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: March 31, 1997
Commission file number: 0-18289
AEI REAL ESTATE FUND XVIII LIMITED PARTNERSHIP
(Exact Name of Small Business Issuer as Specified in its Charter)
State of Minnesota 41-1622463
(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 REAL ESTATE FUND XVIII LIMITED PARTNERSHIP
INDEX
PART I. Financial Information
Item 1. Balance Sheet as of March 31, 1997 and December 31, 1996
Statements for the Periods ended March 31, 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 REAL ESTATE FUND XVIII LIMITED PARTNERSHIP
BALANCE SHEET
MARCH 31, 1997 AND DECEMBER 31, 1996
(Unaudited)
ASSETS
1997 1996
CURRENT ASSETS:
Cash and Cash Equivalents $ 4,000,893 $ 2,359,926
Receivables 27,474 12,870
----------- -----------
Total Current Assets 4,028,367 2,372,796
----------- -----------
INVESTMENTS IN REAL ESTATE:
Land 3,894,201 4,374,569
Buildings and Equipment 8,457,354 9,198,045
Accumulated Depreciation (1,723,864) (1,706,567)
----------- -----------
10,627,691 11,866,047
Real Estate Held for Sale 772,958 792,877
----------- -----------
Net Investments in Real Estate 11,400,649 12,658,924
----------- -----------
Total Assets $15,429,016 $15,031,720
=========== ===========
LIABILITIES AND PARTNERS' CAPITAL
CURRENT LIABILITIES:
Payable to AEI Fund Management, Inc. $ 194,530 $ 121,697
Distributions Payable 323,835 323,784
Security Deposit 0 665
Unearned Rent 59,256 5,000
----------- -----------
Total Current Liabilities 577,621 451,146
----------- -----------
PARTNERS' CAPITAL (DEFICIT):
General Partners (46,950) (49,658)
Limited Partners, $1,000 Unit Value;
30,000 Units authorized; 22,783 Issued;
21,764 Units outstanding 14,898,345 14,630,232
----------- -----------
Total Partners' Capital 14,851,395 14,580,574
----------- -----------
Total Liabilities and Partners' Capital $15,429,016 $15,031,720
=========== ===========
The accompanying Notes to Financial Statements are an integral
part of this statement.
</PAGE>
<PAGE>
AEI REAL ESTATE FUND XVIII LIMITED PARTNERSHIP
STATEMENT OF INCOME
FOR THE PERIODS ENDED MARCH 31
(Unaudited)
1997 1996
INCOME:
Rent $ 363,249 $ 399,188
Investment Income 34,665 29,317
----------- -----------
Total Income 397,914 428,505
----------- -----------
EXPENSES:
Partnership Administration - Affiliates 62,697 66,869
Partnership Administration and Property
Management - Unrelated Parties 25,621 27,650
Depreciation 81,546 103,597
----------- -----------
Total Expenses 169,864 198,116
----------- -----------
OPERATING INCOME 228,050 230,389
GAIN ON SALE OF REAL ESTATE 376,462 0
MINORITY INTEREST IN OPERATING INCOME 0 (2,027)
----------- -----------
NET INCOME $ 604,512 $ 228,362
=========== ===========
NET INCOME ALLOCATED:
General Partners $ 6,045 $ 2,284
Limited Partners 598,467 226,078
----------- -----------
$ 604,512 $ 228,362
=========== ===========
NET INCOME PER LIMITED PARTNERSHIP UNIT
(21,764 and 22,078 weighted average Units
outstanding in 1997 and 1996, respectively) $ 27.50 $ 10.24
=========== ===========
The accompanying Notes to Financial Statements are an integral
part of this statement.
</PAGE>
<PAGE>
AEI REAL ESTATE FUND XVIII LIMITED PARTNERSHIP
STATEMENT OF CASH FLOWS
FOR THE PERIODS ENDED MARCH 31
(Unaudited)
1997 1996
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Income $ 604,512 $ 228,362
Adjustments to Reconcile Net Income to Net Cash
Provided by Operating Activities:
Depreciation 81,546 103,597
Gain on Sale of Real Estate (376,462) 0
(Increase) Decrease in Receivables (14,604) 13,903
Increase (Decrease) in Payable to
AEI Fund Management, Inc. 72,833 (27,325)
Increase (Decrease) in Security Deposit (665) 89,877
Increase in Unearned Rent 54,256 0
Minority Interest 0 (431)
----------- -----------
Total Adjustments (183,096) 179,621
----------- -----------
Net Cash Provided By
Operating Activities 421,416 407,983
----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Investments in Real Estate 0 (2,055)
Proceeds from Sale of Real Estate 1,553,191 0
----------- -----------
Net Cash Provided By (Used For)
Investing Activities 1,553,191 (2,055)
----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Increase (Decrease) in Distributions Payable 51 (82,544)
Distributions to Partners (333,691) (333,692)
----------- -----------
Net Cash Used For
Financing Activities (333,640) (416,236)
----------- -----------
NET INCREASE (DECREASE) IN CASH
AND CASH EQUIVALENTS 1,640,967 (10,308)
CASH AND CASH EQUIVALENTS, beginning of period 2,359,926 2,332,974
----------- -----------
CASH AND CASH EQUIVALENTS, end of period $ 4,000,893 $ 2,322,666
=========== ===========
The accompanying Notes to Financial Statements are an integral
part of this statement.
</PAGE>
<PAGE>
AEI REAL ESTATE FUND XVIII LIMITED PARTNERSHIP
STATEMENT OF CHANGES IN PARTNERS' CAPITAL
FOR THE PERIODS ENDED MARCH 31
(Unaudited)
Limited
Partnership
General Limited Units
Partners Partners Total Outstanding
BALANCE, December 31, 1995 $ (29,971) $16,380,078 $16,350,107 22,077.80
Distributions (3,337) (330,355) (333,692)
Net Income 2,284 226,078 228,362
---------- ----------- ----------- ----------
BALANCE, March 31, 1996 $ (31,024) $16,275,801 $16,244,777 22,077.80
========== =========== =========== ==========
BALANCE, December 31, 1996 $ (49,658) $14,630,232 $14,580,574 21,764.38
Distributions (3,337) (330,354) (333,691)
Net Income 6,045 598,467 604,512
---------- ----------- ----------- ----------
BALANCE, March 31, 1997 $ (46,950) $14,898,345 $14,851,395 21,764.38
========== =========== =========== ==========
The accompanying Notes to Financial Statements are an integral
part of this statement.
</PAGE>
AEI REAL ESTATE FUND XVIII LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
MARCH 31, 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 Real Estate Fund XVIII Limited Partnership (Partnership)
was formed to acquire and lease commercial properties to
operating tenants. The Partnership's operations are managed
by AEI Fund Management XVIII, 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 February 15, 1989 when minimum
subscriptions of 1,500 Limited Partnership Units
($1,500,000) were accepted. The Partnership's offering
terminated December 4, 1990 when the extended offering
period expired. The Partnership received subscriptions for
22,783.05 Limited Partnership Units ($22,783,050).
Under the terms of the Limited Partnership Agreement, the
Limited Partners and General Partners contributed funds of
$22,783,050, 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 REAL ESTATE FUND XVIII 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 6% of their Adjusted Capital Contribution
per annum, cumulative but not compounded, to the extent not
previously distributed from Net Cash Flow; (ii) next, 99% to
the Limited Partners and 1% to the General Partners until
the Limited Partners receive an amount equal to 14% of their
Adjusted Capital Contribution per annum, cumulative but not
compounded, to the extent not previously distributed; (iii)
next, to the General Partners until cumulative distributions
to the General Partners under Items (ii) and (iii) equal 15%
of cumulative distributions to all Partners under Items (ii)
and (iii). Any remaining balance will be distributed 85% to
the Limited Partners and 15% 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 90% to the Limited Partners and 10% to the General
Partners. In the event no Net Cash Flow is distributed to
the Limited Partners, 90% of each item of Partnership
income, gain or credit for each respective year shall be
allocated to the Limited Partners, and 10% of each such item
shall be allocated to the General Partners. Net losses from
operations will be allocated 98% to the Limited Partners and
2% 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 14% of their Adjusted Capital
Contributions per annum, cumulative but not compounded, to
the extent not previously allocated; (iii) third, to the
General Partners until cumulative allocations to the General
Partners equal 15% of cumulative allocations. Any remaining
balance will be allocated 85% to the Limited Partners and
15% 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 REAL ESTATE FUND XVIII LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
(Continued)
(3) Investments in Real Estate -
The Partnership owns a 4.1022% interest in a Sizzler
restaurant in Cincinnati, Ohio, a 93.2478% interest in a
Sizzler restaurant in Springboro, Ohio, and a 100% interest
in a Sizzler restaurant in Fairfield, Ohio. In November,
1993, after reviewing the lessee's operating results, the
Partnership determined that the lessee would be unable to
operate the restaurants in a manner capable of maximizing
the restaurants' sales. Consequently, at the direction of
the Partnership, a multi-unit restaurant operator assumed
operation of the restaurants while the Partnership reviewed
the available options. In January, 1994 and June, 1994, the
Partnership closed the restaurants in Cincinnati and
Springboro, respectively, and listed them for sale or lease.
While the properties are vacant, the Partnership is
responsible for the real estate taxes and other costs
required to maintain the properties.
On July 15, 1994, the Partnership re-leased the Sizzler in
Fairfield to Fairfield Foods, Inc. (Fairfield) under a Lease
Agreement with a primary term of 20 years and annual rental
payments based on a percentage of sales. Fairfield was not
able to profitably operate the restaurant and closed the
restaurant. The Partnership is reviewing the available
options, which include selling or re-leasing the property.
No rents were collected from the Sizzler restaurants in the
first three months of 1997 and 1996. The total amount of
rent not collected in 1997 and 1996 was $98,695 and $97,516,
respectively, for the three properties. These amounts were
not accrued for financial reporting purposes.
On January 23, 1997, the Partnership sold its interest in
the Cincinnati restaurant to an unrelated third party. The
Partnership received net sales proceeds of $19,867, which
resulted in a net loss of $31,700, which was recognized as a
real estate impairment in the fourth quarter of 1996.
In December, 1996, the Partnership, in order to avoid
additional property management expenses, decided to sell the
Sizzler properties in Springboro and Fairfield rather than
to continue to attempt to re-lease the properties. As a
result, the properties were reclassified on the balance
sheet to Real Estate Held for Sale. In addition, based on
an analysis of market conditions in the area, it was
determined that a sale of the properties would result in net
proceeds of approximately $800,000. The Partnership's share
of the proceeds would be approximately $773,000. A charge
to operations for real estate impairment of $1,654,600 was
recognized in the fourth quarter of 1996, which is the
difference between book value at December31, 1996 of
$2,427,600 and the estimated market value of $773,000. The
charge was recorded against the cost of the land, building
and equipment.
AEI REAL ESTATE FUND XVIII LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
(Continued)
(3) Investments in Real Estate - (Continued)
In August, 1995, the lessee of the two Rally's properties
filed for reorganization. After reviewing the operating
results of the lessee, the Partnership agreed to amend the
Leases of the two properties. Effective December 1, 1995,
the Partnership amended the Leases to reduce the annual base
rent from $47,498 and $48,392 to $15,000 for each property.
The Partnership could receive additional rent in the future
equal to 6.75% of the amount by which gross receipts exceed
$275,000. In 1997, the Leases, as amended, were confirmed
as part of the reorganization plan. The lessee has agreed
to pay all post-petition rents due and the Partnership's
related administrative and legal expenses. The Partnership
is owed $29,128 of pre-petition rent, which was not accrued
for financial reporting purposes due to the uncertainty of
collection.
In February, 1996, the Partnership called a letter of credit
for $109,393 related to the Taco Cabana restaurant in
Brownsville, Texas. The Partnership applied the funds to
satisfy rents and real estate taxes due. In 1997, the
Partnership took possession of the property and has listed
it for sale or re-lease. While the property is being sold
or re-leased, the Partnership has assumed the
responsibilities for real estate taxes and other costs
required to maintain the property.
The Partnership used the majority of the proceeds from two
property sales in 1995 to purchase two properties in 1996,
as discussed below. The remainder of the proceeds from
these sales were distributed to the Partners in 1995 and
1996.
On April 10, 1996, the Partnership purchased an 85.0%
interest in a Tractor Supply Company in Bristol, Virginia
for $1,094,367. The property is leased to Tractor Supply
Company under a Lease Agreement with a primary term of 14
years and annual rental payments of $116,686. The remaining
interest in the property was purchased by the Individual
General Partner of the Partnership.
On August 29, 1996, the Partnership purchased a 32.2%
interest in a Champps Americana restaurant in Columbus, Ohio
for $826,070. The property is leased to Americana Dining
Corporation under a Lease Agreement with a primary term of
20 years and annual rental payments of $90,834. The
remaining interest in the property was purchased by AEI
Income & Growth Fund XXI Limited Partnership, an affiliate
of the Partnership.
On May 10, 1996, the Partnership sold the Taco Cabana
restaurant in New Braunfels, Texas to an unrelated third
party. The Partnership received net sale proceeds of
$962,298, which resulted in a net gain of $254,305. At the
time of sale, the cost and related accumulated depreciation
of the property was $784,045 and $76,052, respectively.
Through March 31, 1997, the Partnership sold 62.0519% of the
Applebee's restaurant in Destin, Florida in five separate
transactions to unrelated third parties. The Partnership
received total net sale proceeds of $933,902 which resulted
in a total net gain of $314,924. The total cost and related
accumulated depreciation of the interests sold was $694,224
and $75,246, respectively. For the three months ended March
31, 1997, the net gain was $153,716.
AEI REAL ESTATE FUND XVIII LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
(Continued)
(3) Investments in Real Estate - (Continued)
Through March 31, 1997, the Partnership sold 49.2653% of a
Taco Cabana restaurant in San Antonio, Texas in four
separate transactions to unrelated third parties. The
Partnership received total net sale proceeds of $800,103
which resulted in a total net gain of $276,406. The total
cost and related accumulated depreciation of the interests
sold was $567,495 and $43,798, respectively. For the three
months ended March 31, 1997, the net gain was $69,649.
Through March 31, 1997, the Partnership sold 47.3553% of the
Tractor Supply Company in Bristol, Virginia in five separate
transactions to unrelated third parties. The Partnership
received total net sale proceeds of $709,795 which resulted
in a total net gain of $110,391. The total cost and related
accumulated depreciation of the interests sold was $609,695
and $10,291, respectively. For the three months ended March
31, 1997, the net gain was $72,607.
Through March 31, 1997, the Partnership sold 14.1798% of the
Champps Americana restaurant in Columbus, Ohio in two
separate transactions to unrelated third parties. The
Partnership received total net sale proceeds of $439,635
which resulted in a total net gain of $80,490. The total
cost and related accumulated depreciation of the interests
sold was $363,773 and $4,628, respectively. For the three
months ended March 31, 1997, the net gain was $80,490.
Pursuant to the Partnership Agreement, net sale proceeds may
be reinvested in additional properties until a date five
years after the date on which the offer and sale of Units is
terminated. This period expired on December 4, 1995. In
December, 1996, the Managing General Partner filed a proxy
statement to propose an Amendment to the Limited Partnership
Agreement that would allow the Partnership to reinvest the
majority of the sale proceeds from the Taco Cabana
restaurants, Tractor Supply Company and subsequent property
sales in additional properties. The Amendment passed with a
majority of Units voting in favor of the Amendment.
During the first three months of 1997 and the year 1996, the
Partnership distributed $24,095 and $372,366 of the net sale
proceeds to the Limited and General Partners as part of
their regular quarterly distributions, which represented a
return of capital of $1.10 and $16.85 per Limited
Partnership Unit, respectively.
(4) Payable to AEI Fund Management -
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 three months ended March 31, 1997 and 1996, the
Partnership recognized rental income of $363,249 and $399,188,
respectively. During the same periods, the Partnership earned
investment income of $34,665 and $29,317, respectively. In 1997,
rental income decreased mainly as a result of the property sales
and the Brownsville Taco Cabana situation discussed below. The
decrease in rental income was partially offset by rental income
received from two subsequent property acquisitions, rent
increases on eleven properties and additional investment income
earned on the net proceeds from the property sales.
The Partnership owns a 4.1022% interest in a Sizzler
restaurant in Cincinnati, Ohio, a 93.2478% interest in a Sizzler
restaurant in Springboro, Ohio, and a 100% interest in a Sizzler
restaurant in Fairfield, Ohio. In November, 1993, after
reviewing the lessee's operating results, the Partnership
determined that the lessee would be unable to operate the
restaurants in a manner capable of maximizing the restaurants'
sales. Consequently, at the direction of the Partnership, a
multi-unit restaurant operator assumed operation of the
restaurants while the Partnership reviewed the available options.
In January, 1994 and June, 1994, the Partnership closed the
restaurants in Cincinnati and Springboro, respectively, and
listed them for sale or lease. While the properties are vacant,
the Partnership is responsible for the real estate taxes and
other costs required to maintain the properties. At March 31,
1997 and December 31, 1996, these properties were classified on
the balance sheet as Real Estate Held for Sale.
On July 15, 1994, the Partnership re-leased the Sizzler in
Fairfield to Fairfield Foods, Inc. (Fairfield) under a Lease
Agreement with a primary term of 20 years and annual rental
payments based on a percentage of sales. Fairfield was not able
to profitably operate the restaurant and closed the restaurant.
The Partnership is reviewing the available options, which include
selling or re-leasing the property.
No rents were collected from the Sizzler restaurants in
the first three months of 1997 and 1996. The total amount of
rent not collected in 1997 and 1996 was $98,695 and $97,516,
respectively, for the three properties. These amounts were not
accrued for financial reporting purposes.
On January 23, 1997, the Partnership sold its interest in
the Cincinnati restaurant to an unrelated third party. The
Partnership received net sales proceeds of $19,867, which
resulted in a net loss of $31,700, which was recognized as a real
estate impairment in the fourth quarter of 1996.
In December, 1996, the Partnership, in order to avoid
additional property management expenses, decided to sell the
Sizzler properties in Springboro and Fairfield rather than to
continue to attempt to re-lease the properties. As a result, the
properties were reclassified on the balance sheet to Real Estate
Held for Sale. In addition, based on an analysis of market
conditions in the area, it was determined that a sale of the
properties would result in net proceeds of approximately
$800,000. The Partnership's share of the proceeds would be
approximately $773,000. A charge to operations for real estate
impairment of $1,654,600 was recognized in the fourth quarter of
1996, which is the difference between book value at December31,
1996 of $2,427,600 and the estimated market value of $773,000.
The charge was recorded against the cost of the land, building
and equipment.
ITEM 2.MANAGEMENT'S DISCUSSION AND ANALYSIS (Continued)
In August, 1995, the lessee of the two Rally's properties
filed for reorganization. After reviewing the operating results
of the lessee, the Partnership agreed to amend the Leases of the
two properties. Effective December 1, 1995, the Partnership
amended the Leases to reduce the annual base rent from $47,498
and $48,392 to $15,000 for each property. The Partnership could
receive additional rent in the future equal to 6.75% of the
amount by which gross receipts exceed $275,000. In 1997, the
Leases, as amended, were confirmed as part of the reorganization
plan. The lessee has agreed to pay all post-petition rents due
and the Partnership's related administrative and legal expenses.
The Partnership is owed $29,128 of pre-petition rent, which was
not accrued for financial reporting purposes due to the
uncertainty of collection.
