedings against the Property or Seller's
interest in the Property.
(iii) Except as previously disclosed to Buyer and as set
forth in paragraph (b) below, Seller is not aware of any
contracts Seller has executed that would be binding on Buyer
after the closing date.
(b) Provided that Buyer performs its obligations when
required, 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, which will not
be unreasonably withheld. However, Buyer acknowledges that
Seller retains the right both prior to and after the Closing
Date to freely transfer all or a portion of Seller's
remaining undivided interest in the Entire Property,
provided such sale shall not encumber the Property
Buyer Initial: /s/ DM /s/ RCM
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
being purchased by Buyer in violation of the terms hereof or
the contemplated Co-Tenancy Agreement.
12. Disclosures.
(a) To the best of Seller's knowledge: there are now, and
at the Closing there will be, no material, physical or
mechanical defects of the Property, including, without
limitation, the plumbing, heating, air conditioning,
ventilating, electrical systems, and 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.
(b) To the best of Seller's knowledge: the use and
operation of the Property now is, and at the time of Closing
will be, 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.
(c) Seller knows of no facts nor has Seller failed to
disclose to Buyer any fact known to Seller which would
prevent the use and operation of the Property after the
Closing in the manner in which the Property has been used
and operated prior to the date of this Agreement.
(d) 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 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 negligence or intentional
misconduct in violation of applicable state or federal law
or regulation.
(e) 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.
(f) Buyer acknowledges that, having been given the
opportunity to inspect the Property and such financial
information on the Tenant and Guarantors of the Lease 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 further acknowledges that the
information provided and to be provided by Seller with
respect to the Property and to the Tenant and Guarantors of
Lease was obtained from a variety of sources and Seller
neither (a) has made independent investigation or
verification of such information, or (b) makes any
representations as to the accuracy or completeness of such
information. The sale of the Property as provided for
herein is made on an "AS IS" basis, and 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, or
fitness for a particular purpose, in respect of the
Property.
The provisions (d) - (f) above shall survive closing.
Buyer Initial: /s/ DM /s/ RCM
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
13. Closing.
(a) Before the closing date, Seller will deposit into
escrow an executed limited warranty deed conveying insurable
title of the Property to Buyer, subject to the encumbrances
contained in paragraph 8 above.
(b) On or before the closing date, Buyer will deposit into
escrow: the balance of the purchase price when required
under Section 4; any additional funds required of Buyer,
(pursuant to this agreement or any other agreement executed
by Buyer) to close escrow. Both parties will sign the Co-
Tenancy Agreement, and 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 in a position 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. Seller shall retain all remedies available to Seller at
law or in equity.
If Seller shall default, Buyer irrevocably waives any rights
to file a lis pendens, a specific performance action 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 Payment, deposited
the balance of the Second Payment for the purchase price into
escrow, performed all of its other obligations and satisfied all
conditions under this Agreement, and unconditionally notified
Seller that it stands ready to tender full performance, purchase
the Property and close escrow as per this Agreement, regardless
of any alleged default or misconduct by Seller. 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.
15. Buyer's Representations and Warranties.
a. 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 Seller or the Title Company may require and 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
Buyer Initial: /s/ DM /s/ RCM
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
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 Entire
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 Entire
Property.
If the cost of repair is less than $10,000.00, Buyer shall
be obligated to otherwise perform hereinunder with no
adjustment to the Purchase Price, reduction or abatement,
and Seller shall assign Seller's right, title and interest
in and to all insurance proceeds pro-rata in relation to the
Entire Property, subject to rights of any Tenant of the
Entire Property.
(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 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 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 Entire Property, subject to rights of any
Tenant of the Entire 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. Buyer's 1031 Tax Free Exchange.
While Seller acknowledges that Buyer is purchasing the
Property as "replacement property" to accomplish 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 JLM Corporation who will
act as Facilitator to perfect the 1031 exchange by preparing an
agreement of exchange of Real Property whereby JLM Corporation
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 to cooperate in the perfection of such an
exchange at no additional cost or expense or delay
Buyer Initial: /s/ DM /s/ RCM
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
in time. Buyer hereby indemnifies and holds Seller harmless from
any claims and/or actions resulting from said exchange. Pursuant
to the direction of JLM Corporation, Seller will deed the
Property to Buyer.
18. Cancellation
If any party elects to cancel this Contract because of any
breach by another party, 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
canceled unless the breach is cured within 13 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 13
days following the delivery of the notice to the escrow
agent, this Contract shall be canceled.
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 August 30, 1997
through no fault of Seller, Seller may either, 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:
Attention: Robert P. Johnson
AEI Net Lease Income & Growth Fund XX Limited Partnership
1300 Minnesota World Trade Center
30 E. 7th Street
St. Paul, MN 55101
If to Buyer:
Russell C. Mayer, Trustee
Dixie R. Mayer, Trustee
4919 Laurette Street
Torrance, CA 90503
Buyer Initial: /s/ DM /s/ RCM
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
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 five (5) business days from
receipt within which to accept this offer.
IN WITNESS WHEREOF, the Seller and Buyer have executed this
Agreement effective as of the day and year above first written.
BUYER: The Russell C. and Dixie R. Mayer Family Trust, dated
April 11, 1995.
By: /s/ Russell C Mayer
Russell C. Mayer, Trustee
By: /s/ Dixie Mayer
Dixie R. Mayer, Trustee
SELLER: AEI NET LEASE INCOME & GROWTH FUND XX LIMITED PARTNERSHIP,
a Minnesota limited partnership.
By: AEI Fund Management XX, Inc., its corporate general partner
By: /s/ Robert P Johnson
Robert P. Johnson, President
Buyer Initial: /s/ DM /s/ RCM
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
EXHIBIT "A"
ALL THAT TRACT or parcel of land lying and being in Land
Lots 688, 689,752 and 753 of the 17th District, 2nd Section
of Cobb County, Georgia, containing 1.071 acres, same being
more particularly described as follows:
TO FIND THE TRUE POINT OF BEGINNING, begin at the point of
intersection of the westerly Right-of-Way Line of South Cobb
Drive (Two-hundred (200') foot Right-of-Way) and of the
southerly Right-of-Way Line of Kenwood Road (Fifty(50') foot
Right-of-Way); thence traveling along the westerly Right-of-
Way Line of said South Cobb Drive South 11 degrees 59
minutes 32 seconds east a distance of 36.03 feet to a point
on said Right-of-Way Line; thence continuing along said
Right-of-Way Line south 09 degrees 19 minutes 41 seconds
east a distance of 166.01 feet to a point on said Right-of-
Way Line; thence continuing along said Right-of-Way Line
along a curve to the left an arc distance of 18.12 feet
(said arc being subtended by a chord bearing south 11
degrees 12 minutes 11 seconds east a chord distance of 18.12
feet and having a radius of 2,964.79 feet) to an iron pin
set on said Right-of-Way Line and at the southeast corner of
property now or formally owned by Wendy's International,
Inc., which iron pin set is the TRUE POINT OR BEGINNING;
FROM THE TRUE POINT OF BEGINNING as thus established
continuing along said Right-of-Way Line along a curve to the
left an arc distance of 161.96 feet (said arc being
subtended by a chord bearing south 12 degrees 56 minutes 36
seconds east a chord distance of 161.94 feet and having a
radius of 2,964.79 feet) to an iron pin set on said Right-of-
Way Line and at the northeast corner of the property now or
formerly owned by Checkers Restaurant; thence leaving said
Right-of-Way Line and traveling along the northwesterly line
of said Checkers property south 71 degrees 15 minutes 52
seconds west a distance of 221.74 feet to an iron pin set;
thence traveling north 18 degrees 44 minutes 08 seconds west
a distance of 131.18 feet to an iron pin set at the
southwest corner of said Wendy's property; thence traveling
along the southeasterly line of said Wendy's property south
82 degrees 28 minutes 25 seconds east a distance of 200.76
feet to an iron pin set, and the TRUE POINT OF BEGINNING.
ALL AS SHOWN on that certain survey for RTM Georgia, Inc.,
prepared by Federer-Ruppert & Associates, bearing the seal
of James W. Woolley, Georgia Registered Land Surveyor Number
1478, dated January 17, 1994, last revised May 10, 1994.
TOGETHER WITH all rights with respect to the above property
reserved in Limited Warranty Deed from Wilson Financial
Corporation, a Florida Corporation to Wendy's International,
Inc. an Ohio Corporation, dated December 26, 1989, filed for
record December 28, 1989 at 2:01 p.m., recorded in Deed Book
5590, Page 288, Records of Cobb County, Georgia.
TOGETHER WITH all rights with respect to the above property
reserved in that certain Limited Warranty Deed from American
Founders Life Insurance Company, a Texas corporation to
Robert G. Brown, dated June 8, 1992, filed for record June
9, 1992 at 10:21 a.m., recorded in Deed Book 6682, Page 118,
aforesaid Records.
TOGETHER WITH all rights with respect to the above property
set forth in Easement Grant by and between Wilson Financial
Corporation, a Florida corporation and Wendy's
International,.Inc., an Ohio corporation, dated December 26,
1989 at 2:01 p.m., recorded in Deed Book 5590, Page 291,
aforesaid Records; as amended b that certain Amendment to
easement Grant, dated June 30, 1993, filed for record July
1, 1993 at 2:15 p.m., recorded in Deed Book 7448, Page 421,
aforesaid Records.
TOGETHER WITH all rights with respect to the above property
set forth in Easement Agreement by and between American
Founders Life Insurance Company, a Texas corporation and
Robert G. Brown, dated June 8, 1992, filed for record June
9, 1992 at 10:21 a.m., recorded in Deed Book 6682, Page 123,
aforesaid Records; as amended by that certain Amendment to
Easement Agreement, dated June 30. 1993, filed for record
July 1, 1993 at 2:15 p.m., recorded in Deed book 7448, Page
433, aforesaid Records.
TOGETHER WITH all rights granted in that certain Sign
Easement by and between American Founders Life Insurance
Company, a Texas corporation and RTM Georgia, Inc., dated
June 30, 1993, filed for record July 1, 1993 at 2:15 p.m.,
recorded in Deed Book 7448, Page 467, aforesaid Records.
TOGETHER WITH all rights granted in that certain New
Driveway Easement Grant by and between American Founders
Life Insurance Company and RTM Georgia, Inc., dated June
30,1 993, filed for record July 1, 1993 at 2:15 p.m.,
recorded in Deed Book 7448, Page 450, aforesaid Records.
PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Arby's/Mrs. Winners Restaurant - Smyrna, GA)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 14th day of August , 1997, by and
between Russell C. Mayer, Trustee and Dixie R. Mayer, Trustee, or
their Successor Trustees of The Russell C. and Dixie R. Mayer
Trust, dated April 11, 1995 (hereinafter called "Mayer"), and AEI
Net Lease Income & Growth Fund XX Limited Partnership
(hereinafter called "Fund XX") (Mayer, Fund XX (and any other
Owner in Fee where the context so indicates) being hereinafter
sometimes collectively called "Co-Tenants" and referred to in the
neuter gender).
WITNESSETH:
WHEREAS, Fund XX presently owns an undivided 26.6851% interest in
and to, and Mayer presently owns an undivided 12.3188% interest
in and to, and Kuster presently owns an undivided 13.4236%
interest in and to, and the Mark A. Benson Living Trust presently
owns an undivided 15.8515% interest in and to and the John J.
Zeller Living Trust presently owns an undivided 19.4022% interest
in and to, and Margaret E. Brust Irrevocable Trust presently owns
an undivided 12.3188% interest (also referred to herein as Co-
Tenant) in and to, the land, situated in the City of Smyrna,
County of Cobb, and State of Georgia, (legally described upon
Exhibit A attached hereto and hereby made a part hereof) and in
and to the improvements located thereon (hereinafter called
"Premises");
WHEREAS, The parties hereto wish to provide for the orderly
operation and management of the Premises and Mayer's interest by
Fund XX; the continued leasing of space within the Premises; for
the distribution of income from and the pro-rata sharing in
expenses of the Premises.
NOW THEREFORE, in consideration of the purchase by Mayer of an
undivided interest in and to the Premises, for at least One
Dollar ($1.00) and other good and valuable consideration by the
parties hereto to one another in hand paid, the receipt and
sufficiency of which are hereby acknowledged, and of the mutual
covenants and agreements herein contained, it is hereby agreed by
and between the parties hereto, as follows:
1. The operation and management of the Premises shall be
delegated to Fund XX, or its designated agent, successors or
assigns. Provided, however, if Fund XX shall sell all of its
interest in the Premises, the duties and obligations of Fund XX
respecting management of the Premises as set forth herein,
including but not limited to paragraphs 2, 3, and 4 hereof, shall
be exercised by the holder or holders of a majority undivided co-
tenancy interest in the Premises. Except as hereinafter expressly
provided to the contrary, each of the parties hereto agrees to be
bound by the decisions of Fund XX with respect to all
administrative, operational and management matters of the
property comprising the Premises, including but not limited to
the management of the net lease agreement for the Premises. The
parties hereto hereby designate Fund XX as their sole and
exclusive agent to deal with any property agent or tenant and to
monitor, execute and enforce the terms of leases of space within
the Premises, including but not limited to any amendments,
consents to assignment, sublet, releases or modifications to
leases or guarantees of lease or easements affecting the
Premises, on behalf of Mayer. Only Fund XX may obligate Mayer
with respect to any expense for the Premises.
As further set forth in paragraph 2 hereof, Fund XX agrees to
require any Tenant of the Premises to name Mayer as an insured or
additional insured in all insurance policies provided for, or
contemplated by, any lease on the
Co-Tenant Initial: /s/ DM /s/ RCM
Co-Tenancy Agreement for Arby's/Mrs. Winners - Smyrna, GA
Premises. Fund XX shall use its best efforts to obtain
endorsements adding Co-Tenants to said policies from Tenant
within 30 days of commencement of this agreement. In any event,
Fund XX shall distribute any insurance proceeds it may receive,
to the extent consistent with any lease on the Premises, to the
Co-Tenants in proportion to their respective ownership of the
Premises.
2. Income, expenses and any net proceeds from a sale of the
Premises shall be allocated among the Co-Tenants in proportion to
their respective share(s) of ownership. Shares of net income
shall be pro-rated for any partial calendar years included within
the term of this Agreement. Fund XX may offset against, pay to
itself and deduct from any payment due to Mayer under this
Agreement, and may pay to itself the amount of Mayer's share of
any legitimate expenses of the Premises which are not paid by
Mayer to Fund XX or its assigns, within ten (10) days after
demand by Fund XX. In the event there is insufficient operating
income from which to deduct Mayer's unpaid share of operating
expenses, Fund XX may pursue any and all legal remedies for
collection.
Operating Expenses shall include all normal operating expense,
including but not limited to: maintenance, utilities, supplies,
labor, management, advertising and promotional expenses, salaries
and wages of rental and management personnel, leasing commissions
to third parties, a monthly accrual to pay insurance premiums,
real estate taxes, installments of special assessments and for
structural repairs and replacements, management fees, legal fees
and accounting fees, but excluding all operating expenses paid by
Tenant under terms of any lease agreement of the Premises.
Mayer has no requirement to, but has nonetheless, elected to
retain, and agrees to annually reimburse, Fund XX in the amount
of $595 for the expenses, direct and indirect, incurred by Fund
XX in providing quarterly accounting and distributions of Mayer's
share of net income and for tracking, reporting and assessing the
calculation of Mayer's share of operating expenses incurred from
the Premises. This invoice amount shall be pro-rated for partial
years and Mayer authorizes Fund XX to deduct such amount from
Mayer's share of revenue from the Premises. Mayer may terminate
this agreement respecting accounting and distributions in this
paragraph at any time and seek to collect its share of rental
stream directly from the tenant; however enforcement of all
provisions of the lease remains the sole right of Fund XX
pursuant to section 1 hereof. Fund XX may terminate its
obligation under this paragraph upon 30 days notice to Mayer
prior to the end of each anniversary hereof, unless agreed in
writing to the contrary.
3. Full, accurate and complete books of account shall be kept
in accordance with generally accepted accounting principles at
Fund XX's principal office, and each Co-Tenant shall have access
to such books and may inspect and copy any part thereof during
normal business hours. Within ninety (90) days after the end of
each calendar year during the term hereof, Fund XX shall prepare
an accurate income statement for the ownership of the Premises
for said calendar year and shall furnish copies of the same to
all Co-Tenants. Quarterly, as its share, Mayer shall be entitled
to receive 12.3188% of all items of income and expense generated
by the Premises. Upon receipt of said accounting, if the payments
received by each Co-Tenant pursuant to this Paragraph 3 do not
equal, in the aggregate, the amounts which each are entitled to
receive with respect to said calendar year pursuant to Paragraph
2 hereof, an appropriate adjustment shall be made so that each Co-
Tenant receives the amount to which it is entitled.
4. If Net Income from the Premises is less than $0.00 (i.e.,
the Premises operates at a loss), or if capital improvements,
repairs, and/or replacements, for which adequate reserves do not
exist, need to be made to the Premises, the Co-Tenants, upon
receipt of a written request therefor from Fund XX, shall, within
fifteen (15) business days after receipt of notice, make payment
to Fund XX sufficient to pay said net operating losses and to
provide necessary operating capital for the premises and to pay
for said capital improvements, repairs and/or replacements, all
in proportion to their undivided interests in and to the
Premises.
Co-Tenant Initial: /s/ DM /s/ RCM
Co-Tenancy Agreement for Arby's/Mrs. Winners - Smyrna, GA
5. Co-Tenants may, at any time, sell, finance, or otherwise
create a lien upon their interest in the Premises but only upon
their interest and not upon any part of the interest held, or
owned, by any other Co-Tenant. All Co-Tenants reserve the right
to escrow proceeds from a sale of their interests in the Premises
to obtain tax deferral by the purchase of replacement property.
