ASSIGNMENT
OF
PURCHASE AGREEMENT
AEI Fund Management, Inc., a Minnesota corporation
("Assignor"), hereby assigns an undivided seventy percent
(70%) interest to AEI Net Lease Income & Growth Fund XX
Limited Partnership, a Minnesota limited partnership and an
undivided thirty percent (30%) interest to AEI Income & Growth
Fund 27 LLC, a Delaware limited liability company
(collectively, "Assignee"), as tenants in common, in that
certain Purchase and Sale between Assignor and Bradford
Landing South LLC, an Illinois limited liability company,
dated February 24, 2009, with respect to property located in
Vernon Hills, IL known as Staples office supply store, and
Assignee hereby assumes all management responsibilities and
obligations of Purchaser thereunder.
Dated: May 6, 2009 ASSIGNOR:
AEI FUND MANAGEMENT, INC.,
a Minnesota corporation
By /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, Its President
ASSIGNEE:
AEI NET LEASE INCOME & GROWTH
FUND XX LIMITED PARTNERSHIP
a Minnesota limited partnership
By: AEI Fund Management XX, Inc.
a Minnesota corporation
Its corporate general partner
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, Its President
AEI INCOME & GROWTH FUND 27 LLC,
a Delaware limited liability company
By: AEI Fund Management XXI, Inc.,
a Minnesota corporation,
Its managing member
By /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, Its President
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (the "Agreement") is
entered into as of this 24 day of February, 2009, by and
between BRADFORD LANDING SOUTH LLC, an Illinois limited
liability company (the "Seller") and AEI FUND MANAGEMENT,
INC., a Minnesota corporation, or its assigns (the "Buyer").
The date on which last party hereto executes this Agreement is
hereafter referred to as the "Effective Date".
In consideration of the mutual covenants set forth herein
and other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, the
parties hereto covenant and agree as follows:
1. PROPERTY. Seller is the owner of a parcel of real
property, with all improvements thereon, known generally as
0000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxxx, currently
leased for use as a Staples Office Supply Superstore, such
property being more particularly legally described on Exhibit
"A" attached hereto (collectively, the "Property"). The
Property includes all of Seller's rights and interests in and
to all buildings and other improvements on or within the
appurtenant thereto, including easements, warranties,
guaranties, indemnities, and covenants. Seller wishes to
sell and Buyer wishes to purchase the Property on the terms
and conditions set forth herein.
2. LEASE. The Property is being sold subject to an
existing Lease of the Property, dated September 26, 2007
(together, collectively the "Lease") by and between Seller, as
lessor, and Staples the Office Superstore East, Inc., a
Delaware corporation, as lessee (the "Tenant"). Buyer shall
have the right to review and approve such Lease during the Due
Diligence Period (as defined below), in Buyer's sole
discretion.
3. CLOSING DATE. The closing date on the Buyer's
purchase of the Property (the "Closing Date") shall be fifteen
(15) business days from the expiration of the later of: a) the
Due Diligence Period (or an Adverse Change Review Period, if
any should be occasioned, as set forth below in Section 8.03,
whichever is later), or b) the period within which Seller may
and does choose to cure Buyer's objections to title and
survey, or c) the Lease Amendment Period (as defined herein)
within which Seller shall use its reasonable good faith
efforts to obtain the Amendment to Lease (as defined herein).
Notwithstanding the foregoing, Seller may extend the Closing
Date for three (3) business days to obtain Tenant's
Certificate of Insurance naming Buyer as additional insured
and/or loss payee.
Buyer's obligation to close is contingent upon Seller
satisfying all of its obligations under Section 14 hereof
unless waived by Buyer, and Seller's obligation to close is
contingent upon Buyer satisfying all of its obligations under
Section 14 hereof unless waived by Seller. However, the
Closing Date may be earlier upon the mutual agreement of the
parties, or extended (such as upon the occurrence of an
Adverse Change Review Period) pursuant to other specific
provisions set forth herein.
4. PURCHASE PRICE. The purchase price for the Property
is $5,306,625 (the "Purchase Price"). If all conditions
precedent to Buyer's obligations to purchase have been
satisfied, Buyer shall deposit the Purchase Price with the
Closing Agent (as defined below) on or before the Closing
Date.