In February, 1996, the Partnership called a letter of
credit for $109,393 related to the Taco Cabana restaurant in
Brownsville, Texas. The Partnership applied the funds to satisfy
rents and real estate taxes due. In 1997, the Partnership took
possession of the property and has listed it for sale or re-
lease. While the property is being sold or re-leased, the
Partnership has assumed the responsibilities for real estate
taxes and other costs required to maintain the property.
During the three months ended March 31, 1997 and 1996, the
Partnership paid Partnership administration expenses to
affiliated parties of $62,697 and $66,869, 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 $25,621 and $27,650, 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.
As of March 31, 1997, the Partnership's annualized cash
distribution rate was 6.1%, based on the Adjusted Capital
Contribution. 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. It is expected that increases in sales volumes of
the tenants due to inflation and real sales growth, 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
During the three months ended March 31, 1997, the
Partnership's cash balances increased $1,640,967 mainly as the
result of the sale of properties discussed below. Net cash
provided by operating activities increased from $407,983 in 1996
to $421,416 in 1997. The increase was due to net timing
differences in the collection of payments from the lessees and
the payment of expenses, which was partially offset by a decrease
in income in 1997.
ITEM 2.MANAGEMENT'S DISCUSSION AND ANALYSIS (Continued)
The major components of the Partnership's cash flow from
investing activities are investments in real estate and proceeds
from the sale of real estate. For the three months ended March
31, 1997, the Partnership generated cash flow from the sale of
real estate, as discussed below, of $1,553,191.
The Partnership used the majority of the proceeds from two
property sales in 1995 to purchase two properties in 1996, as
discussed below. The remainder of the proceeds from these sales
were distributed to the Partners in 1995 and 1996.
On April 10, 1996, the Partnership purchased an 85.0%
interest in a Tractor Supply Company in Bristol, Virginia for
$1,094,367. The property is leased to Tractor Supply Company
under a Lease Agreement with a primary term of 14 years and
annual rental payments of $116,686. The remaining interest in
the property was purchased by the Individual General Partner of
the Partnership.
On August 29, 1996, the Partnership purchased a 32.2%
interest in a Champps Americana restaurant in Columbus, Ohio for
$826,070. The property is leased to Americana Dining Corporation
under a Lease Agreement with a primary term of 20 years and
annual rental payments of $90,834. The remaining interest in the
property was purchased by AEI Income & Growth Fund XXI Limited
Partnership, an affiliate of the Partnership.
On May 10, 1996, the Partnership sold the Taco Cabana
restaurant in New Braunfels, Texas to an unrelated third party.
The Partnership received net sale proceeds of $962,298, which
resulted in a net gain of $254,305. At the time of sale, the
cost and related accumulated depreciation of the property was
$784,045 and $76,052, respectively.
Through March 31, 1997, the Partnership sold 62.0519% of
the Applebee's restaurant in Destin, Florida in five separate
transactions to unrelated third parties. The Partnership
received total net sale proceeds of $933,902 which resulted in a
total net gain of $314,924. The total cost and related
accumulated depreciation of the interests sold was $694,224 and
$75,246, respectively. For the three months ended March 31,
1997, the net gain was $153,716.
Through March 31, 1997, the Partnership sold 49.2653% of a
Taco Cabana restaurant in San Antonio, Texas in four separate
transactions to unrelated third parties. The Partnership
received total net sale proceeds of $800,103 which resulted in a
total net gain of $276,406. The total cost and related
accumulated depreciation of the interests sold was $567,495 and
$43,798, respectively. For the three months ended March 31,
1997, the net gain was $69,649.
Through March 31, 1997, the Partnership sold 47.3553% of
the Tractor Supply Company in Bristol, Virginia in five separate
transactions to unrelated third parties. The Partnership
received total net sale proceeds of $709,795 which resulted in a
total net gain of $110,391. The total cost and related
accumulated depreciation of the interests sold was $609,695 and
$10,291, respectively. For the three months ended March 31,
1997, the net gain was $72,607.
ITEM 2.MANAGEMENT'S DISCUSSION AND ANALYSIS (Continued)
Through March 31, 1997, the Partnership sold 14.1798% of
the Champps Americana restaurant in Columbus, Ohio in two
separate transactions to unrelated third parties. The
Partnership received total net sale proceeds of $439,635 which
resulted in a total net gain of $80,490. The total cost and
related accumulated depreciation of the interests sold was
$363,773 and $4,628, respectively. For the three months ended
March 31, 1997, the net gain was $80,490.
Pursuant to the Partnership Agreement, net sale proceeds
may be reinvested in additional properties until a date five
years after the date on which the offer and sale of Units is
terminated. This period expired on December 4, 1995. In
December, 1996, the Managing General Partner filed a proxy
statement to propose an Amendment to the Limited Partnership
Agreement that would allow the Partnership to reinvest the
majority of the sale proceeds from the Taco Cabana restaurants,
Tractor Supply Company and subsequent property sales in
additional properties. The Amendment passed with a majority of
Units voting in favor of the Amendment.
During the first three months of 1997 and the year 1996,
the Partnership distributed $24,095 and $372,366 of the net sale
proceeds to the Limited and General Partners as part of their
regular quarterly distributions, which represented a return of
capital of $1.10 and $16.85 per Limited Partnership Unit,
respectively.
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 redemption payments generally are funded with cash
that would normally be paid as part of the regular quarterly
distributions. As a result, total distributions and
distributions payable have fluctuated from year to year due to
cash used to fund redemption payments.
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.
During 1996, fifteen Limited Partners redeemed a total of
313.42 Partnership Units for $233,227 in accordance with the
Partnership Agreement. The Partnership acquired these Units
using Net Cash Flow from operations. In prior years, a total of
forty-six Limited Partners redeemed 705 Partnership Units for
$602,632. The redemptions increase the remaining Limited
Partners' 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.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a. Exhibits -
Description
10.1 Purchase Agreement dated March 3,
1997 between the Partnership and Robert
P. Johnson and the Thomas W. Adamson
Family Limited Partnership relating to
the property at Old Airport Road and I-
81, Bristol, Virginia.
10.2 Property Co-Tenancy Ownership
Agreement dated March 10, 1997 between
the Partnership and the Thomas W. Adamson
Family Limited Partnership relating to
the property at Old Airport Road and I-
81, Bristol, Virginia.
10.3 Purchase Agreement dated March 3,
1997 between the Partnership and the
Thomas W. Adamson Family Limited
Partnership relating to the property at
5701 Emerald Coast Parkway, Destin,
Florida.
10.4 Property Co-Tenancy Ownership
Agreement dated March 10, 1997 between
the Partnership and the Thomas W. Adamson
Family Limited Partnership relating to
the property at 5701 Emerald Coast
Parkway, Destin, Florida.
10.5 Purchase Agreement dated March 3,
1997 between the Partnership and the
Thomas W. Adamson Family Limited
Partnership relating to the property at
161 E. Campus View Boulevard, Columbus,
Ohio.
PART II - OTHER INFORMATION
(Continued)
ITEM 6.EXHIBITS AND REPORTS ON FORM 8-K (Continued)
a. Exhibits -
Description
10.6 Property Co-Tenancy Ownership
Agreement dated March 10, 1997 between
the Partnership and the Thomas W. Adamson
Family Limited Partnership relating to
the property at 161 E. Campus View
Boulevard, Columbus, Ohio.
10.7 Purchase Agreement dated March 17,
1997 between the Partnership and Robert
P. Johnson and the Thomas W. Adamson
Family Limited Partnership relating to
the property at Old Airport Road and I-
81, Bristol, Virginia.
10.8 Property Co-Tenancy Ownership
Agreement dated March 21, 1997 between
the Partnership and the Thomas W. Adamson
Family Limited Partnership relating to
the property at Old Airport Road and I-
81, Bristol, Virginia.
10.9 Limited Option of First Sale dated
March 21, 1997 between the Partnership
and the Thomas W. Adamson Family Limited
Partnership relating to the property at
Old Airport Road and I-81, Bristol,
Virginia.
10.10 Purchase Agreement dated March
17, 1997 between the Partnership and the
Thomas W. Adamson Family Limited
Partnership relating to the property at
5701 Emerald Coast Parkway, Destin,
Florida.
10.11 Property Co-Tenancy Ownership
Agreement dated March 21, 1997 between
the Partnership and the Thomas W. Adamson
Family Limited Partnership relating to
the property at 5701 Emerald Coast
Parkway, Destin, Florida.
10.12 Limited Option of First Sale
dated March 21, 1997 between the
Partnership and the Thomas W. Adamson
Family Limited Partnership relating to
the property at 5701 Emerald Coast
Parkway, Destin, Florida.
10.13 Purchase Agreement dated March
17, 1997 between the Partnership and the
Thomas W. Adamson Family Limited
Partnership relating to the property at
161 E. Campus View Boulevard, Columbus,
Ohio.
10.14 Property Co-Tenancy Ownership
Agreement dated March 21, 1997 between
the Partnership and the Thomas W. Adamson
Family Limited Partnership relating to
the property at 161 E. Campus View
Boulevard, Columbus, Ohio.
PART II - OTHER INFORMATION
(Continued)
ITEM 6.EXHIBITS AND REPORTS ON FORM 8-K (Continued)
a. Exhibits -
Description
10.15 Limited Option of First Sale
dated March 21, 1997 between the
Partnership and the Thomas W. Adamson
Family Limited Partnership relating to
the property at 161 E. Campus View
Boulevard, Columbus, Ohio.
27 Financial Data Schedule for period
ended March 31, 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: May 13, 1997 AEI Real Estate Fund XVIII
Limited Partnership
By: AEI Fund Management XVIII,
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
Tractor Supply Company Store - Bristol, VA
This AGREEMENT, entered into effective as of the 3 of 3, 1997 .
l. Parties. Seller is AEI Real Estate Fund XVIII Limited
Partnership ("Fund XVIII") which currently owns an undivided
55.017% interest and Robert P. Johnson ("Johnson") who currently
owns an undivided 11.7657% interest in the fee title to that
certain real property legally descrbed in the attached Exhibit
"A" (the "Entire Property") Buyer is The Thomas W. Adamson
Family Limited Partnership, ("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 14.5690% (Fund XVIII selling 2.8033% and
Robert Johnson selling 11.7657%) 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 Property is $250,000 all cash. $48,103.85
payable to Fund XVIII and $201,896.15 payable to Robert P.
Johnson.
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 March 7, 1997.
6 . Due Diligence. Buyer will have until the expiration of the
fifth business day (The "Review Period") after delivery of all of
the 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 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/ GEA /s/ WKA
Purchase Agreement for Tractor Supply - Bristol, VA
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
the Review Period. Such notice shall be deemed effective only
upon receipt by Seller.
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.
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
Buyer Initial: /s/ GEA /s/ WKA
Purchase Agreement for Tractor Supply - Bristol, VA
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 therafter, 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 shall
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 Seller and
Tractor Supply Company ("Tenant"), dated April 10th, 1996,
Seller is not aware of any leases of the Property. The
above referenced lease agreement has a right of first
refusal in favor of the Tenant as set forth in article 34 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 being purchased by
Buyer in violation of the terms hereof or the contemplated
Co-Tenancy Agreement.
Buyer Initial: /s/ GEA /s/ WKA
Purchase Agreement for Tractor Supply - Bristol, VA
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/ GEA /s/ WKA
Purchase Agreement for Tractor Supply - Bristol, VA
13. Closing.
(a) Before the closing date, Seller will deposit into
escrow an executed general warranty deed with English
covenants of title 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 jurisdiction 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/ GEA /s/ WKA
Purchase Agreement for Tractor Supply - Bristol, VA
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 five-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 Mountain West Exchange,
L.C. who will act as Accommodator to perfect the 1031 exchange by
preparing an agreement of exchange of Real Property whereby
Mountain West Exchange, L.C. 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
Buyer Initial: /s/ GEA /s/ WKA
Purchase Agreement for Tractor Supply - Bristol, VA
holds Seller harmless from any claims and/or actions resulting
from said exchange. Pursuant to the direction of Mountain West
Exchange, L.C., 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
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 March 7, 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 Real Estate Fund XVIII Limited Partnership
1300 Minnesota World Trade Center
30 E. 7th Street
St. Paul, MN 55101
If to Buyer:
Wayne Adamson, General Partner
1400 W. Walnut
Marion, IL 62959
Buyer Initial: /s/ GEA /s/ WKA
Purchase Agreement for Tractor Supply - Bristol, VA
Gerald Adamson, General Partner
206 Palm Avenue
Bullhead City, AZ 86430
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 THOMAS W. ADAMSON FAMILY LIMITED PARTNERSHIP
By: /s/ Gerald E Adamson
Gerald E. Adamson, general partner
By: /s/ Wayne K Adamson
Wayne K. Adamson, general partner
SELLER: AEI REAL ESTATE FUND XVIII 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
ROBERT P. JOHNSON, INDIVIDUALLY
By: /s/ Robert P Johnson
Robert P. Johnson
Buyer Initial: /s/ GEA /s/ WKA
Purchase Agreement for Tractor Supply - Bristol, VA
EXHIBIT A LEGAL DESCRIPTION
A certain tract of land, containing 2.74 acres, more or less,
situated, lying, and being in the City of Bristol and in the
County of Washington, State of Virginia, as described by metes
and bounds as follows:
Located in Washington County and the City of Bristol,
Virginia within the Wal-mart Shopping Center Development;
being a portion of Tract No. 8 (Wal-Mart Stores, Inc.) as
shown on Plat of Record in Plat Book 4, Page 63, in the
recorders office for Washington County, Virginia; being more
particularly described as follows;
BEGINNING at an iron pin corner to Walnut Grove Church and
Tract 5 of the Wal-Mart Development, thence proceeding with
the line of Walnut Grove Church North 86 degrees 02 minutes 35
seconds West for a distance of 337.57 feet to an iron pin set
this survey; thence leaving the line of Walnut Grove Church
and proceeding with a new line North 46 degrees 10 minutes 34
seconds East for a distance of 591.56 feet to an iron pin set
this survey in the line of Tract 7; said iron pin being on the
south side of said road South 43 degrees 49 minutes 26
seconds East for a distance of 250.00 feet to an iron pin set
this survey and corner to Tract 5; thence with the line of
Tract 5 South 46 degrees 10 minutes 34 seconds West for a
distance of 364.723 feet to the BEGINNING, containing 2.74 acres
more or less as surveyed by Frizzell Engineering July, 1995.
A part or, but NOT all of Tract No. 8 of the subdivision of the
Wal-Mart Shopping Center as shown on a plat dated April 20, 1993
which plat is of record in the Office of the Clerk of the Circuit
Court of Washington County, Virginia in Plat Book 28, pages 42
through 45, and in records of the City of Bristol in Plat Book 4,
pages 60 through 63, to which plat reference is hereto made for a
more particular description.
TOGETHER WITH a non-exclusive easement for the use of the drive
lanes, as set forth in Easements With Convenants And Restrictions
Affecting Land ("ECR") by and between Wal-Mart Stores, Inc., a
Delaware corporation and Lowe's Home Center, Inc., a North
Carolina corporation, dated November 16, 1993, recorded in the
Clerk's Office Circuit Court, County of Washington, Virginia, in
Deed Book 888, page 345.
BEING a portion of the same real estate conveyed to Tractor
Supply Company, a Tennessee corporation by deed from Wal-Mart
Stores, Inc., a Delaware corporation, dated October 2, 1995,
recorded November 29, 1995, recorded in the Clerk's Office,
Circuit Court, County of Washington, Virginia, in Deed Book 931,
page 231, and in the Clerk's Office, Circuit Court, City of
Bristol, Virginia, in Deed Book 329, page 19.
PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Tractor Supply Company Store - Bristol, VA)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 10th day of March, 1997, by and
between The Thomas W. Adamson Family Limited Partnership,
(hereinafter called "Adamson"), and AEI Real Estate Fund XVIII
Limited Partnership (hereinafter called "Fund XVIII") (Adamson,
Fund XVIII (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 XVIII presently owns an undivided 52.2137% interest
in and to, and Adamson presently owns an undivided 14.5690%
interest in and to, and Mason presently owns an undivided
11.6552% interest in and to, and Arel and Louise Middleton
presently own an undivided 11.6552% interest in and to, and Joyce
R. Scott presently owns an undivided 9.9069% interest (also
referred to herein as Co-Tenant) in and to, the land, situated in
the City of Bristol, County of Washington, and State of Virginia,
(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 Adamson's interest
by Fund XVIII; 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 Adamson 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 XVIII, or its designated agent, successors or
assigns. Provided, however, if Fund XVIII shall sell all of its
interest in the Premises, the duties and obligations of Fund
XVIII 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 XVIII 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 XVIII as their sole and
exclusive agent to deal with, and Fund XVIII 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 Adamson. Only Fund XVIII may obligate Adamson with
respect to any expense for the Premises. Adamson agrees to
direct any inquiry respecting the Premises or of a tenant in the
Premises to Fund XVIII, and subject to the provisions of the last
paragraph of section 2, shall not contact such tenants without
Fund XVIII's written approval, as long as Fund XVIII retains an
interest in the Premises.
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Tractor Supply Company, Bristol, VA
As further set forth in paragraph 2 hereof, Fund XVIII agrees to
require any Tenant of the Premises to name Adamson as an insured
or additional insured in all insurance policies provided for, or
contemplated by, any lease on the Premises. Fund XVIII 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 XVIII 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 XVIII may offset against, pay to
itself and deduct from any payment due to Adamson under this
Agreement, and may pay to itself the amount of Adamson's share of
any legitimate expenses of the Premises which are not paid by
Adamson to Fund XVIII or its assigns, within ten (10) days after
demand by Fund XVIII. In the event there is insufficient
operating income from which to deduct Adamson's unpaid share of
operating expenses, Fund XVIII 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.
Adamson has no requirement to, but has, nonetheless elected to
retain, and agrees to annually reimburse, Fund XVIII in the
amount of $700 for the expenses, direct and indirect, incurred by
Fund XVIII in providing Adamson with quarterly accounting and
distributions of Adamson's share of net income and for tracking,
reporting and assessing the calculation of Adamson's share of
operating expenses incurred from the Premises. This invoice
amount shall be pro-rated for partial years and Adamson
authorizes Fund XVIII to deduct such amount from Adamson's share
of revenue from the Premises. Adamson may terminate this
agreement respecting quarterly accounting and distributions in
this paragraph at any time and seek 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
XVIII pursuant to section 1 hereof.
3. Full, accurate and complete books of account shall be kept
in accordance with generally accepted accounting principles at
Fund XVIII'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 XVIII
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, Adamson
shall be entitled to receive 14.5690% 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 XVIII, shall,
within fifteen (15) business days after receipt of notice, make
payment to
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Tractor Supply Company, Bristol, VA
Fund XVIII 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
April 10, 2020 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 Premises and with the title thereto. Once any person, party
or entity has ceased to have an interest in fee in the Premises,
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 XVIII:
AEI Real Estate Fund XVIII Limited Partnership
1300 Minnesota World Trade Center
30 E. Seventh Street
St. Paul, Minnesota 55101
If to Adamson
Thomas W. Adamson Family Limited Partnership
Wayne Adamson
1400 W. Walnut
Mrion, IL 62959
Gerald Adamson
206 Palm Avenue
Bullhead City, AZ 86430
If to Mason:
William and Hazel Mason
8300 Sawyer Brown Road
#Q308
Nashville, TN 37221
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Tractor Supply Company, Bristol, VA
If to Middleton:
Arel D. and Louise B. Middleton
P.O. Box 283
Wasco, OR 97065-0283
If to Scott:
Joyce R. Scott
1562 Rainbow Drive
Santa Ana, CA 92705
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.
