ASSIGNMENT AND ASSUMPTION
OF
PURCHASE AGREEMENT
THIS ASSIGNMENT made and entered into this 11th day of
March, 2008, by and between AEI Real Estate Fund XVII Limited
Partnership, a Minnesota Limited Partnership, ("Assignor") and
AEI Real Estate Fund XVIII Limited Partnership, a Minnesota
Limited Partnership ("Assignee");
WITNESSETH, that:
WHEREAS, on the 14th day of February, 2008, Assignor
entered into a Purchase and Sale Agreement (hereinafter
referred to as the "Agreement") for that certain property
located at 0000 Xxxxxx Xxxxxx Xxxx, Xxxxxxxx, XX 00000 which
is more particularly described within the Agreement, (the
"Property) with Stratford Investment Company Limited
Partnership, an Ohio limited partnership, as Buyer; and
WHEREAS, Assignor desires to assign to Assignee all of
Assignor's rights, title and interest in, to and under the
Agreement regarding the Property and Assignee desires to
assume all of Assignor's rights, title and interest in, to and
under the Agreement regarding the Property as hereinafter
provided;
NOW, THEREFORE, for One Dollar ($1.00) and other good and
valuable consideration, receipt of which is hereby
acknowledged, it is hereby agreed between the parties as
follows:
1. Assignor assigns all of its rights, title and interest
in, to and under the Agreement regarding the Property to
Assignee in the proportions set forth above, to have and to
hold the same unto the Assignee, its successors and assigns;
2. Assignee hereby assumes all rights, promises, covenants,
conditions and obligations under the Agreement regarding the
Property to be performed by the Assignor thereunder, and
agrees to be bound for all of the obligations of Assignor
under the Agreement;
All other terms and conditions of the Agreement shall remain
unchanged and continue in full force and effect.
ASSIGNOR:
AEI Real Estate Fund XVII Limited Partnership
a Minnesota Limited Partnership
By: AEI Fund Management XVII, Inc.,
its corporate general partner
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, President
ASSIGNEE:
AEI Real Estate Fund XVIII Limited Partnership
a Minnesota limited partnership
By: AEI Fund Management XVIII, Inc.,
a Minnesota corporation, its corporate general partner
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, President
REAL ESTATE PURCHASE CONTRACT
Date: February 13, 2008
1. PROPERTY DESCRIPTION: The undersigned Buyer offers to
purchase from the Seller through Broker(s) the following
described real estate including, without limitation, all
improvements, fixtures, appurtenant rights, privileges, and
easements located in the County of Franklin, and the State of
Ohio known as: 0000 Xxxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxx 00000,
as legally described on Exhibit "A" attached hereto and
incorporated herein by reference (the "Property").
2. PRICE AND TERMS: The purchase price is: One Million Seven
Hundred Twenty Thousand Dollars ($1,720,000.00). Payable as
follows: cash at closing.
3. ADDITIONAL TERMS: This agreement is contingent upon
Buyer's Attorney's review and approval of current lease within
twenty-one (21) days after the Effective Date (as defined in
Section 14 below). Seller represents and warrants that as of
the Effective Date, the Lease (as defined in Section 5 below)
is the only lease in effect with respect to the Property, and
Seller has furnished Buyer with true, accurate and complete
copies of the Lease, and any amendments thereto. Seller
represents that it owns no personality within the Property.
Seller covenants that there will be no changes to the Lease
after Effective Date. Seller's right, title and interest in and
to the Lease, as lessor, shall be assigned to Buyer at closing
pursuant to an instrument in form and substance reasonably
acceptable to Buyer, and acknowledged in writing by Tenant (as
defined in Section 5 below).