6. If any Co-Tenant shall be in default with respect to any of
its obligations hereunder, and if said default is not corrected
within thirty (30) days after receipt by said defaulting Co-
Tenant of written notice of said default, or within a reasonable
period if said default does not consist solely of a failure to
pay money, the remaining Co-Tenant(s) may resort to any available
remedy to cure said default at law, in equity, or by statute, or
set forth herein.
7. This property management agreement shall continue in full
force and effect and shall bind and inure to the benefit of the
Co-Tenant and their respective heirs, executors, administrators,
personal representatives, successors and permitted assigns until
May 31, 2024 or upon the sale of the entire fee simple interest
in the Premises in accordance with the terms hereof and proper
disbursement of the proceeds thereof, whichever shall first
occur. Unless specifically identified as a personal contract
right or obligation herein, this agreement shall run with any
interest in the Property and with the title thereto. Once any
person, party or entity has ceased to have an interest in fee in
any portion of the Entire Property, it shall not be bound by,
subject to or benefit from the terms hereof; but its heirs,
executors, administrators, personal representatives, successors
or assigns, as the case may be, shall be substituted for it
hereunder. Mayer agrees to notify Fund XX upon the appointment
of any successor trustee, or any amendment of The Russell C. and
Dixie Mayer Trust affecting the powers of the Trustee to manage
or dispose of the Mayer's interest in the Premises.
8. Any notice or election required or permitted to be given or
served by any party hereto to, or upon any other, shall be deemed
given or served in accordance with the provisions of this
Agreement, if said notice or elections addressed as follows;
If to Fund XX:
AEI Net Lease Income & Growth Fund XX Limited Partnership
1300 Minnesota World Trade Center
30 E. Seventh Street
St. Paul, Minnesota 55101
If to Brust:
Margaret E. Brust, Trustee
772 N. Craven St.
Monmouth, OR 97361
If to Zeller:
John J. Zeller, Trustee
522 U.S. Highway 89
Vaughn, MT 59487
If to Benson:
Mark A. Benson, Trustee
745 Bowhill Rd.
Hillsborough, CA 94010
Co-Tenant Initial: /s/ DM /s/ RCM
Co-Tenancy Agreement for Arby's/Mrs. Winners - Smyrna, GA
If to Kuster:
Anton Kuster, Jr.
4214 Danbury
Amarillo, TX 79109
If to Mayer:
Russell C. Mayer, Trustee
Dixie R. Mayer, Trustee
4919 Laurette Street
Torrance, CA 90503
Each mailed notice or election shall be deemed to have been given
to, or served upon, the party to which addressed on the date the
same is deposited in the United States certified mail, return
receipt requested, postage prepaid, or given to a nationally
recognized courier service guaranteeing overnight delivery as
properly addressed in the manner above provided. Any party hereto
may change its address for the service of notice hereunder by
delivering written notice of said change to the other parties
hereunder, in the manner above specified, at least ten (10) days
prior to the effective date of said change.
9. This Agreement shall not create any partnership or joint
venture among or between the Co-Tenants or any of them, and the
only relationship among and between the Co-Tenants hereunder
shall be that of owners of the premises as tenants in common
subject to the terms hereof.
10. The unenforceability or invalidity of any provision or
provisions of this Agreement as to any person or circumstances
shall not render that provision, nor any other provision hereof,
unenforceable or invalid as to any other person or circumstances,
and all provisions hereof, in all other respects, shall remain
valid and enforceable.
11. In the event any litigation arises between the parties
hereto relating to this Agreement, or any of the provisions
hereof, the party prevailing in such action shall be entitled to
receive from the losing party, in addition to all other relief,
remedies and damages to which it is otherwise entitled, all
reasonable costs and expenses, including reasonable attorneys'
fees, incurred by the prevailing party in connection with said
litigation.
IN WITNESS WHEREOF, The parties hereto have caused this Agreement
to be executed and delivered, as of the day and year first above
written.
Mayer The Russell C. and Dixie R. Mayer Family Trust, dated April 11, 1995
By: /s/ Russell C Mayer
Russell C. Mayer, Trustee
By: /s/ Dixie Mayer
Dixie R. Mayer, Trustee
Witness By: /s/ Steven E Kus
Witness By: /s/ Steven E Kus
STATE OF California)
) ss
COUNTY OF Los Angeles)
The foregoing instrument was acknowledged before me, a
Notary Public in and for the County and State aforesaid,
this 1 day of August, 1997, by Patricia A Walker, Notary
Public.
Fund XX AEI Net Lease Income & Growth Fund XX Limited Partnership
By: AEI Fund Management XX, Inc., its corporate general partner
By: /s/ Robert P Johnson
Robert P. Johnson, President
Witness By:/s/ Dawn E Campbell
Witness By: /s/ Jeni K Henrickson
State of Minnesota )
) ss.
County of Ramsey )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 14th day of August,
1997, Robert P. Johnson, President of AEI Fund Management XX,
Inc., corporate general partner of AEI Real Estate Fund XX
Limited Partnership, who executed the foregoing instrument in
said capacity and on behalf of the corporation in its capacity as
corporate general partner, on behalf of said limited partnership.
/s/ Linda A Bisdorf
Notary Public
[notary seal]
Co-Tenant Initial: /s/ DM /s/ RCM
Co-Tenancy Agreement for Arby's/Mrs. Winners - Smyrna, GA
EXHIBIT "A"
ALL THAT TRACT or parcel of land lying and being in Land
Lots 688, 689,752 and 753 of the 17th District, 2nd Section
of Cobb County, Georgia, containing 1.071 acres, same being
more particularly described as follows:
TO FIND THE TRUE POINT OF BEGINNING, begin at the point of
intersection of the westerly Right-of-Way Line of South Cobb
Drive (Two-hundred (200') foot Right-of-Way) and of the
southerly Right-of-Way Line of Kenwood Road (Fifty(50') foot
Right-of-Way); thence traveling along the westerly Right-of-
Way Line of said South Cobb Drive South 11 degrees 59
minutes 32 seconds east a distance of 36.03 feet to a point
on said Right-of-Way Line; thence continuing along said
Right-of-Way Line south 09 degrees 19 minutes 41 seconds
east a distance of 166.01 feet to a point on said Right-of-
Way Line; thence continuing along said Right-of-Way Line
along a curve to the left an arc distance of 18.12 feet
(said arc being subtended by a chord bearing south 11
degrees 12 minutes 11 seconds east a chord distance of 18.12
feet and having a radius of 2,964.79 feet) to an iron pin
set on said Right-of-Way Line and at the southeast corner of
property now or formally owned by Wendy's International,
Inc., which iron pin set is the TRUE POINT OR BEGINNING;
FROM THE TRUE POINT OF BEGINNING as thus established
continuing along said Right-of-Way Line along a curve to the
left an arc distance of 161.96 feet (said arc being
subtended by a chord bearing south 12 degrees 56 minutes 36
seconds east a chord distance of 161.94 feet and having a
radius of 2,964.79 feet) to an iron pin set on said Right-of-
Way Line and at the northeast corner of the property now or
formerly owned by Checkers Restaurant; thence leaving said
Right-of-Way Line and traveling along the northwesterly line
of said Checkers property south 71 degrees 15 minutes 52
seconds west a distance of 221.74 feet to an iron pin set;
thence traveling north 18 degrees 44 minutes 08 seconds west
a distance of 131.18 feet to an iron pin set at the
southwest corner of said Wendy's property; thence traveling
along the southeasterly line of said Wendy's property south
82 degrees 28 minutes 25 seconds east a distance of 200.76
feet to an iron pin set, and the TRUE POINT OF BEGINNING.
ALL AS SHOWN on that certain survey for RTM Georgia, Inc.,
prepared by Federer-Ruppert & Associates, bearing the seal
of James W. Woolley, Georgia Registered Land Surveyor Number
1478, dated January 17, 1994, last revised May 10, 1994.
TOGETHER WITH all rights with respect to the above property
reserved in Limited Warranty Deed from Wilson Financial
Corporation, a Florida Corporation to Wendy's International,
Inc. an Ohio Corporation, dated December 26, 1989, filed for
record December 28, 1989 at 2:01 p.m., recorded in Deed Book
5590, Page 288, Records of Cobb County, Georgia.
TOGETHER WITH all rights with respect to the above property
reserved in that certain Limited Warranty Deed from American
Founders Life Insurance Company, a Texas corporation to
Robert G. Brown, dated June 8, 1992, filed for record June
9, 1992 at 10:21 a.m., recorded in Deed Book 6682, Page 118,
aforesaid Records.
TOGETHER WITH all rights with respect to the above property
set forth in Easement Grant by and between Wilson Financial
Corporation, a Florida corporation and Wendy's
International,.Inc., an Ohio corporation, dated December 26,
1989 at 2:01 p.m., recorded in Deed Book 5590, Page 291,
aforesaid Records; as amended b that certain Amendment to
easement Grant, dated June 30, 1993, filed for record July
1, 1993 at 2:15 p.m., recorded in Deed Book 7448, Page 421,
aforesaid Records.
TOGETHER WITH all rights with respect to the above property
set forth in Easement Agreement by and between American
Founders Life Insurance Company, a Texas corporation and
Robert G. Brown, dated June 8, 1992, filed for record June
9, 1992 at 10:21 a.m., recorded in Deed Book 6682, Page 123,
aforesaid Records; as amended by that certain Amendment to
Easement Agreement, dated June 30. 1993, filed for record
July 1, 1993 at 2:15 p.m., recorded in Deed book 7448, Page
433, aforesaid Records.
TOGETHER WITH all rights granted in that certain Sign
Easement by and between American Founders Life Insurance
Company, a Texas corporation and RTM Georgia, Inc., dated
June 30, 1993, filed for record July 1, 1993 at 2:15 p.m.,
recorded in Deed Book 7448, Page 467, aforesaid Records.
TOGETHER WITH all rights granted in that certain New
Driveway Easement Grant by and between American Founders
Life Insurance Company and RTM Georgia, Inc., dated June
30,1 993, filed for record July 1, 1993 at 2:15 p.m.,
recorded in Deed Book 7448, Page 450, aforesaid Records.
PURCHASE AGREEMENT
Arby's/Mrs. Winners Restaurant - Smyrna, GA
This AGREEMENT, entered into effective as of the 9 of September,
1997 .
l. Parties. Seller is AEI Net Lease Income & Growth Fund XX
Limited Partnership which owns an undivided 26.6851% interest in
the fee title to that certain real property legally described in
the attached Exhibit "A" (the "Entire Property") Buyer is Nick
DeVito, Inc., a California Corporation ("Buyer"). Seller wishes
to sell and Buyer wishes to buy a portion as Tenant in Common of
Seller's interest in the Entire Property.
2. Property. The Property to be sold to Buyer in this transaction
consists of an undivided 11.0405% interest (hereinafter, simply
the "Property") as Tenant in Common in the Entire Property.
3. Purchase Price . The purchase price for this percentage
interest in the Entire Property is $190,000 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 $5,000
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, or otherwise
disbursed pursuant to the terms of this Agreement.
(b) Buyer will deposit the balance of the purchase price,
$185,000 (the "Second Payment") into escrow in sufficient
time to allow escrow to close on the closing date.
5. Closing Date. Escrow shall close on or before October 9,
1997.
6. Due Diligence. Buyer will have until the expiration of the
fifth business day (The "Review Period") after delivery of each
of following items, to be supplied by Seller, to conduct all of
its inspections and due diligence and satisfy itself regarding
each item, the Property, and this transaction. Buyer agrees to
indemnify and hold Seller harmless for any loss or damage to the
Leased Premises or persons caused by Buyer or its agents arising
out of such physical inspections of the Entire Property.
(a) The original and one copy of a title insurance
commitment for an Owner's Title insurance policy (see
paragraph 8 below).
(b) Copies of a Certificate of Occupancy or other such
document certifying completion and granting permission to
permanently occupy the improvements on the Entire Property
as are in Seller's possession.
(c) Copies of an "as built" survey of the Property done
concurrent with Seller's acquisition of the Property.
(d) Lease (as set forth in paragraph 11(a) below) of the
Entire Property showing occupancy date, lease expiration
date, rent, and Guarantys, if any, accompanied by such
tenant financial statements as may have been provided most
recently to Seller by the Tenant and/or Guarantors.
Buyer Initial: /s/ V.D.F.
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
It is a contingency upon Seller's obligations hereunder that
two (2) originals of Co-Tenancy Agreement in the form attached
hereto duly executed by Buyer and Seller and dated on escrow
closing date be delivered to the Seller on the Closing date.
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
any 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 sections 15(a) 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.
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 have canceled this Agreement and
relinquish all rights in and to the Property unless Buyer makes
the Second Payment when required. If this Agreement is not
canceled 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 Seller and funds deposited
in escrow upon acceptance of this Agreement by both parties. The
escrow holder will be a nationally-recognized escrow company
selected by Seller. 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 a title
company selected by Seller 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; and other items of record
disclosed to Buyer during the contingency period.
Buyer shall be allowed five (5) 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, the Seller shall
be allowed eighty (80) days to 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 shall be returned and
this Agreement shall be null and void and of no further force and
effect.
Pending correction of title, the payments 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.
Buyer Initial: /s/ V.D.F.
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
9. Closing Costs. Seller will pay one-half of escrow fees, the
cost of the title commitment and any brokerage commissions
payable except those brokerage commissions incurred by Buyer.
The Buyer will pay the cost of issuing a Standard Owners Title
Insurance Policy in the full amount of the purchase price, if
Buyer shall decide to purchase the same. Buyer will pay all
recording fees, one-half of the escrow fees, and the cost of an
update to the Survey in Sellers possession (if an update is
required by Buyer.) 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 Entire Property (of which the Property is a
part) is subject to a triple net lease (as further set forth
in paragraph 11(a)(i), the parties acknowledge that there
shall be no need for a real estate tax proration. However,
Seller represents that to the best of its knowledge, 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 levied and pending special
assessments existing on the date of Closing shall be the
responsibility of Buyer and Seller in proportion to their
respective Tenant in Common interests. Seller and 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 Entire Property.
(b) All income and all operating expenses from the Entire
Property 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, and Buyer
shall be entitled to its proportionate share of all income
earned and shall be responsible for its proportionate share
of 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:
(i) Except for the lease in existence between AEI Net Lease
Income & Growth Fund XX Limited Partnership and RTM Georgia,
Inc.("Tenant"), dated May 16, 1994, Seller is not aware of
any leases of the Property. The above referenced lease
agreement has an option to purchase in favor of the Tenant
as set forth in article 34 of said lease agreement. The
above referenced lease agreement also has a first right of
refusal in favor of the Tenant as set forth in Article 35 of
said lease agreement, which right shall apply to any
disposition of the Property by Buyer after this transaction.
(ii) It is not aware of any pending litigation or
condemnation proceedings against the Property or Seller's
interest in the Property.
(iii) Except as previously disclosed to Buyer and as set
forth in paragraph (b) below, Seller is not aware of any
contracts Seller has executed that would be binding on Buyer
after the closing date.
(b) Provided that Buyer performs its obligations when
required, 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, which will not
be unreasonably withheld. However, Buyer acknowledges that
Seller retains the right both prior to and after the Closing
Date to freely transfer all or a portion of Seller's
remaining undivided interest in the Entire Property,
provided such sale shall not encumber the Property
Buyer Initial: /s/ V.D.F.
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
being purchased by Buyer in violation of the terms hereof or
the contemplated Co-Tenancy Agreement.
12. Disclosures.
(a) To the best of Seller's knowledge: there are now, and
at the Closing there will be, no material, physical or
mechanical defects of the Property, including, without
limitation, the plumbing, heating, air conditioning,
ventilating, electrical systems, and 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.
(b) To the best of Seller's knowledge: the use and
operation of the Property now is, and at the time of Closing
will be, 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.
(c) Seller knows of no facts nor has Seller failed to
disclose to Buyer any fact known to Seller which would
prevent the use and operation of the Property after the
Closing in the manner in which the Property has been used
and operated prior to the date of this Agreement.
(d) 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 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 negligence or intentional
misconduct in violation of applicable state or federal law
or regulation.
(e) 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.
(f) Buyer acknowledges that, having been given the
opportunity to inspect the Property and such financial
information on the Tenant and Guarantors of the Lease 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 further acknowledges that the
information provided and to be provided by Seller with
respect to the Property and to the Tenant and Guarantors of
Lease was obtained from a variety of sources and Seller
neither (a) has made independent investigation or
verification of such information, or (b) makes any
representations as to the accuracy or completeness of such
information. The sale of the Property as provided for
herein is made on an "AS IS" basis, and 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, or
fitness for a particular purpose, in respect of the
Property.
The provisions (d) - (f) above shall survive closing.
Buyer Initial: /s/ V.D.F.
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
13. Closing.
(a) Before the closing date, Seller will deposit into
escrow an executed limited warranty deed conveying insurable
title of the Property to Buyer, subject to the encumbrances
contained in paragraph 8 above.
(b) On or before the closing date, Buyer will deposit into
escrow: the balance of the purchase price when required
under Section 4; any additional funds required of Buyer,
(pursuant to this agreement or any other agreement executed
by Buyer) to close escrow. Both parties will sign the Co-
Tenancy Agreement, and 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 in a position 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. Seller shall retain all remedies available to Seller at
law or in equity.