12. This Agreement is governed by the Laws of the Commonwealth
of Virginia.
The remainder of this page intentionally left blank.
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Tractor Supply Company, Bristol, VA
IN WITNESS WHEREOF, The parties hereto have caused this Agreement
to be executed and delivered, as of the day and year first above
written.
Adamson The Thomas W. Adamson Family Limited Partnership
By: /s/ Gerald E Adamson
Gerald E. Adamson, general partner
WITNESS:
/s/ Lynn Robinson
Lynn Robinson
(Print Name)
WITNESS:
/s/ Dan Cox [notary seal]
Dan Cox /s/ Carlos Francisco Andres
(Print Name)
STATE OF Arizona)
) ss
COUNTY OF Mohave)
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 04 day of 03, 1997,
Gerald E. Adamson, general partner, who executed the foregoing
instrument in said capacity and on behalf of the said limited
partnership.
By: /s/ Wayne K Adamson
Wayne K. Adamson, general partner
WITNESS:
/s/ Glenn Sanders
Glenn Sanders
(Print Name)
WITNESS:
/s/ Mistee Ray
Mistee Ray
(Print Name)
STATE OF Illinois )
) ss
COUNTY OF Williamson )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 28th day of
February, 1997, Wayne K.. Adamson, general partner, who executed
the foregoing instrument in said capacity and on behalf of the
said limited partnership.
[notary seal]
/s/ Jesse W Berry
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Tractor Supply Company, Bristol, VA
Fund XVIII AEI Real Estate Fund XVIII Limited Partnership
By: AEI Fund Management XVIII, Inc., its corporate general partner
By: /s/ Robert P Johnson
Robert P. Johnson, President
WITNESS:
/s/ Laura M Steidl
Laura M Steidl
(Print Name)
WITNESS:
/s/ Jo Ann Rath
Jo Ann Rath
(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 11th day of March,
1997, Robert P. Johnson, President of AEI Fund Management XVIII,
Inc., corporate general partner of AEI Real Estate Fund XVIIII
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 Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Tractor Supply Company, Bristol, VA
EXHIBIT A LEGAL DESCRIPTION
A certain tract of land, containing 2.74 acres, more or less,
situated, lying, and being in the City of Bristol and in the
County of Washington, State of Virginia, as described by metes
and bounds as follows:
Located in Washington County and the City of Bristol,
Virginia within the Wal-mart Shopping Center Development;
being a portion of Tract No. 8 (Wal-Mart Stores, Inc.) as
shown on Plat of Record in Plat Book 4, Page 63, in the
recorders office for Washington County, Virginia; being more
particularly described as follows;
BEGINNING at an iron pin corner to Walnut Grove Church and
Tract 5 of the Wal-Mart Development, thence proceeding with
the line of Walnut Grove Church North 86 degrees 02 minutes 35
seconds West for a distance of 337.57 feet to an iron pin set
this survey; thence leaving the line of Walnut Grove Church
and proceeding with a new line North 46 degrees 10 minutes 34
seconds East for a distance of 591.56 feet to an iron pin set
this survey in the line of Tract 7; said iron pin being on the
south side of said road South 43 degrees 49 minutes 26
seconds East for a distance of 250.00 feet to an iron pin set
this survey and corner to Tract 5; thence with the line of
Tract 5 South 46 degrees 10 minutes 34 seconds West for a
distance of 364.723 feet to the BEGINNING, containing 2.74 acres
more or less as surveyed by Frizzell Engineering July, 1995.
A part or, but NOT all of Tract No. 8 of the subdivision of the
Wal-Mart Shopping Center as shown on a plat dated April 20, 1993
which plat is of record in the Office of the Clerk of the Circuit
Court of Washington County, Virginia in Plat Book 28, pages 42
through 45, and in records of the City of Bristol in Plat Book 4,
pages 60 through 63, to which plat reference is hereto made for a
more particular description.
TOGETHER WITH a non-exclusive easement for the use of the drive
lanes, as set forth in Easements With Convenants And Restrictions
Affecting Land ("ECR") by and between Wal-Mart Stores, Inc., a
Delaware corporation and Lowe's Home Center, Inc., a North
Carolina corporation, dated November 16, 1993, recorded in the
Clerk's Office Circuit Court, County of Washington, Virginia, in
Deed Book 888, page 345.
BEING a portion of the same real estate conveyed to Tractor
Supply Company, a Tennessee corporation by deed from Wal-Mart
Stores, Inc., a Delaware corporation, dated October 2, 1995,
recorded November 29, 1995, recorded in the Clerk's Office,
Circuit Court, County of Washington, Virginia, in Deed Book 931,
page 231, and in the Clerk's Office, Circuit Court, City of
Bristol, Virginia, in Deed Book 329, page 19.
PURCHASE AGREEMENT
Applebee's Restaurant - Destin, FL
This AGREEMENT, entered into effective as of the 3 of 3, 1997 .
l. Parties. Seller is AEI Real Estate Fund XVIII Limited
Partnership which owns an undivided 69.2373% interest in the fee
title to that certain real property legally described in the
attached Exhibit "A" (the "Entire Property") Buyer is Thomas W.
Adamson Family Limited Partnership, ("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 15.6446 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 $264,000, 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,
$259,000 (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 March 7, 1997.
6. Due Diligence. Buyer will have until the expiration of the
fifth business day 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. (The "Review Period")
(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 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/ GEA /s/ WKA
Purchase Agreement for Applebee's - Destin, FL
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 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/ GEA /s/ WKA
Purchase Agreement for Applebee's - Destin, FL
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 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 shall
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 Real
Estate Fund XVIII Limited Partnership and T.S.S.O.,
Inc.("Tenant"), dated October 31, 1991 (as amended by letter
agreement dated September 21, 1995 between AEI and Tenant),
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 35 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 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 being
purchased by Buyer in violation of the terms hereof or the
contemplated Co-Tenancy Agreement.
Buyer Initial: /s/ GEA /s/ WKA
Purchase Agreement for Applebee's - Destin, FL
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/ GEA /s/ WKA
Purchase Agreement for Applebee's - Destin, FL
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/ GEA /s/ WKA
Purchase Agreement for Applebee's - Destin, FL
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 Mountain West Exchange,
L.C. who will act as Accommodator to perfect the 1031 exchange by
preparing an agreement of exchange of Real Property whereby
Mountain West Exchange, L.C. 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
Buyer Initial: /s/ GEA /s/ WKA
Purchase Agreement for Applebee's - Destin, FL
time. Buyer hereby indemnifies and holds Seller harmless from
any claims and/or actions resulting from said exchange. Pursuant
to the direction of Mountain West Exchange, L.C., 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
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 March 7, 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 Real Estate Fund XVIII Limited Partnership
1300 Minnesota World Trade Center
30 E. 7th Street
St. Paul, MN 55101
If to Buyer:
Wayne Adamson, General Partner
1400 W. Walnut
Marion, IL 62959
Buyer Initial: /s/ GEA /s/ WKA
Purchase Agreement for Applebee's - Destin, FL
Gerald Adamson, General Partner
206 Palm Avenue
Bullhead City, AZ 86430
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 Thomas W. Adamson Family Limited Partnership
By: /s/ Gerald E Adamson
Gerald E. Adamson, general partner
WITNESS:
/s/ Lynn Robison
Lynn Robison
(Print Name)
WITNESS:
/s/ Dan Cox
Dan Cox
(Print Name)
By: /s/ Wayne K Adamson
Wayne K. Adamson, general partner
WITNESS:
/s/ Glenn Sanders
Glenn Sanders
(Print Name)
WITNESS:
/s/ Mistee Ray
Mistee Ray
(Print Name)
Buyer Initial: /s/ GEA /s/ WKA
Purchase Agreement for Applebee's - Destin, FL
SELLER: AEI REAL ESTATE FUND XVIII 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/ Laura M Steidl
Laura M Steidl
(Print Name)
WITNESS:
/s/ Debra L Achman
Debra L Achman
(Print Name)
Buyer Initial: /s/ GEA /s/ WKA
Purchase Agreement for Applebee's - Destin, FL
EXHIBIT A
Legal Description
Premises: APPLEBEE'S NEIGHBORHOOD GRILL & BAR
A portion of Section 26, Township 2 South. Range 21 West,
Walton County, Florida, being more particularly described as
follows:
Commence at the intersection with the East line of the
aforesaid Section 26 and the North Right-of-way Line of
State Road 30 (U.S. 98. 100' R/W); thence go North 77
degrees 09 minutes 03 seconds West along the aforesaid Right-
of-way line, a distance of 1233.51 feet to a point of
curvature: thence go along a curve to the left, having a
radius of 5779.65 feet, an arc distance of 1060.26 feet (CH.
= 1058.78', CH. BRG. = North 82 degrees 24 minutes 26
seconds West); thence departing the aforesaid North Right-of-
way line, go North 02 degrees 59 seconds 27 minutes East, a
distance of 10.00 feet to a point on a curve, being concave
southerly and having a radius of 5789.65 feet and the Point
of Beginning: thence go northwesterly along the aforesaid
curve, an arc distance of 180.00 feet (CH. = 179.99', CH.
BRG. = North 88 degrees 33 minutes 11 seconds West): thence
go North 02 degrees 59 minutes 27 seconds East, a distance
of 215.00 feet: thence go South 88 degrees 38 minutes 25
seconds East, a distance of 178.79 feet to a Point on a
curve, being concave southwesterly and having a radius of
44.90 feet: thence go Southeasterly along the aforesaid
curve, an arc distance of 10.44 feet (CHI. = 10.42'. CHI.
BRAG. = South 03 degrees 39 minutes 46 seconds East) to the
Point of Tangency: thence go South 02 degrees 59 minutes 27
seconds East, a distance of 204.89 feet to the Point of
Beginning.
EXCEPTING THEREFROM THAT PORTION
lying Northerly of and within 66 feet of the centerline of
survey of State Road 30 (US 98) Section 60020, Westerly of
Station 248+00 and lying Northerly of and within 67 feet of
said centerline of survey, between Station 248+00 and
Station 256+51 and lying Northerly of said centerline of
survey and within a transition from 67 feet at Station
256+51 to 87 feet at Station 256+76; and lying Northerly of
and within 110 feet of said centerline of survey, between
Station 256+76 and Station 257+36; and lying Northerly of
said centerline of survey and within a transition from 87
feet at Station 257+36 to 67 feet at Station 257+61; and
lying Northerly of and within 67 feet of said centerline of
survey Easterly of Station 257+611; said centerline to be
described and said Stations to be located as follows:
Commence on a capped rod (RLS # 1835) at the Southeast
corner of Sandestin Estates Subdivision, as per plat
recorded in Plat Book 4, Page 25 of the Public Records of
Walton County, Florida; thence South 44 16' 49" East 101.64
feet; thence North 83 48' 54" East 3476.74 feet (crossing
the East line of Section 27, Township 2 South, Range 21 West
and the West line of Section 26, Township 2 South 2 South,
Range 21 West) to the POINT OF BEGINNING of centerline of
survey to be described herein, said point being the
beginning of a curve, concave Southerly, having a radius of
5729.58 feet; thence run Northeasterly, Easterly and
Southeasterly 1302.52 feet along said curve, thru a central
angle of 13 o1' 31" to Station 248+00; thence continue
Southeasterly 695.62 feet along said curve, thru a central
angle of 6 57' 22" to the end of curve; thence South 76 12'
14" East 155.38 feet to Station 256+51; thence continue
South 76 12' 14" East 25.0 feet to Station 256+76; thence
continue South 76 12' 14" East 60.00 feet to Station 257+36;
thence continue South 76 12'14" East 25.0 feet to Station
257+61; thence continue South 76 12' 14" East 977.87 feet to
the East line of said Section 26 (West line of Section 25,
Township 2 South Range 21 West) at a point 4561.50 feet
South 1 50' 37" West of a four inch by four inch concrete
monument on the Northeast corner of said Section 26
(Northwest corner of said Section 25); thence continue South
76 12' 14" East 1359.55 feet to a point of intersection with
the Southerly extension of the Easterly line of Parcel A of
Tract 308 of said Section 25; and end of centerline of
survey herein described; said point being 518.40 feet South
2 00' 23" West of a capped rod (RLS # 2535) on the Northeast
corner of said partial A; containing 1080 square feet, more
or less.
PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Applebee's Restaurant - Destin, FL)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 10th day of March, 1997, by and
between Thomas W. Adamson Family Limited Partnership,
(hereinafter called "Adamson"), and AEI Real Estate Fund XVIII
Limited Partnership (hereinafter called "Fund XVIII") (Adamson,
Fund XVIII (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 XVIII presently owns an undivided 53.5927% interest
in and to, and Adamson presently owns an undivided 15.6446%
interest in and to,and Kent T. Wood and Kimberly Pasini Wood
presently own an undivided 11.0814% interest in and to, and The
John Pasini and Elvia Pasini Trust presently own an undivided
12.6222% interest in and to; and Joseph Nicoletta presently owns
an undivided 7.0591% interest in and to the land, situated in the
City of Destin, County of Walton, and State of Florida, (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 Adamson's interest
by Fund XVIII; 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 Adamson 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 XVIII, or its designated agent, successors or
assigns. Provided, however, if Fund XVIII shall sell all of its
interest in the Premises, the duties and obligations of Fund
XVIII 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 XVIII 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 XVIII as their sole and
exclusive agent to deal with, and Fund XVIII 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 Adamson. Only Fund XVIII may obligate Adamson with
respect to any expense for the Premises. Adamson agrees to
direct any inquiry respecting the Premises or of a tenant in the
Premises to Fund XVIII, and subject to the provisions of the last
paragraph of section 2, shall not contact such tenants without
Fund XVIII's written approval, as long as Fund XVIII retains an
interest in the Premises.
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Applebee's Restaurant - Destin, FL
As further set forth in paragraph 2 hereof, Fund XVIII
agrees to require any Tenant of the Premises to name Adamson as
an insured or additional insured in all insurance policies
provided for, or contemplated by, any lease on the Premises. Fund
XVIII 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 XVIII 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 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 XVIII may offset
against, pay to itself and deduct from any payment due to Adamson
under this Agreement, and may pay to itself the amount of
Adamson's share of any legitimate expenses of the Premises which
are not paid by Adamson to Fund XVIII or its assigns, within ten
(10) days after demand by Fund XVIII. In the event there is
insufficient operating income from which to deduct Adamson's
unpaid share of operating expenses, Fund XVIII 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.
Adamson has no requirement to, but has, nonetheless, elected to
retain, and agrees to annually reimburse, Fund XVIII in the
amount of $785 for the expenses, direct and indirect, incurred by
Fund XVIII in providing Adamson with quarterly accounting and
distributions of Adamson's share of net income and for tracking,
reporting and assessing the calculation of Adamson's share of
operating expenses incurred from the Premises. This invoice
amount shall be pro-rated for partial years and Adamson
authorizes Fund XVIII to deduct such amount from Adamson's share
of revenue from the Premises. Adamson may terminate this
agreement in this paragraph respecting accounting and
distributions at any time and seek 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
XVIII pursuant to Section 1 hereof.
3. Full, accurate and complete books of account shall be kept
in accordance with generally accepted accounting principles at
Fund XVIII'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 XVIII
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, Adamson
shall be entitled to receive 15.6446% 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 XVIII, shall,
within fifteen (15) business days after receipt of notice, make
payment to
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Applebee's Restaurant - Destin, FL
Fund XVIII 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.
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
October 31, 2021 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 Premises and with the title thereto. Once any person, party
or entity has ceased to have an interest in fee in the Premises,
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 XVIII:
AEI Real Estate Fund XVIII Limited Partnership
1300 Minnesota World Trade Center
30 E. Seventh Street
St. Paul, Minnesota 55101
If to Adamson:
Thomas W. Adamson Family Limited Partnership
Wayne Adamson
1400 W. Walnut
Marion, IL 62959
Gerald Adamson
206 Palm Avenue
Bullhead City, AZ 86430
If to Wood:
Kent T. Wood and Kimberly Pasini Wood
1550 Monte Vista Drive
Reno, NV 89509
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Applebee's Restaurant - Destin, FL
If to Pasini:
John Pasini and Elvia Pasini, Trustees
4000 Bitter Creek Court
Reno, NV 89509
If to Nicoletta:
Joseph Nicoletta
5727 Camellia
North Hollywood, CA 91601
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.
The remainder of this page intentionally left blank.
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Applebee's Restaurant - Destin, FL
IN WITNESS WHEREOF, The parties hereto have caused this Agreement
to be executed and delivered, as of the day and year first above
written.
Adamson The Thomas W. Adamson Family Limited Partnership
By:/s/ Gearld E Adamson
Gerald E. Adamson, general partner
WITNESS:
/s/ Lynn Robison
Lynn Robison
(Print Name)
WITNESS:
/s/ Dan Cox [notary seal]
Dan Cox /s/ Carlos Francisco Andres
(Print Name)
STATE OF Arizona )
) ss
COUNTY OF Mohave )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 04 day of 03, 1997,
Gerald E. Adamson, general partner, who executed the foregoing
instrument in said capacity and on behalf of the said limited
partnership.
By: /s/ Wayne K Adamson
Wayne K. Adamson, general partner
WITNESS:
/s/ Glenn Sanders
Glenn Sanders
(Print Name)
WITNESS:
/s/ Mistee Ray
Mistee Ray
(Print Name)
STATE OF Illinois )
) ss
COUNTY OF Williamson )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 28th day of
February, 1997, Wayne K.. Adamson, general partner, who executed
the foregoing instrument in said capacity and on behalf of the
said limited partnership.
[notary seal]
/s/ Jesse W Berry
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Applebee's Restaurant - Destin, FL
Fund XVIII AEI Real Estate Fund XVIII Limited Partnership
By: AEI Fund Management XVIII, Inc., its corporate general partner
By:/s/ Robert P Johnson
Robert P. Johnson, President
WITNESS:
/s/ Laura M Steidl
Laura M Steidl
(Print Name)
WITNESS:
/s/ Jo Ann Rath
Jo Ann Rath
(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 11th day of March,
1997, Robert P. Johnson, President of AEI Fund Management XVIII,
Inc., corporate general partner of AEI Real Estate Fund XVIIII
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 Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Applebee's Restaurant - Destin, FL
EXHIBIT A
Legal Description
Premises: APPLEBEE'S NEIGHBORHOOD GRILL & BAR
A portion of Section 26, Township 2 South. Range 21 West,
Walton County, Florida, being more particularly described as
follows:
Commence at the intersection with the East line of the
aforesaid Section 26 and the North Right-of-way Line of
State Road 30 (U.S. 98. 100' R/W); thence go North 77
degrees 09 minutes 03 seconds West along the aforesaid Right-
of-way line, a distance of 1233.51 feet to a point of
curvature: thence go along a curve to the left, having a
radius of 5779.65 feet, an arc distance of 1060.26 feet (CH.
= 1058.78', CH. BRG. = North 82 degrees 24 minutes 26
seconds West); thence departing the aforesaid North Right-of-
way line, go North 02 degrees 59 seconds 27 minutes East, a
distance of 10.00 feet to a point on a curve, being concave
southerly and having a radius of 5789.65 feet and the Point
of Beginning: thence go northwesterly along the aforesaid
curve, an arc distance of 180.00 feet (CH. = 179.99', CH.
