PURCHASE AGREEMENT
Children's World Learning Center
Franconia, VA
This AGREEMENT ("Agreement"), entered into effective as of the
15th of February, 2006.
l. PARTIES. Seller is AEI Real Estate Fund XV Limited
Partnership which owns an undivided 100% interest in the fee
simple title to that certain real property and all improvements
thereon legally described in the attached Exhibit "A" (the
"Property") Buyers are Xxxxxx Xxxxxxxx, Xxxxx Xxxxxxxx, and
Xxxxxx Xxxxxxxx as joint tenants, or their assigns. Seller
wishes to sell and Buyer wishes to buy the Property.
2. PROPERTY. The Property to be sold to Buyer in this
transaction consists of an undivided 100% interest the Property.
Seller owns no interest in any personalty in connection with the
Property.
3. PURCHASE PRICE. The purchase price for this 100% interest in
the Property is $1,872,300.00, 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 $10,000
("First Payment") to Fidelity National Title ("Title Company").
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,
$1,862,300.00 (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 April 30,
2006, unless extended pursuant to the terms hereof.
6. DUE DILIGENCE. Buyer will have 45 days from the Effective
Date of this Agreement or the date upon which the Buyer receives
a copy of the Lessee's (KinderCare) waiver of its right of first
refusal to purchase this property (the "Review Period") to
conduct all of its inspections and due diligence and satisfy
itself regarding the Property and this transaction. Buyer agrees
to indemnify and hold Seller harmless for any loss or damage to
the Property or persons caused by Buyer or its agents arising out
of such physical inspections of the Property. Within ten (10)
days after the Effective Date of this Agreement, Seller shall
provide (except as explained below, in Item A & B):
A. One copy of a title insurance commitment ("Title
Commitment") for an Owner's Title insurance policy (see paragraph
8 below), to be ordered by Seller immediately upon both parties
hereto having executed thisAgreement, and said commitment to be
delivered to Buyer as soon as the third party title insurance
company provides it to Seller, but it shall be delivered no later
than ten (10) days after the Effective Date of this Agreement.
B. A copy of all instruments referenced in the Title Commitment
which constitute exceptions to title.
C. A copy of a Certificate of Occupancy or other such document
certifying completion and granting permission to permanently
occupy the improvements on the Property as are in Seller's
possession.
D. A copy of an "as built" survey of the Property completed
concurrent with Seller's acquisition of the Property, if
available in Seller's possession.
E. A copy of any Phase I Environmental Report on the Property,
if available in Seller's possession.
F. A copy of the existing Lease and Guarantee.
Buyer may cancel this Agreement for ANY REASON in its sole
discretion by delivering a cancellation notice, certified mail,
return receipt requested, to Seller and the Title Company before
the expiration of the Review Period. Such notice shall be deemed
effective when sent by certified mail. 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 liabilities under the first paragraph of section 6
of this Agreement (which will survive), Seller (after execution
of such documents reasonably requested by Seller to evidence the
termination hereof) shall cause the Title Company to return to
Buyer its First Payment and Buyer will have absolutely no rights,
claims or interest of any type in connection with the Property or
this transaction, regardless of any alleged conduct by Seller or
anyone else.
Unless this Agreement is canceled by Buyer pursuant to the terms
hereof, if Buyer fails to make the Second Payment Seller shall be
entitled to retain the First Payment and Buyer irrevocably will
be deemed to be in default under this Agreement. Seller shall
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. If
this Agreement is not canceled and the First Payment and the
Second Payment is made when required, all of Buyer's conditions
and contingencies will be deemed satisfied.
7. ESCROW. Escrow shall be opened by Seller and the First
Payment will be deposited in escrow upon acceptance of this
Agreement by both parties. The escrow holder will be the Title
Company. A copy of this Agreement will be delivered to the Title
Company and will serve as escrow instructions together with the
Title Company's standard instructions and any additional
instructions required by the Title Company to clarify its rights
and duties (and the parties agree to sign these additional
instructions). If there is any conflict between these other
instructions and this Agreement, this Agreement will control.
8. TITLE. Closing will be conditioned on the agreement of the
Title Company to issue an Owner's policy of title insurance
("Owner's Title Policy"), dated as of the close of escrow, in an
amount equal to the purchase price, insuring that Buyer will own
marketable and insurable title to the Property subject only to:
exceptions acceptable to Buyer; current real property taxes and
assessments; and survey exceptions.