If Seller shall default, Buyer irrevocably waives any rights
to file a lis pendens, a specific performance action 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 Payment, deposited
the balance of the Second Payment for the purchase price into
escrow, performed all of its other obligations and satisfied all
conditions under this Agreement, and unconditionally notified
Seller that it stands ready to tender full performance, purchase
the Property and close escrow as per this Agreement, regardless
of any alleged default or misconduct by Seller. 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.
15. Buyer's Representations and Warranties.
a. 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 Seller or the Title Company may require and 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
Buyer Initial: /s/ V.D.F.
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
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 Entire
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 Entire
Property.
If the cost of repair is less than $10,000.00, Buyer shall
be obligated to otherwise perform hereinunder with no
adjustment to the Purchase Price, reduction or abatement,
and Seller shall assign Seller's right, title and interest
in and to all insurance proceeds pro-rata in relation to the
Entire Property, subject to rights of any Tenant of the
Entire Property.
(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 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 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 Entire Property, subject to rights of any
Tenant of the Entire 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. Buyer's 1031 Tax Free Exchange.
While Seller acknowledges that Buyer is purchasing the
Property as "replacement property" to accomplish 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 Exodus Exchange, Inc. who
will act as Facilitator to perfect the 1031 exchange by preparing
an agreement of exchange of Real Property whereby Exodus
Exchange, Inc. 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 to cooperate in the perfection
of such an exchange at no additional cost or expense or delay in
time. Buyer hereby indemnifies and holds Seller harmless
Buyer Initial: /s/ V.D.F.
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
from any claims and/or actions resulting from said exchange.
Pursuant to the direction of Exodus Exchange, Inc., Seller will
deed the Property to Buyer.
18. Cancellation
If any party elects to cancel this Contract because of any
breach by another party, 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
canceled unless the breach is cured within 13 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 13
days following the delivery of the notice to the escrow
agent, this Contract shall be canceled.
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 October 9, 1997
through no fault of Seller, Seller may either, 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:
Attention: Robert P. Johnson
AEI Net Lease Income & Growth Fund XX Limited Partnership
1300 Minnesota World Trade Center
30 E. 7th Street
St. Paul, MN 55101
If to Buyer:
Vito DeVito Francesco
P.O. Box 591
Ontario, CA 91762
Buyer Initial: /s/ V.D.F.
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
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 five (5) business days from
receipt within which to accept this offer.
IN WITNESS WHEREOF, the Seller and Buyer have executed this
Agreement effective as of the day and year above first written.
BUYER: Nick DeVito, Inc.
By: /s/ Vito DeVito Francesco
Vito DeVito Francesco, Secretary/Treasurer
SELLER: AEI NET LEASE INCOME & GROWTH FUND XX LIMITED PARTNERSHIP,
a Minnesota limited partnership.
By: AEI Fund Management XX, Inc., its corporate general partner
By: /s/ Robert P Johnson
Robert P. Johnson, President
Buyer Initial: /s/ V.D.F.
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
EXHIBIT "A"
ALL THAT TRACT or parcel of land lying and being in Land
Lots 688, 689,752 and 753 of the 17th District, 2nd Section
of Cobb County, Georgia, containing 1.071 acres, same being
more particularly described as follows:
TO FIND THE TRUE POINT OF BEGINNING, begin at the point of
intersection of the westerly Right-of-Way Line of South Cobb
Drive (Two-hundred (200') foot Right-of-Way) and of the
southerly Right-of-Way Line of Kenwood Road (Fifty(50') foot
Right-of-Way); thence traveling along the westerly Right-of-
Way Line of said South Cobb Drive South 11 degrees 59
minutes 32 seconds east a distance of 36.03 feet to a point
on said Right-of-Way Line; thence continuing along said
Right-of-Way Line south 09 degrees 19 minutes 41 seconds
east a distance of 166.01 feet to a point on said Right-of-
Way Line; thence continuing along said Right-of-Way Line
along a curve to the left an arc distance of 18.12 feet
(said arc being subtended by a chord bearing south 11
degrees 12 minutes 11 seconds east a chord distance of 18.12
feet and having a radius of 2,964.79 feet) to an iron pin
set on said Right-of-Way Line and at the southeast corner of
property now or formally owned by Wendy's International,
Inc., which iron pin set is the TRUE POINT OR BEGINNING;
FROM THE TRUE POINT OF BEGINNING as thus established
continuing along said Right-of-Way Line along a curve to the
left an arc distance of 161.96 feet (said arc being
subtended by a chord bearing south 12 degrees 56 minutes 36
seconds east a chord distance of 161.94 feet and having a
radius of 2,964.79 feet) to an iron pin set on said Right-of-
Way Line and at the northeast corner of the property now or
formerly owned by Checkers Restaurant; thence leaving said
Right-of-Way Line and traveling along the northwesterly line
of said Checkers property south 71 degrees 15 minutes 52
seconds west a distance of 221.74 feet to an iron pin set;
thence traveling north 18 degrees 44 minutes 08 seconds west
a distance of 131.18 feet to an iron pin set at the
southwest corner of said Wendy's property; thence traveling
along the southeasterly line of said Wendy's property south
82 degrees 28 minutes 25 seconds east a distance of 200.76
feet to an iron pin set, and the TRUE POINT OF BEGINNING.
ALL AS SHOWN on that certain survey for RTM Georgia, Inc.,
prepared by Federer-Ruppert & Associates, bearing the seal
of James W. Woolley, Georgia Registered Land Surveyor Number
1478, dated January 17, 1994, last revised May 10, 1994.
TOGETHER WITH all rights with respect to the above property
reserved in Limited Warranty Deed from Wilson Financial
Corporation, a Florida Corporation to Wendy's International,
Inc. an Ohio Corporation, dated December 26, 1989, filed for
record December 28, 1989 at 2:01 p.m., recorded in Deed Book
5590, Page 288, Records of Cobb County, Georgia.
TOGETHER WITH all rights with respect to the above property
reserved in that certain Limited Warranty Deed from American
Founders Life Insurance Company, a Texas corporation to
Robert G. Brown, dated June 8, 1992, filed for record June
9, 1992 at 10:21 a.m., recorded in Deed Book 6682, Page 118,
aforesaid Records.
TOGETHER WITH all rights with respect to the above property
set forth in Easement Grant by and between Wilson Financial
Corporation, a Florida corporation and Wendy's
International,.Inc., an Ohio corporation, dated December 26,
1989 at 2:01 p.m., recorded in Deed Book 5590, Page 291,
aforesaid Records; as amended b that certain Amendment to
easement Grant, dated June 30, 1993, filed for record July
1, 1993 at 2:15 p.m., recorded in Deed Book 7448, Page 421,
aforesaid Records.
TOGETHER WITH all rights with respect to the above property
set forth in Easement Agreement by and between American
Founders Life Insurance Company, a Texas corporation and
Robert G. Brown, dated June 8, 1992, filed for record June
9, 1992 at 10:21 a.m., recorded in Deed Book 6682, Page 123,
aforesaid Records; as amended by that certain Amendment to
Easement Agreement, dated June 30. 1993, filed for record
July 1, 1993 at 2:15 p.m., recorded in Deed book 7448, Page
433, aforesaid Records.
TOGETHER WITH all rights granted in that certain Sign
Easement by and between American Founders Life Insurance
Company, a Texas corporation and RTM Georgia, Inc., dated
June 30, 1993, filed for record July 1, 1993 at 2:15 p.m.,
recorded in Deed Book 7448, Page 467, aforesaid Records.
TOGETHER WITH all rights granted in that certain New
Driveway Easement Grant by and between American Founders
Life Insurance Company and RTM Georgia, Inc., dated June
30,1 993, filed for record July 1, 1993 at 2:15 p.m.,
recorded in Deed Book 7448, Page 450, aforesaid Records.
PURCHASE AGREEMENT
Applebee's Restaurant - Middletown, OH
This AGREEMENT, entered into effective as of the 9 of September,
1997 .
l. Parties. Seller is AEI Net Lease Income & Growth Fund XX
Limited Partnership which presently owns an undivided 93.96628%
interest in the fee title to that certain real property legally
described in the attached Exhibit "A" (the "Entire Property").
Buyer is Nick DeVito, Inc., a California Corporation, ("Buyer").
Seller wishes to sell and Buyer wishes to buy a portion as Tenant
in Common of Seller's interest in the Entire Property.
2. Property. The Property to be sold to Buyer in this transaction
consists of an undivided 18.6076 percentage interest
(hereinafter, simply the "Property") as Tenant in Common in the
Entire Property.
3. Purchase Price . The purchase price for this percentage
interest in the Entire Property is $305,000 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 $5,000
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,
$300,000 (the "Second Payment") into escrow in sufficient
time to allow escrow to close on the closing date.
5. Closing Date. Escrow shall close on or before October 9,
1997.
6. Due Diligence. Buyer will have until the expiration of the
fifth business day (The "Review Period") after delivery of each
of following items, to be supplied by Seller, to conduct all of
its inspections and due diligence and satisfy itself regarding
each item, the Property, and this transaction. Buyer agrees to
indemnify and hold Seller harmless for any loss or damage to the
Entire Property or persons caused by Buyer or its agents arising
out of such physical inspections of the Entire Property.
(a) The original and one copy of a title insurance
commitment for an Owner's Title insurance policy (see
paragraph 8 below).
(b) Copies of a Certificate of Occupancy or other such
document certifying completion and granting permission to
permanently occupy the improvements on the Entire Property
as are in Seller's possession.
(c) Copies of an "as built" survey of the Entire Property
done concurrent with Seller's acquisition of the Property.
(d) Lease (as further set forth in paragraph 11(a) below) of
the Entire Property showing occupancy date, lease expiration
date, rent, and Guarantys, if any, accompanied by such
tenant financial statements as may have been provided most
recently to Seller by the Tenant and/or Guarantors.
Buyer Initial: /s/ V.D.F.
Purchase Agreement for Applebee's - Middletown, OH
It is a contingency upon Seller's obligations hereunder that
two (2) copies of Co-Tenancy Agreement in the form attached
hereto duly executed by Buyer and Seller and dated on escrow
closing date be delivered to the Seller on the closing date.
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 sections 15(a) 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.
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 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 Second
Payment is made when required, all of Buyer's conditions and
contingencies will be deemed satisfied.
7. Escrow. Escrow shall be opened by Seller and funds deposited
in escrow upon acceptance of this agreement by both parties. The
escrow holder will be a nationally-recognized escrow company
selected by Seller. 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 a
title company selected by Seller 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 definded in paragraph 11 below;
and other items of record disclosed to Buyer during the Review
Period.
Buyer shall be allowed five (5) 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, the Seller shall
be allowed eighty (80) days to 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 shall be returned and
this Agreement shall be null and void and of no further force and
effect.
Pending correction of title, the payments 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.
Buyer Initial: /s/ V.D.F.
Purchase Agreement for Applebee's - Middletown, OH
9. Closing Costs. Seller will pay one-half of escrow fees,
the cost of the title commitment and any brokerage commissions
payable. The Buyer will pay the cost of issuing a Standard
Owners Title Insurance Policy in the full amount of the purchase
price, if Buyer shall decide to purchase the same. Buyer will
pay all recording fees, one-half of the escrow fees, and the cost
of an update to the Survey in Sellers possession (if an update is
required by Buyer.) 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 Entire Property (of which the Property is a
part) is subject to a triple net lease (as further set forth
in paragraph 11(a)(i), the parties acknowledge that there
shall be no need for a real estate tax proration. However,
Seller represents that to the best of its knowledge, 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 and Seller
in proportion to their respective Tenant in Common
interests, 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.
Seller and 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 Entire Property.
(b) All income and all operating expenses from the Entire
Property 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, and Buyer
shall be entitled to its proportionate share of all income
earned and shall be responsible for its proportionate share
of all operating expenses of the Entire 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:
(i) Except for the lease in existence between AEI Net Lease
Income & Growth Fund XX Limited Partnership and Thomas & King,
Inc. dated July 15, 1994, Seller is not aware of any leases of
the Property. The above referenced lease agreement has an option
to purchase in favor of the Tenant as set forth in Article 34 of
said lease agreement.
(ii) It is not aware of any pending litigation or
condemnation proceedings against the Property or Seller's
interest in the Property.
(iii) Except as previously disclosed to Buyer and as set
forth in paragraph (b) below, Seller is not aware of any
contracts Seller has executed that would be binding on Buyer
after the closing date.
(b) Provided that Buyer performs its obligations when
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.
However, Buyer acknowledges that Seller retains the right
both prior to and after the Closing Date to freely transfer
all or a portion of Seller's remaining undivided interest in
the Entire Property, provided such sale shall not encumber
the Property being purchased by Buyer in violation of the
terms hereof or the contemplated Co-Tenancy Agreement.
Buyer Initial: /s/ V.D.F.
Purchase Agreement for Applebee's - Middletown, OH
12. Disclosures.
(a) To the best of Seller's knowledge: there are now, and
at the Closing there will be, no material, physical or
mechanical defects of the Property, including, without
limitation, the plumbing, heating, air conditioning,
ventilating, electrical systems, and 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.
(b) To the best of Seller's knowledge: the use and
operation of the Property now is, and at the time of Closing
will be, 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.
(c) Seller knows of no facts nor has Seller failed to
disclose to Buyer any fact known to Seller which would
prevent Buyer from using and operating the Property after
the Closing in the manner in which the Property has been
used and operated prior to the date of this Agreement.
(d) 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 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.
(e) 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.
(f) Buyer acknowledges that, having been given the
opportunity to inspect the Property and such financial
information on the Lessee and Guarantors of the Lease 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 further acknowledges that the
information provided and to be provided by Seller with
respect to the Property and to the Lessee and Guarantors of
Lease was obtained from a variety of sources and Seller
neither (a) has made independent investigation or
verification of such information, or (b) makes any
representations as to the accuracy or completeness of such
information. The sale of the Property as provided for
herein is made on an "AS IS" basis, and 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, or
fitness for a particular purpose, in respect of the
Property.
The provisions (d) - (f) above shall survive closing.
13. Closing.
Buyer Initial: /s/ V.D.F.
Purchase Agreement for Applebee's - Middletown, OH
(a) Before the closing date, Seller will deposit into
escrow an executed limited warranty deed conveying insurable
title of the Property to Buyer, subject to the encumbrances
contained in paragraph 8 above.
(b) On or before the closing date, Buyer will deposit into
escrow: the balance of the purchase price when required
under Section 4; 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 escrow holder any other documents reasonably
required by the escrow holder to close escrow.
(c) On the closing date, if escrow is in a position 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, Buyer irrevocably waives any rights
to file a lis pendens, a specific performance action 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 Payment, deposited
the balance of the Second Payment for the purchase price into
escrow, performed all of its other obligations and satisfied all
conditions under this Agreement, and unconditionally notified
Seller that it stands ready to tender full performance, purchase
the Property and close escrow as per this Agreement, regardless
of any alleged default or misconduct by Seller. 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.
15. Buyer's Representations and Warranties.
a. 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 Seller or the Title Company may require and 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.
Buyer Initial: /s/ V.D.F.
Purchase Agreement for Applebee's - Middletown, OH
16. Damages, Destruction and Eminent Domain.
(a) If, prior to closing, the Property or any part thereof
should 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 Entire 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 Entire Property.
If the cost of repair is less than $10,000.00, Buyer shall
be obligated to otherwise perform hereinunder with no
adjustment to the Purchase Price, reduction or abatement,
and Seller shall assign Seller's right, title and interest
in and to all insurance proceeds pro-rata in relation to the
Entire Property, subject to rights of any Tenant of the
Entire Property.
(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 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 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 Entire Property, subject to rights of any
Tenant of the Entire 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. Buyer's 1031 Tax Free Exchange.
While Seller acknowledges that Buyer is purchasing the
Property as "replacement property" to accomplish 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 Exodus Exchange, Inc. who
will act as Accommodator to perfect the 1031 exchange by
preparing an agreement of exchange of Real Property whereby
Exodus Exchange, Inc. 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 Exodus Exchange, Inc., Seller will deed the property
to Buyer.
Buyer Initial: /s/ V.D.F.
Purchase Agreement for Applebee's - Middletown, OH
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 13 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 13 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 October 9, 1997,
through no fault of Seller, Seller may either, 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:
Attention: Robert P. Johnson
AEI Net Lease Income & Growth Fund XX Limited Partnership
1300 Minnesota World Trade Center
30 E. 7th Street
St. Paul, MN 55101
Buyer Initial: /s/ V.D.F.
Purchase Agreement for Applebee's - Middletown, OH
If to Buyer:
Vito DeVito Francesco
P.O. Box 591
Ontario, CA 91762
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 five (5) business days from
receipt within which to accept this offer.
IN WITNESS WHEREOF, the Seller and Buyer have executed this
Agreement effective as of the day and year above first written.
BUYER: NICK DEVITO, INC.
By: /s/ Vito DeVito Francesco
Vito DeVito Francesco, Secretary/Treasurer
WITNESS:
/s/ Warren Stewart
Warren Stewart
(Print Name)
WITNESS:
/s/ Sharon Rose
Sharon Rose
(Print Name)
Buyer Initial: /s/ V.D.F.
Purchase Agreement for Applebee's - Middletown, OH
SELLER: AEI NET LEASE INCOME & GROWTH FUND XX LIMITED PARTNERSHIP
a Minnesota limited partnership
By: AEI Fund Management XX Inc., its corporate general partner
By: /s/ Robert P Johnson
Robert P. Johnson, President
WITNESS:
/s/ Dawn E Campbell
Dawn E Campbell
(Print Name)
WITNESS:
/s/ Jennifer Seck
Jennifer Seck
(Print Name)
Buyer Initial: /s/ V.D.F.