Within three (3) business days of the Effective Date of
this Agreement, Buyer will deposit $75,000 (the "Xxxxxxx
Money") in an interest bearing account with First American
Title Insurance Company, 0000 Xxxxxxx Xxxxx, 000 Xxxxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000; Attn: Xxxxx Xxxxxxxxxx
(Phone No: 000-000-0000); email: xxxxxxxxxxx@xxxxxxx.xxx
(the "Closing Agent" or "Title Company").
If for any reason this Agreement is terminated prior to
the expiration of the Due Diligence Period (or prior to the
expiration of the Adverse Change Review Period if such occurs
because of the unanticipated occurrence of Adverse Change Due
Diligence Documents as defined below), or due to Seller's
failure to obtain the Lease Amendment within the Lease
Amendment Period, then the Xxxxxxx Money and any interest
accrued thereon shall be immediately returned to Buyer.
If the transaction contemplated hereby proceeds to
Closing, the Xxxxxxx Money and any interest accrued thereon
shall be paid to Seller at Closing and Buyer shall receive a
credit against the Purchase Price payable hereunder in the
amount of the Xxxxxxx Money plus interest accrued thereon or
upon the balance of the Purchase Price when deposited with
Escrow Agent. If the Buyer does not terminate this Agreement
as expressly allowed hereunder, the Xxxxxxx Money and any
interest accrued thereon shall thereafter be deemed non-
refundable, except to the extent any of the contingencies to
Buyer's performance hereunder directly related to Seller's
obligations shall not be satisfied. As used in this
Agreement, the term "Xxxxxxx Money" shall mean the amount
deposited by Buyer, together with all interest accrued thereon
or deemed to have accrued thereon, as provided above.
The balance of the Purchase Price in cash is to be
deposited by Buyer into an interest bearing escrow account
with the Closing Agent on or before the Closing Date.
5. ESCROW. Escrow shall be opened by the Buyer with
the Closing Agent upon execution of this Agreement. A copy of
this fully-executed Agreement will be delivered to the Closing
Agent by the Buyer and will serve as escrow instructions
together with any additional instructions required by Seller
and/or Buyer or their respective counsels. Seller and Buyer
agree to cooperate with the Closing Agent and sign any
additional instructions reasonably required by the Closing
Agent to close escrow. If there are any subsequent escrow
instructions which conflict with this Agreement, this
Agreement shall control unless the conflicting subsequent
escrow instruction is signed by Buyer and Seller and
specifically states that it controls.
6. TITLE. Buyer shall order upon the Effective Date of this
Agreement, a commitment for an ALTA Owner's Policy of Title
Insurance (most recent edition) issued by the Closing Agent,
insuring marketable title in the Property, subject only to
such matters as Buyer may approve and contain such
endorsements as Buyer may require (other than any endorsement
requiring the financial statements of Seller or its
principals) that are reasonable and available for a property
in Illinois, including extended coverage and owner's
comprehensive coverage (the "Updated Title Commitment"). The
Updated Title Commitment shall show Seller as the present fee
owner of the Property and show Buyer as the fee owner to be
insured and insuring Buyer in the amount of the Purchase
Price.
The Updated Title Commitment shall also include:
a) an itemization of all outstanding and pending special
assessments and an itemization of taxes affecting the Property
and the tax year to which they relate;
b) shall state whether taxes are current and if not, show
the amounts unpaid;
c) the tax parcel identification numbers and whether the
tax parcel includes property other than the Property to be
purchased.
All easements, restrictions, documents and other items
affecting title shall be listed in Schedule "B" of the Updated
Title Commitment ordered by Buyer. Copies of all documents
referred to in the Updated Title Commitment are herein called
(the "Updated Title Commitment Documents").
Buyer shall be allowed until the expiration of the Due
Diligence Period (as defined in Section 8.01 below, thirty
(30) days after receipt of earlier of the Updated Title
Commitment (including the Updated Title Commitment Documents)
or the Updated Survey) for examination and the making of any
objections thereto and making of requests for specific
endorsements, said objections or requests (hereinafter
"objections") to be made in writing or deemed waived.