BRG. = North 88 degrees 33 minutes 11 seconds West): thence
go North 02 degrees 59 minutes 27 seconds East, a distance
of 215.00 feet: thence go South 88 degrees 38 minutes 25
seconds East, a distance of 178.79 feet to a Point on a
curve, being concave southwesterly and having a radius of
44.90 feet: thence go Southeasterly along the aforesaid
curve, an arc distance of 10.44 feet (CHI. = 10.42'. CHI.
BRAG. = South 03 degrees 39 minutes 46 seconds East) to the
Point of Tangency: thence go South 02 degrees 59 minutes 27
seconds East, a distance of 204.89 feet to the Point of
Beginning.
EXCEPTING THEREFROM THAT PORTION
lying Northerly of and within 66 feet of the centerline of
survey of State Road 30 (US 98) Section 60020, Westerly of
Station 248+00 and lying Northerly of and within 67 feet of
said centerline of survey, between Station 248+00 and
Station 256+51 and lying Northerly of said centerline of
survey and within a transition from 67 feet at Station
256+51 to 87 feet at Station 256+76; and lying Northerly of
and within 110 feet of said centerline of survey, between
Station 256+76 and Station 257+36; and lying Northerly of
said centerline of survey and within a transition from 87
feet at Station 257+36 to 67 feet at Station 257+61; and
lying Northerly of and within 67 feet of said centerline of
survey Easterly of Station 257+611; said centerline to be
described and said Stations to be located as follows:
Commence on a capped rod (RLS # 1835) at the Southeast
corner of Sandestin Estates Subdivision, as per plat
recorded in Plat Book 4, Page 25 of the Public Records of
Walton County, Florida; thence South 44 16' 49" East 101.64
feet; thence North 83 48' 54" East 3476.74 feet (crossing
the East line of Section 27, Township 2 South, Range 21 West
and the West line of Section 26, Township 2 South 2 South,
Range 21 West) to the POINT OF BEGINNING of centerline of
survey to be described herein, said point being the
beginning of a curve, concave Southerly, having a radius of
5729.58 feet; thence run Northeasterly, Easterly and
Southeasterly 1302.52 feet along said curve, thru a central
angle of 13 o1' 31" to Station 248+00; thence continue
Southeasterly 695.62 feet along said curve, thru a central
angle of 6 57' 22" to the end of curve; thence South 76 12'
14" East 155.38 feet to Station 256+51; thence continue
South 76 12' 14" East 25.0 feet to Station 256+76; thence
continue South 76 12' 14" East 60.00 feet to Station 257+36;
thence continue South 76 12'14" East 25.0 feet to Station
257+61; thence continue South 76 12' 14" East 977.87 feet to
the East line of said Section 26 (West line of Section 25,
Township 2 South Range 21 West) at a point 4561.50 feet
South 1 50' 37" West of a four inch by four inch concrete
monument on the Northeast corner of said Section 26
(Northwest corner of said Section 25); thence continue South
76 12' 14" East 1359.55 feet to a point of intersection with
the Southerly extension of the Easterly line of Parcel A of
Tract 308 of said Section 25; and end of centerline of
survey herein described; said point being 518.40 feet South
2 00' 23" West of a capped rod (RLS # 2535) on the Northeast
corner of said partial A; containing 1080 square feet, more
or less.
PURCHASE AGREEMENT
Champps Restaurant - Columbus, OH
This AGREEMENT, entered into effective as of the 3 of 3, 1997 .
l. Parties. Seller is AEI Real Estate Fund XVIII Limited
Partnership which owns an undivided 32.20% interest in the fee
title to that certain real property legally described in the
attached Exhibit "A" (the "Entire Property") Buyer is the Thomas
W. Adamson Family Limited Partnership, ("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 7.0899 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 $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.
(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 March 7, 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/ GEA /s/ WKA
Puchase Agreement for Champps - Columbus, 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 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
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/ GEA /s/ WKA
Puchase Agreement for Champps - Columbus, 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 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 shall
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 Income &
Growth Fund XXI Limited Partnership and AEI Real Estate Fund
XVIII Limited Partnership and Americana Dining Corporation,
dated August 29, 1996, Seller is not aware of any leases of
the Property. The above referenced lease agreement also has
a first right of refusal in favor of the Tenant as set forth
in Article 34 of said lease agreement, which right shall
apply to any attempted 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 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,
Buyer Initial: /s/ GEA /s/ WKA
Puchase Agreement for Champps - Columbus, OH
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.
The provisions (d) - (f) above shall survive closing.
Buyer Initial: /s/ GEA /s/ WKA
Puchase Agreement for Champps - Columbus, OH
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 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/ GEA /s/ WKA
Puchase Agreement for Champps - Columbus, OH
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 Mountain West Exchange,
L.C. who will act as Accommodator to perfect the 1031 exchange by
preparing an agreement of exchange of Real Property whereby
Mountain West Exchange, L.C. 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
Buyer Initial: /s/ GEA /s/ WKA
Puchase Agreement for Champps - Columbus, OH
time. Buyer hereby indemnifies and holds Seller harmless from
any claims and/or actions resulting from said exchange. Pursuant
to the direction of Mountain West Exchange, L.C., 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 March 7, 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 Real Estate Fund XVIII Limited Partnership
1300 Minnesota World Trade Center
30 E. 7th Street
St. Paul, MN 55101
If to Buyer:
Wayne Adamson, General Partner
1400 W.Walnut
Marion, IL 62959
Buyer Initial: /s/ GEA /s/ WKA
Puchase Agreement for Champps - Columbus, OH
Gerald Adamson, General Partner
206 Palm Avenue
Bullhead City, AZ 86430
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 Thomas W. Adamson Family Limited Partnership
By: /s/ Gerald E Adamson
Gerald E. Adamson, general partner
WITNESS:
/s/ Lynn Robison
Lynn Robison
(Print Name)
WITNESS:
/s/ Dan Cox
Dan Cox
(Print Name)
By: /s/ Wayne K Adamson
Wayne K. Adamson, general partner
WITNESS:
/s/ Glenn Sanders
Glenn Sanders
(Print Name)
WITNESS:
/s/ Mistee Ray
Mistee Ray
(Print Name)
Buyer Initial: /s/ GEA /s/ WKA
Puchase Agreement for Champps - Columbus, OH
SELLER: AEI REAL ESTATE FUND XVIII 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/ Laura Steidl
Laura Steidl
(Print Name)
WITNESS:
/s/ Debra L Achman
Debra L Achman
(Print Name)
Buyer Initial: /s/ GEA /s/ WKA
Puchase Agreement for Champps - Columbus, OH
LEGAL DESCRIPTION
Situated in the State of Ohio, County of Franklin, City of
Columbus, being located in Section 2, Township 2, Range 18,
United States Military Lands, and being part of a 43. 161
acre tract of land (Parcel No. 610-146452) conveyed to Forty-
One Corporation (the Grantor), by deed of record in Official
Record 15500 A-G, all references being to records in the
Recorder's Office, Franklin County Ohio, and being more
particularly described as follows:
Beginning for reference at the intersection of North High
Street (US 23) and East Campus View Boulevard (80.00 feet in
width) as shown in Plat Book 60, Page 26:
thence S 86 49' 53" E, along the centerline of said East
Campus View Boulevard, a distance of 900.00 feet to a point
of curvature,
thence along the centerline of said East Campus View
Boulevard, with a curve tot he left having a radius of
1350.00 feet, a chord bearing of N 89 27' 50" E, and a chord
distance of 174.45 feet to the intersection with centerline
of High Cross Boulevard (80.00 feet in width);
thence S 1 53'32" E, along the centerline of said High cross
Boulevard a distance of 74.72 feet to a point;
thence N 88 06'28" E, a distance of 40.00 feet to an iron
pin set in the easterly right of way line of said High Cross
Boulevard, said point being the True Point of Beginning of
herein described tract;
thence along the easterly right of way line of said High
Cross Boulevard, with a curve to the right, having a radius
of 40.00 feet, a chord bearing of N 40 23'34" E, and a chord
distance of 53.83 feet to an iron pin set in the southerly
right of way line of said East Campus View Boulevard;
thence along the southerly right of way line of said East
Campus View Boulevard and the northerly line of herein
described tract, with a curve to the left, having a radius
of 1390.00 feet, a chord bearing of N 82 25'24" E, and a
chord distance of 12.36 feet to an iron pin set;
thence N 82 10' 07" E, along the southerly right of way line
of said East Campus View boulevard and the northerly line of
herein described tract, a distance of 209.28 feet to an iron
pin set at the northeasterly corner of herein described
tract;
thence s 7 49' 49" E, along the easterly line of herein
described tract, a distance of 312.60 feet to an iron pin
set at the southeasterly corner of herein described tract;
thence S 82 10'11" W, along the southerly line of herein
described tract, a distance of 318.01 feet to an iron pin
set in the easterly right of way line of said High Cross
Boulevard at the southwesterly corner of herein described
tract;
thence along the easterly right of way line of said High
Cross Boulevard and the westerly line of herein described
tract, with a curve to the right, having a radius of 2960.00
feet, a chord bearing of N 9 21' 59" E, and a chord distance
of 10/.64 feet to an iron pin set;
thence N 9 28'10" E, along the easterly right of way line of
said High Cross Boulevard and the westerly line of herein
described tract a distance of 89.24 feet to an iron pin set;
thence along the easterly right of way line of said High
Cross Boulevard and the westerly line of herein described
tract, with a curve to the left, having a radius of 390.00
feet, a chord bearing at N 3 47' 19" E, and a chord distance
of 77.21 feet to an iron pin set;
thence N 53' 32" W, along the easterly right of way line of
said High Cross Boulevard and the westerly line of herein
described tract a distance of 106/36 feet to the True Point
of Beginning containing 2,005 acres, more or less, and
subject to any rights of way, easements, and restrictions of
record.
The Basis of Bearing in this description is the centerline
of East Campus View Boulevard, being S 86 49' 53" E, as
shown in Plat Book 61, Page 79, Recorder's Office, Franklin
County, Ohio.
PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Champps Restaurant - Columbus, OH)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 10th day of March, 1997, by and
between The Thomas W. Adamson Family Limited Partnership,
(hereinafter called "Adamson"), and AEI Real Estate Fund XVIII
Limited Partnership (hereinafter called "Fund XVIII") (Adamson,
Fund XVIII (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 XVIII presently owns an undivided 25.1101% interest
in and to, and AEI Income and Growth Fund XXI Limited Partnership
("Fund XXI") presently owns an undivided 67.80% interest in and
to, and Adamson presently owns an undivided 7.0899% interest in
and to the land, situated in the City of Columbus, County of
Franklin, 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 Adamson's interest
by Fund XVIII; 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 Adamson 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 XVIII, or its designated agent, successors or
assigns. Provided, however, if Fund XVIII shall sell all of its
interest in the Premises, the duties and obligations of Fund
XVIII respecting management of the Premises as set forth herein,
including but not limited to paragraphs 2, 3, and 4 hereof, shall
be exercised by Fund XVIII unless and until Fund XVIII shall sell
all of its interest in the Premises in which event the duties
respecting management of the Premises 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 XVIII 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 XVIII as their sole and exclusive agent to deal
with, and Fund XVIII 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 Adamson. Only Fund
XVIII may obligate Adamson with respect to any expense for the
Premises. Adamson agrees to direct any inquiry respecting the
Premises or of a tenant in the Premises to Fund XVIII, and
subject to the provisions of the last paragraph of section 2,
shall not contact such tenants without Fund XVIII's written
approval, as long as Fund XVIII retains an interest in the
Premises.
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Champps, Columbus, OH
As further set forth in paragraph 2 hereof, Fund XVIII agrees to
require any lessee of the Premises to name Adamson as an insured
or additional insured in all insurance policies provided for, or
contemplated by, any lease on the Premises. Fund XVIII 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 XVIII 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 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 XVIII may offset
against, pay to itself and deduct from any payment due to Adamson
under this Agreement, and may pay to itself the amount of
Adamson's share of any legitimate expenses of the Premises which
are not paid by Adamson to Fund XVIII or its assigns, within ten
(10) days after demand by Fund XVIII. In the event there is
insufficient operating income from which to deduct Adamson's
unpaid share of operating expenses, Fund XVIII 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.
Adamson has no requirement to, but has, nonetheless elected to
retain, and agrees to annually reimburse, Fund XVIII in the
amount of $700 for the expenses, direct and indirect, incurred by
Fund XVIII in providing Adamson with quarterly accounting and
distributions of Adamson's share of net income and for tracking,
reporting and assessing the calculation of Adamson's share of
operating expenses incurred from the Premises. This invoice
amount shall be pro-rated for partial years and Adamson
authorizes Fund XVIII to deduct such amount from Adamson's share
of revenue from the Premises. Adamson may terminate this
agreement in this paragraph respecting accounting and
distributions at any time and collect its share of rental income
directly from the tenant.
3. Full, accurate and complete books of account shall be kept
in accordance with generally accepted accounting principles at
Fund XVIII'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 XVIII
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, Adamson
shall be entitled to receive 7.0899% 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 XVIII, shall,
within fifteen (15) business days after receipt of notice, make
payment to
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Champps, Columbus, OH
Fund XVIII 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.
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
August 29, 2031 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 Premises and with the title thereto. Once any person, party
or entity has ceased to have an interest in fee in the Premises,
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 XVIII:
AEI Real Estate Fund XVIII Limited Partnership
1300 Minnesota World Trade Center
30 E. Seventh Street
St. Paul, Minnesota 55101
If to Adamson:
Thomas W. Adamson Family Limited Partnership
Wayne Adamson
1400 W. Walnut
Marion, IL 62959
Gerald Adamson
206 Palm Avenue
Bullhead City, AZ 86430
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
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Champps, Columbus, OH
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.
The remainder of this page intentionally left blank
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Champps, Columbus, 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.
Adamson The Thomas W. Adamson Family Limited Partnership
By: /s/ Gerald E Adamson
Gerald E. Adamson, general partner
WITNESS:
/s/ Lynn Robison
Lynn Robison
(Print Name)
WITNESS:
/s/ Dan Cox
Dan Cox
(Print Name) [notary seal]
STATE OF Arizona ) /s/ Carlos Francisco Andres
) ss
COUNTY OF Mohave )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this ____________ day of
___________, 1997, Gerald E. Adamson, general partner, who
executed the foregoing instrument in said capacity and on behalf
of the said limited partnership.
By: /s/ Wayne K Adamson
Wayne K. Adamson, general partner
WITNESS:
/s/ Glenn Sanders
Glenn Sanders
(Print Name)
WITNESS:
/s/ Mistee Ray
Mistee Ray
(Print Name)
STATE OF Illinois )
) ss
COUNTY OF Williamson )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 28th day of
February, 1997, Wayne K.. Adamson, general partner, who executed
the foregoing instrument in said capacity and on behalf of the
said limited partnership.
[notary seal] /s/ Jesse W Berry
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Champps, Columbus, OH
Fund XVIII AEI Real Estate Fund XVIII Limited Partnership
By: AEI Fund Management XVIII, Inc., its corporate general partner
By: /s/ Robert P Johnson
Robert P. Johnson, President
WITNESS:
/s/ Laura M Steidl
Laura Steidl
(Print Name)
WITNESS:
/s/ Jo Ann Rath
Jo Ann Rath
(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 11th day of March,
1997, Robert P. Johnson, President of AEI Fund Management XVIII,
Inc., corporate general partner of AEI Real Estate Fund XVIIII
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 Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Champps, Columbus, OH
LEGAL DESCRIPTION
Situated in the State of Ohio, County of Franklin, City of
Columbus, being located in Section 2, Township 2, Range 18,
United States Military Lands, and being part of a 43. 161
acre tract of land (Parcel No. 610-146452) conveyed to Forty-
One Corporation (the Grantor), by deed of record in Official
Record 15500 A-G, all references being to records in the
Recorder's Office, Franklin County Ohio, and being more
particularly described as follows:
Beginning for reference at the intersection of North High
Street (US 23) and East Campus View Boulevard (80.00 feet in
width) as shown in Plat Book 60, Page 26:
thence S 86 49' 53" E, along the centerline of said East
Campus View Boulevard, a distance of 900.00 feet to a point
of curvature,
thence along the centerline of said East Campus View
Boulevard, with a curve tot he left having a radius of
1350.00 feet, a chord bearing of N 89 27' 50" E, and a chord
distance of 174.45 feet to the intersection with centerline
of High Cross Boulevard (80.00 feet in width);
thence S 1 53'32" E, along the centerline of said High cross
Boulevard a distance of 74.72 feet to a point;
thence N 88 06'28" E, a distance of 40.00 feet to an iron
pin set in the easterly right of way line of said High Cross
Boulevard, said point being the True Point of Beginning of
herein described tract;
thence along the easterly right of way line of said High
Cross Boulevard, with a curve to the right, having a radius
of 40.00 feet, a chord bearing of N 40 23'34" E, and a chord
distance of 53.83 feet to an iron pin set in the southerly
right of way line of said East Campus View Boulevard;
thence along the southerly right of way line of said East
Campus View Boulevard and the northerly line of herein
described tract, with a curve to the left, having a radius
of 1390.00 feet, a chord bearing of N 82 25'24" E, and a
chord distance of 12.36 feet to an iron pin set;
thence N 82 10' 07" E, along the southerly right of way line
of said East Campus View boulevard and the northerly line of
herein described tract, a distance of 209.28 feet to an iron
pin set at the northeasterly corner of herein described
tract;
thence s 7 49' 49" E, along the easterly line of herein
described tract, a distance of 312.60 feet to an iron pin
set at the southeasterly corner of herein described tract;
thence S 82 10'11" W, along the southerly line of herein
described tract, a distance of 318.01 feet to an iron pin
set in the easterly right of way line of said High Cross
Boulevard at the southwesterly corner of herein described
tract;
thence along the easterly right of way line of said High
Cross Boulevard and the westerly line of herein described
tract, with a curve to the right, having a radius of 2960.00
feet, a chord bearing of N 9 21' 59" E, and a chord distance
of 10/.64 feet to an iron pin set;
thence N 9 28'10" E, along the easterly right of way line of
said High Cross Boulevard and the westerly line of herein
described tract a distance of 89.24 feet to an iron pin set;
thence along the easterly right of way line of said High
Cross Boulevard and the westerly line of herein described
tract, with a curve to the left, having a radius of 390.00
feet, a chord bearing at N 3 47' 19" E, and a chord distance
of 77.21 feet to an iron pin set;
thence N 53' 32" W, along the easterly right of way line of
said High Cross Boulevard and the westerly line of herein
described tract a distance of 106/36 feet to the True Point
of Beginning containing 2,005 acres, more or less, and
subject to any rights of way, easements, and restrictions of
record.
The Basis of Bearing in this description is the centerline
of East Campus View Boulevard, being S 86 49' 53" E, as
shown in Plat Book 61, Page 79, Recorder's Office, Franklin
County, Ohio.
PURCHASE AGREEMENT
Tractor Supply Company Store - Bristol, VA
This AGREEMENT, entered into effective as of the 17 of March,
1997 .
l. Parties. Seller is AEI Real Estate Fund XVIII Limited
Partnership ("Fund XVIII") which currently owns an undivided
40.448% interest in the fee title to that certain real property
legally descrbed in the attached Exhibit "A" (the "Entire
Property") Buyer is The Thomas W. Adamson Family Limited
Partnership, ("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 14.5690 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 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 March 21, 1997.
6. Due Diligence. Buyer will have until the expiration of the
fifth business day (The "Review Period") after delivery of all of
the 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 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.
