PURCHASE AGREEMENT
Fairfield, Ohio
This AGREEMENT, entered into effective as of the 31 st of
May, 1997.
l. Parties. Seller is AEI Real Estate Fund XVIII Limited
Partnership ("Seller"). Seller holds an undivided 100% interest
in the fee title to that certain real property legally described
in the attached Exhibit "A" (the "Property"). Buyer is Xxxx Xxx
Xxxxx and Xxxxx Xxx Ho, as Tenants in Common ("Buyer"). Seller
wishes to sell and Buyer wishes to buy the Property.
2. Property. The Property to be sold to Buyer in this
transaction is legally described on Exhibit A attached hereto,
subject to all easements, covenants, conditions, restrictions and
agreements of record that do not affect marketability of title or
affect adversely the use of the Property ("Permitted
Exceptions"), subject to the provisions of Buyer review of title
as set forth below in paragraph 9.
3. Purchase Price. The purchase price for this Property is
$560,000 cash, based on the following terms:
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
in cash or good funds (the "First Payment") to Escrowee
Lawyer's Title of Cincinnati, Inc. 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 pay the balance of the purchase price for the
Property, $555,000 in cash or good funds (the "Second
Payment")(less the additional First Payment, if made, as set
forth in paragraph 5 below) at closing to the ("Escrowee")
who shall close the transaction according to the terms
hereof.
5. Closing Date. Escrow shall close on or before August 1,
1997.
6. Contingencies: Buyer agrees to use its best efforts to
secure a commitment for financing of the Purchase Price on terms
reasonably satisfactory to it and to execute all documents
reasonably required to consummate said financing. In the event
Buyer cannot secure a commitment for such financing on or before
August 1, 1997, and in the event Buyer delivers to Seller on or
before said date written notice of its failure to secure said
commitment, then in such event this agreement shall become null
and void and the First Payment paid herein shall be refunded to
Buyer. Absent delivery of said notice by Buyer to Seller, and
absent default by Seller hereunder, after August 1, 1997, this
contingency to Buyer's obligations hereunder shall be deemed
satisfied, the First Payment shall be non-refundable and shall be
the sole property of Seller, except as may otherwise be set forth
herein.
7. Due Diligence. Buyer will have until August 1, 1997 (the
"Review Period"), to conduct all of its inspections and due
diligence and satisfy itself regarding title to the Property, and
to inspect the Property. 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. Buyer expressly acknowledges that
the sale of the Property as provided for herein is made on an "AS
IS" basis, and such provision shall survive closing.
Buyer may cancel this agreement for ANY REASON in its sole
discretion by delivering a cancellation notice by certified mail,
return receipt requested, or by personal delivery to Seller and
escrow holder before the expiration of the Review Period. Such
notice shall be deemed effective only upon receipt (as defined by
Subparagraph 19(d)) by Seller. If this Agreement is not canceled
as set forth herein, 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 title insurance and/or escrow
cancellation fees and any liabilities under sections 16 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.
Unless Seller shall be in default of any obligation
hereunder, or 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. 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.
8. Escrow. Escrow shall be opened by Buyer and the First
Payment shall be deposited by Buyer with Escrowee Lawyer's Title
of Cincinnati, Inc. ("Escrowee"). 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.
9. Title. Closing will be conditioned on the commitment of a
nationally recognized title company selected by Buyer to issue an
Owner's policy of title insurance, dated as of the close of
escrow, in an amount equal to the purchase price, insuring that
Buyer will own marketable and insurable fee simple title to the
Property subject only to: the Permitted Exceptions as defined in
paragraph 2 above; current real property taxes and assessments;
and, survey exceptions.
Buyer shall be allowed until the expiration of the Review
Period for examination of the commitment and the making of any
objections to marketability of title thereto, or that an
exception to title adversely affects the use of the Property,
said objections to be made in writing or deemed waived. Buyer
shall provide Seller with a copy of said title commitment. If
any objections thereto are so made by Buyer, the Seller shall be
allowed ten (10) days to make such title marketable or cure
Buyer's objections, 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.