If any objections are so made, the Seller shall be
allowed fifteen (15) days after receipt of Buyer's objections
("Seller's Cure Period") to respond to Buyer in writing
whether Seller shall cure, remove or obtain title insurance
coverage over said objections. If Seller shall decide to make
no efforts to cure, remove or obtain title insurance coverage
over Buyer's objections, Buyer may either (a) waive its
objections or (b) terminate this Agreement by written notice
to Seller within five (5) business days after the expiration
of Seller's Cure Period. If Buyer shall so terminate this
Agreement, the Xxxxxxx Money shall be returned in full to
Buyer immediately and neither party shall have any further
duties or obligations to the other hereunder (except for those
which expressly survive the termination of this Agreement).
Any matters appearing on the Updated Title Commitment at
the end of the Due Diligence Period allowed Buyer to review
the same, to which Buyer has not objected (as well as those
for which Buyer's objection has been cured by Seller) shall be
deemed "Permitted Exceptions". If Seller shall fail to cure
Buyer's title objections to Buyer's reasonable satisfaction
before the expiration of the Seller's Cure Period, this
Agreement shall terminate by written notice to Seller within
five (5) business days after the expiration of the Seller Cure
Period and Buyer's Xxxxxxx Money shall be returned in full to
Buyer immediately and neither party shall have any further
duties or obligations to the other hereunder (except for those
which expressly survive the termination of this Agreement).
The Buyer shall also have five (5) business days to
review and approve any easement, lien, hypothecation or other
encumbrance placed of record affecting the Property after the
date of the Updated Title Commitment. If necessary, the
Closing Date shall be extended by the number of days necessary
for the Buyer to have five (5) business days to review any
such items. Such five (5) business day review period shall
commence on the date the Buyer is provided with a legible copy
of the instrument creating such exception to title. Any
matters appearing on the Updated Title Commitment at the end
of the aforementioned five (5) business day review period by
Buyer to which Buyer does not object shall be deemed
"Permitted Exceptions".
If any further objections are so made based upon any
easement, lien, hypothecation or other encumbrance placed of
record affecting the Property after the date of the Updated
Title Commitment, the Seller shall be allowed fifteen (15)
days after receipt of Buyer's objections ("Seller's Cure
Period") to elect to respond to Buyer in writing whether
Seller shall cure, remove or obtain insurable title over said
objections. If Seller shall decide to make no efforts to
cure, remove or obtain insurable title over Buyer's
objections, Buyer may either (a) waive its objections or (b)
terminate this Agreement by written notice to Seller within
five (5) business days after the expiration of Seller's Cure
Period. If this Agreement shall so terminate, the Xxxxxxx
Money shall be returned in full to Buyer immediately and
neither party shall have any further duties or obligations to
the other hereunder (except for those which expressly survive
the termination of this Agreement).
7. SITE INSPECTION. As a condition precedent to
Buyer's obligations hereunder, the Property shall be inspected
and approved by Buyer, in Buyer's sole discretion. Said
inspection shall be completed within the Due Diligence Period,
and Buyer shall provide Seller with its written notice of any
disapproval of the Property prior to the expiration of the Due
Diligence Period. If Buyer shall not give Seller any written
notice of such disapproval, this condition precedent shall be
deemed waived.
8. DUE DILIGENCE AND DUE DILIGENCE PERIODS.
8.01 DUE DILIGENCE DOCUMENTS AND DUE DILIGENCE PERIOD.
Unless sooner waived in writing by Buyer, in order to
conduct all of its inspections, due diligence and review to
satisfy itself regarding each Due Diligence Document, the
Property and this transaction, and provided Buyer has ordered
the Updated Title Commitment and the ALTA Survey within two
(2) business days following the Effective Date, Buyer shall
have until the end of the thirtieth (30th) day after the
delivery of the first to occur of (i) the delivery of the
Updated Title Commitment, or (ii) the delivery of the Updated
Survey ("Due Diligence Period").