4. CONTINGENCIES:
a. Environmental Inspection: For a period not to exceed
twenty-one (21) days after the Effective Date, Seller agrees to
permit Buyer, Buyers' lender and the qualified professional
environmental consultant of either of them, subject to the
rights and approval of the Tenant, to enter the Property to
conduct, at the expense of the Buyer, an environmental site
assessment. Buyer agrees to indemnify and hold Seller harmless
from any injury or damage caused by such inspections. If such
assessment is obtained and the consultant recommends further
inspection to determine the extent of suspected contamination
or recommends remedial action, Buyer, at Buyer's option, may
notify Seller in writing, within the above-specified period,
that the contract is null and void, and the Buyer's xxxxxxx
money deposit shall be immediately refunded to Buyer and
neither party shall have any further rights or obligations
under this contract.
b. Property Inspection: Buyer, at Buyer's expense, shall have
twenty-one (21) days after the Effective Date to have Property
and all improvements, fixtures, and equipment inspected.
Seller shall cooperate in making the Property reasonably
available for such inspections(s) subject to the rights and
approval of the Tenant. Buyer agrees to indemnify and hold
Seller harmless from any injury or damage caused by such
inspection(s). If Buyer
is not satisfied with the condition of the Property as
disclosed by such inspections, Buyer may terminate this
contract by delivering written notice of such termination to
Seller within the above specified period that the contract is
null and void, and the Buyer's xxxxxxx money deposit shall be
immediately refunded to Buyer and neither party shall have any
further rights or obligations under this contract, except
Buyer's indemnity of Seller set forth above, which shall
survive the termination hereof.
c. Other Contingencies: None.
d. If Buyer does not give written notice to Seller within the
time frames set forth above that the contingencies have been
satisfied or that Buyer wishes to terminate this transaction,
then the above contingencies are deemed to have been waived.
5. FIXTURES AND EQUIPMENT: The Property to be transferred at
closing shall include fixtures owned by Seller including, but not
limited to: built-in appliances, heating, ventilating, air
conditioning (HVAC) and humidifying equipment and their control
apparatus, attached floor coverings and any attached wall
coverings, window coverings and awnings, internal wire for
communication system, telecommunication wiring and cables, garage
door openers and controls, whether now in or on the property or
in storage, security systems and controls, smoke alarms, all
exterior landscaping and the following: Subject to the rights of
Tenant, Kindercare Learning Center ("Tenant") pursuant to that
certain lease dated July 28, 1992 ("the "Lease").
6. DAMAGE OR DESTRUCTION OF PROPERTY: Risk or loss to the
Property and appurtenances shall be borne by Seller until
closing. If any party of the Property covered by this contract is
substantially damaged or destroyed before this transaction is
closed, Seller shall give a written notice to Buyer that the
damage or destruction has occurred. Such notice must include all
pertinent information regarding insurance policies and claims
covering the Property that has been damaged or destroyed. The
written notice shall be delivered within forty-eight (48) hours
from discovery of the event causing the damage or destruction.
Buyer may (a) proceed with the transaction and be entitled to all
insurance proceeds, if any, payable to Seller under all policies
covering the Property, or (b) rescind the contract, by giving
written notice to Seller within ten (10) calendar days after
Seller has delivered written notice to Buyer of such damage or
destruction and thereby release all parties from liability, in
which case, the xxxxxxx money deposit shall be returned to Buyer
pursuant to paragraph 14. Failure by Buyer to so notify Seller
shall constitute an election to proceed with the transaction.
7. CONDITION OF IMPROVEMENTS: Seller agrees that upon delivery
of deed, the improvements constituting part of the real estate
shall be in the same condition as that on the day of this offer,
reasonable wear and tear excepted and damage accepted by Buyer
under Paragraph 6.