If Buyer shall make no written objection to Seller within
the Review Period setting forth Buyer's objections to the status
of title, Buyer shall have been deemed to have waived any such
objections.
10. Closing Costs. Seller will pay the deed stamp taxes, if
any, and one-half of escrow fees, and any brokerage commissions
payable except those brokerage commissions incurred by Buyer.
Seller shall pay for the cost of issuing the title commitment.
Buyer will pay the cost of the title insurance premium for an
Owner's policy, (if Buyer shall decide to purchase the same) all
recording fees, one-half of the escrow fees, (if an update is
required by Buyer). Each party will pay its own attorneys' fees
and costs to document and close of this transaction. Seller shall
pay the County Auditor transfer tax.
11. Real Estate Taxes, Special Assessments and Prorations.
Seller represents that to the best of its knowledge, all real
estate taxes and installments of special assessments due and pay
able in all years prior to the year of Closing have been paid in
full. Responsibility for real estate taxes and special
assessments shall be prorated as of the date of closing based
upon the most recently available tax xxxx with no readjustment
for the taxes due for the year in which closing shall occur. All
real estate taxes and special assessments due and payable in the
years following the year in which closing occurs shall otherwise
be the responsibility of Buyer.
12. Seller's Representation and Agreements.
(a) Seller represents and warrants as of this date that:
(i) The Property is not subject to any leases.
(ii) It is not aware of any pending litigation or
condemnation proceedings against the Property or Seller's
interest in the Property that have not been disclosed to
Buyer.
(iii) Seller has not executed any contracts that would be
binding on Buyer after the closing date.
(iv) In addition to the acts and deeds recited herein and
contemplated to be performed, executed, and delivered by
Seller, Seller 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 Buyer or the Title Company may require and
Buyer deems to be reasonable in order to consummate the
transactions contemplated herein.
(v) Seller 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.
(vi) To Seller'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 Seller is a party or by which Seller is bound.
(vii) Seller agrees to indemnify and hold Buyer harmless
from any and all claim of any persons or entities claiming a
brokerage or other fee arising out of representation of
Seller or through or on behalf of Seller.
(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 consent
will not be unreasonably withheld or delayed.
13. Disclosures.
(a) 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 ground water 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
and there are no underground storage tanks on the Property.
Except as otherwise provided in this Agreement and except to
the extent that Seller has knowledge of any hazardous
substances or materials on or in connection with the
Property which Seller is not disclosing to Buyer hereunder,
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.
(b) Subject to Seller's representations contained in the
Agreement, including subparagraphs 13(a) above, 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.
(c) Buyer acknowledges that, having been given the
opportunity to inspect the Property as Buyer or its advisors
shall request, Buyer is relying solely on its own
investigation of the Property and not on any information pro
vided by Seller or to be provided except as set forth
herein. 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, profitability or
fitness for a particular purpose, in respect of the
Property.
The provisions (a) through (c) shall survive closing.
14. Closing.
(a) Before the Closing Date, Seller will deposit into
escrow a standard Seller's Affidavit regarding liens and
judgments and an executed limited warranty deed conveying
insurable title of the Property to Buyer, subject to the
Permitted Exceptions, and will provide Buyer with an
affidavit that Seller is not a "foreign person", and a
customary owner's affidavit requested by the Escrowee
(limited where reflective of the state of Seller's knowledge
and belief) for purposes of deleting the standard
exceptions.
(b) On or before the closing date, Buyer will deposit into
escrow: the balance of the purchase price when required
under paragraph 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.
15. 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 the First Payment 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 hin
der, 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 condi
tions under this Agreement, and unconditionally notifies Seller
that it stands ready to tender full performance, purchase the
Property and close escrow as per this Agreement. Provided,
however, that in no event shall Seller be liable for any
punitive, consequential or speculative damages arising out of any
default by Seller hereunder.