Within three (3) business days following the Effective
Date of this Agreement or such other time frame specified
below, the following Due Diligence Documents, to the extent
such documents are in Seller's possession, are to be delivered
by Seller, at Seller's expense (unless specifically designated
herein to be obtained by Seller or Buyer, or to be obtained by
Tenant):
a) Within two business days of the Effective Date,
Buyer will be responsible for ordering the Updated
Title Commitment and Updated Title Commitment
Documents as defined above in Section 6;
b) Within two business days of the Effective Date,
Buyer will be responsible for ordering an updated as
built ALTA Survey (the "Updated Survey");
c) A complete copy of the Lease and Guaranty of Lease,
if any, and any amendments thereto, including but
not limited to amendments, assignments of lease
and/or letter agreements, commencement agreements,
memorandum of leases, project acceptance letter
(wherein Tenant accepts possession of the property,
if Tenant shall have issued the same or similar) and
the most recent tenant estoppel currently in
Seller's possession;
d) Buyer shall order an Updated Phase I Environmental
Site Assessment report in accordance to ASTM 1527 05
guidelines ("Updated Phase I ESA");
e) A copy of the Seller's existing insurance
certificate(s) for the Property;
f) A copy of the Tenant's existing insurance
certificate(s) for the Property;
g) If in Seller's possession, any zoning information
concerning the current zoning of the Property;
h) Copies of the existing final building plans and
specifications for the improvements;
i) A copy of the most recent sprinkler system
certification if in Seller's possession;
j) A copy of the most recent real estate tax
statement for the Property;
k) A rent accounting for the last twelve (12) months
(or such shorter period reflecting Tenant's
occupancy of the Property) showing when Seller
received each check from Tenant;
l) If in Seller's possession, Certificate of
Substantial Completion executed by the project
architect and/or general contractor for the
improvements, if any; and
Buyer acknowledges delivery and receipt of the following
Due Diligence Documents provided by Seller:
m) Copies of Seller's existing Owner's Title Policy of
the Property, with copies of its underlying
documents;
n) A copy of the Seller's existing as built ALTA survey
and/or existing boundary ALTA survey of the Property
("Existing Survey");
o) A copy of the soils report;
p) A copy of the Certificate of Occupancy from the
governing municipality;
q) A copy of the existing MAI appraisal; and
r) Copies of any and all warranties respecting
construction of the improvements, including but not
limited to the roof, HVAC system, structural,
plumbing or electrical that have not expired by
their terms, and assignments thereof to Tenant,
issued to or required to be provided to Tenant as
designated in the Lease.
Buyer will require any and all warranties that have not
expired and have not been transferred to Tenant to be
transferred to Buyer on the Closing Date. In the event
the warranties are unable to be transferred to Buyer on
the Closing Date, Seller shall provide Buyer with a
letter of undertaking wherein Seller agrees upon receipt
of Buyer's written request to use reasonable efforts to
transfer the warranties in Buyer's name provided that
Buyer shall pay all fees related to such transfer.
(All of the above described documents (a) through (r)
whether to be provided by Seller or obtained by Buyer or
previously provided by Seller are hereinafter collectively the
"Due Diligence Documents").
If the transaction contemplated hereby is terminated for
any reason, Buyer shall return to Seller any Due Diligence
Documents provided to Buyer by Seller or paid for by Seller.
Buyer shall notify Seller of Buyer's receipt of the
Updated Title Commitment or Updated Survey and, if then
applicable, the commencement of the Due Diligence Period.
After receipt and review of the Due Diligence Documents
or after Buyer's inspection of the Property, Buyer may cancel
this Agreement for any reason, in its sole discretion, by
delivering a cancellation notice, return receipt requested, to
Seller and Closing Agent on or before the expiration of the
Due Diligence Period and the Xxxxxxx Money shall be returned
in full to Buyer immediately and neither party shall have any
further duties or obligations to the other hereunder (except
for any obligation expressly surviving the termination of this
Agreement).
If notice of termination is not given on or before the
expiration of the Due Diligence Period, all such matters shall
be deemed acceptable and all such conditions satisfied and/or
waived and the right to termination under Section 8.01 shall
be extinguished and the Xxxxxxx Money shall be non-refundable
to Buyer, except in the event: (i) of Seller's default; (ii)
Buyer's termination hereof based upon receipt of any Adverse
Change Documents as defined below as set forth in Section
8.03; or (iii) pursuant to Buyer's right to terminate as
otherwise set forth herein, in which case the Xxxxxxx Money
shall be returned to Buyer.