8. EVIDENCE OF TITLE: Buyer shall obtain an owner's title
commitment and policy in the amount of the purchase price. The
title evidence shall be from a nationally recognized title
insurance company (the "Title Company") designated by Buyer,
certified to within thirty (30) days prior to closing with
endorsement not before 8:00 a.m. on the business day prior to the
date of closing, all in accordance with the standards of the
Columbus Bar Association, and shall show title in fee simple free
and clear of all liens and encumbrances except: (a) those created
by or assumed by Buyer; (b) those specifically set forth in this
contract; (c) zoning ordinances; (d) legal highways and (e)
covenants, restrictions, conditions, and easements of record that
do not unreasonably interfere with present lawful use. Seller
shall pay the cost of the owner's title
policy in the amount of the purchase price; provided that Buyer
shall pay any additional costs incurred in connection with
mortgage title insurance issued for the protection of Buyer's
lender, and any endorsements thereto that the Buyer of lender may
require. If Buyer desires a survey, Buyer shall pay the cost
thereof. If title to all or part of real estate is unmarketable,
as determined by Ohio law with reference to the Ohio State Bar
Association's Standards of Title Examination, or is subject to
liens, encumbrances, easements, conditions, restrictions, or
encroachments other than those excepted in this contract, Seller
may, but shall not be obligated to, within thirty (30) days after
a written notice thereof, remedy or remove any such defect, lien,
encumbrance, easement, condition, restriction, or encroachment or
obtain title insurance without exception therefore. In the event
Seller is unwilling or unable to remedy or insure against the
defect within the thirty (30) day period, Buyer may declare this
contract null and void, and the Buyer's xxxxxxx money deposit
shall be immediately refunded to Buyer and neither party shall
have any further rights or obligations under this contract,
except for Buyer's indemnity set forth in Section 4(b) above. At
closing, Seller shall sign such affidavits or certifications with
respect to off-record title matters as may be required by the
Title Company in order to deliver the title policy in the form
required by this contract, in accordance with the community
custom.
9. TAXES AND ASSESSMENTS; PRORATIONS:
a. Because the Property is subject to a net lease, the parties
acknowledge that there shall be no need for a real estate tax
proration. However, Seller warrants that all real estate taxes
and installments of special assessments due and payable in all
years prior to the year of Closing have been paid in full. Unpaid
real estate taxes and unpaid levied and pending special
assessments existing on the date of Closing shall be the
responsibility of Buyer, pro-rated, however, to the date of
closing for the period prior to closing, which shall be the
responsibility of Seller if Tenant shall not pay the same. Buyer
shall likewise pay all taxes due and payable in the year after
Closing and any unpaid installments of special assessments
payable therewith and thereafter, if such unpaid levied and
pending special assessments and real estate taxes are not paid by
any tenant of the Property.
b. All income, including rent and all operating expenses from
the Property, if any, that are not paid by the Tenant, shall be
prorated between the parties and adjusted by them as of the date
of Closing. Seller shall be entitled to all income earned, and
shall be responsible for all expenses incurred, prior to the date
of Closing. Buyer shall be entitled to all income earned and
shall be responsible for all operating expenses of the property
incurred on and after the date of Closing.
10. BUYER'S EXAMINATION: BUYER IS RELYING SOLELY UPON BUYER'S
OWN EXAMINATION OF THE PROPERTY AND INSPECTIONS HEREIN, IF
ANY, CONCERNING PHYSICAL CONDITION, CHARACTER, AND
SUITABILITY FOR BUYER'S INTENDED USE. BUYER IS NOT RELYING
UPON ANY REPRESENTATIONS BY SELLER, EXCEPT FOR THOSE MADE
DIRECTLY TO THE BUYER IN WRITING.
11. XXXXXXX MONEY DEPOSIT: Buyer has deposited with Title Company
the sum receipted for below.
Upon acceptance of this Contract by Seller, Title Company
shall sign where indicated below to acknowledge receipt of the
sum of $10,000 at acceptance by cash or check, which shall be
held, deposited, and disbursed pursuant to paragraph 14. A copy
of this Contract countersigned by Title Company, along with an
insured closing services protection letter from a national title
insurance company addressed to Seller, shall be furnished to
Seller within two (2) business days following acceptance by
Seller. Seller shall have no obligations under this Contract
until these items are furnished to Seller.
Title Company
Professional Closing Title
Agency, Inc. 0000 Xxxx
Xxxxxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
By /s/ Xxxx Xxxxx, Date: February 19, 2008
Xxxx Xxxxx, President
11.1 If no contract is entered into, then upon Buyer's
written request, the xxxxxxx money deposit shall be returned to
Buyer.