Purchase Agreement for Applebee's - Middletown, OH
EXHIBIT "A"
Situated in the State of Ohio, County of Warren, City of
Middletown, Section 3, Town 2 East, Range 4 North, Franklin
Township;
Being Lot Number Five (5) of MIDDLETOWN CROSSING, as the same is
numbered and delineated upon the recorded plat thereof, of record
in Plat Book 27, pages 15 and 16, Recorder's Office, Warren
Coutny, Ohio.
Subject to all covenants, conditions, restrictions and easements
of record.
PURCHASE AGREEMENT
Arby's/Mrs. Winners Restaurant - Smyrna, GA
This AGREEMENT, entered into effective as of the 16 of September,
1997 .
l. Parties. Seller is AEI Net Lease Income & Growth Fund XX
Limited Partnership which owns an undivided 26.6851% interest in
the fee title to that certain real property legally described in
the attached Exhibit "A" (the "Entire Property") Buyer is
Richard J. Abbott and Marjory T. Abbott, husband and wife as
joint tenants ("Buyer"). Seller wishes to sell and Buyer wishes
to buy a portion as Tenant in Common of Seller's interest in the
Entire Property.
2. Property. The Property to be sold to Buyer in this transaction
consists of an undivided 14.5269% interest (hereinafter, simply
the "Property") as Tenant in Common in the Entire Property.
3. Purchase Price . The purchase price for this percentage
interest in the Entire Property is $250,000 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 $5,000
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, or otherwise
disbursed pursuant to the terms of this Agreement.
(b) Buyer will deposit the balance of the purchase price,
$245,000 (the "Second Payment") into escrow in sufficient
time to allow escrow to close on the closing date.
5. Closing Date. Escrow shall close on or before September 30,
1997.
6. Due Diligence. Buyer will have until the expiration of the
fifth business day (The "Review Period") after delivery of each
of following items, to be supplied by Seller, to conduct all of
its inspections and due diligence and satisfy itself regarding
each item, the Property, and this transaction. Buyer agrees to
indemnify and hold Seller harmless for any loss or damage to the
Leased Premises or persons caused by Buyer or its agents arising
out of such physical inspections of the Entire Property.
(a) The original and one copy of a title insurance
commitment for an Owner's Title insurance policy (see
paragraph 8 below).
(b) Copies of a Certificate of Occupancy or other such
document certifying completion and granting permission to
permanently occupy the improvements on the Entire Property
as are in Seller's possession.
(c) Copies of an "as built" survey of the Property done
concurrent with Seller's acquisition of the Property.
(d) Lease (as set forth in paragraph 11(a) below) of the
Entire Property showing occupancy date, lease expiration
date, rent, and Guarantys, if any, accompanied by such
tenant financial statements as may have been provided most
recently to Seller by the Tenant and/or Guarantors.
Buyer Initial: /s/ RJA
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
It is a contingency upon Seller's obligations hereunder that
two (2) originals of Co-Tenancy Agreement in the form attached
hereto duly executed by Buyer and Seller and dated on escrow
closing date be delivered to the Seller on the Closing date.
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
any 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 sections 15(a) 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.
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 have canceled this Agreement and
relinquish all rights in and to the Property unless Buyer makes
the Second Payment when required. If this Agreement is not
canceled 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 Seller and funds deposited
in escrow upon acceptance of this Agreement by both parties. The
escrow holder will be a nationally-recognized escrow company
selected by Seller. 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 a title
company selected by Seller 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; and other items of record
disclosed to Buyer during the contingency period.
Buyer shall be allowed five (5) 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, the Seller shall
be allowed eighty (80) days to 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 shall be returned and
this Agreement shall be null and void and of no further force and
effect.
Pending correction of title, the payments 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.
Buyer Initial: /s/ RJA
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
9. Closing Costs. Seller will pay one-half of escrow fees, the
cost of the title commitment and any brokerage commissions
payable except those brokerage commissions incurred by Buyer.
The Buyer will pay the cost of issuing a Standard Owners Title
Insurance Policy in the full amount of the purchase price, if
Buyer shall decide to purchase the same. Buyer will pay all
recording fees, one-half of the escrow fees, and the cost of an
update to the Survey in Sellers possession (if an update is
required by Buyer.) 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 Entire Property (of which the Property is a
part) is subject to a triple net lease (as further set forth
in paragraph 11(a)(i), the parties acknowledge that there
shall be no need for a real estate tax proration. However,
Seller represents that to the best of its knowledge, 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 levied and pending special
assessments existing on the date of Closing shall be the
responsibility of Buyer and Seller in proportion to their
respective Tenant in Common interests. Seller and 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 Entire Property.
(b) All income and all operating expenses from the Entire
Property 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, and Buyer
shall be entitled to its proportionate share of all income
earned and shall be responsible for its proportionate share
of 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:
(i) Except for the lease in existence between AEI Net Lease
Income & Growth Fund XX Limited Partnership and RTM Georgia,
Inc.("Tenant"), dated May 16, 1994, Seller is not aware of
any leases of the Property. The above referenced lease
agreement has an option to purchase in favor of the Tenant
as set forth in article 34 of said lease agreement. The
above referenced lease agreement also has a first right of
refusal in favor of the Tenant as set forth in Article 35 of
said lease agreement, which right shall apply to any
disposition of the Property by Buyer after this transaction.
(ii) It is not aware of any pending litigation or
condemnation proceedings against the Property or Seller's
interest in the Property.
(iii) Except as previously disclosed to Buyer and as set
forth in paragraph (b) below, Seller is not aware of any
contracts Seller has executed that would be binding on Buyer
after the closing date.
(b) Provided that Buyer performs its obligations when
required, 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, which will not
be unreasonably withheld. However, Buyer acknowledges that
Seller retains the right both prior to and after the Closing
Date to freely transfer all or a portion of Seller's
remaining undivided interest in the Entire Property,
provided such sale shall not encumber the Property
Buyer Initial: /s/ RJA
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
being purchased by Buyer in violation of the terms hereof or
the contemplated Co-Tenancy Agreement.
12. Disclosures.
(a) To the best of Seller's knowledge: there are now, and
at the Closing there will be, no material, physical or
mechanical defects of the Property, including, without
limitation, the plumbing, heating, air conditioning,
ventilating, electrical systems, and 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.
(b) To the best of Seller's knowledge: the use and
operation of the Property now is, and at the time of Closing
will be, 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.
(c) Seller knows of no facts nor has Seller failed to
disclose to Buyer any fact known to Seller which would
prevent the use and operation of the Property after the
Closing in the manner in which the Property has been used
and operated prior to the date of this Agreement.
(d) 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 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 negligence or intentional
misconduct in violation of applicable state or federal law
or regulation.
(e) 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.
(f) Buyer acknowledges that, having been given the
opportunity to inspect the Property and such financial
information on the Tenant and Guarantors of the Lease 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 further acknowledges that the
information provided and to be provided by Seller with
respect to the Property and to the Tenant and Guarantors of
Lease was obtained from a variety of sources and Seller
neither (a) has made independent investigation or
verification of such information, or (b) makes any
representations as to the accuracy or completeness of such
information. The sale of the Property as provided for
herein is made on an "AS IS" basis, and 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, or
fitness for a particular purpose, in respect of the
Property.
The provisions (d) - (f) above shall survive closing.
Buyer Initial: /s/ RJA
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
13. Closing.
(a) Before the closing date, Seller will deposit into
escrow an executed limited warranty deed conveying insurable
title of the Property to Buyer, subject to the encumbrances
contained in paragraph 8 above.
(b) On or before the closing date, Buyer will deposit into
escrow: the balance of the purchase price when required
under Section 4; any additional funds required of Buyer,
(pursuant to this agreement or any other agreement executed
by Buyer) to close escrow. Both parties will sign the Co-
Tenancy Agreement, and 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 in a position 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. Seller shall retain all remedies available to Seller at
law or in equity.
If Seller shall default, Buyer irrevocably waives any rights
to file a lis pendens, a specific performance action 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 Payment, deposited
the balance of the Second Payment for the purchase price into
escrow, performed all of its other obligations and satisfied all
conditions under this Agreement, and unconditionally notified
Seller that it stands ready to tender full performance, purchase
the Property and close escrow as per this Agreement, regardless
of any alleged default or misconduct by Seller. 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.
15. Buyer's Representations and Warranties.
a. 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 Seller or the Title Company may require and 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
Buyer Initial: /s/ RJA
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
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 Entire
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 Entire
Property.
If the cost of repair is less than $10,000.00, Buyer shall
be obligated to otherwise perform hereinunder with no
adjustment to the Purchase Price, reduction or abatement,
and Seller shall assign Seller's right, title and interest
in and to all insurance proceeds pro-rata in relation to the
Entire Property, subject to rights of any Tenant of the
Entire Property.
(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 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 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 Entire Property, subject to rights of any
Tenant of the Entire 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. Buyer's 1031 Tax Free Exchange.
While Seller acknowledges that Buyer is purchasing the
Property as "replacement property" to accomplish 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 Realty Exchange
Corporation who will act as Facilitator to perfect the 1031
exchange by preparing an agreement of exchange of Real Property
whereby Realty Exchange Corporation 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 to cooperate in the
perfection of such an exchange at no additional cost or expense
or delay in time. Buyer hereby indemnifies and holds Seller
Buyer Initial: /s/ RJA
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
harmless from any claims and/or actions resulting from said
exchange. Pursuant to the direction of Realty Exchange
Corporation, Seller will deed the Property to Buyer.
18. Cancellation
If any party elects to cancel this Contract because of any
breach by another party, 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
canceled unless the breach is cured within 13 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 13
days following the delivery of the notice to the escrow
agent, this Contract shall be canceled.
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 September 30, 1997
through no fault of Seller, Seller may either, 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:
Attention: Robert P. Johnson
AEI Net Lease Income & Growth Fund XX Limited Partnership
1300 Minnesota World Trade Center
30 E. 7th Street
St. Paul, MN 55101
If to Buyer:
Richard and Marjory Abbott
524 Roslyn
East Williston, NY 11596
Buyer Initial: /s/ RJA
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
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 five (5) business days from
receipt within which to accept this offer.
IN WITNESS WHEREOF, the Seller and Buyer have executed this
Agreement effective as of the day and year above first written.
BUYER: RICHARD J. ABBOTT AND MARJORY T. ABBOTT
By: /s/ Richard J Abbott
Richard J. Abbott
By: /s/ Marjory T Abbott
Marjory T. Abbott
SELLER: AEI NET LEASE INCOME & GROWTH FUND XX LIMITED PARTNERSHIP,
a Minnesota limited partnership.
By: AEI Fund Management XX, Inc., its corporate general partner
By: /s/ Robert P Johnson
Robert P. Johnson, President
Buyer Initial: /s/ RJA
Purchase Agreement for Arby's/Mrs. Winners - Smyrna, GA
EXHIBIT "A"
ALL THAT TRACT or parcel of land lying and being in Land
Lots 688, 689,752 and 753 of the 17th District, 2nd Section
of Cobb County, Georgia, containing 1.071 acres, same being
more particularly described as follows:
TO FIND THE TRUE POINT OF BEGINNING, begin at the point of
intersection of the westerly Right-of-Way Line of South Cobb
Drive (Two-hundred (200') foot Right-of-Way) and of the
southerly Right-of-Way Line of Kenwood Road (Fifty(50') foot
Right-of-Way); thence traveling along the westerly Right-of-
Way Line of said South Cobb Drive South 11 degrees 59
minutes 32 seconds east a distance of 36.03 feet to a point
on said Right-of-Way Line; thence continuing along said
Right-of-Way Line south 09 degrees 19 minutes 41 seconds
east a distance of 166.01 feet to a point on said Right-of-
Way Line; thence continuing along said Right-of-Way Line
along a curve to the left an arc distance of 18.12 feet
(said arc being subtended by a chord bearing south 11
degrees 12 minutes 11 seconds east a chord distance of 18.12
feet and having a radius of 2,964.79 feet) to an iron pin
set on said Right-of-Way Line and at the southeast corner of
property now or formally owned by Wendy's International,
Inc., which iron pin set is the TRUE POINT OR BEGINNING;
FROM THE TRUE POINT OF BEGINNING as thus established
continuing along said Right-of-Way Line along a curve to the
left an arc distance of 161.96 feet (said arc being
subtended by a chord bearing south 12 degrees 56 minutes 36
seconds east a chord distance of 161.94 feet and having a
radius of 2,964.79 feet) to an iron pin set on said Right-of-
Way Line and at the northeast corner of the property now or
formerly owned by Checkers Restaurant; thence leaving said
Right-of-Way Line and traveling along the northwesterly line
of said Checkers property south 71 degrees 15 minutes 52
seconds west a distance of 221.74 feet to an iron pin set;
thence traveling north 18 degrees 44 minutes 08 seconds west
a distance of 131.18 feet to an iron pin set at the
southwest corner of said Wendy's property; thence traveling
along the southeasterly line of said Wendy's property south
82 degrees 28 minutes 25 seconds east a distance of 200.76
feet to an iron pin set, and the TRUE POINT OF BEGINNING.
ALL AS SHOWN on that certain survey for RTM Georgia, Inc.,
prepared by Federer-Ruppert & Associates, bearing the seal
of James W. Woolley, Georgia Registered Land Surveyor Number
1478, dated January 17, 1994, last revised May 10, 1994.
TOGETHER WITH all rights with respect to the above property
reserved in Limited Warranty Deed from Wilson Financial
Corporation, a Florida Corporation to Wendy's International,
Inc. an Ohio Corporation, dated December 26, 1989, filed for
record December 28, 1989 at 2:01 p.m., recorded in Deed Book
5590, Page 288, Records of Cobb County, Georgia.
TOGETHER WITH all rights with respect to the above property
reserved in that certain Limited Warranty Deed from American
Founders Life Insurance Company, a Texas corporation to
Robert G. Brown, dated June 8, 1992, filed for record June
9, 1992 at 10:21 a.m., recorded in Deed Book 6682, Page 118,
aforesaid Records.
TOGETHER WITH all rights with respect to the above property
set forth in Easement Grant by and between Wilson Financial
Corporation, a Florida corporation and Wendy's
International,.Inc., an Ohio corporation, dated December 26,
1989 at 2:01 p.m., recorded in Deed Book 5590, Page 291,
aforesaid Records; as amended b that certain Amendment to
easement Grant, dated June 30, 1993, filed for record July
1, 1993 at 2:15 p.m., recorded in Deed Book 7448, Page 421,
aforesaid Records.
TOGETHER WITH all rights with respect to the above property
set forth in Easement Agreement by and between American
Founders Life Insurance Company, a Texas corporation and
Robert G. Brown, dated June 8, 1992, filed for record June
9, 1992 at 10:21 a.m., recorded in Deed Book 6682, Page 123,
aforesaid Records; as amended by that certain Amendment to
Easement Agreement, dated June 30. 1993, filed for record
July 1, 1993 at 2:15 p.m., recorded in Deed book 7448, Page
433, aforesaid Records.
TOGETHER WITH all rights granted in that certain Sign
Easement by and between American Founders Life Insurance
Company, a Texas corporation and RTM Georgia, Inc., dated
June 30, 1993, filed for record July 1, 1993 at 2:15 p.m.,
recorded in Deed Book 7448, Page 467, aforesaid Records.
TOGETHER WITH all rights granted in that certain New
Driveway Easement Grant by and between American Founders
Life Insurance Company and RTM Georgia, Inc., dated June
30,1 993, filed for record July 1, 1993 at 2:15 p.m.,
recorded in Deed Book 7448, Page 450, aforesaid Records.
PURCHASE AGREEMENT
Applebee's Restaurant - Middletown, OH
This AGREEMENT, entered into effective as of the 16 of September,
1997 .
l. Parties. Seller is both AEI Net Lease Income & Growth Fund XX
Limited Partnership which owns an undivided 93.96628% interest in
the fee title to that certain real property legally described in
the attached Exhibit "A" (the "Entire Property") and AEI
Institutional Net Lease Fund '93 Limited Partnership which
presently owns an undivided 6.03372% interest in the fee title to
that certain real property legally described in the attached
Exhibit "A" (the "Entire Property") Buyer is Richard J. Abbott
and Marjory T. Abbott, husband and wife as joint tenants,
("Buyer"). Seller wishes to sell and Buyer wishes to buy a
portion as Tenant in Common of Seller's interest in the Entire
Property.
2. Property. The Property to be sold to Buyer in this transaction
consists of an undivided 15.2521 percentage interest (AEI Net
Lease Income & Growth Fund XX Limited Partnership selling
9.21838% interest and AEI Institutional Net Lease Fund '93
selling 6.03372% interest) (hereinafter, simply the "Property")
as Tenant in Common in the Entire Property.
3. Purchase Price . The purchase price for this percentage
interest in the Entire Property is $250,000 all cash, $151,100
payable to AEI Net Lease Income & Growth Fund XX Limited
Partnership and $98,900 payable to AEI Institutional Net Lease
Fund '93 Limited Partnership.
4. Terms. The purchase price for the Property will be paid by
Buyer as follows:
(a) When this agreement is executed, Buyer will pay $5,000
to Seller (jointly, in total $5,000) (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,
$245,000 (the "Second Payment") into escrow in sufficient
time to allow escrow to close on the closing date.
5. Closing Date. Escrow shall close on or before September 30,
1997.
6. Due Diligence. Buyer will have until the expiration of the
fifth business day (The "Review Period") after delivery of each
of following items, to be supplied by Seller, to conduct all of
its inspections and due diligence and satisfy itself regarding
each item, the Property, and this transaction. Buyer agrees to
indemnify and hold Seller harmless for any loss or damage to the
Entire Property or persons caused by Buyer or its agents arising
out of such physical inspections of the Entire Property.