8.02 FORM OF CLOSING DOCUMENTS. Within the Due Diligence
Period, Seller shall, use reasonable efforts, at its sole
expense, provide to Buyer the following documents, and Seller
and Buyer shall agree on the form of the following documents,
which are to be delivered to Buyer on the Closing Date by
Seller (and executed by Seller and Buyer as appropriate) as
set forth in Section 14 hereof:
(a) Special warranty deed in the form attached hereto and
incorporated herein as Exhibit "C";
(b) Seller's Affidavit;
(c) FIRPTA Affidavit;
(d) Assignment and Assumption of the Lease, in the form
attached hereto and incorporated herein as Exhibit "D";
(e) A generic Assignment of warranties in the form as
attached hereto and incorporated herein as Exhibit "E";
(f) Amendment of Lease between Seller, as landlord, and
Tenant in the form attached hereto as Exhibit "F", as amended,
if necessary as allowed by Section 8.04 ("Amendment to
Lease");
(g) Estoppel from Tenant, in the form attached hereto as
Exhibit "G", as amended, if necessary as allowed by Section
8.04;
(h) Estoppel from Xxxx'x Home Centers, Inc. relating to the
recorded Declaration of Easements, Covenants, Restrictions,
Rights and Obligations in accordance with Section 7.1 thereof;
(i) Estoppel from Bradford Landing South LLC., as Developer
relating to the recorded Easements, Covenants, Conditions and
Restrictions;
(j) Notice of Sale and Assignment of Lease to Tenant; and
(k) Amendment to the Declaration of Easement and Maintenance
Agreement recorded as File No. 6255008 in the Lake County,
Illinois, Recorder's Office, which such Amendment shall be
recorded.
In the event that Seller and Buyer do not reach mutual
agreement on the form of the above described documents (a)
through (k) prior to the end of the Due Diligence Period, or
the same cannot or will not be delivered by Seller on the
Closing Date, this Agreement may be terminated by either
Seller or Buyer and the Xxxxxxx Money and accrued interest
shall be returned in full to the Buyer immediately and neither
party shall have any further duties or obligations to the
other hereunder (except for any obligation expressly surviving
the termination of this Agreement).
8.03 ADVERSE CHANGE DUE DILIGENCE DOCUMENTS AND ADVERSE
CHANGE REVIEW PERIOD. As soon as available, up until the
Closing Date (the "Adverse Change Review Period"), Seller
shall deliver to Buyer the following items for review and
acceptance:
(a) Any documents or written summary of facts known to Seller
that materially change or render incomplete, invalid, or
inaccurate any of the Due Diligence Documents (collectively,
if any, the "Adverse Change Due Diligence Documents").
If necessary, the Closing Date shall be extended to allow
Buyer to have ten (10) business days to examine and to accept
all of the above-described Adverse Change Due Diligence
Documents. After Buyer's receipt and review of the Adverse
Change Due Diligence Documents, Buyer may cancel this
Agreement if any of the Adverse Change Due Diligence Documents
are not acceptable to Buyer, in its sole discretion, by
delivering a cancellation notice, as provided herein, to
Seller and Closing Agent prior to the end of the Adverse
Change Review Period. Such notice shall be deemed effective
upon receipt by Seller. If Buyer so terminates this Agreement,
the Xxxxxxx Money and accrued interest shall be returned in
full to Buyer immediately and thereafter neither party shall
have any further duties or obligations to the other hereunder.
It shall be a condition precedent to Buyer's obligations
to close hereunder that there have been no adverse material
changes in any of the information reflected in the Due
Diligence Documents or Adverse Change Due Diligence Documents
after the date of such document and prior to closing except
for those adverse material changes that Buyer accepts in
accordance with this Section 8.03.