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 Initial: /s/ GEA /s/ WKA
Purchase Agreement for Tractor Supply - Bristol, VA
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 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.
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
Buyer Initial: /s/ GEA /s/ WKA
Purchase Agreement for Tractor Supply - Bristol, VA
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 therafter, 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 shall
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 Seller and
Tractor Supply Company ("Tenant"), dated April 10th, 1996,
Seller is not aware of any leases of the Property. The
above referenced lease agreement has a right of first
refusal in favor of the Tenant as set forth in article 34 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 being purchased by
Buyer in violation of the terms hereof or the contemplated
Co-Tenancy Agreement.
Buyer Initial: /s/ GEA /s/ WKA
Purchase Agreement for Tractor Supply - Bristol, VA
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/ GEA /s/ WKA
Purchase Agreement for Tractor Supply - Bristol, VA
13. Closing.
(a) Before the closing date, Seller will deposit into
escrow an executed general warranty deed with English
covenants of title 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 jurisdiction 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/ GEA /s/ WKA
Purchase Agreement for Tractor Supply - Bristol, VA
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 five-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 Mountain West Exchange,
L.C. who will act as Accommodator to perfect the 1031 exchange by
preparing an agreement of exchange of Real Property whereby
Mountain West Exchange, L.C. 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 Initial: /s/ GEA /s/ WKA
Purchase Agreement for Tractor Supply - Bristol, VA
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 from any
claims and/or actions resulting from said exchange. Pursuant to
the direction of Mountain West Exchange, L.C., 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
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 March 21, 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 Real Estate Fund XVIII Limited Partnership
1300 Minnesota World Trade Center
30 E. 7th Street
St. Paul, MN 55101
Buyer Initial: /s/ GEA /s/ WKA
Purchase Agreement for Tractor Supply - Bristol, VA
If to Buyer:
The Thomas W. Adamson Family Limited Partnership
Gerald Adamson, General Partner
206 Palm Avenue
Bullhead City, AZ 86430
Wayne Adamson, General Partner
1400 W. Walnut
Marion, IL 62959
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 THOMAS W. ADAMSON FAMILY LIMITED PARTNERSHIP
By: /s/ Gerald E Adamson
Gerald E. Adamson, general partner
By: /s/ Wayne K Adamson
Wayne K. Adamson, general partner
SELLER: AEI REAL ESTATE FUND XVIII 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
Buyer Initial: /s/ GEA /s/ WKA
Purchase Agreement for Tractor Supply - Bristol, VA
EXHIBIT A LEGAL DESCRIPTION
A certain tract of land, containing 2.74 acres, more or less,
situated, lying, and being in the City of Bristol and in the
County of Washington, State of Virginia, as described by metes
and bounds as follows:
Located in Washington County and the City of Bristol,
Virginia within the Wal-mart Shopping Center Development;
being a portion of Tract No. 8 (Wal-Mart Stores, Inc.) as
shown on Plat of Record in Plat Book 4, Page 63, in the
recorders office for Washington County, Virginia; being more
particularly described as follows;
BEGINNING at an iron pin corner to Walnut Grove Church and
Tract 5 of the Wal-Mart Development, thence proceeding with
the line of Walnut Grove Church North 86 degrees 02 minutes 35
seconds West for a distance of 337.57 feet to an iron pin set
this survey; thence leaving the line of Walnut Grove Church
and proceeding with a new line North 46 degrees 10 minutes 34
seconds East for a distance of 591.56 feet to an iron pin set
this survey in the line of Tract 7; said iron pin being on the
south side of said road South 43 degrees 49 minutes 26
seconds East for a distance of 250.00 feet to an iron pin set
this survey and corner to Tract 5; thence with the line of
Tract 5 South 46 degrees 10 minutes 34 seconds West for a
distance of 364.723 feet to the BEGINNING, containing 2.74 acres
more or less as surveyed by Frizzell Engineering July, 1995.
A part or, but NOT all of Tract No. 8 of the subdivision of the
Wal-Mart Shopping Center as shown on a plat dated April 20, 1993
which plat is of record in the Office of the Clerk of the Circuit
Court of Washington County, Virginia in Plat Book 28, pages 42
through 45, and in records of the City of Bristol in Plat Book 4,
pages 60 through 63, to which plat reference is hereto made for a
more particular description.
TOGETHER WITH a non-exclusive easement for the use of the drive
lanes, as set forth in Easements With Convenants And Restrictions
Affecting Land ("ECR") by and between Wal-Mart Stores, Inc., a
Delaware corporation and Lowe's Home Center, Inc., a North
Carolina corporation, dated November 16, 1993, recorded in the
Clerk's Office Circuit Court, County of Washington, Virginia, in
Deed Book 888, page 345.
BEING a portion of the same real estate conveyed to Tractor
Supply Company, a Tennessee corporation by deed from Wal-Mart
Stores, Inc., a Delaware corporation, dated October 2, 1995,
recorded November 29, 1995, recorded in the Clerk's Office,
Circuit Court, County of Washington, Virginia, in Deed Book 931,
page 231, and in the Clerk's Office, Circuit Court, City of
Bristol, Virginia, in Deed Book 329, page 19.
PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Tractor Supply Company Store - Bristol, VA)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 21 day of March, 1997, by and
between The Thomas W. Adamson Family Limited Partnership,
(hereinafter called "Adamson"), and AEI Real Estate Fund XVIII
Limited Partnership (hereinafter called "Fund XVIII") (Adamson,
Fund XVIII (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). This Co-Tenancy
Agreement supersedes in its entirety that certain Property Co-
Tenancy Ownership Agreement dated March 10, 1997.
WITNESSETH:
WHEREAS, Fund XVIII presently owns an undivided 37.6447% interest
in and to, and Adamson presently owns an undivided 29.138%
interest in and to, and Mason presently owns an undivided
11.6552% interest in and to, and Arel and Louise Middleton
presently own an undivided 11.6552% interest in and to, and Joyce
R. Scott presently owns an undivided 9.9069% interest (also
referred to herein as Co-Tenant) in and to, the land, situated in
the City of Bristol, County of Washington, and State of Virginia,
(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 Adamson's interest
by Fund XVIII; 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 Adamson 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 XVIII, or its designated agent, successors or
assigns. Provided, however, if Fund XVIII shall sell all of its
interest in the Premises, the duties and obligations of Fund
XVIII 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 XVIII 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 XVIII as their sole and
exclusive agent to deal with, and Fund XVIII 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 Adamson. Only Fund XVIII may obligate Adamson with
respect to any expense for the Premises. Adamson agrees to
direct any inquiry respecting the Premises or of a tenant in the
Premises to Fund XVIII, and subject to the provisions of the last
paragraph of section 2, shall not contact such tenants without
Fund XVIII's written approval, as long as Fund XVIII retains an
interest in the Premises.
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Tractor Supply Company, Bristol, VA
As further set forth in paragraph 2 hereof, Fund XVIII agrees to
require any Tenant of the Premises to name Adamson as an insured
or additional insured in all insurance policies provided for, or
contemplated by, any lease on the Premises. Fund XVIII 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 XVIII 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 XVIII may offset against, pay to
itself and deduct from any payment due to Adamson under this
Agreement, and may pay to itself the amount of Adamson's share of
any legitimate expenses of the Premises which are not paid by
Adamson to Fund XVIII or its assigns, within ten (10) days after
demand by Fund XVIII. In the event there is insufficient
operating income from which to deduct Adamson's unpaid share of
operating expenses, Fund XVIII 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.
Adamson has no requirement to, but has, nonetheless elected to
retain, and agrees to annually reimburse, Fund XVIII in the
amount of $700 for the expenses, direct and indirect, incurred by
Fund XVIII in providing Adamson with quarterly accounting and
distributions of Adamson's share of net income and for tracking,
reporting and assessing the calculation of Adamson's share of
operating expenses incurred from the Premises. This invoice
amount shall be pro-rated for partial years and Adamson
authorizes Fund XVIII to deduct such amount from Adamson's share
of revenue from the Premises. Adamson may terminate this
agreement respecting quarterly accounting and distributions in
this paragraph at any time and seek 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
XVIII pursuant to section 1 hereof.
3. Full, accurate and complete books of account shall be kept
in accordance with generally accepted accounting principles at
Fund XVIII'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 XVIII
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, Adamson
shall be entitled to receive 29.138% 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 XVIII, shall,
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Tractor Supply Company, Bristol, VA
within fifteen (15) business days after receipt of notice, make
payment to Fund XVIII 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
April 10, 2020 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 Premises and with the title thereto. Once any person, party
or entity has ceased to have an interest in fee in the Premises,
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 XVIII:
AEI Real Estate Fund XVIII Limited Partnership
1300 Minnesota World Trade Center
30 E. Seventh Street
St. Paul, Minnesota 55101
If to Adamson
The Thomas W. Adamson Family Limited Partnership
Gerald Adamson
206 Palm Avenue
Bullhead City, AZ 86430
Wayne Adamson
1400 W. Walnut
Marion, IL 62959
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Tractor Supply Company, Bristol, VA
If to Mason:
William and Hazel Mason
8300 Sawyer Brown Road
#Q308
Nashville, TN 37221
If to Middleton:
Arel D. and Louise B. Middleton
P.O. Box 283
Wasco, OR 97065-0283
If to Scott:
Joyce R. Scott
1562 Rainbow Drive
Santa Ana, CA 92705
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.
12. This Agreement is governed by the Laws of the Commonwealth
of Virginia.
The remainder of this page intentionally left blank.
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Tractor Supply Company, Bristol, VA
IN WITNESS WHEREOF, The parties hereto have caused this Agreement
to be executed and delivered, as of the day and year first above
written.
Adamson The Thomas W. Adamson Family Limited Partnership
By: /s/ Gerald E Adamson
Gerald E. Adamson, general partner
STATE OF Arizona )
) ss [notary seal]
COUNTY OF Mohave ) /s/ Carlos F Andres
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 13 day of 03, 1997,
Gerald E. Adamson, general partner, who executed the foregoing
instrument in said capacity and on behalf of the said limited
partnership.
By:/s/ Wayne K Adamson
Wayne K. Adamson, general partner
STATE OF Illinois )
) ss
COUNTY OF Williamson )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 18th day of March,
1997, Wayne K.. Adamson, general partner, who executed the
foregoing instrument in said capacity and on behalf of the said
limited partnership.
[notary seal]
/s/ Jesse W Berry
Notary Public - Williamson County
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Tractor Supply Company, Bristol, VA
Fund XVIII AEI Real Estate Fund XVIII Limited Partnership
By: AEI Fund Management XVIII, Inc., its corporate general partner
By: /s/ Robert P Johnson
Robert P. Johnson, President
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 26th day of March,
1997, Robert P. Johnson, President of AEI Fund Management XVIII,
Inc., corporate general partner of AEI Real Estate Fund XVIIII
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/ GEA /s/ WKA
Co-Tenancy Agreement for Tractor Supply Company, Bristol, VA
EXHIBIT A LEGAL DESCRIPTION
A certain tract of land, containing 2.74 acres, more or less,
situated, lying, and being in the City of Bristol and in the
County of Washington, State of Virginia, as described by metes
and bounds as follows:
Located in Washington County and the City of Bristol,
Virginia within the Wal-mart Shopping Center Development;
being a portion of Tract No. 8 (Wal-Mart Stores, Inc.) as
shown on Plat of Record in Plat Book 4, Page 63, in the
recorders office for Washington County, Virginia; being more
particularly described as follows;
BEGINNING at an iron pin corner to Walnut Grove Church and
Tract 5 of the Wal-Mart Development, thence proceeding with
the line of Walnut Grove Church North 86 degrees 02 minutes 35
seconds West for a distance of 337.57 feet to an iron pin set
this survey; thence leaving the line of Walnut Grove Church
and proceeding with a new line North 46 degrees 10 minutes 34
seconds East for a distance of 591.56 feet to an iron pin set
this survey in the line of Tract 7; said iron pin being on the
south side of said road South 43 degrees 49 minutes 26
seconds East for a distance of 250.00 feet to an iron pin set
this survey and corner to Tract 5; thence with the line of
Tract 5 South 46 degrees 10 minutes 34 seconds West for a
distance of 364.723 feet to the BEGINNING, containing 2.74 acres
more or less as surveyed by Frizzell Engineering July, 1995.
A part or, but NOT all of Tract No. 8 of the subdivision of the
Wal-Mart Shopping Center as shown on a plat dated April 20, 1993
which plat is of record in the Office of the Clerk of the Circuit
Court of Washington County, Virginia in Plat Book 28, pages 42
through 45, and in records of the City of Bristol in Plat Book 4,
pages 60 through 63, to which plat reference is hereto made for a
more particular description.
TOGETHER WITH a non-exclusive easement for the use of the drive
lanes, as set forth in Easements With Convenants And Restrictions
Affecting Land ("ECR") by and between Wal-Mart Stores, Inc., a
Delaware corporation and Lowe's Home Center, Inc., a North
Carolina corporation, dated November 16, 1993, recorded in the
Clerk's Office Circuit Court, County of Washington, Virginia, in
Deed Book 888, page 345.
BEING a portion of the same real estate conveyed to Tractor
Supply Company, a Tennessee corporation by deed from Wal-Mart
Stores, Inc., a Delaware corporation, dated October 2, 1995,
recorded November 29, 1995, recorded in the Clerk's Office,
Circuit Court, County of Washington, Virginia, in Deed Book 931,
page 231, and in the Clerk's Office, Circuit Court, City of
Bristol, Virginia, in Deed Book 329, page 19.
Limited Option of First Sale
This Agreement, by and between The Thomas W. Adamson Family
Limited Partnership ("Adamson"), and AEI Real Estate Fund XVIII
Limited Partnership (the "AEI Partnership"), is effective as of
the 21 day of March, 1997, and supercedes in its entirety that
certain Limited Option of First Sale dated March 3, 1997.
RECITALS
Whereas, Adamson has purchased an undivided 29.138% interest in
that certain property legally described on Exhibit A attached
hereto (the "Property"), as a Co-Tenant with the AEI Partnership,
which as of the date hereof owns an undivided 37.6447% interest
in the Property; and
Whereas, as consideration for Adamson's purchase of its interest
in the Property from the AEI Partnership, the AEI Partnership has
granted Adamson the Limited Option of First Sale of Adamson's
interest in the Property, but only upon the limited terms set
forth herein.
Now, therefore, in Consideration of the purchase by Adamson
of its undivided interest in the Property, Adamson and the AEI
Partnership (in its individual capacity as a matter of contract
right and not as a covenant running with the AEI Partnership's
interest in the Property) agree that:
1. Freedom of Transfer. Adamson shall be free to dispose of
its interest in the Property, whether according to this
Agreement, or upon such terms and conditions as Adamson shall
determine. However, the rights afforded Adamson hereunder are
personal to Adamson, and may not be assigned and do not run with
Adamson's interest in the Property. The AEI Partnership shall be
free to sell or transfer all any part of its interest in the
Property, provided, however, for as long as Adamson shall retain
an undivided interest in the Property, the AEI Partnership will
retain at least a 5% ownership interest in the Property, subject
to disposition by the AEI Partnership as further set forth
herein. The AEI Partnership's sale or transfer of its remaining
5% interest shall be governed by the terms hereof.
2. Limited Option of First Sale. At such time as the AEI
Partnership intends to sell all or any portion of its remaining
interest in the Property (provided such sale is not in connection
with a Liquidation Plan (defined below)), which sale would bring
the AEI Partnership's interest below an undivided 5% interest,
the AEI Partnership agrees it will:
AA. Notice of Intent to Sell. Provide Adamson with written
notice of the AEI Partnership's intent to sell the AEI
Partnership's remaining interest of or below 5% of the
Property ("Remaining Interest"), prior to accepting any
offer to sell such Remaining Interest;
BB. Notice of Buyer's Offer. Provide Adamson with written
notice ("AEI Partnership Notice") containing all of the
relevant terms and conditions of the offer, including a copy
of the Purchase Agreement from a buyer willing to make a
valid offer for the purchase of all or a portion of the
Remaining Interest held by the AEI Partnership, and a
statement of the costs incurred by the AEI Partnership
(including reasonable outside attorney's fees, if any) in
obtaining said offer.
C. Notice of Acceptance or Deemed Rejection. Within 10
business days of receipt of such AEI Partnership Notice,
Adamson will either:
(a) accept by written notification an assignment
of such offer for themselves and sell part, or all, of
its interest in the property to the buyer upon terms
contained in the AEI Partnership Notice, in which event
Adamson agrees to reimburse the AEI Partnership for the
costs incurred by the AEI Partnership in obtaining said
offer; or
(b) reject the offer contained in the AEI
Partnership Notice; if no written acceptance of the AEI
Partnership's offer to assign its interest is received
by the AEI Partnership within said ten days, Adamson
will have been deemed to have rejected such offer.
Upon Adamson's rejection of the offer, the AEI Partnership
shall be free to sell all, or part, of its Remaining
Interest in the Property to such buyer upon such terms and
conditions as stated in the notice to Adamson.
D. Termination or Survival of Limited Option. If the
buyer is willing and able to acquire the entire interest
owned by Adamson, and Adamson decline to sell its entire
interest, then the AEI Partnership shall have no continuing
obligation to provide Adamson with any further notice of an
option to sell any interest in the Property. If the buyer
is willing to acquire only a portion of the interest in the
property owned by Adamson, then the AEI Partnership shall
remain subject to the provisions hereof until released
therefrom according to the terms hereof.
3. Plan of Liquidation. Notwithstanding anything herein to the
contrary, the aforesaid Option to Sell shall not apply nor be
binding on the AEI Partnership, if the AEI Partnership shall
dispose of all of its interest in the Property according to a
written plan of liquidation ("Plan of Liquidation") executed
prior to the disposition of the AEI Partnership's remaining
interest in the Property, said Plan of Liquidation contemplating
the sale of all of the AEI Partnership's assets over a continuous
period in a series of related transactions commenced with the
express design to liquidate the AEI Partnership's interests in
all assets, and no damages shall accrue to Adamson if in fact
such liquidation occurs within a commercially reasonable time in
accordance with such written Plan of Liquidation.
4. Miscellaneous.
A. All notices provided for herein shall be in writing and
shall be deemed to have been given when delivered, personally or
by registered or certified mail or nationally recognized
overnight carrier, return receipt requested, postage prepaid,
addressed as follows:
if to Adamson at:
Wayne Adamson, General Partner
1400 West Walnut
Marion, Il. 62959
and
Gerald Adamson
206 Palm Avenue
Bullhead, Az. 86430
if to AEI at:
Attention: Robert P. Johnson, President
AEI Fund Management XVIII, Inc.
1300 Minnesota World Trade Center
30 East Seventh Street
Saint Paul, Minnesota 55101
or addressed to any such party at such address as such party
shall hereinafter furnish by notice to the other parties.
B. This Agreement shall be construed according to the laws
of the State of Minnesota and the parties agree to be governed by
the jurisdiction of and consent to venue of any action to enforce
this agreement in the State of Minnesota or the principal place
of business of Adamson or the situs of the Property, said choice
of venue to be at the sole discretion of AEI.
C. In the event it becomes necessary for either party to
bring suit to enforce the terms or conditions hereof, the
successful party shall have the right to recover reasonable
attorney's fees and costs.
In witness whereof, the parties have executed this Agreement
effective as of the date first written above.