(a) The original and one copy of a title insurance
commitment for an Owner's Title insurance policy (see
paragraph 8 below).
(b) Copies of a Certificate of Occupancy or other such
document certifying completion and granting permission to
permanently occupy the improvements on the Entire Property
as are in Seller's possession.
(c) Copies of an "as built" survey of the Entire Property
done concurrent with Seller's acquisition of the Property.
(d) Lease (as further set forth in paragraph 11(a) below) of
the Entire Property showing occupancy date, lease expiration
date, rent, and Guarantys, if any, accompanied by such
tenant financial statements as
Buyer Initial: /s/ RJA
Purchase Agreement for Applebee's - Middletown, OH
may have been provided most recently to Seller by the Tenant
and/or Guarantors.
It is a contingency upon Seller's obligations hereunder that
two (2) copies of Co-Tenancy Agreement in the form attached
hereto duly executed by Buyer and Seller and dated on escrow
closing date be delivered to the Seller on the closing date.
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 sections 15(a) 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.
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 have canceled this Agreement and
relinquish all rights in and to the Property unless Buyer makes
the Second Payment when required. If this Agreement is not
canceled 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 Seller and funds deposited
in escrow upon acceptance of this agreement by both parties. The
escrow holder will be a nationally-recognized escrow company
selected by Seller. 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 a
title company selected by Seller 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 definded in paragraph 11 below;
and other items of record disclosed to Buyer during the Review
Period.
Buyer shall be allowed five (5) 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, the Seller shall
be allowed eighty (80) days to 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 shall be returned and
this Agreement shall be null and void and of no further force and
effect.
Buyer Initial: /s/ RJA
Purchase Agreement for Applebee's - Middletown, OH
Pending correction of title, the payments 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.
9. Closing Costs. Seller will pay one-half of escrow fees,
the cost of the title commitment and any brokerage commissions
payable. The Buyer will pay the cost of issuing a Standard
Owners Title Insurance Policy in the full amount of the purchase
price, if Buyer shall decide to purchase the same. Buyer will
pay all recording fees, one-half of the escrow fees, and the cost
of an update to the Survey in Sellers possession (if an update is
required by Buyer.) 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 Entire Property (of which the Property is a
part) is subject to a triple net lease (as further set forth
in paragraph 11(a)(i), the parties acknowledge that there
shall be no need for a real estate tax proration. However,
Seller represents that to the best of its knowledge, 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 and Seller
in proportion to their respective Tenant in Common
interests, 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.
Seller and 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 Entire Property.
(b) All income and all operating expenses from the Entire
Property 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, and Buyer
shall be entitled to its proportionate share of all income
earned and shall be responsible for its proportionate share
of all operating expenses of the Entire 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:
(i) Except for the lease in existence between AEI Net Lease
Income & Growth Fund XX Limited Partnership and Thomas & King,
Inc. dated July 15, 1994, Seller is not aware of any leases of
the Property. The above referenced lease agreement has an option
to purchase in favor of the Tenant as set forth in Article 34 of
said lease agreement.
(ii) It is not aware of any pending litigation or
condemnation proceedings against the Property or Seller's
interest in the Property.
(iii) Except as previously disclosed to Buyer and as set
forth in paragraph (b) below, Seller is not aware of any
contracts Seller has executed that would be binding on Buyer
after the closing date.
(b) Provided that Buyer performs its obligations when
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.
However, Buyer acknowledges that Seller retains the right
both prior to and after the Closing Date to freely transfer
all or a
Buyer Initial: /s/ RJA
Purchase Agreement for Applebee's - Middletown, OH
portion of Seller's remaining undivided interest in the
Entire Property, provided such sale shall not encumber the
Property being purchased by Buyer in violation of the terms
hereof or the contemplated Co-Tenancy Agreement.
12. Disclosures.
(a) To the best of Seller's knowledge: there are now, and
at the Closing there will be, no material, physical or
mechanical defects of the Property, including, without
limitation, the plumbing, heating, air conditioning,
ventilating, electrical systems, and 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.
(b) To the best of Seller's knowledge: the use and
operation of the Property now is, and at the time of Closing
will be, 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.
(c) Seller knows of no facts nor has Seller failed to
disclose to Buyer any fact known to Seller which would
prevent Buyer from using and operating the Property after
the Closing in the manner in which the Property has been
used and operated prior to the date of this Agreement.
(d) 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 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 negligence or intentional
misconduct in violation of applicable state or federal law
or regulation.
(e) 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.
(f) Buyer acknowledges that, having been given the
opportunity to inspect the Property and such financial
information on the Lessee and Guarantors of the Lease 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 further acknowledges that the
information provided and to be provided by Seller with
respect to the Property and to the Lessee and Guarantors of
Lease was obtained from a variety of sources and Seller
neither (a) has made independent investigation or
verification of such information, or (b) makes any
representations as to the accuracy or completeness of such
information. The sale of the Property as provided for
herein is made on an "AS IS" basis, and 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, or
fitness for a particular purpose, in respect of the
Property.
Buyer Initial: /s/ RJA
Purchase Agreement for Applebee's - Middletown, OH
The provisions (d) - (f) above shall survive closing.
13. Closing.
(a) Before the closing date, Seller will deposit into
escrow an executed limited warranty deed conveying insurable
title of the Property to Buyer, subject to the encumbrances
contained in paragraph 8 above.
(b) On or before the closing date, Buyer will deposit into
escrow: the balance of the purchase price when required
under Section 4; 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 escrow holder any other documents reasonably
required by the escrow holder to close escrow.
(c) On the closing date, if escrow is in a position 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. Seller shall retain all remedies available to Seller at
law or in equity.
If Seller shall default, Buyer irrevocably waives any rights
to file a lis pendens, a specific performance action 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 Payment, deposited
the balance of the Second Payment for the purchase price into
escrow, performed all of its other obligations and satisfied all
conditions under this Agreement, and unconditionally notified
Seller that it stands ready to tender full performance, purchase
the Property and close escrow as per this Agreement, regardless
of any alleged default or misconduct by Seller. 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.
15. Buyer's Representations and Warranties.
a. 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 Seller or the Title Company may require and 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
Buyer Initial: /s/ RJA
Purchase Agreement for Applebee's - Middletown, OH
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
should 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 Entire 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 Entire Property.
If the cost of repair is less than $10,000.00, Buyer shall
be obligated to otherwise perform hereinunder with no
adjustment to the Purchase Price, reduction or abatement,
and Seller shall assign Seller's right, title and interest
in and to all insurance proceeds pro-rata in relation to the
Entire Property, subject to rights of any Tenant of the
Entire Property.
(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 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 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 Entire Property, subject to rights of any
Tenant of the Entire 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. Buyer's 1031 Tax Free Exchange.
While Seller acknowledges that Buyer is purchasing the
Property as "replacement property" to accomplish 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 Realty Exchange
Corporation who will act as Accommodator to perfect the 1031
exchange by preparing an agreement of exchange of Real Property
whereby Realty Exchange Corporation 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
Buyer Initial: /s/ RJA
Purchase Agreement for Applebee's - Middletown, OH
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 Realty Exchange
Corporation, 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 13 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 13 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 September 30, 1997,
through no fault of Seller, Seller may either, 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:
Attention: Robert P. Johnson
AEI Net Lease Income & Growth Fund XX Limited Partnership
1300 Minnesota World Trade Center
30 E. 7th Street
St. Paul, MN 55101
Buyer Initial: /s/ RJA
Purchase Agreement for Applebee's - Middletown, OH
If to Buyer:
Richard Abbott
Marjory Abbott
524 Roslyn Road
East Williston, NY 11596
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 five (5) business days from
receipt within which to accept this offer.
IN WITNESS WHEREOF, the Seller and Buyer have executed this
Agreement effective as of the day and year above first written.
BUYER: Richard J. Abbott and Marjory T. Abbott
By: /s/ Richard J Abbott
Richard J. Abbott
WITNESS:
/s/ Robert Wiley
Robert Wiley
(Print Name)
WITNESS:
/s/ Kimberlee Price
/s/ Kimberlee Price
(Print Name)
By: /s/ Marjory T Abbott
Marjory T. Abbott
WITNESS:
/s/ Robert Wiley
Robert Wiley
(Print Name)
WITNESS:
/s/ Kimberlee Price
Kimberlee Price
(Print Name)
Buyer Initial: /s/ RJA
Purchase Agreement for Applebee's - Middletown, OH
SELLER: AEI NET LEASE INCOME & GROWTH FUND XX LIMITED PARTNERSHIP
a Minnesota limited partnership
By: AEI Fund Management XX Inc., its corporate general partner
By: /s/ Robert P Johnson
Robert P. Johnson, President
WITNESS:
/s/ Dawn E Campbell
Dawn Campbell
(Print Name)
WITNESS:
/s/ Jennifer Seck
Jennifer Seck
(Print Name)
AEI INSTITUTIONAL NET LEASE FUND '93 LIMITED PARTNERSHIP, a
Minnesota limited partnership
By: AEI Fund Management XVIII, Inc., its corporate general partner
By: /s/ Robert P Johnson
Robert P. Johnson, President
WITNESS:
/s/ Dawn E Campbell
Dawn E Campbell
(Print Name)
WITNESS:
/s/ Jennifer Seck
Jennifer Seck
(Print Name)
Buyer Initial:
Purchase Agreement for Applebee's - Middletown, OH
EXHIBIT "A"
Situated in the State of Ohio, County of Warren, City of
Middletown, Section 3, Town 2 East, Range 4 North, Franklin
Township;
Being Lot Number Five (5) of MIDDLETOWN CROSSING, as the same is
numbered and delineated upon the recorded plat thereof, of record
in Plat Book 27, pages 15 and 16, Recorder's Office, Warren
Coutny, Ohio.
Subject to all covenants, conditions, restrictions and easements
of record.
PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Arby's/Mrs. Winners Restaurant - Smyrna, GA)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 30th day of September , 1997, by
and between Richard J. Abbott and Marjory T. Abbott (hereinafter
called "Abbott"), and AEI Net Lease Income & Growth Fund XX
Limited Partnership (hereinafter called "Fund XX") (Abbott, Fund
XX (and any other Owner in Fee where the context so indicates)
being hereinafter sometimes collectively called "Co-Tenants" and
referred to in the neuter gender).
WITNESSETH:
WHEREAS, Fund XX presently owns an undivided 12.1582% interest in
and to, and Abbott presently owns an undivided 14.5269% interest
in and to, and The Russel C. and Dixie Mayer Trust presently owns
an undivided 12.3188% interest in and to, and Anton Kuster
presently owns an undivided 13.4236% interest in and to, and the
Mark A. Benson Living Trust presently owns an undivided 15.8515%
interest in and to and the John J. Zeller Living Trust presently
owns an undivided 19.4022% interest in and to, and Margaret E.
Brust Irrevocable Trust presently owns an undivided 12.3188%
interest (also referred to herein as Co-Tenant) in and to, the
land, situated in the City of Smyrna, County of Cobb, and State
of Georgia, (legally described upon Exhibit A attached hereto and
hereby made a part hereof) and in and to the improvements located
thereon (hereinafter called "Premises");
WHEREAS, The parties hereto wish to provide for the orderly
operation and management of the Premises and Abbott's interest by
Fund XX; the continued leasing of space within the Premises; for
the distribution of income from and the pro-rata sharing in
expenses of the Premises.
NOW THEREFORE, in consideration of the purchase by Abbott of an
undivided interest in and to the Premises, for at least One
Dollar ($1.00) and other good and valuable consideration by the
parties hereto to one another in hand paid, the receipt and
sufficiency of which are hereby acknowledged, and of the mutual
covenants and agreements herein contained, it is hereby agreed by
and between the parties hereto, as follows:
1. The operation and management of the Premises shall be
delegated to Fund XX, or its designated agent, successors or
assigns. Provided, however, if Fund XX shall sell all of its
interest in the Premises, the duties and obligations of Fund XX
respecting management of the Premises as set forth herein,
including but not limited to paragraphs 2, 3, and 4 hereof, shall
be exercised by the holder or holders of a majority undivided co-
tenancy interest in the Premises. Except as hereinafter expressly
provided to the contrary, each of the parties hereto agrees to be
bound by the decisions of Fund XX with respect to all
administrative, operational and management matters of the
property comprising the Premises, including but not limited to
the management of the net lease agreement for the Premises. The
parties hereto hereby designate Fund XX as their sole and
exclusive agent to deal with any property agent or tenant and to
monitor, execute and enforce the terms of leases of space within
the Premises, including but not limited to any amendments,
consents to assignment, sublet, releases or modifications to
leases or guarantees of lease or easements affecting the
Premises, on behalf of Abbott. Only Fund XX may obligate Abbott
with respect to any expense for the Premises.
As further set forth in paragraph 2 hereof, Fund XX agrees to
require any Tenant of the Premises to name Abbott as an insured
or additional insured in all insurance policies provided for, or
contemplated by, any lease on the
Co-Tenant Initial: /s/ RJA
Co-Tenancy Agreement for Arby's/Mrs. Winners - Smyrna, GA
Premises. Fund XX shall use its best efforts to obtain
endorsements adding Co-Tenants to said policies from Tenant
within 30 days of commencement of this agreement. In any event,
Fund XX shall distribute any insurance proceeds it may receive,
to the extent consistent with any lease on the Premises, to the
Co-Tenants in proportion to their respective ownership of the
Premises.
2. Income, expenses and any net proceeds from a sale of the
Premises shall be allocated among the Co-Tenants in proportion to
their respective share(s) of ownership. Shares of net income
shall be pro-rated for any partial calendar years included within
the term of this Agreement. Fund XX may offset against, pay to
itself and deduct from any payment due to Abbott under this
Agreement, and may pay to itself the amount of Abbott's share of
any legitimate expenses of the Premises which are not paid by
Abbott to Fund XX or its assigns, within ten (10) days after
demand by Fund XX. In the event there is insufficient operating
income from which to deduct Abbott's unpaid share of operating
expenses, Fund XX may pursue any and all legal remedies for
collection.
Operating Expenses shall include all normal operating expense,
including but not limited to: maintenance, utilities, supplies,
labor, management, advertising and promotional expenses, salaries
and wages of rental and management personnel, leasing commissions
to third parties, a monthly accrual to pay insurance premiums,
real estate taxes, installments of special assessments and for
structural repairs and replacements, management fees, legal fees
and accounting fees, but excluding all operating expenses paid by
Tenant under terms of any lease agreement of the Premises.
Abbott has no requirement to, but has nonetheless, elected to
retain, and agrees to annually reimburse, Fund XX in the amount
of $744 for the expenses, direct and indirect, incurred by Fund
XX in providing quarterly accounting and distributions of
Abbott's share of net income and for tracking, reporting and
assessing the calculation of Abbott's share of operating expenses
incurred from the Premises. This invoice amount shall be pro-
rated for partial years and Abbott authorizes Fund XX to deduct
such amount from Abbott's share of revenue from the Premises.
Abbott may terminate this agreement respecting accounting and
distributions in this paragraph at any time and seek to collect
its share of rental stream directly from the tenant; however
enforcement of all provisions of the lease remains the sole right
of Fund XX pursuant to section 1 hereof. Fund XX may terminate
its obligation under this paragraph upon 30 days notice to Abbott
prior to the end of each anniversary hereof, unless agreed in
writing to the contrary.
3. Full, accurate and complete books of account shall be kept
in accordance with generally accepted accounting principles at
Fund XX's principal office, and each Co-Tenant shall have access
to such books and may inspect and copy any part thereof during
normal business hours. Within ninety (90) days after the end of
each calendar year during the term hereof, Fund XX shall prepare
an accurate income statement for the ownership of the Premises
for said calendar year and shall furnish copies of the same to
all Co-Tenants. Quarterly, as its share, Abbott shall be entitled
to receive 14.5269% of all items of income and expense generated
by the Premises. Upon receipt of said accounting, if the payments
received by each Co-Tenant pursuant to this Paragraph 3 do not
equal, in the aggregate, the amounts which each are entitled to
receive with respect to said calendar year pursuant to Paragraph
2 hereof, an appropriate adjustment shall be made so that each Co-
Tenant receives the amount to which it is entitled.
4. If Net Income from the Premises is less than $0.00 (i.e.,
the Premises operates at a loss), or if capital improvements,
repairs, and/or replacements, for which adequate reserves do not
exist, need to be made to the Premises, the Co-Tenants, upon
receipt of a written request therefor from Fund XX, shall, within
fifteen (15) business days after receipt of notice, make payment
to Fund XX sufficient to pay said net operating losses and to
provide necessary
Co-Tenant Initial: /s/ RJA
Co-Tenancy Agreement for Arby's/Mrs. Winners - Smyrna, GA
operating capital for the premises and to pay for said capital
improvements, repairs and/or replacements, all in proportion to
their undivided interests in and to the Premises.
5. Co-Tenants may, at any time, sell, finance, or otherwise
create a lien upon their interest in the Premises but only upon
their interest and not upon any part of the interest held, or
owned, by any other Co-Tenant. All Co-Tenants reserve the right
to escrow proceeds from a sale of their interests in the Premises
to obtain tax deferral by the purchase of replacement property.
6. If any Co-Tenant shall be in default with respect to any of
its obligations hereunder, and if said default is not corrected
within thirty (30) days after receipt by said defaulting Co-
Tenant of written notice of said default, or within a reasonable
period if said default does not consist solely of a failure to
pay money, the remaining Co-Tenant(s) may resort to any available
remedy to cure said default at law, in equity, or by statute, or
set forth herein.