Buyer shall be allowed ten (10) business days after receipt of
the Title Commitment and the documents described in Paragraph 6B
above for examination and the making of any objections thereto,
said objections to be made in writing or deemed waived. If any
objections are so made, Seller shall be allowed thirty (30) days
to cure such objections or, in the alternative, to obtain a
commitment for marketable and insurable title insuring over
Buyer's objections. If Seller shall decide to make no efforts to
cure or is unable to cure any title objections or obtain
marketable and insurable title, (after execution by Buyer of such
documents reasonably requested by Seller to evidence the
termination hereof) Buyer's First Payment will be returned and
this Agreement shall be null and void and of no further force and
effect. Seller has no obligation to spend any funds or make any
effort to satisfy Buyer's objections, if any.
Pending satisfaction of Buyer's objections, the payments
hereunder required shall be postponed, but upon satisfaction of
Buyer's objections and within ten (10) days after written notice
to the Buyer of satisfaction of Buyer's objections, the parties
shall perform this Agreement according to its terms. The seller
shall convey the property and improvements by special warranty
deed and execute such other documents as may be reasonably
required by the settlement agent.
9. CLOSING COSTS. Seller will pay one-half of escrow fees, the
fee for the preparation of the special warranty deed, the
Virginia grantor tax to record the deed and the recording fee to
release the lien of the deed of trust of the seller, if any. If
Buyer shall decide to purchase title insurance, then Buyer will
pay the cost of obtaining a Standard Owners Title Insurance
Policy in the full amount of the purchase price. Buyer will pay
all recording fees, transfer taxes, guarantee taxes, and clerk's
fees imposed upon the recording of the deed, one-half of the
escrow fees, the cost of the title commitment 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). The real estate taxes shall be prorated between the
parties and adjusted by them as of the date of Closing. Unpaid
real estate taxes (or if payable in installments, any due and
unpaid installment thereof) and unpaid levied and pending special
assessments (or if payable in installments, any due and unpaid
installment thereof) 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. Buyer shall likewise pay all taxes due
and payable in the year after Closing and any unpaid installments
of real estate taxes or special assessments payable therewith and
thereafter.
11. SELLER'S REPRESENTATION AND AGREEMENTS.
(A). Seller represents and warrants as of this date and as of the
date of Closing that:
1. Except for the Lease Agreement in existence between AEI Real
Estate Fund XV Limited Partnership (as Lessor) and KinderCare
Learning Centers, Inc. ("Tenant"), dated March 1, 1987, the First
Amendment to Net Lease Agreement dated March 11, 1987, the Second
Amendment to Net Lease Agreement dated January 21, 2004, and the
Third Amendment to Net Lease Agreement dated July 30, 2004 (the
"Lease"), Seller is not aware of any leases of the Property.
2. If the Lease contains a Right of First Refusal to the
benefit of the Lessee for the duration of the Lease, including
any renewal terms, then Seller's obligations hereunder are
contingent upon Seller successfully obtaining Lessee's waiver of
such right of first refusal with respect to this transaction.
3. It is not aware of any pending litigation or condemnation
proceedings against the Property or Seller's interest in the
Property.
4. Except as previously disclosed to Buyer and as permitted in
paragraph (b) below, Seller is not aware of any contracts Seller
has executed that would be binding on Seller after the closing
date.
(B). Provided that Buyer performs its obligations as required,
Seller agrees that it will not enter into any new contracts that
would materially affect the Property and be binding on Seller
after the Closing Date without Buyer's prior consent, which will
not be unreasonably withheld.
12. DISCLOSURES.
(A). Seller has not received any notice of any material,
physical, or mechanical defects of the Property, including
without limitation, the plumbing, heating, air conditioning, and
ventilating, electrical system. To the best of Seller's knowledge
without inquiry, all such items are in good operating condition
and repair and in compliance with all applicable governmental,
zoning, and land use laws, ordinances, regulations and
requirements. If Seller shall receive any notice to the contrary
prior to Closing, Seller will inform Buyer prior to Closing.
(B). Seller has not received any notice that the use and
operation of the Property is not in full compliance with
applicable building codes, safety, fire, zoning, and land use
laws, and other applicable local, state and federal laws,
ordinances, regulations and requirements. If Seller shall receive
any such notice prior to Closing, Seller will inform Buyer prior
to Closing.
(C). Seller has not received any notice that the Property is in
violation of any federal, state or local law, ordinance, or
regulations relating to industrial hygiene or the environmental
conditions on, under, or about the Property, including, but not
limited to, soil, and groundwater conditions. To the best of
Seller's knowledge, there is no proceeding or inquiry by any
governmental authority with respect to the presence of Hazardous
Materials on the Property or the migration of Hazardous Materials
from or to other property. Buyer agrees that Seller will have no
liability of any type to Buyer or Buyer's successors, assigns, or
affiliates in connection with any Hazardous Materials on or in
connection with the Property either before or after the Closing
Date, except such Hazardous Materials on or in connection with
the Property arising out of Seller's gross negligence or
intentional misconduct. If Seller shall receive any notice to the
contrary prior to Closing, Seller will inform Buyer prior to
Closing.