THE THOMAS W. ADAMSON FAMILY LIMITED PARTNERSHIP
By: /s/ Gerald E Adamson
Its General Partner
By: /s/ Wayne K Adamson
Its General Partner
AEI REAL ESTATE FUND XVIII LIMITED PARTNERSHIP
By: AEI FUND MANAGEMENT XVIII, INC.
By: /s/ Robert P Johnson
Robert P. Johnson, President
EXHIBIT A LEGAL DESCRIPTION
A certain tract of land, containing 2.74 acres, more or less,
situated, lying, and being in the City of Bristol and in the
County of Washington, State of Virginia, as described by metes
and bounds as follows:
Located in Washington County and the City of Bristol,
Virginia within the Wal-mart Shopping Center Development;
being a portion of Tract No. 8 (Wal-Mart Stores, Inc.) as
shown on Plat of Record in Plat Book 4, Page 63, in the
recorders office for Washington County, Virginia; being more
particularly described as follows;
BEGINNING at an iron pin corner to Walnut Grove Church and
Tract 5 of the Wal-Mart Development, thence proceeding with
the line of Walnut Grove Church North 86 degrees 02 minutes 35
seconds West for a distance of 337.57 feet to an iron pin set
this survey; thence leaving the line of Walnut Grove Church
and proceeding with a new line North 46 degrees 10 minutes 34
seconds East for a distance of 591.56 feet to an iron pin set
this survey in the line of Tract 7; said iron pin being on the
south side of said road South 43 degrees 49 minutes 26
seconds East for a distance of 250.00 feet to an iron pin set
this survey and corner to Tract 5; thence with the line of
Tract 5 South 46 degrees 10 minutes 34 seconds West for a
distance of 364.723 feet to the BEGINNING, containing 2.74 acres
more or less as surveyed by Frizzell Engineering July, 1995.
A part or, but NOT all of Tract No. 8 of the subdivision of the
Wal-Mart Shopping Center as shown on a plat dated April 20, 1993
which plat is of record in the Office of the Clerk of the Circuit
Court of Washington County, Virginia in Plat Book 28, pages 42
through 45, and in records of the City of Bristol in Plat Book 4,
pages 60 through 63, to which plat reference is hereto made for a
more particular description.
TOGETHER WITH a non-exclusive easement for the use of the drive
lanes, as set forth in Easements With Convenants And Restrictions
Affecting Land ("ECR") by and between Wal-Mart Stores, Inc., a
Delaware corporation and Lowe's Home Center, Inc., a North
Carolina corporation, dated November 16, 1993, recorded in the
Clerk's Office Circuit Court, County of Washington, Virginia, in
Deed Book 888, page 345.
BEING a portion of the same real estate conveyed to Tractor
Supply Company, a Tennessee corporation by deed from Wal-Mart
Stores, Inc., a Delaware corporation, dated October 2, 1995,
recorded November 29, 1995, recorded in the Clerk's Office,
Circuit Court, County of Washington, Virginia, in Deed Book 931,
page 231, and in the Clerk's Office, Circuit Court, City of
Bristol, Virginia, in Deed Book 329, page 19.
PURCHASE AGREEMENT
Applebee's Restaurant - Destin, FL
This AGREEMENT, entered into effective as of the 17 of March,
1997 .
l. Parties. Seller is AEI Real Estate Fund XVIII Limited
Partnership which owns an undivided 53.5927% interest in the fee
title to that certain real property legally described in the
attached Exhibit "A" (the "Entire Property") Buyer is The Thomas
W. Adamson Family Limited Partnership, ("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 15.6446 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 $264,000, 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,
$259,000 (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 March 21, 1997.
6. Due Diligence. Buyer will have until the expiration of the
fifth business day 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. (The "Review Period")
(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 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/ GEA /s/ WKA
Purchase Agreement for Applebee's - Destin, FL
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 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/ GEA /s/ WKA
Purchase Agreement for Applebee's - Destin, FL
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 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 shall
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 Real
Estate Fund XVIII Limited Partnership and T.S.S.O.,
Inc.("Tenant"), dated October 31, 1991 (as amended by letter
agreement dated September 21, 1995 between AEI and Tenant),
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 35 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 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 being
purchased by Buyer in violation of the terms hereof or the
contemplated Co-Tenancy Agreement.
Buyer Initial: /s/ GEA /s/ WKA
Purchase Agreement for Applebee's - Destin, FL
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/ GEA /s/ WKA
Purchase Agreement for Applebee's - Destin, FL
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/ GEA /s/ WKA
Purchase Agreement for Applebee's - Destin, FL
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 Mountain West Exchange,
L.C. who will act as Accommodator to perfect the 1031 exchange by
preparing an agreement of exchange of Real Property whereby
Mountain West Exchange, L.C. 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
Buyer Initial: /s/ GEA /s/ WKA
Purchase Agreement for Applebee's - Destin, FL
time. Buyer hereby indemnifies and holds Seller harmless from
any claims and/or actions resulting from said exchange. Pursuant
to the direction of Mountain West Exchange, L.C., 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
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 March 21, 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 Real Estate Fund XVIII Limited Partnership
1300 Minnesota World Trade Center
30 E. 7th Street
St. Paul, MN 55101
If to Buyer:
The Thomas W. Adamson Family Limited Partnership
Gerald Adamson, General Partner
206 Palm Avenue
Bullhead City, AZ 86430
Buyer Initial: /s/ GEA /s/ WKA
Purchase Agreement for Applebee's - Destin, FL
Wayne Adamson, General Partner
1400 W. Walnut
Marion, IL 62959
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 Thomas W. Adamson Family Limited Partnership
By: /s/ Gerald E Adamson
Gerald E. Adamson, general partner
WITNESS:
/s/ Carlos F Andres
Carlos Francisco Andres
(Print Name)
WITNESS:
/s/ Barbara Adamson
Barbara Adamson
(Print Name)
By:/s/ Wayne K Adamson
Wayne K. Adamson, general partner
WITNESS:
/s/ Janice McGinness
Janice McGinness
(Print Name)
WITNESS:
/s/ Darlene Brock
Darlene Brock
(Print Name)
Buyer Initial: /s/ GEA /s/ WKA
Purchase Agreement for Applebee's - Destin, FL
SELLER: AEI REAL ESTATE FUND XVIII 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/ Laura Steidl
Laura Steidl
(Print Name)
WITNESS:
/s/ Kelly Kae Schueller
Kelly Kae Schueller
(Print Name)
EXHIBIT A
Legal Description
Premises: APPLEBEE'S NEIGHBORHOOD GRILL & BAR
A portion of Section 26, Township 2 South. Range 21 West,
Walton County, Florida, being more particularly described as
follows:
Commence at the intersection with the East line of the
aforesaid Section 26 and the North Right-of-way Line of
State Road 30 (U.S. 98. 100' R/W); thence go North 77
degrees 09 minutes 03 seconds West along the aforesaid Right-
of-way line, a distance of 1233.51 feet to a point of
curvature: thence go along a curve to the left, having a
radius of 5779.65 feet, an arc distance of 1060.26 feet (CH.
= 1058.78', CH. BRG. = North 82 degrees 24 minutes 26
seconds West); thence departing the aforesaid North Right-of-
way line, go North 02 degrees 59 seconds 27 minutes East, a
distance of 10.00 feet to a point on a curve, being concave
southerly and having a radius of 5789.65 feet and the Point
of Beginning: thence go northwesterly along the aforesaid
curve, an arc distance of 180.00 feet (CH. = 179.99', CH.
BRG. = North 88 degrees 33 minutes 11 seconds West): thence
go North 02 degrees 59 minutes 27 seconds East, a distance
of 215.00 feet: thence go South 88 degrees 38 minutes 25
seconds East, a distance of 178.79 feet to a Point on a
curve, being concave southwesterly and having a radius of
44.90 feet: thence go Southeasterly along the aforesaid
curve, an arc distance of 10.44 feet (CHI. = 10.42'. CHI.
BRAG. = South 03 degrees 39 minutes 46 seconds East) to the
Point of Tangency: thence go South 02 degrees 59 minutes 27
seconds East, a distance of 204.89 feet to the Point of
Beginning.
EXCEPTING THEREFROM THAT PORTION
lying Northerly of and within 66 feet of the centerline of
survey of State Road 30 (US 98) Section 60020, Westerly of
Station 248+00 and lying Northerly of and within 67 feet of
said centerline of survey, between Station 248+00 and
Station 256+51 and lying Northerly of said centerline of
survey and within a transition from 67 feet at Station
256+51 to 87 feet at Station 256+76; and lying Northerly of
and within 110 feet of said centerline of survey, between
Station 256+76 and Station 257+36; and lying Northerly of
said centerline of survey and within a transition from 87
feet at Station 257+36 to 67 feet at Station 257+61; and
lying Northerly of and within 67 feet of said centerline of
survey Easterly of Station 257+611; said centerline to be
described and said Stations to be located as follows:
Commence on a capped rod (RLS # 1835) at the Southeast
corner of Sandestin Estates Subdivision, as per plat
recorded in Plat Book 4, Page 25 of the Public Records of
Walton County, Florida; thence South 44 16' 49" East 101.64
feet; thence North 83 48' 54" East 3476.74 feet (crossing
the East line of Section 27, Township 2 South, Range 21 West
and the West line of Section 26, Township 2 South 2 South,
Range 21 West) to the POINT OF BEGINNING of centerline of
survey to be described herein, said point being the
beginning of a curve, concave Southerly, having a radius of
5729.58 feet; thence run Northeasterly, Easterly and
Southeasterly 1302.52 feet along said curve, thru a central
angle of 13 o1' 31" to Station 248+00; thence continue
Southeasterly 695.62 feet along said curve, thru a central
angle of 6 57' 22" to the end of curve; thence South 76 12'
14" East 155.38 feet to Station 256+51; thence continue
South 76 12' 14" East 25.0 feet to Station 256+76; thence
continue South 76 12' 14" East 60.00 feet to Station 257+36;
thence continue South 76 12'14" East 25.0 feet to Station
257+61; thence continue South 76 12' 14" East 977.87 feet to
the East line of said Section 26 (West line of Section 25,
Township 2 South Range 21 West) at a point 4561.50 feet
South 1 50' 37" West of a four inch by four inch concrete
monument on the Northeast corner of said Section 26
(Northwest corner of said Section 25); thence continue South
76 12' 14" East 1359.55 feet to a point of intersection with
the Southerly extension of the Easterly line of Parcel A of
Tract 308 of said Section 25; and end of centerline of
survey herein described; said point being 518.40 feet South
2 00' 23" West of a capped rod (RLS # 2535) on the Northeast
corner of said partial A; containing 1080 square feet, more
or less.
PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Applebee's Restaurant - Destin, FL)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 21 day of March, 1997, by and
between The Thomas W. Adamson Family Limited Partnership,
(hereinafter called "Adamson"), and AEI Real Estate Fund XVIII
Limited Partnership (hereinafter called "Fund XVIII") (Adamson,
Fund XVIII (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). This Co-Tenancy
Agreement supersedes in its entirety that certain Property Co-
Tenancy Ownership Agreement dated March 10, 1997.
WITNESSETH:
WHEREAS, Fund XVIII presently owns an undivided 37.9481% interest
in and to, and Adamson presently owns an undivided 31.2892%
interest in and to,and Kent T. Wood and Kimberly Pasini Wood
presently own an undivided 11.0814% interest in and to, and The
John Pasini and Elvia Pasini Trust presently own an undivided
12.6222% interest in and to; and Joseph Nicoletta presently owns
an undivided 7.0591% interest in and to the land, situated in the
City of Destin, County of Walton, and State of Florida, (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 Adamson's interest
by Fund XVIII; 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 Adamson 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 XVIII, or its designated agent, successors or
assigns. Provided, however, if Fund XVIII shall sell all of its
interest in the Premises, the duties and obligations of Fund
XVIII 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 XVIII 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 XVIII as their sole and
exclusive agent to deal with, and Fund XVIII 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 Adamson. Only Fund XVIII may obligate Adamson with
respect to any expense for the Premises. Adamson agrees to
direct any inquiry respecting the Premises or of a tenant in the
Premises to Fund XVIII, and subject to the provisions of the last
paragraph of section 2, shall not contact such tenants without
Fund XVIII's written approval, as long as Fund XVIII retains an
interest in the Premises.
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Applebee's Restaurant - Destin, FL
As further set forth in paragraph 2 hereof, Fund XVIII
agrees to require any Tenant of the Premises to name Adamson as
an insured or additional insured in all insurance policies
provided for, or contemplated by, any lease on the Premises. Fund
XVIII 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 XVIII 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 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 XVIII may offset
against, pay to itself and deduct from any payment due to Adamson
under this Agreement, and may pay to itself the amount of
Adamson's share of any legitimate expenses of the Premises which
are not paid by Adamson to Fund XVIII or its assigns, within ten
(10) days after demand by Fund XVIII. In the event there is
insufficient operating income from which to deduct Adamson's
unpaid share of operating expenses, Fund XVIII 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.
Adamson has no requirement to, but has, nonetheless, elected to
retain, and agrees to annually reimburse, Fund XVIII in the
amount of $785 for the expenses, direct and indirect, incurred by
Fund XVIII in providing Adamson with quarterly accounting and
distributions of Adamson's share of net income and for tracking,
reporting and assessing the calculation of Adamson's share of
operating expenses incurred from the Premises. This invoice
amount shall be pro-rated for partial years and Adamson
authorizes Fund XVIII to deduct such amount from Adamson's share
of revenue from the Premises. Adamson may terminate this
agreement in this paragraph respecting accounting and
distributions at any time and seek 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
XVIII pursuant to Section 1 hereof.
3. Full, accurate and complete books of account shall be kept
in accordance with generally accepted accounting principles at
Fund XVIII'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 XVIII
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, Adamson
shall be entitled to receive 31.2892% 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 XVIII, shall,
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Applebee's Restaurant - Destin, FL
within fifteen (15) business days after receipt of notice, make
payment to Fund XVIII 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.
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
October 31, 2021 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 Premises and with the title thereto. Once any person, party
or entity has ceased to have an interest in fee in the Premises,
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 XVIII:
AEI Real Estate Fund XVIII Limited Partnership
1300 Minnesota World Trade Center
30 E. Seventh Street
St. Paul, Minnesota 55101
If to Adamson:
The Thomas W. Adamson Family Limited Partnership
Gerald Adamson
206 Palm Avenue
Bullhead City, AZ 86430
Wayne Adamson
1400 W. Walnut
Marion, IL 62959
If to Wood:
Kent T. Wood and Kimberly Pasini Wood
1550 Monte Vista Drive
Reno, NV 89509
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Applebee's Restaurant - Destin, FL
If to Pasini:
John Pasini and Elvia Pasini, Trustees
4000 Bitter Creek Court
Reno, NV 89509
If to Nicoletta:
Joseph Nicoletta
5727 Camellia
North Hollywood, CA 91601
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.
The remainder of this page intentionally left blank.
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Applebee's Restaurant - Destin, FL
IN WITNESS WHEREOF, The parties hereto have caused this Agreement
to be executed and delivered, as of the day and year first above
written.
Adamson The Thomas W. Adamson Family Limited Partnership
By: /s/ Gerald E Adamson
Gerald E. Adamson, general partner
WITNESS:
/s/ Carlos F Andres
Carlos Francisco Andres
(Print Name)
WITNESS:
/s/ Barbara Adamson
Barbara Adamson
(Print Name) [notary seal]
/s/ Carlos Francisco Andres
STATE OF Arizona
) ss
COUNTY OF Mohave
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 15 day of 03, 1997,
Gerald E. Adamson, general partner, who executed the foregoing
instrument in said capacity and on behalf of the said limited
partnership.
By:/s/ Wayne K Adamson
Wayne K. Adamson, general partner
WITNESS:
/s/ Janice McGinness
Janice McGinness
(Print Name)
WITNESS:
/s/ Darlene Brock
Darlene Brock
(Print Name)
STATE OF Illinois )
) ss
COUNTY OF Williamson )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 18th day of March,
1997, Wayne K.. Adamson, general partner, who executed the
foregoing instrument in said capacity and on behalf of the said
limited partnership.
[notary seal]
/s/ Jesse W Berry
Notary Public - Williamson County
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Applebee's Restaurant - Destin, FL
Fund XVIII AEI Real Estate Fund XVIII Limited Partnership
By: AEI Fund Management XVIII, Inc., its corporate general partner
By:/s/ Robert P Johnson
Robert P. Johnson, President
WITNESS:
/s/ Laura Steidl
Laura Steidl
(Print Name)
WITNESS:
/s/ Joan M Picquet
Joan M. Picquet
(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 26th day of March,
1997, Robert P. Johnson, President of AEI Fund Management XVIII,
Inc., corporate general partner of AEI Real Estate Fund XVIIII
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/ GEA /s/ WKA
Co-Tenancy Agreement for Applebee's Restaurant - Destin, FL
EXHIBIT A
Legal Description
Premises: APPLEBEE'S NEIGHBORHOOD GRILL & BAR
A portion of Section 26, Township 2 South. Range 21 West,
Walton County, Florida, being more particularly described as
follows:
Commence at the intersection with the East line of the
aforesaid Section 26 and the North Right-of-way Line of
State Road 30 (U.S. 98. 100' R/W); thence go North 77
degrees 09 minutes 03 seconds West along the aforesaid Right-
of-way line, a distance of 1233.51 feet to a point of
curvature: thence go along a curve to the left, having a
radius of 5779.65 feet, an arc distance of 1060.26 feet (CH.
= 1058.78', CH. BRG. = North 82 degrees 24 minutes 26
seconds West); thence departing the aforesaid North Right-of-
way line, go North 02 degrees 59 seconds 27 minutes East, a
distance of 10.00 feet to a point on a curve, being concave
southerly and having a radius of 5789.65 feet and the Point
of Beginning: thence go northwesterly along the aforesaid
curve, an arc distance of 180.00 feet (CH. = 179.99', CH.
BRG. = North 88 degrees 33 minutes 11 seconds West): thence
go North 02 degrees 59 minutes 27 seconds East, a distance
of 215.00 feet: thence go South 88 degrees 38 minutes 25
seconds East, a distance of 178.79 feet to a Point on a
curve, being concave southwesterly and having a radius of
44.90 feet: thence go Southeasterly along the aforesaid
curve, an arc distance of 10.44 feet (CHI. = 10.42'. CHI.
BRAG. = South 03 degrees 39 minutes 46 seconds East) to the
Point of Tangency: thence go South 02 degrees 59 minutes 27
seconds East, a distance of 204.89 feet to the Point of
Beginning.