7. This property management agreement shall continue in full
force and effect and shall bind and inure to the benefit of the
Co-Tenant and their respective heirs, executors, administrators,
personal representatives, successors and permitted assigns until
May 31, 2024 or upon the sale of the entire fee simple interest
in the Premises in accordance with the terms hereof and proper
disbursement of the proceeds thereof, whichever shall first
occur. Unless specifically identified as a personal contract
right or obligation herein, this agreement shall run with any
interest in the Property and with the title thereto. Once any
person, party or entity has ceased to have an interest in fee in
any portion of the Entire Property, it shall not be bound by,
subject to or benefit from the terms hereof; but its heirs,
executors, administrators, personal representatives, successors
or assigns, as the case may be, shall be substituted for it
hereunder.
8. Any notice or election required or permitted to be given or
served by any party hereto to, or upon any other, shall be deemed
given or served in accordance with the provisions of this
Agreement, if said notice or elections addressed as follows;
If to Fund XX:
AEI Net Lease Income & Growth Fund XX Limited Partnership
1300 Minnesota World Trade Center
30 E. Seventh Street
St. Paul, Minnesota 55101
If to Brust:
Margaret E. Brust, Trustee
772 N. Craven St.
Monmouth, OR 97361
If to Zeller:
John J. Zeller, Trustee
522 U.S. Highway 89
Vaughn, MT 59487
If to Benson:
Mark A. Benson, Trustee
745 Bowhill Rd.
Hillsborough, CA 94010
Co-Tenant Initial: /s/ RJA
Co-Tenancy Agreement for Arby's/Mrs. Winners - Smyrna, GA
If to Kuster:
Anton Kuster, Jr.
4214 Danbury
Amarillo, TX 79109
If to Mayer:
Russell C. Mayer, Trustee
Dixie R. Mayer, Trustee
4919 Laurette Street
Torrance, CA 90503
If to Abbott:
Richard Abbott
Marjory Abbott
524 Roslyn Ave.
East Williston, NY 11596
Each mailed notice or election shall be deemed to have been given
to, or served upon, the party to which addressed on the date the
same is deposited in the United States certified mail, return
receipt requested, postage prepaid, or given to a nationally
recognized courier service guaranteeing overnight delivery as
properly addressed in the manner above provided. Any party hereto
may change its address for the service of notice hereunder by
delivering written notice of said change to the other parties
hereunder, in the manner above specified, at least ten (10) days
prior to the effective date of said change.
9. This Agreement shall not create any partnership or joint
venture among or between the Co-Tenants or any of them, and the
only relationship among and between the Co-Tenants hereunder
shall be that of owners of the premises as tenants in common
subject to the terms hereof.
10. The unenforceability or invalidity of any provision or
provisions of this Agreement as to any person or circumstances
shall not render that provision, nor any other provision hereof,
unenforceable or invalid as to any other person or circumstances,
and all provisions hereof, in all other respects, shall remain
valid and enforceable.
11. In the event any litigation arises between the parties
hereto relating to this Agreement, or any of the provisions
hereof, the party prevailing in such action shall be entitled to
receive from the losing party, in addition to all other relief,
remedies and damages to which it is otherwise entitled, all
reasonable costs and expenses, including reasonable attorneys'
fees, incurred by the prevailing party in connection with said
litigation.
Co-Tenant Initial: /s/ RJA
Co-Tenancy Agreement for Arby's/Mrs. Winners - Smyrna, GA
IN WITNESS WHEREOF, The parties hereto have caused this Agreement
to be executed and delivered, as of the day and year first above
written.
Abbott
By: /s/ Richard J Abbott
Richard J. Abbott
Witness By: /s/ Robert Wiley
Witness By: /s/ Kimberlee Price
STATE OF Florida)
) ss
COUNTY OF Vavsia)
The foregoing instrument was acknowledged before me, a
Notary Public in and for the County and State aforesaid,
this 15 day of September,1997, by Robert Wiley, Notary
Public.
[notary seal]
By: /s/ Marjory T Abbott
Marjory T. Abbott
Witness By: /s/ Robert Wiley
Witness By: /s/ Kimberlee Price
STATE OF Florida)
) ss
COUNTY OF Vavsia)
The foregoing instrument was acknowledged before me, a
Notary Public in and for the County and State aforesaid,
this 15 day of September,1997, by Rober Wiley, Notary
Public.
[notary seal]
Co-Tenant Initial: /s/ RJA
Co-Tenancy Agreement for Arby's/Mrs. Winners - Smyrna, GA
Fund XX AEI Net Lease Income & Growth Fund XX Limited Partnership
By: AEI Fund Management XX, Inc., its corporate general partner
By: /s/ Robert P Johnson
Robert P. Johnson, President
Witness By: /s/ Dawn E Campbell
Witness By: /s/ Jeni K Henrickson
State of Minnesota )
) ss.
County of Ramsey )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 30th day of
September, 1997, Robert P. Johnson, President of AEI Fund
Management XX, Inc., corporate general partner of AEI Real Estate
Fund XX Limited Partnership, who executed the foregoing
instrument in said capacity and on behalf of the corporation in
its capacity as corporate general partner, on behalf of said
limited partnership.
/s/ Barbara J Kochevar
Notary Public
Co-Tenant Initial: /s/ RJA
Co-Tenancy Agreement for Arby's/Mrs. Winners - Smyrna, GA
EXHIBIT "A"
ALL THAT TRACT or parcel of land lying and being in Land
Lots 688, 689,752 and 753 of the 17th District, 2nd Section
of Cobb County, Georgia, containing 1.071 acres, same being
more particularly described as follows:
TO FIND THE TRUE POINT OF BEGINNING, begin at the point of
intersection of the westerly Right-of-Way Line of South Cobb
Drive (Two-hundred (200') foot Right-of-Way) and of the
southerly Right-of-Way Line of Kenwood Road (Fifty(50') foot
Right-of-Way); thence traveling along the westerly Right-of-
Way Line of said South Cobb Drive South 11 degrees 59
minutes 32 seconds east a distance of 36.03 feet to a point
on said Right-of-Way Line; thence continuing along said
Right-of-Way Line south 09 degrees 19 minutes 41 seconds
east a distance of 166.01 feet to a point on said Right-of-
Way Line; thence continuing along said Right-of-Way Line
along a curve to the left an arc distance of 18.12 feet
(said arc being subtended by a chord bearing south 11
degrees 12 minutes 11 seconds east a chord distance of 18.12
feet and having a radius of 2,964.79 feet) to an iron pin
set on said Right-of-Way Line and at the southeast corner of
property now or formally owned by Wendy's International,
Inc., which iron pin set is the TRUE POINT OR BEGINNING;
FROM THE TRUE POINT OF BEGINNING as thus established
continuing along said Right-of-Way Line along a curve to the
left an arc distance of 161.96 feet (said arc being
subtended by a chord bearing south 12 degrees 56 minutes 36
seconds east a chord distance of 161.94 feet and having a
radius of 2,964.79 feet) to an iron pin set on said Right-of-
Way Line and at the northeast corner of the property now or
formerly owned by Checkers Restaurant; thence leaving said
Right-of-Way Line and traveling along the northwesterly line
of said Checkers property south 71 degrees 15 minutes 52
seconds west a distance of 221.74 feet to an iron pin set;
thence traveling north 18 degrees 44 minutes 08 seconds west
a distance of 131.18 feet to an iron pin set at the
southwest corner of said Wendy's property; thence traveling
along the southeasterly line of said Wendy's property south
82 degrees 28 minutes 25 seconds east a distance of 200.76
feet to an iron pin set, and the TRUE POINT OF BEGINNING.
ALL AS SHOWN on that certain survey for RTM Georgia, Inc.,
prepared by Federer-Ruppert & Associates, bearing the seal
of James W. Woolley, Georgia Registered Land Surveyor Number
1478, dated January 17, 1994, last revised May 10, 1994.
TOGETHER WITH all rights with respect to the above property
reserved in Limited Warranty Deed from Wilson Financial
Corporation, a Florida Corporation to Wendy's International,
Inc. an Ohio Corporation, dated December 26, 1989, filed for
record December 28, 1989 at 2:01 p.m., recorded in Deed Book
5590, Page 288, Records of Cobb County, Georgia.
TOGETHER WITH all rights with respect to the above property
reserved in that certain Limited Warranty Deed from American
Founders Life Insurance Company, a Texas corporation to
Robert G. Brown, dated June 8, 1992, filed for record June
9, 1992 at 10:21 a.m., recorded in Deed Book 6682, Page 118,
aforesaid Records.
TOGETHER WITH all rights with respect to the above property
set forth in Easement Grant by and between Wilson Financial
Corporation, a Florida corporation and Wendy's
International,.Inc., an Ohio corporation, dated December 26,
1989 at 2:01 p.m., recorded in Deed Book 5590, Page 291,
aforesaid Records; as amended b that certain Amendment to
easement Grant, dated June 30, 1993, filed for record July
1, 1993 at 2:15 p.m., recorded in Deed Book 7448, Page 421,
aforesaid Records.
TOGETHER WITH all rights with respect to the above property
set forth in Easement Agreement by and between American
Founders Life Insurance Company, a Texas corporation and
Robert G. Brown, dated June 8, 1992, filed for record June
9, 1992 at 10:21 a.m., recorded in Deed Book 6682, Page 123,
aforesaid Records; as amended by that certain Amendment to
Easement Agreement, dated June 30. 1993, filed for record
July 1, 1993 at 2:15 p.m., recorded in Deed book 7448, Page
433, aforesaid Records.
TOGETHER WITH all rights granted in that certain Sign
Easement by and between American Founders Life Insurance
Company, a Texas corporation and RTM Georgia, Inc., dated
June 30, 1993, filed for record July 1, 1993 at 2:15 p.m.,
recorded in Deed Book 7448, Page 467, aforesaid Records.
TOGETHER WITH all rights granted in that certain New
Driveway Easement Grant by and between American Founders
Life Insurance Company and RTM Georgia, Inc., dated June
30,1 993, filed for record July 1, 1993 at 2:15 p.m.,
recorded in Deed Book 7448, Page 450, aforesaid Records.
PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Applebee's Restaurant - Middletown, OH)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 30th day of September , 1997, by
and between Richard J. Abbott and Marjory T. Abbott, husband and
wife as joint tenants (hereinafter called "Abbott"), and AEI Net
Lease Income & Growth Fund XX Limited Partnership (hereinafter
called "Fund XX") (Abbott, Fund XX (and any other Owner in Fee
where the context so indicates) being hereinafter sometimes
collectively called "Co-Tenants" and referred to in the neuter
gender).
WITNESSETH:
WHEREAS, Fund XX presently owns an undivided 84.7479% interest in
and to, and Abbott presently owns an undivided 15.2521% interest
in and to the land, situated in the City of Middletown, County of
Warren, and State of OH, (legally described upon Exhibit A
attached hereto and hereby made a part hereof) and in and to the
improvements located thereon (hereinafter called "Premises");
WHEREAS, The parties hereto wish to provide for the orderly
operation and management of the Premises and Abbott's interest by
Fund XX; the continued leasing of space within the Premises; for
the distribution of income from and the pro-rata sharing in
expenses of the Premises.
NOW THEREFORE, in consideration of the purchase by Abbott of an
undivided interest in and to the Premises, for at least One
Dollar ($1.00) and other good and valuable consideration by the
parties hereto to one another in hand paid, the receipt and
sufficiency of which are hereby acknowledged, and of the mutual
covenants and agreements herein contained, it is hereby agreed by
and between the parties hereto, as follows:
1. The operation and management of the Premises shall be
delegated to Fund XX, or its designated agent, successors or
assigns. Provided, however, if Fund XX shall sell all of its
interest in the Premises, the duties and obligations of Fund XX
respecting management of the Premises as set forth herein,
including but not limited to paragraphs 2, 3, and 4 hereof, shall
be exercised by the holder or holders of a majority undivided co-
tenancy interest in the Premises. Except as hereinafter expressly
provided to the contrary, each of the parties hereto agrees to be
bound by the decisions of Fund XX with respect to all
administrative, operational and management matters of the
property comprising the Premises, including but not limited to
the management of the net lease agreement for the Premises. The
parties hereto hereby designate Fund XX as their sole and
exclusive agent to deal with, and Fund XX retains the sole right
to deal with, any property agent or tenant and to monitor,
execute and enforce the terms of leases of space within the
Premises, including but not limited to any amendments, consents
to assignment, sublet, releases or modifications to leases or
guarantees of lease or easements affecting the Premises, on
behalf of Abbott. Only Fund XX may obligate Abbott with respect
to any expense for the Premises.
As further set forth in paragraph 2 hereof, Fund XX agrees to
require any lessee of the Premises to name Abbott as an insured
or additional insured in all insurance policies provided for, or
contemplated by, any lease on the Premises. Fund XX shall use its
best efforts to obtain endorsements adding Co-Tenants to said
policies from lessee within 30 days of commencement of this
agreement. In any event, Fund XX shall distribute any insurance
proceeds it may receive, to the extent consistent with any lease
on the Premises, to the Co-Tenants in proportion to their
respective ownership of the Premises.
Co-Tenant Intital: /s/ RJA
Co-Tenancy Agreement for Applebee's, Middletown, OH
2. Income and expenses shall be allocated among the Co-Tenants
in proportion to their respective share(s) of ownership. Shares
of net income shall be pro-rated for any partial calendar years
included within the term of this Agreement. Fund XX may offset
against, pay to itself and deduct from any payment due to Abbott
under this Agreement, and may pay to itself the amount of
Abbott's share of any legitimate expenses of the Premises which
are not paid by Abbott to Fund XX or its assigns, within ten (10)
days after demand by Fund XX. In the event there is insufficient
operating income from which to deduct Abbott's unpaid share of
operating expenses, Fund XX may pursue any and all legal remedies
for collection.
Operating Expenses shall include all normal operating expense,
including but not limited to: maintenance, utilities, supplies,
labor, management, advertising and promotional expenses, salaries
and wages of rental and management personnel, leasing commissions
to third parties, a monthly accrual to pay insurance premiums,
real estate taxes, installments of special assessments and for
structural repairs and replacements, management fees, legal fees
and accounting fees, but excluding all operating expenses paid by
Tenant under terms of any lease agreement of the Premises.
Abbott has no requirement to, but has, nonetheless elected to
retain, and agrees to annually reimburse, Fund XX in the amount
of $744 for the expenses, direct and indirect, incurred by Fund
XX in providing Abbott with quarterly accounting and
distributions of Abbott's share of net income and for tracking,
reporting and assessing the calculation of Abbott's share of
operating expenses incurred from the Premises. This invoice
amount shall be pro-rated for partial years and Abbott authorizes
Fund XX to deduct such amount from Abbott's share of revenue from
the Premises. Abbott may terminate this agreement in this
paragraph respecting accounting and distributions at any time and
attempt to collect its share of rental income directly from the
tenant; however, enforcement of all other provisions of the lease
remains the sole right of Fund XX pursuant to Section 1 hereof.
Fund XX may terminate its obligation under this paragraph upon 30
days notice to Abbott prior to the end of each anniversary
hereof, unless agreed in writing to the contrary.
3. Full, accurate and complete books of account shall be kept
in accordance with generally accepted accounting principles at
Fund XX's principal office, and each Co-Tenant shall have access
to such books and may inspect and copy any part thereof during
normal business hours. Within ninety (90) days after the end of
each calendar year during the term hereof, Fund XX shall prepare
an accurate income statement for the ownership of the Premises
for said calendar year and shall furnish copies of the same to
all Co-Tenants. Quarterly, as its share, Abbott shall be entitled
to receive 15.2521% of all items of income and expense generated
by the Premises. Upon receipt of said accounting, if the
payments received by each Co-Tenant pursuant to this Paragraph 3
do not equal, in the aggregate, the amounts which each are
entitled to receive proportional to its share of ownership with
respect to said calendar year pursuant to Paragraph 2 hereof, an
appropriate adjustment shall be made so that each Co-Tenant
receives the amount to which it is entitled.
4. If Net Income from the Premises is less than $0.00 (i.e.,
the Premises operates at a loss), or if capital improvements,
repairs, and/or replacements, for which adequate reserves do not
exist, need to be made to the Premises, the Co-Tenants, upon
receipt of a written request therefor from Fund XX, shall, within
fifteen (15) business days after receipt of notice, make payment
to Fund XX sufficient to pay said net operating losses and to
provide necessary operating capital for the premises and to pay
for said capital improvements, repairs and/or replacements, all
in proportion to their undivided interests in and to the
Premises.
5. Co-Tenants may, at any time, sell, finance, or otherwise
create a lien upon their interest in the Premises but only upon
their interest and not upon
Co-Tenant Intital: /s/ RJA
Co-Tenancy Agreement for Applebee's, Middletown, OH
any part of the interest held, or owned, by any other Co-Tenant.
All Co-Tenants reserve the right to escrow proceeds from a sale
of their interests in the Premises to obtain tax deferral by the
purchase of replacement property.
6. If any Co-Tenant shall be in default with respect to any of
its obligations hereunder, and if said default is not corrected
within thirty (30) days after receipt by said defaulting Co-
Tenant of written notice of said default, or within a reasonable
period if said default does not consist solely of a failure to
pay money, the remaining Co-Tenant(s) may resort to any available
remedy to cure said default at law, in equity, or by statute.
7. This property management agreement shall continue in full
force and effect and shall bind and inure to the benefit of the
Co-Tenant and their respective heirs, executors, administrators,
personal representatives, successors and permitted assigns until
July 14, 2029 or upon the sale of the entire Premises in
accordance with the terms hereof and proper disbursement of the
proceeds thereof, whichever shall first occur. Unless
specifically identified as a personal contract right or
obligation herein, this agreement shall run with any interest in
the Property and with the title thereto. Once any person, party
or entity has ceased to have an interest in fee in any portion of
the Entire Property, it shall not be bound by, subject to or
benefit from the terms hereof; but its heirs, executors,
administrators, personal representatives, successors or assigns,
as the case may be, shall be substituted for it hereunder.