(D). BUYER AGREES THAT IT SHALL BE PURCHASING THE PROPERTY IN ITS
PRESENT CONDITION, "AS IS, WHERE IS", AND SELLER HAS NO
OBLIGATIONS TO CONSTRUCT OR REPAIR ANY IMPROVEMENTS THEREON OR TO
PERFORM ANY OTHER ACT REGARDING THE PROPERTY, EXCEPT AS EXPRESSLY
PROVIDED HEREIN.
(E). BUYER ACKNOWLEDGES THAT, HAVING BEEN GIVEN THE OPPORTUNITY
TO INSPECT THE PROPERTY AND SUCH FINANCIAL INFORMATION CONCERNING
THE LESSEE AND ANY GUARANTORS OF THE LEASE AS BUYER OR ITS
ADVISORS SHALL REQUEST AND AS MAY BE IN SELLER'S POSSESSION,
BUYER IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY
AND NOT ON ANY REPRESENTATIONS OR INFORMATION PROVIDED BY SELLER
OR TO BE PROVIDED BY SELLER, EXCEPT AS SET FORTH HEREIN. BUYER
FURTHER ACKNOWLEDGES THAT THE INFORMATION PROVIDED, OR TO BE
PROVIDED, BY SELLER WITH RESPECT TO THE PROPERTY, THE LESSEE AND
ANY GUARANTORS OF THE LEASE, WAS OBTAINED FROM A VARIETY OF
SOURCES AND SELLER HAS NOT (A) MADE INDEPENDENT INVESTIGATION OR
VERIFICATION OF SUCH INFORMATION, AND (B) MAKES NO
REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH
INFORMATION, EXCEPT AS HEREIN SET FORTH. THE SALE OF THE PROPERTY
AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS - WHERE IS" BASIS AND
BUYER EXPRESSLY ACKNOWLEDGES THAT, IN CONSIDERATION OF THE
AGREEMENTS OF SELLER HEREIN, EXCEPT AS OTHERWISE SPECIFIED HEREIN
IN PARAGRAPH 11(A) AND (B) ABOVE AND THIS PARAGRAPH 12, SELLER
MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR
ARISING BY OPERATION OF LAW, INCLUDING, BUT NOT LIMITED TO, ANY
WARRANTY OF CONDITION, HABITABILITY, SUITABILITY FOR LEASE,
SUITABILITY FOR COMMERCIAL PURPOSES, MERCHANTABILITY, OR FITNESS
FOR A PARTICULAR PURPOSE, IN RESPECT OF THE PROPERTY. SELLER
MAKES NO REPRESENTATIONS OF ANY SORT THAT OWNERSHIP OF THE ENTIRE
PROPERTY WILL RESULT IN A PROFIT TO ANY BUYER.
(F) BUYER ACKNOWLEDGES THAT SELLER CANNOT, AND DOES NOT; MAKE
ANY REPRESENTATION AS TO THE APPROPRIATENESS OF PURCHASING THE
ENTIRE PROPERTY FOR THE BUYER'S INDIVIDUAL TAX OR FINANCIAL
SITUATION OR TAX OR FINANCIAL OBJECTIVES. BUYER ACKNOWLEDGES
THAT HE OR SHE IS RELYING SOLELY UPON HIS OR HER OWN EXAMINATION
OF THE ENTIRE PROPERTY AND ALL FACTS SURROUNDING THE PURCHASE OF
THE ENTIRE PROPERTY INCLUDING THE MERITS AND RISKS INVOLVED
THEREIN.
The provisions (C) - (F) above shall survive Closing.
13. CLOSING.
(A). Before the closing date, Seller will deposit into escrow an
executed special warranty deed warranting title against lawful
claims by, through, or under a conveyance from Seller, but not
further or otherwise, conveying marketable and insurable title of
the Property to Buyer, subject to the exceptions 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 and any additional funds required of Buyer (pursuant to
this Agreement or any other agreement executed by Buyer) to close
escrow. Both parties will deliver to the Title Company any other
documents reasonably required by the Title Company to close
escrow.
(C). On the closing date, if escrow is ready to close, the Title
Company will: record the deed in the official records of the
county where the Property is located; cause the Title Company to
issue the Owner's 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 shall be entitled to (a) terminate
this agreement and receive the First payment, (b) enforce
specific performance, or (c) pursue any other remedies available
to Buyer at law or in equity.