EXCEPTING THEREFROM THAT PORTION
lying Northerly of and within 66 feet of the centerline of
survey of State Road 30 (US 98) Section 60020, Westerly of
Station 248+00 and lying Northerly of and within 67 feet of
said centerline of survey, between Station 248+00 and
Station 256+51 and lying Northerly of said centerline of
survey and within a transition from 67 feet at Station
256+51 to 87 feet at Station 256+76; and lying Northerly of
and within 110 feet of said centerline of survey, between
Station 256+76 and Station 257+36; and lying Northerly of
said centerline of survey and within a transition from 87
feet at Station 257+36 to 67 feet at Station 257+61; and
lying Northerly of and within 67 feet of said centerline of
survey Easterly of Station 257+611; said centerline to be
described and said Stations to be located as follows:
Commence on a capped rod (RLS # 1835) at the Southeast
corner of Sandestin Estates Subdivision, as per plat
recorded in Plat Book 4, Page 25 of the Public Records of
Walton County, Florida; thence South 44 16' 49" East 101.64
feet; thence North 83 48' 54" East 3476.74 feet (crossing
the East line of Section 27, Township 2 South, Range 21 West
and the West line of Section 26, Township 2 South 2 South,
Range 21 West) to the POINT OF BEGINNING of centerline of
survey to be described herein, said point being the
beginning of a curve, concave Southerly, having a radius of
5729.58 feet; thence run Northeasterly, Easterly and
Southeasterly 1302.52 feet along said curve, thru a central
angle of 13 o1' 31" to Station 248+00; thence continue
Southeasterly 695.62 feet along said curve, thru a central
angle of 6 57' 22" to the end of curve; thence South 76 12'
14" East 155.38 feet to Station 256+51; thence continue
South 76 12' 14" East 25.0 feet to Station 256+76; thence
continue South 76 12' 14" East 60.00 feet to Station 257+36;
thence continue South 76 12'14" East 25.0 feet to Station
257+61; thence continue South 76 12' 14" East 977.87 feet to
the East line of said Section 26 (West line of Section 25,
Township 2 South Range 21 West) at a point 4561.50 feet
South 1 50' 37" West of a four inch by four inch concrete
monument on the Northeast corner of said Section 26
(Northwest corner of said Section 25); thence continue South
76 12' 14" East 1359.55 feet to a point of intersection with
the Southerly extension of the Easterly line of Parcel A of
Tract 308 of said Section 25; and end of centerline of
survey herein described; said point being 518.40 feet South
2 00' 23" West of a capped rod (RLS # 2535) on the Northeast
corner of said partial A; containing 1080 square feet, more
or less.
Limited Option of First Sale
This Agreement, by and between The Thomas W. Adamson Family
Limited Partnership ("Adamson"), and AEI Real Estate Fund XVIII
Limited Partnership (the "AEI Partnership"), is effective as of
the 21 day of March, 1997, and supercedes in its entirety that
certain Limited Option of First Sale dated March 3, 1997.
RECITALS
Whereas, Adamson has purchased an undivided 31.2892% interest in
that certain property legally described on Exhibit A attached
hereto (the "Property"), as a Co-Tenant with the AEI Partnership,
which as of the date hereof owns an undivided 37.9481% interest
in the Property; and
Whereas, as consideration for Adamson's purchase of its interest
in the Property from the AEI Partnership, the AEI Partnership has
granted Adamson the Limited Option of First Sale of Adamson's
interest in the Property, but only upon the limited terms set
forth herein.
Now, therefore, in Consideration of the purchase by Adamson
of its undivided interest in the Property, Adamson and the AEI
Partnership (in its individual capacity as a matter of contract
right and not as a covenant running with the AEI Partnership's
interest in the Property) agree that:
1. Freedom of Transfer. Adamson shall be free to dispose of
its interest in the Property, whether according to this
Agreement, or upon such terms and conditions as Adamson shall
determine. However, the rights afforded Adamson hereunder are
personal to Adamson, and may not be assigned and do not run with
Adamson's interest in the Property. The AEI Partnership shall be
free to sell or transfer all any part of its interest in the
Property, provided, however, for as long as Adamson shall retain
an undivided interest in the Property, the AEI Partnership will
retain at least a 5% ownership interest in the Property, subject
to disposition by the AEI Partnership as further set forth
herein. The AEI Partnership's sale or transfer of its remaining
5% interest shall be governed by the terms hereof.
2. Limited Option of First Sale. At such time as the AEI
Partnership intends to sell all or any portion of its remaining
interest in the Property (provided such sale is not in connection
with a Liquidation Plan (defined below)), which sale would bring
the AEI Partnership's interest below an undivided 5% interest,
the AEI Partnership agrees it will:
AA. Notice of Intent to Sell. Provide Adamson with written
notice of the AEI Partnership's intent to sell the AEI
Partnership's remaining interest of or below 5% of the
Property ("Remaining Interest"), prior to accepting any
offer to sell such Remaining Interest;
BB. Notice of Buyer's Offer. Provide Adamson with written
notice ("AEI Partnership Notice") containing all of the
relevant terms and conditions of the offer, including a copy
of the Purchase Agreement from a buyer willing to make a
valid offer for the purchase of all or a portion of the
Remaining Interest held by the AEI Partnership, and a
statement of the costs incurred by the AEI Partnership
(including reasonable outside attorney's fees, if any) in
obtaining said offer.
C. Notice of Acceptance or Deemed Rejection. Within 10
business days of receipt of such AEI Partnership Notice,
Adamson will either:
(a) accept by written notification an assignment
of such offer for themselves and sell part, or all, of
its interest in the property to the buyer upon terms
contained in the AEI Partnership Notice, in which event
Adamson agrees to reimburse the AEI Partnership for the
costs incurred by the AEI Partnership in obtaining said
offer; or
(b) reject the offer contained in the AEI
Partnership Notice; if no written acceptance of the AEI
Partnership's offer to assign its interest is received
by the AEI Partnership within said ten days, Adamson
will have been deemed to have rejected such offer.
Upon Adamson's rejection of the offer, the AEI Partnership
shall be free to sell all, or part, of its Remaining
Interest in the Property to such buyer upon such terms and
conditions as stated in the notice to Adamson.
D. Termination or Survival of Limited Option. If the
buyer is willing and able to acquire the entire interest
owned by Adamson, and Adamson decline to sell its entire
interest, then the AEI Partnership shall have no continuing
obligation to provide Adamson with any further notice of an
option to sell any interest in the Property. If the buyer
is willing to acquire only a portion of the interest in the
property owned by Adamson, then the AEI Partnership shall
remain subject to the provisions hereof until released
therefrom according to the terms hereof.
3. Plan of Liquidation. Notwithstanding anything herein to the
contrary, the aforesaid Option to Sell shall not apply nor be
binding on the AEI Partnership, if the AEI Partnership shall
dispose of all of its interest in the Property according to a
written plan of liquidation ("Plan of Liquidation") executed
prior to the disposition of the AEI Partnership's remaining
interest in the Property, said Plan of Liquidation contemplating
the sale of all of the AEI Partnership's assets over a continuous
period in a series of related transactions commenced with the
express design to liquidate the AEI Partnership's interests in
all assets, and no damages shall accrue to Adamson if in fact
such liquidation occurs within a commercially reasonable time in
accordance with such written Plan of Liquidation.
4. Miscellaneous.
A. All notices provided for herein shall be in writing and
shall be deemed to have been given when delivered, personally or
by registered or certified mail or nationally recognized
overnight carrier, return receipt requested, postage prepaid,
addressed as follows:
if to Adamson at:
Wayne Adamson, General Partner
1400 West Walnut
Marion, Il. 62959
and
Gerald Adamson
206 Palm Avenue
Bullhead, Az. 86430
if to AEI at:
Attention: Robert P. Johnson, President
AEI Fund Management XVIII, Inc.
1300 Minnesota World Trade Center
30 East Seventh Street
Saint Paul, Minnesota 55101
or addressed to any such party at such address as such party
shall hereinafter furnish by notice to the other parties.
B. This Agreement shall be construed according to the laws
of the State of Minnesota and the parties agree to be governed by
the jurisdiction of and consent to venue of any action to enforce
this agreement in the State of Minnesota or the principal place
of business of Adamson or the situs of the Property, said choice
of venue to be at the sole discretion of AEI.
C. In the event it becomes necessary for either party to
bring suit to enforce the terms or conditions hereof, the
successful party shall have the right to recover reasonable
attorney's fees and costs.
In witness whereof, the parties have executed this Agreement
effective as of the date first written above.
THE THOMAS W. ADAMSON FAMILY LIMITED PARTNERSHIP
By: /s/ Gerald E Adamson
Its General Partner
By: /s/ Wayne K Adamson
Its General Partner
AEI REAL ESTATE FUND XVIII LIMITED PARTNERSHIP
By: AEI FUND MANAGEMENT XVIII, INC.
By: /s/ Robert P Johnson
Robert P. Johnson, President
EXHIBIT A
Legal Description
Premises: APPLEBEE'S NEIGHBORHOOD GRILL & BAR
A portion of Section 26, Township 2 South. Range 21 West,
Walton County, Florida, being more particularly described as
follows:
Commence at the intersection with the East line of the
aforesaid Section 26 and the North Right-of-way Line of
State Road 30 (U.S. 98. 100' R/W); thence go North 77
degrees 09 minutes 03 seconds West along the aforesaid Right-
of-way line, a distance of 1233.51 feet to a point of
curvature: thence go along a curve to the left, having a
radius of 5779.65 feet, an arc distance of 1060.26 feet (CH.
= 1058.78', CH. BRG. = North 82 degrees 24 minutes 26
seconds West); thence departing the aforesaid North Right-of-
way line, go North 02 degrees 59 seconds 27 minutes East, a
distance of 10.00 feet to a point on a curve, being concave
southerly and having a radius of 5789.65 feet and the Point
of Beginning: thence go northwesterly along the aforesaid
curve, an arc distance of 180.00 feet (CH. = 179.99', CH.
BRG. = North 88 degrees 33 minutes 11 seconds West): thence
go North 02 degrees 59 minutes 27 seconds East, a distance
of 215.00 feet: thence go South 88 degrees 38 minutes 25
seconds East, a distance of 178.79 feet to a Point on a
curve, being concave southwesterly and having a radius of
44.90 feet: thence go Southeasterly along the aforesaid
curve, an arc distance of 10.44 feet (CHI. = 10.42'. CHI.
BRAG. = South 03 degrees 39 minutes 46 seconds East) to the
Point of Tangency: thence go South 02 degrees 59 minutes 27
seconds East, a distance of 204.89 feet to the Point of
Beginning.
EXCEPTING THEREFROM THAT PORTION
lying Northerly of and within 66 feet of the centerline of
survey of State Road 30 (US 98) Section 60020, Westerly of
Station 248+00 and lying Northerly of and within 67 feet of
said centerline of survey, between Station 248+00 and
Station 256+51 and lying Northerly of said centerline of
survey and within a transition from 67 feet at Station
256+51 to 87 feet at Station 256+76; and lying Northerly of
and within 110 feet of said centerline of survey, between
Station 256+76 and Station 257+36; and lying Northerly of
said centerline of survey and within a transition from 87
feet at Station 257+36 to 67 feet at Station 257+61; and
lying Northerly of and within 67 feet of said centerline of
survey Easterly of Station 257+611; said centerline to be
described and said Stations to be located as follows:
Commence on a capped rod (RLS # 1835) at the Southeast
corner of Sandestin Estates Subdivision, as per plat
recorded in Plat Book 4, Page 25 of the Public Records of
Walton County, Florida; thence South 44 16' 49" East 101.64
feet; thence North 83 48' 54" East 3476.74 feet (crossing
the East line of Section 27, Township 2 South, Range 21 West
and the West line of Section 26, Township 2 South 2 South,
Range 21 West) to the POINT OF BEGINNING of centerline of
survey to be described herein, said point being the
beginning of a curve, concave Southerly, having a radius of
5729.58 feet; thence run Northeasterly, Easterly and
Southeasterly 1302.52 feet along said curve, thru a central
angle of 13 o1' 31" to Station 248+00; thence continue
Southeasterly 695.62 feet along said curve, thru a central
angle of 6 57' 22" to the end of curve; thence South 76 12'
14" East 155.38 feet to Station 256+51; thence continue
South 76 12' 14" East 25.0 feet to Station 256+76; thence
continue South 76 12' 14" East 60.00 feet to Station 257+36;
thence continue South 76 12'14" East 25.0 feet to Station
257+61; thence continue South 76 12' 14" East 977.87 feet to
the East line of said Section 26 (West line of Section 25,
Township 2 South Range 21 West) at a point 4561.50 feet
South 1 50' 37" West of a four inch by four inch concrete
monument on the Northeast corner of said Section 26
(Northwest corner of said Section 25); thence continue South
76 12' 14" East 1359.55 feet to a point of intersection with
the Southerly extension of the Easterly line of Parcel A of
Tract 308 of said Section 25; and end of centerline of
survey herein described; said point being 518.40 feet South
2 00' 23" West of a capped rod (RLS # 2535) on the Northeast
corner of said partial A; containing 1080 square feet, more
or less.
PURCHASE AGREEMENT
Champps Restaurant - Columbus, OH
This AGREEMENT, entered into effective as of the 17 of March,
1997 .
l. Parties. Seller is AEI Real Estate Fund XVIII Limited
Partnership which owns an undivided 25.1101% interest in the fee
title to that certain real property legally described in the
attached Exhibit "A" (the "Entire Property") Buyer is the The
Thomas W. Adamson Family Limited Partnership, ("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 7.0899 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 $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.
(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 March 21, 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/ GEA /s/ WKA
Purchase Agreement for Champps - Columbus, 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 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
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/ GEA /s/ WKA
Purchase Agreement for Champps - Columbus, 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 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 shall
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 Income &
Growth Fund XXI Limited Partnership and AEI Real Estate Fund
XVIII Limited Partnership and Americana Dining Corporation,
dated August 29, 1996, Seller is not aware of any leases of
the Property. The above referenced lease agreement also has
a first right of refusal in favor of the Tenant as set forth
in Article 34 of said lease agreement, which right shall
apply to any attempted 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 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 Initial: /s/ GEA /s/ WKA
Purchase Agreement for Champps - Columbus, OH
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.
The provisions (d) - (f) above shall survive closing.
Buyer Initial: /s/ GEA /s/ WKA
Purchase Agreement for Champps - Columbus, OH
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 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/ GEA /s/ WKA
Purchase Agreement for Champps - Columbus, OH
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 Mountain West Exchange,
L.C. who will act as Accommodator to perfect the 1031 exchange by
preparing an agreement of exchange of Real Property whereby
Mountain West Exchange, L.C. 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
Buyer Initial: /s/ GEA /s/ WKA
Purchase Agreement for Champps - Columbus, OH
time. Buyer hereby indemnifies and holds Seller harmless from
any claims and/or actions resulting from said exchange. Pursuant
to the direction of Mountain West Exchange, L.C., 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 March 21, 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 Real Estate Fund XVIII Limited Partnership
1300 Minnesota World Trade Center
30 E. 7th Street
St. Paul, MN 55101
If to Buyer:
The Thomas W. Adamson Family Limited Partnership
Gerald Adamson, General Partner
206 Palm Avenue
Bullhead City, AZ 86430
Buyer Initial: /s/ GEA /s/ WKA
Purchase Agreement for Champps - Columbus, OH
Wayne Adamson, General Partner
1400 W.Walnut
Marion, IL 62959
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 Thomas W. Adamson Family Limited Partnership
By:/s/ Geral E Adamson
Gerald E. Adamson, general partner
WITNESS:
/s/ Carlos Francisco Andres
Carlos F Andres
(Print Name)
WITNESS:
/s/ Barbara Adamson
Barbara Adamson
(Print Name)
By: /s/ Wayne K Adamson
Wayne K. Adamson, general partner
WITNESS:
/s/ Darlene Brock
Darlene Brock
(Print Name)
WITNESS:
/s/ Janice McGinness
Janice Mc Ginness
(Print Name)
Buyer Initial: /s/ WKA
Purchase Agreement for Champps - Columbus, OH
SELLER: AEI REAL ESTATE FUND XVIII 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/ Laura Steidl
Laura Steidl
(Print Name)
WITNESS:
/s/ Kelly Kae Schuller
Kelly Kae Schuller
(Print Name)
Buyer Initial: /s/ GEA /s/ WKA
Purchase Agreement for Champps - Columbus, OH
LEGAL DESCRIPTION
Situated in the State of Ohio, County of Franklin, City of
Columbus, being located in Section 2, Township 2, Range 18,
United States Military Lands, and being part of a 43. 161
acre tract of land (Parcel No. 610-146452) conveyed to Forty-
One Corporation (the Grantor), by deed of record in Official
Record 15500 A-G, all references being to records in the
Recorder's Office, Franklin County Ohio, and being more
particularly described as follows:
Beginning for reference at the intersection of North High
Street (US 23) and East Campus View Boulevard (80.00 feet in
width) as shown in Plat Book 60, Page 26:
thence S 86 49' 53" E, along the centerline of said East
Campus View Boulevard, a distance of 900.00 feet to a point
of curvature,
thence along the centerline of said East Campus View
Boulevard, with a curve tot he left having a radius of
1350.00 feet, a chord bearing of N 89 27' 50" E, and a chord
distance of 174.45 feet to the intersection with centerline
of High Cross Boulevard (80.00 feet in width);
thence S 1 53'32" E, along the centerline of said High cross
Boulevard a distance of 74.72 feet to a point;
thence N 88 06'28" E, a distance of 40.00 feet to an iron
pin set in the easterly right of way line of said High Cross
Boulevard, said point being the True Point of Beginning of
herein described tract;
thence along the easterly right of way line of said High
Cross Boulevard, with a curve to the right, having a radius
of 40.00 feet, a chord bearing of N 40 23'34" E, and a chord
distance of 53.83 feet to an iron pin set in the southerly
right of way line of said East Campus View Boulevard;
thence along the southerly right of way line of said East
Campus View Boulevard and the northerly line of herein
described tract, with a curve to the left, having a radius
of 1390.00 feet, a chord bearing of N 82 25'24" E, and a
chord distance of 12.36 feet to an iron pin set;
thence N 82 10' 07" E, along the southerly right of way line
of said East Campus View boulevard and the northerly line of
herein described tract, a distance of 209.28 feet to an iron
pin set at the northeasterly corner of herein described
tract;
thence s 7 49' 49" E, along the easterly line of herein
described tract, a distance of 312.60 feet to an iron pin
set at the southeasterly corner of herein described tract;
thence S 82 10'11" W, along the southerly line of herein
described tract, a distance of 318.01 feet to an iron pin
set in the easterly right of way line of said High Cross
Boulevard at the southwesterly corner of herein described
tract;
thence along the easterly right of way line of said High
Cross Boulevard and the westerly line of herein described
tract, with a curve to the right, having a radius of 2960.00
feet, a chord bearing of N 9 21' 59" E, and a chord distance
of 10/.64 feet to an iron pin set;
thence N 9 28'10" E, along the easterly right of way line of
said High Cross Boulevard and the westerly line of herein
described tract a distance of 89.24 feet to an iron pin set;
thence along the easterly right of way line of said High
Cross Boulevard and the westerly line of herein described
tract, with a curve to the left, having a radius of 390.00
feet, a chord bearing at N 3 47' 19" E, and a chord distance
of 77.21 feet to an iron pin set;
thence N 53' 32" W, along the easterly right of way line of
said High Cross Boulevard and the westerly line of herein
described tract a distance of 106/36 feet to the True Point
of Beginning containing 2,005 acres, more or less, and
subject to any rights of way, easements, and restrictions of
record.
The Basis of Bearing in this description is the centerline
of East Campus View Boulevard, being S 86 49' 53" E, as
shown in Plat Book 61, Page 79, Recorder's Office, Franklin
County, Ohio.
PROPERTY CO-TENANCY
OWNERSHIP AGREEMENT
(Champps Restaurant - Columbus, OH)
THIS CO-TENANCY AGREEMENT,
Made and entered into as of the 21 day of March, 1997, by and
between The Thomas W. Adamson Family Limited Partnership,
(hereinafter called "Adamson"), and AEI Real Estate Fund XVIII
Limited Partnership (hereinafter called "Fund XVIII") (Adamson,
Fund XVIII (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). This Co-Tenancy
Agreement supersedes in its entirety that certain Property Co-
Tenancy Ownership Agreement dated March 10, 1997.