8. Any notice or election required or permitted to be given or
served by any party hereto to, or upon any other, shall be deemed
given or served in accordance with the provisions of this
Agreement, if said notice or elections addressed as follows;
If to Fund XX:
AEI Net Lease Income & Growth Fund XX Limited Partnership
1300 Minnesota World Trade Center
30 E. Seventh Street
St. Paul, Minnesota 55101
If to Abbott
Richard Abbott
Marjory Abbott
524 Roslyn
East Williston, NY 11596
Each mailed notice or election shall be deemed to have been given
to, or served upon, the party to which addressed on the date the
same is deposited in the United States certified mail, return
receipt requested, postage prepaid, or given to a nationally
recognized courier service guaranteeing overnight delivery as
properly addressed in the manner above provided. Any party hereto
may change its address for the service of notice hereunder by
delivering written notice of said change to the other parties
hereunder, in the manner above specified, at least ten (10) days
prior to the effective date of said change.
9. This Agreement shall not create any partnership or joint
venture among or between the Co-Tenants or any of them, and the
only relationship among and between the Co-Tenants hereunder
shall be that of owners of the premises as tenants in common
subject to the terms hereof.
10. The unenforceability or invalidity of any provision or
provisions of this Agreement as to any person or circumstances
shall not render that
Co-Tenant Intital: /s/ RJA
Co-Tenancy Agreement for Applebee's, Middletown, OH
provision, nor any other provision hereof, unenforceable or
invalid as to any other person or circumstances, and all
provisions hereof, in all other respects, shall remain valid and
enforceable.
11. In the event any litigation arises between the parties
hereto relating to this Agreement, or any of the provisions
hereof, the party prevailing in such action shall be entitled to
receive from the losing party, in addition to all other relief,
remedies and damages to which it is otherwise entitled, all
reasonable costs and expenses, including reasonable attorneys'
fees, incurred by the prevailing party in connection with said
litigation.
The remainder of this page intentionally left blank
Co-Tenant Intital: /s/ RJA
Co-Tenancy Agreement for Applebee's, Middletown, OH
IN WITNESS WHEREOF, The parties hereto have caused this Agreement
to be executed and delivered, as of the day and year first above
written.
Abbott
By: /s/ Richard J Abbott
Richard J. Abbott
WITNESS:
/s/ Robert Wiley
Robert Wiley
(Print Name)
WITNESS:
/s/ Kimberlee Price
Kimberlee Price
(Print Name)
STATE OF Florida)
) ss
COUNTY OF Volvsia)
The foregoing instrument was acknowledged before me, a
Notary Public in and for the County and State aforesaid,
this 15 day of September,1997, by Robert Wiley, Notary
Public.
[notary seal]
By: /s/ Marjory T Abbott
Marjory T. Abbott
WITNESS:
/s/ Robert Wiley
Robert Wiley
(Print Name)
WITNESS:
/s/ Kimberlee Price
Kimberlee Price
(Print Name)
STATE OF Florida)
) ss
COUNTY OF Volvsia)
The foregoing instrument was acknowledged before me, a
Notary Public in and for the County and State aforesaid,
this 15 day of September,1997, by Robert Wiley, Notary
Public.
[notary seal]
Co-Tenant Intital: /s/ RJA
Co-Tenancy Agreement for Applebee's, Middletown, OH
Fund XX AEI Net Lease Income & Growth Fund XX Limited Partnership
By: AEI Fund Management XX, Inc., its corporate general partner
By: /s/ Robert P Johnson
Robert P. Johnson, President
WITNESS:
/s/ Dawn E Campbell
Dawn E Campbell
(Print Name)
WITNESS:
/s/ Jennifer Seck
Jennifer Seck
(Print Name)
State of Minnesota )
) ss.
County of Ramsey )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 30th day of
September, 1997, Robert P. Johnson, President of AEI Fund
Management XX, Inc., corporate general partner of AEI Net Lease
Income & Growth Fund XX Limited Partnership who executed the
foregoing instrument in said capacity and on behalf of the
corporation in its capacity as corporate general partner, on
behalf of said limited partnership.
/s/ Barbara J Kochevar
Notary Public
[notary seal]
Co-Tenant Intital: /s/ RJA
Co-Tenancy Agreement for Applebee's, Middletown, OH
EXHIBIT "A"
Situated in the State of Ohio, County of Warren, City of
Middletown, Section 3, Town 2 East, Range 4 North, Franklin
Township;
Being Lot Number Five (5) of MIDDLETOWN CROSSING, as the same is
numbered and delineated upon the recorded plat thereof, of record
in Plat Book 27, pages 15 and 16, Recorder's Office, Warren
Coutny, Ohio.
Subject to all covenants, conditions, restrictions and easements
of record.
PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Arby's/Mrs. Winners Restaurant - Smyrna, GA)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 9th day of October, 1997, by and
between Nick DeVito, Inc., (hereinafter called "DeVito"), and AEI
Net Lease Income & Growth Fund XX Limited Partnership
(hereinafter called "Fund XX") (DeVito, Fund XX (and any other
Owner in Fee where the context so indicates) being hereinafter
sometimes collectively called "Co-Tenants" and referred to in the
neuter gender).
WITNESSETH:
WHEREAS, Fund XX presently owns an undivided 1.1177% interest in
and to, and DeVito presently owns an undivided 11.0405% interest
in and to and Richard and Marjory Abbott presently own an
undivided 14.5269% interest in and to, and The Russel C. and
Dixie Mayer Trust presently owns an undivided 12.3188% interest
in and to, and Anton Kuster presently owns an undivided 13.4236%
interest in and to, and the Mark A. Benson Living Trust presently
owns an undivided 15.8515% interest in and to and the John J.
Zeller Living Trust presently owns an undivided 19.4022% interest
in and to, and Margaret E. Brust Irrevocable Trust presently owns
an undivided 12.3188% interest (also referred to herein as Co-
Tenant) in and to, the land, situated in the City of Smyrna,
County of Cobb, and State of Georgia, (legally described upon
Exhibit A attached hereto and hereby made a part hereof) and in
and to the improvements located thereon (hereinafter called
"Premises");
WHEREAS, The parties hereto wish to provide for the orderly
operation and management of the Premises and DeVito's interest by
Fund XX; the continued leasing of space within the Premises; for
the distribution of income from and the pro-rata sharing in
expenses of the Premises.
NOW THEREFORE, in consideration of the purchase by DeVito of an
undivided interest in and to the Premises, for at least One
Dollar ($1.00) and other good and valuable consideration by the
parties hereto to one another in hand paid, the receipt and
sufficiency of which are hereby acknowledged, and of the mutual
covenants and agreements herein contained, it is hereby agreed by
and between the parties hereto, as follows:
1. The operation and management of the Premises shall be
delegated to Fund XX, or its designated agent, successors or
assigns. Provided, however, if Fund XX shall sell all of its
interest in the Premises, the duties and obligations of Fund XX
respecting management of the Premises as set forth herein,
including but not limited to paragraphs 2, 3, and 4 hereof, shall
be exercised by the holder or holders of a majority undivided co-
tenancy interest in the Premises. Except as hereinafter expressly
provided to the contrary, each of the parties hereto agrees to be
bound by the decisions of Fund XX with respect to all
administrative, operational and management matters of the
property comprising the Premises, including but not limited to
the management of the net lease agreement for the Premises. The
parties hereto hereby designate Fund XX as their sole and
exclusive agent to deal with any property agent or tenant and to
monitor, execute and enforce the terms of leases of space within
the Premises, including but not limited to any amendments,
consents to assignment, sublet, releases or modifications to
leases or guarantees of lease or easements affecting the
Premises, on behalf of DeVito. Only Fund XX may obligate DeVito
with respect to any expense for the Premises.
Co-Tenant Initial: /s/ V.D.F.
Co-Tenancy Agreement for Arby's/Mrs. Winners - Smyrna, GA
As further set forth in paragraph 2 hereof, Fund XX agrees to
require any Tenant of the Premises to name DeVito as an insured
or additional insured in all insurance policies provided for, or
contemplated by, any lease on the Premises. Fund XX shall use its
best efforts to obtain endorsements adding Co-Tenants to said
policies from Tenant within 30 days of commencement of this
agreement. In any event, Fund XX shall distribute any insurance
proceeds it may receive, to the extent consistent with any lease
on the Premises, to the Co-Tenants in proportion to their
respective ownership of the Premises.
2. Income, expenses and any net proceeds from a sale of the
Premises shall be allocated among the Co-Tenants in proportion to
their respective share(s) of ownership. Shares of net income
shall be pro-rated for any partial calendar years included within
the term of this Agreement. Fund XX may offset against, pay to
itself and deduct from any payment due to DeVito under this
Agreement, and may pay to itself the amount of DeVito's share of
any legitimate expenses of the Premises which are not paid by
DeVito to Fund XX or its assigns, within ten (10) days after
demand by Fund XX. In the event there is insufficient operating
income from which to deduct DeVito's unpaid share of operating
expenses, Fund XX may pursue any and all legal remedies for
collection.
Operating Expenses shall include all normal operating expense,
including but not limited to: maintenance, utilities, supplies,
labor, management, advertising and promotional expenses, salaries
and wages of rental and management personnel, leasing commissions
to third parties, a monthly accrual to pay insurance premiums,
real estate taxes, installments of special assessments and for
structural repairs and replacements, management fees, legal fees
and accounting fees, but excluding all operating expenses paid by
Tenant under terms of any lease agreement of the Premises.
DeVito has no requirement to, but has nonetheless, elected to
retain, and agrees to annually reimburse, Fund XX in the amount
of $565 for the expenses, direct and indirect, incurred by Fund
XX in providing monthly accounting and distributions of DeVito's
share of net income and for tracking, reporting and assessing the
calculation of DeVito's share of operating expenses incurred from
the Premises. This invoice amount shall be pro-rated for partial
years and DeVito authorizes Fund XX to deduct such amount from
DeVito's share of revenue from the Premises. DeVito may terminate
this agreement respecting accounting and distributions in this
paragraph at any time and seek to collect its share of rental
stream directly from the tenant; however enforcement of all
provisions of the lease remains the sole right of Fund XX
pursuant to section 1 hereof. Fund XX may terminate its
obligation under this paragraph upon 30 days notice to DeVito
prior to the end of each anniversary hereof, unless agreed in
writing to the contrary.
3. Full, accurate and complete books of account shall be kept
in accordance with generally accepted accounting principles at
Fund XX's principal office, and each Co-Tenant shall have access
to such books and may inspect and copy any part thereof during
normal business hours. Within ninety (90) days after the end of
each calendar year during the term hereof, Fund XX shall prepare
an accurate income statement for the ownership of the Premises
for said calendar year and shall furnish copies of the same to
all Co-Tenants. Quarterly, as its share, DeVito shall be entitled
to receive 11.0405% of all items of income and expense generated
by the Premises. Upon receipt of said accounting, if the payments
received by each Co-Tenant pursuant to this Paragraph 3 do not
equal, in the aggregate, the amounts which each are entitled to
receive with respect to said calendar year pursuant to Paragraph
2 hereof, an appropriate adjustment shall be made so that each Co-
Tenant receives the amount to which it is entitled.
4. If Net Income from the Premises is less than $0.00 (i.e.,
the Premises operates at a loss), or if capital improvements,
repairs, and/or replacements, for which adequate reserves do not
exist, need to be made to the Premises, the Co-Tenants, upon
receipt of a written request therefor from Fund XX, shall,
Co-Tenant Initial: /s/ V.D.F.
Co-Tenancy Agreement for Arby's/Mrs. Winners - Smyrna, GA
within fifteen (15) business days after receipt of notice, make
payment to Fund XX sufficient to pay said net operating losses
and to provide necessary operating capital for the premises and
to pay for said capital improvements, repairs and/or
replacements, all in proportion to their undivided interests in
and to the Premises.
5. Co-Tenants may, at any time, sell, finance, or otherwise
create a lien upon their interest in the Premises but only upon
their interest and not upon any part of the interest held, or
owned, by any other Co-Tenant. All Co-Tenants reserve the right
to escrow proceeds from a sale of their interests in the Premises
to obtain tax deferral by the purchase of replacement property.
6. If any Co-Tenant shall be in default with respect to any of
its obligations hereunder, and if said default is not corrected
within thirty (30) days after receipt by said defaulting Co-
Tenant of written notice of said default, or within a reasonable
period if said default does not consist solely of a failure to
pay money, the remaining Co-Tenant(s) may resort to any available
remedy to cure said default at law, in equity, or by statute, or
set forth herein.
7. This property management agreement shall continue in full
force and effect and shall bind and inure to the benefit of the
Co-Tenant and their respective heirs, executors, administrators,
personal representatives, successors and permitted assigns until
May 31, 2024 or upon the sale of the entire fee simple interest
in the Premises in accordance with the terms hereof and proper
disbursement of the proceeds thereof, whichever shall first
occur. Unless specifically identified as a personal contract
right or obligation herein, this agreement shall run with any
interest in the Property and with the title thereto. Once any
person, party or entity has ceased to have an interest in fee in
any portion of the Entire Property, it shall not be bound by,
subject to or benefit from the terms hereof; but its heirs,
executors, administrators, personal representatives, successors
or assigns, as the case may be, shall be substituted for it
hereunder.
8. Any notice or election required or permitted to be given or
served by any party hereto to, or upon any other, shall be deemed
given or served in accordance with the provisions of this
Agreement, if said notice or elections addressed as follows;
If to Fund XX:
AEI Net Lease Income & Growth Fund XX Limited Partnership
1300 Minnesota World Trade Center
30 E. Seventh Street
St. Paul, Minnesota 55101
If to Brust:
Margaret E. Brust, Trustee
772 N. Craven St.
Monmouth, OR 97361
If to Zeller:
John J. Zeller, Trustee
522 U.S. Highway 89
Vaughn, MT 59487
If to Benson:
Mark A. Benson, Trustee
745 Bowhill Rd.
Hillsborough, CA 94010
Co-Tenant Initial: /s/ V.D.F.
Co-Tenancy Agreement for Arby's/Mrs. Winners - Smyrna, GA
If to Kuster:
Anton Kuster, Jr.
4214 Danbury
Amarillo, TX 79109
If to Mayer:
Russell C. Mayer, Trustee
Dixie R. Mayer, Trustee
4919 Laurette Street
Torrance, CA 90503
If to Abbott:
Richard Abbott
Marjory Abbott
524 Roslyn Ave.
East Williston, NY 11596
If to DeVito:
Vito DeVito Francesco
P.O. Box 591
Ontario, CA 91762
Each mailed notice or election shall be deemed to have been given
to, or served upon, the party to which addressed on the date the
same is deposited in the United States certified mail, return
receipt requested, postage prepaid, or given to a nationally
recognized courier service guaranteeing overnight delivery as
properly addressed in the manner above provided. Any party hereto
may change its address for the service of notice hereunder by
delivering written notice of said change to the other parties
hereunder, in the manner above specified, at least ten (10) days
prior to the effective date of said change.
9. This Agreement shall not create any partnership or joint
venture among or between the Co-Tenants or any of them, and the
only relationship among and between the Co-Tenants hereunder
shall be that of owners of the premises as tenants in common
subject to the terms hereof.
10. The unenforceability or invalidity of any provision or
provisions of this Agreement as to any person or circumstances
shall not render that provision, nor any other provision hereof,
unenforceable or invalid as to any other person or circumstances,
and all provisions hereof, in all other respects, shall remain
valid and enforceable.
11. In the event any litigation arises between the parties
hereto relating to this Agreement, or any of the provisions
hereof, the party prevailing in such action shall be entitled to
receive from the losing party, in addition to all other relief,
remedies and damages to which it is otherwise entitled, all
reasonable costs and expenses, including reasonable attorneys'
fees, incurred by the prevailing party in connection with said
litigation.
Co-Tenant Initial: /s/ V.D.F.
Co-Tenancy Agreement for Arby's/Mrs. Winners - Smyrna, GA
IN WITNESS WHEREOF, The parties hereto have caused this Agreement
to be executed and delivered, as of the day and year first above
written.
DeVito Nick DeVito, Inc.
By:/s/ Vito DeVito Francesco,
Vito DeVito Francesco, Secretary/Treasurer
Witness By: /s/ Sharon Rose Sharon Rose
Witness By: /s/ Warren Stewart Warren Stewart
STATE OF )
) ss
COUNTY OF )
The foregoing instrument was acknowledged before me, a
Notary Public in and for the County and State aforesaid,
this day of______________,1997, by____________,
Notary Public.
Fund XX AEI Net Lease Income & Growth Fund XX Limited Partnership
By: AEI Fund Management XX, Inc., its corporate general partner
By: /s/ Robert P Johnson
Robert P. Johnson, President
Witness By: /s/ Dawn E Campbell
Witness By: /s/ Jennifer Seck
State of Minnesota )
) ss.
County of Ramsey )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 9th day of October,
1997, Robert P. Johnson, President of AEI Fund Management XX,
Inc., corporate general partner of AEI Net Lease Income & Growth
Fund XX Limited Partnership, who executed the foregoing
instrument in said capacity and on behalf of the corporation in
its capacity as corporate general partner, on behalf of said
limited partnership.