15. REPRESENTATIONS AND WARRANTIES.
(A). Buyer and Seller represent and warrant to the other as
follows:
(1). In addition to the acts and deeds recited herein and
contemplated to be performed, executed, and delivered by each
party, each party shall perform, execute and deliver or cause to
be performed, executed, and delivered at the Closing or after the
Closing, any and all further acts, deeds and assurances as the
Title Company may reasonably require and be reasonable in order
to consummate the transactions contemplated herein.
(2). Each party has all requisite power and authority to
consummate the transaction contemplated by this Agreement and has
by proper proceedings duly authorized the execution and delivery
of this Agreement and the consummation of the transaction
contemplated hereby.
(3). To each party'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 each party is a party
or by which each party 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
, this Agreement shall become null and void, at Buyer's option
exercised, if at all, by written notice to Seller within ten (10)
days after Buyer has received written notice from Seller of said
destruction or damage. Seller, however, shall have the right to
adjust or settle any insured loss until (i) all contingencies set
forth in Paragraph 6 hereof have been satisfied, or waived; and
(ii) any ten-day period provided for above in this Subparagraph
16a for Buyer to elect to terminate this Agreement has expired or
Buyer has, by written notice to Seller, waived Buyer's right to
terminate this Agreement. If Buyer elects to proceed and to
consummate the purchase despite said damage or destruction, there
shall be no reduction in or abatement of the purchase price, and
Seller shall assign to Buyer the Seller's right, title, and
interest in and to all insurance proceeds (pro-rata in relation
to the Property) resulting from said damage or destruction to the
extent that the same are payable with respect to damage to the
Property.
(B). If, prior to closing, the Property, or any part thereof, is
taken by eminent domain, this Agreement shall become null and
void at Buyer's option. If Buyer elects to proceed to consummate
the purchase despite said taking, there shall be no reduction in,
or abatement of, the purchase price, and Seller shall assign to
Buyer the Seller's right, title, and interest in and to any award
made, or to be made, in the condemnation proceeding.
In the event that this Agreement is terminated by Buyer as
provided above in Subparagraph 16A or 16B, the First Payment
shall be immediately returned to Buyer (after execution by Buyer
of such documents reasonably requested by Seller to evidence the
termination hereof.)
17. 1031 EXCHANGE.
If Buyer is purchasing the Property as "replacement property" for
purposes of a tax free exchange, Buyer acknowledges that Seller
has made no representations, warranties, or agreements to Buyer
or Buyer's agents that the transaction contemplated by the
Agreement will qualify for such tax treatment, nor has there been
any reliance thereon by Buyer respecting the legal or tax
implications of the transactions contemplated hereby. Buyer
further represents that it has sought and obtained such third
party advice and counsel as it deems necessary in regards to the
tax implications of this transaction.
Buyer wishes to novate/assign the ownership rights and interest
of this Purchase Agreement to FPOS, Inc. who will act as
Accommodator to perfect the 1031 exchange by preparing an
agreement of exchange of Real Property whereby
FPOS. 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 FPOS, Inc., Seller will deed the property to Buyer.
18. CANCELLATION
If any party elects to cancel this Agreement 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 the Closing Date through no
fault of Seller, Seller may, at its election, extend the closing
date or exercise any remedy available to it by law, including
terminating this Agreement.
(C). Funds to be deposited or paid by Buyer must be good and
clear funds in the form of cash, cashier's checks or wire
transfers.
(D). All notices from either of the parties hereto to the other
shall be in writing and shall be considered to have been duly
given or served if sent by first class certified mail, return
receipt requested, postage prepaid, or by a nationally recognized
courier service guaranteeing overnight delivery to the party at
his or its address set forth below, or to such other address as
such party may hereafter designate by written notice to the other
party.
If to Seller:
AEI Real Estate Fund XV Limited Partnership
Attention: Xxxxxx Xxxxxxx and Xxxxx Xxxxxxxxx
00 Xxxx Xxxxxxx Xxxxxx, #0000
Xx. Xxxx, XX 00000
If to Buyer:
Xxxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
0000 X'Xxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
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. Buyer shall have the
right to assign this Agreement to an affiliate of the Buyer.
This Agreement shall be governed by, and interpreted in
accordance with, the laws of the State of Virginia.
IN WITNESS WHEREOF, the Seller and Buyer have executed this
Agreement effective as of the day and year above first written.
BUYER:
By: /s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
By: /s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
By: /s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
SELLER:
AEI Real Estate Fund XV, a Minnesota limited partnership
By: AEI Fund Management 86-A, Inc., a Minnesota corporation
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, its President
Exhibit A
Legal Description
Lot Sixteen (16), Section Two (2), Franconia Hills, Fairfax
County, Virginia.