11.2 Upon acceptance of this contract by both parties in
writing, the Title Company shall deposit the xxxxxxx money
deposit in its trust account. Subject to collection by the Title
Company's depository, the xxxxxxx money deposit is to be
disbursed as follows:
a.The xxxxxxx money deposit shall be applied on the purchase
price when the transaction is closed or returned to Buyer if this
agreement is terminated.
b.If any written contingency is not satisfied or waived, if
Seller fails or refuses to perform, or if Buyer fails or refuses
to perform, the xxxxxxx money deposit shall be returned or paid
as follows:
c.The party requesting the return or payment of the xxxxxxx
money deposit shall submit a written request, specifying the
contingency that has not been satisfied or waived or the reason
for the request, to the Title Company holding the xxxxxxx money
deposit. Within forty-eight (48) hours (excluding weekends and
legal holidays) after receiving the request to return or pay the
xxxxxxx money deposit, the Title Company shall advise the other
party in writing that the xxxxxxx money deposit shall be returned
or paid in accordance with the request, unless the other party
delivers written objection to the Title Company within two (2)
business days after delivery of the written notice by the Title
Company.
d. If Title Company does not receive any written objection from
the other party within the two (2) day period, then the Title
Company shall deliver the xxxxxxx money deposit to the party
requesting payment.
e. If the Title Company does receive a written objection from
the other party within the two (2) business day period, then the
Title Company is required to and shall retain the xxxxxxx money
deposit until (i) Buyer and Seller have settled the dispute in
writing, (ii) disposition has been ordered by a final court
order, or (iii) the Title Company deposits the amount with a
court pursuant to applicable court procedures.
11.3 The return of the xxxxxxx money deposit shall in no
way prejudice the rights of the Seller or the Buyer in any
action for damages or specific performance.
12. CLOSING: This contract shall be performed and this
transaction closed on or before March 14, 2008 unless the parties
agree in writing to an extension. Buyer is entitled to possession
at closing unless otherwise specified. At the xxxx Xxxxxx
delivers possession, the Property will be in the same condition
as the date of acceptance of this contract, except as provided in
the Damage or Destruction of Property, Paragraph #6, normal wear
and tear excepted. Seller shall convey to Buyer title as
described in paragraph #8 to the real estate in fee simple by
transferrable and recordable limited or special warranty deed (or
appropriate fiduciary deed if Seller is a fiduciary), with
release of dower, if any.
Unless otherwise expressly provided in this contract, the costs
of closing will be allocated between the Buyer and Seller in
accordance with local custom, as determined by the Title Company.
The Title Company shall prepare a closing statement to be signed
by the Buyer and Seller.
13. MISCELLANEOUS: This contract constitutes the entire
agreement and no oral or implied agreement exists. Any amendments
to this contract shall be in writing, signed by Buyer and Seller
and copies provided to them. This contract shall be binding upon
the parties, their heirs, administrators, executors, successors
and assigns. If this contract involves Seller financing, it may
not be assigned. Time is of the essence of all provisions of this
contract. All provisions of this contract shall survive the
closing.
14. DURATION OF OFFER AND ACCEPTANCE: This offer shall be open
for acceptance through Noon (12:00 p.m.), February 8, 2008
Columbus, Ohio Time. The "Effective Date" shall be the later of
(a) the date Buyer executes this contract or (b) the date Seller
executes this contract.
15. BROKER'S ACKNOWLEDGEMENT: Seller and Buyer acknowledge that
there are no other Broker(s) involved in this transaction except
as follows: Seller shall pay a three percent (3%) commission to
Xxxx Xxxxxx (Agent) of The Xxxxxx Xxxxxx Company (Broker) upon
closing of the sale of the Property. For purposes of this Section
15, "closing" shall be defined as receipt by Seller of the
proceeds of the sale of the Property.
16. SIGNATURES: Only original manual signatures or facsimile
signatures (which include both faxes and PDF documents sent by e-
mail) shall be valid for purposes of this contract and any
amendments or any notices to be delivered in connection with this
contract. Only original, manually signed documents shall be valid
for deeds or other documents to be delivered at closing. This
Section 16 cannot be waived except by a manually signed agreement
of the parties.