WITNESSETH:
WHEREAS, Fund XVIII presently owns an undivided 18.0202% interest
in and to, and AEI Income and Growth Fund XXI Limited Partnership
("Fund XXI") presently owns an undivided 67.80% interest in and
to, and Adamson presently owns an undivided 14.1798% interest in
and to the land, situated in the City of Columbus, County of
Franklin, 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 Adamson's interest
by Fund XVIII; 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 Adamson 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 XVIII, or its designated agent, successors or
assigns. Provided, however, if Fund XVIII shall sell all of its
interest in the Premises, the duties and obligations of Fund
XVIII respecting management of the Premises as set forth herein,
including but not limited to paragraphs 2, 3, and 4 hereof, shall
be exercised by Fund XVIII unless and until Fund XVIII shall sell
all of its interest in the Premises in which event the duties
respecting management of the Premises 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 XVIII 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 XVIII as their sole and exclusive agent to deal
with, and Fund XVIII 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 Adamson. Only Fund
XVIII may obligate Adamson with respect to any expense for the
Premises. Adamson agrees to direct any inquiry respecting the
Premises or of a tenant in the Premises to Fund XVIII, and
subject to the provisions of the last paragraph of section 2,
shall not contact such tenants without Fund XVIII's written
approval, as long as Fund XVIII retains an interest in the
Premises.
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Champps, Columbus, OH
As further set forth in paragraph 2 hereof, Fund XVIII agrees to
require any lessee of the Premises to name Adamson as an insured
or additional insured in all insurance policies provided for, or
contemplated by, any lease on the Premises. Fund XVIII 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 XVIII 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 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 XVIII may offset
against, pay to itself and deduct from any payment due to Adamson
under this Agreement, and may pay to itself the amount of
Adamson's share of any legitimate expenses of the Premises which
are not paid by Adamson to Fund XVIII or its assigns, within ten
(10) days after demand by Fund XVIII. In the event there is
insufficient operating income from which to deduct Adamson's
unpaid share of operating expenses, Fund XVIII 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.
Adamson has no requirement to, but has, nonetheless elected to
retain, and agrees to annually reimburse, Fund XVIII in the
amount of $700 for the expenses, direct and indirect, incurred by
Fund XVIII in providing Adamson with quarterly accounting and
distributions of Adamson's share of net income and for tracking,
reporting and assessing the calculation of Adamson's share of
operating expenses incurred from the Premises. This invoice
amount shall be pro-rated for partial years and Adamson
authorizes Fund XVIII to deduct such amount from Adamson's share
of revenue from the Premises. Adamson may terminate this
agreement in this paragraph respecting accounting and
distributions at any time and collect its share of rental income
directly from the tenant.
3. Full, accurate and complete books of account shall be kept
in accordance with generally accepted accounting principles at
Fund XVIII'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 XVIII
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, Adamson
shall be entitled to receive 14.1798% 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 XVIII, shall,
within fifteen (15) business days after receipt of notice, make
payment to
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Champps, Columbus, OH
Fund XVIII 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.
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
August 29, 2031 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 Premises and with the title thereto. Once any person, party
or entity has ceased to have an interest in fee in the Premises,
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 XVIII:
AEI Real Estate Fund XVIII Limited Partnership
1300 Minnesota World Trade Center
30 E. Seventh Street
St. Paul, Minnesota 55101
If to Adamson:
The Thomas W. Adamson Family Limited Partnership
Gerald Adamson
206 Palm Avenue
Bullhead City, AZ 86430
Wayne Adamson
1400 W. Walnut
Marion, IL 62959
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
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Champps, Columbus, OH
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.
The remainder of this page intentionally left blank
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Champps, Columbus, 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.
Adamson The Thomas W. Adamson Family Limited Partnership
By:/s/ Gerald E Adamson
Gerald E. Adamson, general partner
WITNESS:
/s/ Carlos F Andres
Carlos Francisco Andres
(Print Name)
WITNESS:
/s/ Barbara Adamson
Barbara Adamson
(Print Name) [notary seal
STATE OF Arizona ) /s/ Carlos Francisco Andres
) ss
COUNTY OF Mohave )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 15 day of 03, 1997,
Gerald E. Adamson, general partner, who executed the foregoing
instrument in said capacity and on behalf of the said limited
partnership.
By:/s/ Wayne K Adamson
Wayne K. Adamson, general partner
WITNESS:
/s/ Janice Mc Ginness
Janice Mc Ginness
(Print Name)
WITNESS:
/s/ Darlene Brock
Darlene Brock
(Print Name)
STATE OF Illinois )
) ss
COUNTY OF Williamson )
I, a Notary Public in and for the state and county of aforesaid,
hereby certify there appeared before me this 19th day of March,
1997, Wayne K.. Adamson, general partner, who executed the
foregoing instrument in said capacity and on behalf of the said
limited partnership.
[notary seal] /s/ Jesse W Berry
Notary Public- Williamson County,IL
Co-Tenant Initial: /s/ GEA /s/ WKA
Co-Tenancy Agreement for Champps, Columbus, OH
Fund XVIII AEI Real Estate Fund XVIII Limited Partnership
By: AEI Fund Management XVIII, Inc., its corporate general partner
By:/s/ Robert P Johnson
Robert P. Johnson, President
WITNESS:
/s/ Laura Steidl
Laura Steidl
(Print Name)
WITNESS:
/s/ Joan Picquet
Joan Picquet
(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 26th day of March,
1997, Robert P. Johnson, President of AEI Fund Management XVIII,
Inc., corporate general partner of AEI Real Estate Fund XVIIII
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/ GEA /s/ WKA
Co-Tenancy Agreement for Champps, Columbus, OH
LEGAL DESCRIPTION
Situated in the State of Ohio, County of Franklin, City of
Columbus, being located in Section 2, Township 2, Range 18,
United States Military Lands, and being part of a 43. 161
acre tract of land (Parcel No. 610-146452) conveyed to Forty-
One Corporation (the Grantor), by deed of record in Official
Record 15500 A-G, all references being to records in the
Recorder's Office, Franklin County Ohio, and being more
particularly described as follows:
Beginning for reference at the intersection of North High
Street (US 23) and East Campus View Boulevard (80.00 feet in
width) as shown in Plat Book 60, Page 26:
thence S 86 49' 53" E, along the centerline of said East
Campus View Boulevard, a distance of 900.00 feet to a point
of curvature,
thence along the centerline of said East Campus View
Boulevard, with a curve tot he left having a radius of
1350.00 feet, a chord bearing of N 89 27' 50" E, and a chord
distance of 174.45 feet to the intersection with centerline
of High Cross Boulevard (80.00 feet in width);
thence S 1 53'32" E, along the centerline of said High cross
Boulevard a distance of 74.72 feet to a point;
thence N 88 06'28" E, a distance of 40.00 feet to an iron
pin set in the easterly right of way line of said High Cross
Boulevard, said point being the True Point of Beginning of
herein described tract;
thence along the easterly right of way line of said High
Cross Boulevard, with a curve to the right, having a radius
of 40.00 feet, a chord bearing of N 40 23'34" E, and a chord
distance of 53.83 feet to an iron pin set in the southerly
right of way line of said East Campus View Boulevard;
thence along the southerly right of way line of said East
Campus View Boulevard and the northerly line of herein
described tract, with a curve to the left, having a radius
of 1390.00 feet, a chord bearing of N 82 25'24" E, and a
chord distance of 12.36 feet to an iron pin set;
thence N 82 10' 07" E, along the southerly right of way line
of said East Campus View boulevard and the northerly line of
herein described tract, a distance of 209.28 feet to an iron
pin set at the northeasterly corner of herein described
tract;
thence s 7 49' 49" E, along the easterly line of herein
described tract, a distance of 312.60 feet to an iron pin
set at the southeasterly corner of herein described tract;
thence S 82 10'11" W, along the southerly line of herein
described tract, a distance of 318.01 feet to an iron pin
set in the easterly right of way line of said High Cross
Boulevard at the southwesterly corner of herein described
tract;
thence along the easterly right of way line of said High
Cross Boulevard and the westerly line of herein described
tract, with a curve to the right, having a radius of 2960.00
feet, a chord bearing of N 9 21' 59" E, and a chord distance
of 10/.64 feet to an iron pin set;
thence N 9 28'10" E, along the easterly right of way line of
said High Cross Boulevard and the westerly line of herein
described tract a distance of 89.24 feet to an iron pin set;
thence along the easterly right of way line of said High
Cross Boulevard and the westerly line of herein described
tract, with a curve to the left, having a radius of 390.00
feet, a chord bearing at N 3 47' 19" E, and a chord distance
of 77.21 feet to an iron pin set;
thence N 53' 32" W, along the easterly right of way line of
said High Cross Boulevard and the westerly line of herein
described tract a distance of 106/36 feet to the True Point
of Beginning containing 2,005 acres, more or less, and
subject to any rights of way, easements, and restrictions of
record.
The Basis of Bearing in this description is the centerline
of East Campus View Boulevard, being S 86 49' 53" E, as
shown in Plat Book 61, Page 79, Recorder's Office, Franklin
County, Ohio.
Limited Option of First Sale
This Agreement, by and between The Thomas W. Adamson Family
Limited Partnership ("Adamson"), and AEI Real Estate Fund XVIII
Limited Partnership (the "AEI Partnership"), is effective as of
the 21 day of March, 1997, and supercedes in its entirety that
certain Limited Option of First Sale dated March 3, 1997.
RECITALS
Whereas, Adamson has purchased an undivided 14.1798% interest in
that certain property legally described on Exhibit A attached
hereto (the "Property"), as a Co-Tenant with the AEI Partnership,
which as of the date hereof owns an undivided 18.0202% interest
in the Property; and
Whereas, as consideration for Adamson's purchase of its interest
in the Property from the AEI Partnership, the AEI Partnership has
granted Adamson the Limited Option of First Sale of Adamson's
interest in the Property, but only upon the limited terms set
forth herein.
Now, therefore, in Consideration of the purchase by Adamson
of its undivided interest in the Property, Adamson and the AEI
Partnership (in its individual capacity as a matter of contract
right and not as a covenant running with the AEI Partnership's
interest in the Property) agree that:
1. Freedom of Transfer. Adamson shall be free to dispose of
its interest in the Property, whether according to this
Agreement, or upon such terms and conditions as Adamson shall
determine. However, the rights afforded Adamson hereunder are
personal to Adamson, and may not be assigned and do not run with
Adamson's interest in the Property. The AEI Partnership shall be
free to sell or transfer all any part of its interest in the
Property, provided, however, for as long as Adamson shall retain
an undivided interest in the Property, the AEI Partnership will
retain at least a 5% ownership interest in the Property, subject
to disposition by the AEI Partnership as further set forth
herein. The AEI Partnership's sale or transfer of its remaining
5% interest shall be governed by the terms hereof.
2. Limited Option of First Sale. At such time as the AEI
Partnership intends to sell all or any portion of its remaining
interest in the Property (provided such sale is not in connection
with a Liquidation Plan (defined below)), which sale would bring
the AEI Partnership's interest below an undivided 5% interest,
the AEI Partnership agrees it will:
AA. Notice of Intent to Sell. Provide Adamson with written
notice of the AEI Partnership's intent to sell the AEI
Partnership's remaining interest of or below 5% of the
Property ("Remaining Interest"), prior to accepting any
offer to sell such Remaining Interest;
BB. Notice of Buyer's Offer. Provide Adamson with written
notice ("AEI Partnership Notice") containing all of the
relevant terms and conditions of the offer, including a copy
of the Purchase Agreement from a buyer willing to make a
valid offer for the purchase of all or a portion of the
Remaining Interest held by the AEI Partnership, and a
statement of the costs incurred by the AEI Partnership
(including reasonable outside attorney's fees, if any) in
obtaining said offer.
C. Notice of Acceptance or Deemed Rejection. Within 10
business days of receipt of such AEI Partnership Notice,
Adamson will either:
(a) accept by written notification an assignment
of such offer for themselves and sell part, or all, of
its interest in the property to the buyer upon terms
contained in the AEI Partnership Notice, in which event
Adamson agrees to reimburse the AEI Partnership for the
costs incurred by the AEI Partnership in obtaining said
offer; or
(b) reject the offer contained in the AEI
Partnership Notice; if no written acceptance of the AEI
Partnership's offer to assign its interest is received
by the AEI Partnership within said ten days, Adamson
will have been deemed to have rejected such offer.
Upon Adamson's rejection of the offer, the AEI Partnership
shall be free to sell all, or part, of its Remaining
Interest in the Property to such buyer upon such terms and
conditions as stated in the notice to Adamson.
D. Termination or Survival of Limited Option. If the
buyer is willing and able to acquire the entire interest
owned by Adamson, and Adamson decline to sell its entire
interest, then the AEI Partnership shall have no continuing
obligation to provide Adamson with any further notice of an
option to sell any interest in the Property. If the buyer
is willing to acquire only a portion of the interest in the
property owned by Adamson, then the AEI Partnership shall
remain subject to the provisions hereof until released
therefrom according to the terms hereof.
3. Plan of Liquidation. Notwithstanding anything herein to the
contrary, the aforesaid Option to Sell shall not apply nor be
binding on the AEI Partnership, if the AEI Partnership shall
dispose of all of its interest in the Property according to a
written plan of liquidation ("Plan of Liquidation") executed
prior to the disposition of the AEI Partnership's remaining
interest in the Property, said Plan of Liquidation contemplating
the sale of all of the AEI Partnership's assets over a continuous
period in a series of related transactions commenced with the
express design to liquidate the AEI Partnership's interests in
all assets, and no damages shall accrue to Adamson if in fact
such liquidation occurs within a commercially reasonable time in
accordance with such written Plan of Liquidation.
4. Miscellaneous.
A. All notices provided for herein shall be in writing and
shall be deemed to have been given when delivered, personally or
by registered or certified mail or nationally recognized
overnight carrier, return receipt requested, postage prepaid,
addressed as follows:
if to Adamson at:
Wayne Adamson, General Partner
1400 West Walnut
Marion, Il. 62959
and
Gerald Adamson
206 Palm Avenue
Bullhead, Az. 86430
if to AEI at:
Attention: Robert P. Johnson, President
AEI Fund Management XVIII, Inc.
1300 Minnesota World Trade Center
30 East Seventh Street
Saint Paul, Minnesota 55101
or addressed to any such party at such address as such party
shall hereinafter furnish by notice to the other parties.
B. This Agreement shall be construed according to the laws
of the State of Minnesota and the parties agree to be governed by
the jurisdiction of and consent to venue of any action to enforce
this agreement in the State of Minnesota or the principal place
of business of Adamson or the situs of the Property, said choice
of venue to be at the sole discretion of AEI.
C. In the event it becomes necessary for either party to
bring suit to enforce the terms or conditions hereof, the
successful party shall have the right to recover reasonable
attorney's fees and costs.
In witness whereof, the parties have executed this Agreement
effective as of the date first written above.
THE THOMAS W. ADAMSON FAMILY LIMITED PARTNERSHIP
By: /s/ Gerald E Adamson
Its General Partner
By: /s/ Wayne K Adamson
Its General Partner
AEI REAL ESTATE FUND XVIII LIMITED PARTNERSHIP
By: AEI FUND MANAGEMENT XVIII, INC.
By: /s/ Robert P Johnson
Robert P. Johnson, President
LEGAL DESCRIPTION
Situated in the State of Ohio, County of Franklin, City of
Columbus, being located in Section 2, Township 2, Range 18,
United States Military Lands, and being part of a 43. 161
acre tract of land (Parcel No. 610-146452) conveyed to Forty-
One Corporation (the Grantor), by deed of record in Official
Record 15500 A-G, all references being to records in the
Recorder's Office, Franklin County Ohio, and being more
particularly described as follows:
Beginning for reference at the intersection of North High
Street (US 23) and East Campus View Boulevard (80.00 feet in
width) as shown in Plat Book 60, Page 26:
thence S 86 49' 53" E, along the centerline of said East
Campus View Boulevard, a distance of 900.00 feet to a point
of curvature,
thence along the centerline of said East Campus View
Boulevard, with a curve tot he left having a radius of
1350.00 feet, a chord bearing of N 89 27' 50" E, and a chord
distance of 174.45 feet to the intersection with centerline
of High Cross Boulevard (80.00 feet in width);
thence S 1 53'32" E, along the centerline of said High cross
Boulevard a distance of 74.72 feet to a point;
thence N 88 06'28" E, a distance of 40.00 feet to an iron
pin set in the easterly right of way line of said High Cross
Boulevard, said point being the True Point of Beginning of
herein described tract;
thence along the easterly right of way line of said High
Cross Boulevard, with a curve to the right, having a radius
of 40.00 feet, a chord bearing of N 40 23'34" E, and a chord
distance of 53.83 feet to an iron pin set in the southerly
right of way line of said East Campus View Boulevard;
thence along the southerly right of way line of said East
Campus View Boulevard and the northerly line of herein
described tract, with a curve to the left, having a radius
of 1390.00 feet, a chord bearing of N 82 25'24" E, and a
chord distance of 12.36 feet to an iron pin set;
thence N 82 10' 07" E, along the southerly right of way line
of said East Campus View boulevard and the northerly line of
herein described tract, a distance of 209.28 feet to an iron
pin set at the northeasterly corner of herein described
tract;
thence s 7 49' 49" E, along the easterly line of herein
described tract, a distance of 312.60 feet to an iron pin
set at the southeasterly corner of herein described tract;
thence S 82 10'11" W, along the southerly line of herein
described tract, a distance of 318.01 feet to an iron pin
set in the easterly right of way line of said High Cross
Boulevard at the southwesterly corner of herein described
tract;
thence along the easterly right of way line of said High
Cross Boulevard and the westerly line of herein described
tract, with a curve to the right, having a radius of 2960.00
feet, a chord bearing of N 9 21' 59" E, and a chord distance
of 10/.64 feet to an iron pin set;
thence N 9 28'10" E, along the easterly right of way line of
said High Cross Boulevard and the westerly line of herein
described tract a distance of 89.24 feet to an iron pin set;
thence along the easterly right of way line of said High
Cross Boulevard and the westerly line of herein described
tract, with a curve to the left, having a radius of 390.00
feet, a chord bearing at N 3 47' 19" E, and a chord distance
of 77.21 feet to an iron pin set;
thence N 53' 32" W, along the easterly right of way line of
said High Cross Boulevard and the westerly line of herein
described tract a distance of 106/36 feet to the True Point
of Beginning containing 2,005 acres, more or less, and
subject to any rights of way, easements, and restrictions of
record.
The Basis of Bearing in this description is the centerline
of East Campus View Boulevard, being S 86 49' 53" E, as
shown in Plat Book 61, Page 79, Recorder's Office, Franklin
County, Ohio.
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000840459
<NAME> AEI REAL ESTATE FUND XVIII LIMITED PARTNERSHIP
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> MAR-31-1997
<CASH> 4,000,893
<SECURITIES> 0
<RECEIVABLES> 27,474
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 4,028,367
<PP&E> 13,615,781
<DEPRECIATION> (2,215,132)
<TOTAL-ASSETS> 15,429,016
<CURRENT-LIABILITIES> 577,621
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> 14,851,395
<TOTAL-LIABILITY-AND-EQUITY> 15,429,016
<SALES> 0
<TOTAL-REVENUES> 397,914
<CGS> 0
<TOTAL-COSTS> 169,864
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 604,512
<INCOME-TAX> 0
<INCOME-CONTINUING> 604,512
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 604,512
<EPS-PRIMARY> 27.50
<EPS-DILUTED> 27.50
</TABLE>