16. Buyer's Representations and Warranties.
Buyer represents and warrants to Seller as follows:
(i) 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.
(ii) 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.
(iii) Buyer agrees to indemnify and hold Seller harmless
from any and all claim of any persons or entities claiming a
brokerage or other fee arising out of representation of
Buyer.
17. 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 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, and the First Payment shall be returned to Buyer.
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
17a 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 resulting from said damage or destruction
to the extent that the same are payable with respect to
damage to the Property. If the cost of repair is less than
$10,000.00, Buyer shall be obligated to otherwise perform
hereunder 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.
(b) If, prior to closing, the Property, or any part
thereof, is taken (other than as disclosed in writing to
Buyer prior to the date of this Agreement) by eminent
domain, this Agreement shall become null and void, at Buy
er'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 all 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 17a or 17b, 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).
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. Buyer has the right to assign this
Agreement to another party without Seller's consent, but
shall not be binding upon Seller until receipt of written
notice thereof, and provided, further, that Buyer shall
remain liable for the obligations of Buyer hereunder until
the same are fulfilled or this Agreement is terminated
according to the provisions hereof.
(b) If escrow has not closed through no fault of Seller, by
August 1, 1997, Seller may either, at its election, extend
the closing date, exercise any remedy available to it by
law, including terminate this Agreement.
(c) Funds to be deposited or paid by Buyer will 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: Xxxxxx X. Xxxxxxx
AEI Real Estate Fund XVIII Limited Partnership
1300 Minnesota World Trade Center
00 X. 0xx Xxxxxx
Xx. Xxxx, XX 00000
with copy to:
Xxxxxxx X. Xxxxxxxxx
Attorney at Law
0000 Xxxxxxxxx Xxxxx Xxxxx Xxxxxx
Xx. Xxxx, XX. 00000
If to Buyer:
Xxx. Xxxxx Xxx Xx
000 xxxx XxXxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
with copy to:
Xx. Xxxxx Xxxxxx
Attorney at Law
0000 Xxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 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 and Escrowee (along with the First
Payment to Escrowee. Seller has three (3) business days after
receipt of the executed offer within which to accept this offer
and to notify Escrowee of the same; if not accepted by Seller
within said three days, Escrowee shall immediately return the
First Payment to Buyer.
IN WITNESS WHEREOF, the Seller and Buyer have executed this
Agreement effective as of the day and year above first written.
BUYER:
/s/ Xxxx Xxx Xxxxx
Xxxx Xxx Young
WITNESS:
/s/ Xxxxxxx X Xxxxxx
Xxxxxxx X Xxxxxx
(Print Name)
WITNESS:
/s/ Xxxxx X Xxxxxx
Xxxxx X Xxxxxx
(Print Name)
/s/ Xxxxx Xxx Ho
Xxxxx Xxx Ho
WITNESS:
/s/ Xxxxxxx X Xxxxxx
Xxxxxxx X Xxxxxx
(Print Name)
WITNESS:
/s/ Xxxxx X Xxxxxx
Xxxxx X Xxxxxx
(Print Name)
[Seller's signature on the following page]
SELLER:
AEI REAL ESTATE FUND XVIII LIMITED PARTNERSHIP, a Minnesota
limited partnership.
By: AEI Fund Management XVIII, Inc., its corporate general partner
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, President
WITNESS:
/s/ Xxxx Xxxx
Xxxx Xxxx
(Print Name)
WITNESS:
/s/ Xxxxx-xx D Xxxxxx
Xxxxx-xx X Xxxxxx
(Print Name)
EXHIBIT "A"
Situate in the City of Fairfield, County of Xxxxxx and State
of Ohio and being Lot Numbered Eleven Thousand Five Hundred
Forty Eight (11548) as the same is known as designated on
the list of lots in the City of Fairfield, Xxxxxx County,
Ohio.