17. TAX FREE EXCHANGE: Each party acknowledges that it may
desire to have its acquisition or disposition of the property
qualify for tax deferral under Section 1031 of the Internal
Revenue Code of 1986, as amended. Accordingly, each party agrees
to cooperate with the other, at no expense to the other party, in
all reasonable respects, to have the acquisition or disposition
of the Property qualify for such tax-deferred treatment. No such
tax-deferred exchange shall delay the Closing. This contract may
be assigned, without consent of the other party to any entity
which is employed for the purpose of consummating a tax free
exchange.
Buyer hereby makes the foregoing offer this 13 day of February,
2008.
Strafford Investment Company
Limited Partnership (Buyer)
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Agent
(Buyer)
Address c/o Xxxxxx X. Xxxxxx &
Associates 000 Xxxx Xxxxx
Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxx 00000
Phone (000) 000-0000
Fax (000) 000-0000
Name of Buyer's
Attorney: Xxxxxxx Xxxxxxx
Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP
221 East 4th Street, Suite 2000
Cincinnati, Ohio
00000 (000) 000-0000 (phone)
(000) 000-0000 (fax)
xxxxxxxxx@xxxxx.xxx
Seller hereby makes the foregoing offer this 14 day of February, 2008.
AEI Real Estate Fund XVII Limited Partnership,
By: AEI Fund Management XVII, Inc., its general partner
BY /s/ Xxxxxx X Xxxxxxx:
Xxxxxx X Xxxxxxx, President
ALL PARTIES TO THIS CONTRACT MUST BE PROVIDED WITH A COPY.
EXHIBIT
"A" Legal Description:
The legal description of this property, commonly known as
0000 Xxxxxx Xxxxxx Xx. Xxxxxxxx, Xxxx 00000; Parcel ID # 600-
214693-00 is as follows:
XXXXX XXXX
Xxx 0-00-00
.00 Xxxx
600-0004h-003-01
EXHIBIT "A"
DESCRIPTION OF 0.840
ACRES FOR
CHILDRENS WORLD
March 30, 1989,
Situated in the State of Ohio, County of Franklin, City of
Columbus, Quarter Xxxxxxxx 0, Xxxxxxxx 0, Xxxxx 00, Xxxxxx
Xxxxxx Military Lands, being 0.840 Acres of land out of the
11.456-acre tract granted to Scioto Valley Land Co. Ltd. as
recorded in Official Record Volume 12099 H 16, Franklin County
Recorder's Office. Said 0.840 acre tract being more particularly
described as follows:
Beginning at the southeasterly corner of the above mentioned
11,456-acre tract and the northeasterly corner of the 4.203-acre
tract as described in a deed to Faith Covenant Church, of record
in Official Record Volume 12043 A 15, and in the westerly right-
of-way line of Cherry Bottom Road, as described in a deed to the
City of Columbus and recorded in OB 3465, page 792; thence N 84
52'06"W., along the northerly line of said 4.203 acre tract,
248.79 feet to an iron pin; thence N 5 07'54"E., 147.00 feet to
an iron pin; thence 5 84 52'06"E., 80.00 feet to an iron pin;
thence N 79 43'42"E., 137.05 feet to an iron pin in the westerly
right-of-way line of Cherry Bottom Road; thence along the
westerly line of Cherry Bottom Road, 5 3 34'46"E., 82.00 feet to
an iron pin; thence continuing along said right-of-way line,
5 8 11146"E., 105.18 feet to the place of beginning, containing
0.840 acres, more or less, subject to any easements and rights-
of-way of record.
This description prepared from an actual field survey by
Xxxxxxx & Nipple, Limited, Xxxxxx X. Xxxxxxxxxx, Registered
Surveyor No. 4265.
/s/ Xxxxxx X Xxxxxxxxx
HowardR Somerville
Registered Surveyor No. 4265 [state of Ohio seal]