/s/ Brian K Schulz
Notary Public
[notary seal]
Co-Tenant Initial:
Co-Tenancy Agreement for Arby's/Mrs. Winners - Smyrna, GA
EXHIBIT "A"
ALL THAT TRACT or parcel of land lying and being in Land
Lots 688, 689,752 and 753 of the 17th District, 2nd Section
of Cobb County, Georgia, containing 1.071 acres, same being
more particularly described as follows:
TO FIND THE TRUE POINT OF BEGINNING, begin at the point of
intersection of the westerly Right-of-Way Line of South Cobb
Drive (Two-hundred (200') foot Right-of-Way) and of the
southerly Right-of-Way Line of Kenwood Road (Fifty(50') foot
Right-of-Way); thence traveling along the westerly Right-of-
Way Line of said South Cobb Drive South 11 degrees 59
minutes 32 seconds east a distance of 36.03 feet to a point
on said Right-of-Way Line; thence continuing along said
Right-of-Way Line south 09 degrees 19 minutes 41 seconds
east a distance of 166.01 feet to a point on said Right-of-
Way Line; thence continuing along said Right-of-Way Line
along a curve to the left an arc distance of 18.12 feet
(said arc being subtended by a chord bearing south 11
degrees 12 minutes 11 seconds east a chord distance of 18.12
feet and having a radius of 2,964.79 feet) to an iron pin
set on said Right-of-Way Line and at the southeast corner of
property now or formally owned by Wendy's International,
Inc., which iron pin set is the TRUE POINT OR BEGINNING;
FROM THE TRUE POINT OF BEGINNING as thus established
continuing along said Right-of-Way Line along a curve to the
left an arc distance of 161.96 feet (said arc being
subtended by a chord bearing south 12 degrees 56 minutes 36
seconds east a chord distance of 161.94 feet and having a
radius of 2,964.79 feet) to an iron pin set on said Right-of-
Way Line and at the northeast corner of the property now or
formerly owned by Checkers Restaurant; thence leaving said
Right-of-Way Line and traveling along the northwesterly line
of said Checkers property south 71 degrees 15 minutes 52
seconds west a distance of 221.74 feet to an iron pin set;
thence traveling north 18 degrees 44 minutes 08 seconds west
a distance of 131.18 feet to an iron pin set at the
southwest corner of said Wendy's property; thence traveling
along the southeasterly line of said Wendy's property south
82 degrees 28 minutes 25 seconds east a distance of 200.76
feet to an iron pin set, and the TRUE POINT OF BEGINNING.
ALL AS SHOWN on that certain survey for RTM Georgia, Inc.,
prepared by Federer-Ruppert & Associates, bearing the seal
of James W. Woolley, Georgia Registered Land Surveyor Number
1478, dated January 17, 1994, last revised May 10, 1994.
TOGETHER WITH all rights with respect to the above property
reserved in Limited Warranty Deed from Wilson Financial
Corporation, a Florida Corporation to Wendy's International,
Inc. an Ohio Corporation, dated December 26, 1989, filed for
record December 28, 1989 at 2:01 p.m., recorded in Deed Book
5590, Page 288, Records of Cobb County, Georgia.
TOGETHER WITH all rights with respect to the above property
reserved in that certain Limited Warranty Deed from American
Founders Life Insurance Company, a Texas corporation to
Robert G. Brown, dated June 8, 1992, filed for record June
9, 1992 at 10:21 a.m., recorded in Deed Book 6682, Page 118,
aforesaid Records.
TOGETHER WITH all rights with respect to the above property
set forth in Easement Grant by and between Wilson Financial
Corporation, a Florida corporation and Wendy's
International,.Inc., an Ohio corporation, dated December 26,
1989 at 2:01 p.m., recorded in Deed Book 5590, Page 291,
aforesaid Records; as amended b that certain Amendment to
easement Grant, dated June 30, 1993, filed for record July
1, 1993 at 2:15 p.m., recorded in Deed Book 7448, Page 421,
aforesaid Records.
TOGETHER WITH all rights with respect to the above property
set forth in Easement Agreement by and between American
Founders Life Insurance Company, a Texas corporation and
Robert G. Brown, dated June 8, 1992, filed for record June
9, 1992 at 10:21 a.m., recorded in Deed Book 6682, Page 123,
aforesaid Records; as amended by that certain Amendment to
Easement Agreement, dated June 30. 1993, filed for record
July 1, 1993 at 2:15 p.m., recorded in Deed book 7448, Page
433, aforesaid Records.
TOGETHER WITH all rights granted in that certain Sign
Easement by and between American Founders Life Insurance
Company, a Texas corporation and RTM Georgia, Inc., dated
June 30, 1993, filed for record July 1, 1993 at 2:15 p.m.,
recorded in Deed Book 7448, Page 467, aforesaid Records.
TOGETHER WITH all rights granted in that certain New
Driveway Easement Grant by and between American Founders
Life Insurance Company and RTM Georgia, Inc., dated June
30,1 993, filed for record July 1, 1993 at 2:15 p.m.,
recorded in Deed Book 7448, Page 450, aforesaid Records.
PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Applebee's Restaurant - Middletown, OH)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 10th day of October, 1997, by and
between Nick DeVito, Inc., a California Corporation (hereinafter
called "DeVito"), and AEI Net Lease Income & Growth Fund XX
Limited Partnership (hereinafter called "Fund XX") (DeVito, Fund
XX (and any other Owner in Fee where the context so indicates)
being hereinafter sometimes collectively called "Co-Tenants" and
referred to in the neuter gender).
WITNESSETH:
WHEREAS, Fund XX presently owns an undivided 66.1403% interest in
and to, and DeVito presently owns an undivided 18.6076% interest
in and to, and Richard and Marjory Abbott presently own an
undivided 15.2521% interest in and to the land, situated in the
City of Middletown, County of Warren, and State of OH, (legally
described upon Exhibit A attached hereto and hereby made a part
hereof) and in and to the improvements located thereon
(hereinafter called "Premises");
WHEREAS, The parties hereto wish to provide for the orderly
operation and management of the Premises and DeVito's interest by
Fund XX; the continued leasing of space within the Premises; for
the distribution of income from and the pro-rata sharing in
expenses of the Premises.
NOW THEREFORE, in consideration of the purchase by DeVito of an
undivided interest in and to the Premises, for at least One
Dollar ($1.00) and other good and valuable consideration by the
parties hereto to one another in hand paid, the receipt and
sufficiency of which are hereby acknowledged, and of the mutual
covenants and agreements herein contained, it is hereby agreed by
and between the parties hereto, as follows:
1. The operation and management of the Premises shall be
delegated to Fund XX, or its designated agent, successors or
assigns. Provided, however, if Fund XX shall sell all of its
interest in the Premises, the duties and obligations of Fund XX
respecting management of the Premises as set forth herein,
including but not limited to paragraphs 2, 3, and 4 hereof, shall
be exercised by the holder or holders of a majority undivided co-
tenancy interest in the Premises. Except as hereinafter expressly
provided to the contrary, each of the parties hereto agrees to be
bound by the decisions of Fund XX with respect to all
administrative, operational and management matters of the
property comprising the Premises, including but not limited to
the management of the net lease agreement for the Premises. The
parties hereto hereby designate Fund XX as their sole and
exclusive agent to deal with, and Fund XX retains the sole right
to deal with, any property agent or tenant and to monitor,
execute and enforce the terms of leases of space within the
Premises, including but not limited to any amendments, consents
to assignment, sublet, releases or modifications to leases or
guarantees of lease or easements affecting the Premises, on
behalf of DeVito. Only Fund XX may obligate DeVito with respect
to any expense for the Premises.
As further set forth in paragraph 2 hereof, Fund XX agrees to
require any lessee of the Premises to name DeVito as an insured
or additional insured in all insurance policies provided for, or
contemplated by, any lease on the Premises. Fund XX shall use its
best efforts to obtain endorsements adding Co-Tenants to said
policies from lessee within 30 days of commencement of this
agreement. In any event, Fund XX shall distribute any insurance
proceeds it
Co-Tenant Initial: /s/ V.D.F.
Co-Tenancy Agreement for Applebee's, Middletown, OH
may receive, to the extent consistent with any lease on the
Premises, to the Co-Tenants in proportion to their respective
ownership of the Premises.
2. Income and expenses shall be allocated among the Co-Tenants
in proportion to their respective share(s) of ownership. Shares
of net income shall be pro-rated for any partial calendar years
included within the term of this Agreement. Fund XX may offset
against, pay to itself and deduct from any payment due to DeVito
under this Agreement, and may pay to itself the amount of
DeVito's share of any legitimate expenses of the Premises which
are not paid by DeVito to Fund XX or its assigns, within ten (10)
days after demand by Fund XX. In the event there is insufficient
operating income from which to deduct DeVito's unpaid share of
operating expenses, Fund XX may pursue any and all legal remedies
for collection.
Operating Expenses shall include all normal operating expense,
including but not limited to: maintenance, utilities, supplies,
labor, management, advertising and promotional expenses, salaries
and wages of rental and management personnel, leasing commissions
to third parties, a monthly accrual to pay insurance premiums,
real estate taxes, installments of special assessments and for
structural repairs and replacements, management fees, legal fees
and accounting fees, but excluding all operating expenses paid by
Tenant under terms of any lease agreement of the Premises.
DeVito has no requirement to, but has, nonetheless elected to
retain, and agrees to annually reimburse, Fund XX in the amount
of $900 for the expenses, direct and indirect, incurred by Fund
XX in providing DeVito with monthly accounting and distributions
of DeVito's share of net income and for tracking, reporting and
assessing the calculation of DeVito's share of operating expenses
incurred from the Premises. This invoice amount shall be pro-
rated for partial years and DeVito authorizes Fund XX to deduct
such amount from DeVito's share of revenue from the Premises.
DeVito may terminate this agreement in this paragraph respecting
accounting and distributions at any time and attempt to collect
its share of rental income directly from the tenant; however,
enforcement of all other provisions of the lease remains the sole
right of Fund XX pursuant to Section 1 hereof. Fund XX may
terminate its obligation under this paragraph upon 30 days notice
to DeVito prior to the end of each anniversary hereof, unless
agreed in writing to the contrary.
3. Full, accurate and complete books of account shall be kept
in accordance with generally accepted accounting principles at
Fund XX's principal office, and each Co-Tenant shall have access
to such books and may inspect and copy any part thereof during
normal business hours. Within ninety (90) days after the end of
each calendar year during the term hereof, Fund XX shall prepare
an accurate income statement for the ownership of the Premises
for said calendar year and shall furnish copies of the same to
all Co-Tenants. Quarterly, as its share, DeVito shall be entitled
to receive 18.6076% of all items of income and expense generated
by the Premises. Upon receipt of said accounting, if the
payments received by each Co-Tenant pursuant to this Paragraph 3
do not equal, in the aggregate, the amounts which each are
entitled to receive proportional to its share of ownership with
respect to said calendar year pursuant to Paragraph 2 hereof, an
appropriate adjustment shall be made so that each Co-Tenant
receives the amount to which it is entitled.
4. If Net Income from the Premises is less than $0.00 (i.e.,
the Premises operates at a loss), or if capital improvements,
repairs, and/or replacements, for which adequate reserves do not
exist, need to be made to the Premises, the Co-Tenants, upon
receipt of a written request therefor from Fund XX, shall, within
fifteen (15) business days after receipt of notice, make payment
to Fund XX sufficient to pay said net operating losses and to
provide necessary operating capital for the premises and to pay
for said capital improvements, repairs and/or replacements, all
in proportion to their undivided interests in and to the
Premises.
Co-Tenant Initial: /s/ V.D.F.
Co-Tenancy Agreement for Applebee's, Middletown, OH
5. Co-Tenants may, at any time, sell, finance, or otherwise
create a lien upon their interest in the Premises but only upon
their interest and not upon any part of the interest held, or
owned, by any other Co-Tenant. All Co-Tenants reserve the right
to escrow proceeds from a sale of their interests in the Premises
to obtain tax deferral by the purchase of replacement property.
6. If any Co-Tenant shall be in default with respect to any of
its obligations hereunder, and if said default is not corrected
within thirty (30) days after receipt by said defaulting Co-
Tenant of written notice of said default, or within a reasonable
period if said default does not consist solely of a failure to
pay money, the remaining Co-Tenant(s) may resort to any available
remedy to cure said default at law, in equity, or by statute.
7. This property management agreement shall continue in full
force and effect and shall bind and inure to the benefit of the
Co-Tenant and their respective heirs, executors, administrators,
personal representatives, successors and permitted assigns until
July 14, 2029 or upon the sale of the entire Premises in
accordance with the terms hereof and proper disbursement of the
proceeds thereof, whichever shall first occur. Unless
specifically identified as a personal contract right or
obligation herein, this agreement shall run with any interest in
the Property and with the title thereto. Once any person, party
or entity has ceased to have an interest in fee in any portion of
the Entire Property, it shall not be bound by, subject to or
benefit from the terms hereof; but its heirs, executors,
administrators, personal representatives, successors or assigns,
as the case may be, shall be substituted for it hereunder.
8. Any notice or election required or permitted to be given or
served by any party hereto to, or upon any other, shall be deemed
given or served in accordance with the provisions of this
Agreement, if said notice or elections addressed as follows;
If to Fund XX:
AEI Net Lease Income & Growth Fund XX Limited Partnership
1300 Minnesota World Trade Center
30 E. Seventh Street
St. Paul, Minnesota 55101
if to DeVito:
Vito DeVito Francesco
P.O. Box 591
Ontario, CA 91762
If to Abbott:
Richard Abbott
Marjory Abbott
524 Roslyn
East Williston, NY 11596
Each mailed notice or election shall be deemed to have been given
to, or served upon, the party to which addressed on the date the
same is deposited in the United States certified mail, return
receipt requested, postage prepaid, or given to a nationally
recognized courier service guaranteeing overnight delivery as
properly addressed in the manner above provided. Any party hereto
may change its address for the service of notice hereunder by
delivering written notice of said change to the other parties
hereunder, in the manner above specified, at least ten (10) days
prior to the effective date of said change.
Co-Tenant Initial: /s/ V.D.F.
Co-Tenancy Agreement for Applebee's, Middletown, OH
9. This Agreement shall not create any partnership or joint
venture among or between the Co-Tenants or any of them, and the
only relationship among and between the Co-Tenants hereunder
shall be that of owners of the premises as tenants in common
subject to the terms hereof.
10. The unenforceability or invalidity of any provision or
provisions of this Agreement as to any person or circumstances
shall not render that provision, nor any other provision hereof,
unenforceable or invalid as to any other person or circumstances,
and all provisions hereof, in all other respects, shall remain
valid and enforceable.
11. In the event any litigation arises between the parties
hereto relating to this Agreement, or any of the provisions
hereof, the party prevailing in such action shall be entitled to
receive from the losing party, in addition to all other relief,
remedies and damages to which it is otherwise entitled, all
reasonable costs and expenses, including reasonable attorneys'
fees, incurred by the prevailing party in connection with said
litigation.
The remainder of this page intentionally left blank
Co-Tenant Initial: /s/ V.D.F.
Co-Tenancy Agreement for Applebee's, Middletown, OH
IN WITNESS WHEREOF, The parties hereto have caused this Agreement
to be executed and delivered, as of the day and year first above
written.
DeVito Nick DeVito, Inc.
By: /s/ Vito DeVito Francesco
Vito DeVito Francesco, Secretary/Treasurer
WITNESS:
/s/ Sharon Rose
Sharon Rose
(Print Name)
WITNESS:
/s/ Warren Stewart
Warren Stewart
(Print Name)
STATE OF )
) ss
COUNTY OF )
The foregoing instrument was acknowledged before me, a
Notary Public in and for the County and State aforesaid,
this day of______________,1997, by____________,
Notary Public.
Fund XX AEI Net Lease Income & Growth Fund XX Limited Partnership
By: AEI Fund Management XX, Inc., its corporate general partner
By: /s/ Robert P Johnson
Robert P. Johnson, President
WITNESS:
/s/ Dawn E Campbell
Dawn E Campbell
(Print Name)
WITNESS:
/s/ Jennifer Seck
Jennifer Seck
(Print Name)
State of Minnesota )
) ss.
County of Ramsey )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 10th day of October,
1997, Robert P. Johnson, President of AEI Fund Management XX,
Inc., corporate general partner of AEI Net Lease Income & Growth
Fund XX Limited Partnership who executed the foregoing instrument
in said capacity and on behalf of the corporation in its capacity
as corporate general partner, on behalf of said limited
partnership.
/s/ Brian K Schulz
Notary Public
[notary seal]
EXHIBIT "A"
Situated in the State of Ohio, County of Warren, City of
Middletown, Section 3, Town 2 East, Range 4 North, Franklin
Township;
Being Lot Number Five (5) of MIDDLETOWN CROSSING, as the same is
numbered and delineated upon the recorded plat thereof, of record
in Plat Book 27, pages 15 and 16, Recorder's Office, Warren
Coutny, Ohio.
Subject to all covenants, conditions, restrictions and easements
of record.
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000894245
<NAME> AEI NET LEASE INCOME & GROWTH FUND XX LIMITED PARTNERSHIP
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<CASH> 2,108,818
<SECURITIES> 0
<RECEIVABLES> 28,878
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 2,137,696
<PP&E> 18,290,481
<DEPRECIATION> (955,767)
<TOTAL-ASSETS> 19,472,410
<CURRENT-LIABILITIES> 569,164
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> 18,903,246
<TOTAL-LIABILITY-AND-EQUITY> 19,472,410
<SALES> 0
<TOTAL-REVENUES> 1,505,413
<CGS> 0
<TOTAL-COSTS> 564,614
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 1,101,559
<INCOME-TAX> 0
<INCOME-CONTINUING> 1,101,559
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,101,559
<EPS-PRIMARY> 46.11
<EPS-DILUTED> 46.11
</TABLE>