8.04 LEASE AND TITLE REVIEW. Buyer has undertaken a
review of the Lease, the Easements, Covenants, Conditions and
Restrictions between Xxxx'x Home Centers, Inc. and Seller
recorded as File No. 6255006, the Declaration of Easements,
Covenants, Restrictions, Rights and Obligations recorded as
File No. 6255007 and the Declaration of Easements and
Maintenance Agreement by Seller recorded as File No. 6255008,
each recorded in the Recorder's Office for Lake County,
Illinois (collectively, the "CCRs"). Buyer's review of the
Lease and CCRs occurred prior to execution of this Agreement
by the parties and resulted in Buyer's request that the Lease
be amended to correct some inconsistencies and uncertain
language, as well as a request for some amendments to the
Declaration of Easements and Maintenance Agreement. As to the
amendments to the Lease, Buyer and Seller agree that Seller
shall approach the Tenant with the Amendment to Lease attached
hereto as Exhibit "F", and shall use Seller's reasonable good
faith efforts to obtain the Tenant's agreement to execute and
deliver the Amendment to Lease. In addition, Seller shall
make those amendments to the Declaration of Easements and
Maintenance Agreement as requested by Buyer prior to execution
of this Agreement in a form to be approved by Buyer. Seller
acknowledges that Buyer reviewed the Lease and CCRs without
benefit of the Due Diligence Documents, the Updated Title
Commitment or the Updated Survey. If not sooner provided to
Seller in writing, Buyer agrees to provide any additional
revisions to Exhibits F and G, or a statement that no further
revisions are required as a result of Buyer's due diligence
review, on or prior to the expiration of the Due Diligence
Period.
8.05 LEASE AMENDMENT PERIOD. For a period of thirty (30)
days following the expiration of the Due Diligence Period (the
"Lease Amendment Period"), Seller shall use its reasonable and
good faith efforts to present the Tenant with the Amendment to
Lease and obtain the Tenant's authorized signature on the
Amendment to Lease. Seller shall deliver written notice to
Buyer on or before expiration of the Lease Amendment Period
that Seller is unable to obtain Tenant's signature on the
Amendment to Lease. Within five (5) business days of Buyer's
receipt of such notice, Buyer shall notify Seller of Buyer's
intent to waive Seller's delivery of the Amendment to Lease
and proceed to Closing or terminate this Agreement, in which
event the Xxxxxxx Money and any interest accrued thereon shall
be immediately returned to Buyer and neither party shall have
any further duties or obligations to the other hereunder.
9. CLOSING COSTS. Subject to closing of the transaction
contemplated hereby and payment of the Purchase Price, Seller
shall pay the following closing costs: (i) the transfer taxes
(state, county, and municipality, if such exists) and/or
transfer fees; (ii) all recording costs associated with the
Deed and Assignment and Assumption of Lease; (iii) one half of
the escrow fees; (iv) the costs associated with an updated
title commitment/search and a standard Owner's Title policy
(including extended coverage) premium; (v) all costs
associated with an updated ALTA survey; (vi) any and all
brokerage commissions owed by Seller; and (vii) all costs
associated with recording any document(s) or instrument(s)
necessary to cure any title objections raised by Buyer and
agreed to be cured by Seller.
Buyer shall pay the following closing costs: (i) one
half of the escrow fees; (ii) all costs associated with an
updates ASTM Phase I Environmental Report; and (iii) the cost
of any endorsements it may require on its Owner's Title
Policy, except that Seller shall pay for any endorsements
required to insure over Buyer's title objections for which
Seller has undertaken to cure and Seller shall pay for any
costs associated with the removal of the standard exceptions
for mechanic's liens and real estate taxes unpaid but due and
payable.
Each party will pay its own attorneys' fees to close
this transaction.
10. REAL ESTATE TAXES AND ASSESSMENTS. Seller
represents to Buyer that to the best of its knowledge, all
real estate taxes and installments of special assessments due
and payable prior to and in the year of Closing on or before
the Closing Date have been or will be paid in full as of the
Closing Date. The parties acknowledge that the State of
Illinois assesses its real property taxes in arrears. Seller
represents to Buyer that all unpaid real estate taxes and
levied and pending special assessments payable in the year of
Closing are for the 2008 tax year and shall be prorated
between the Seller and Tenant to reflect the actual dates of
occupancy by Tenant and commencement of the Lease. Thereafter
all unpaid real estate taxes and levied and pending special
assessments payable through the term of the Lease are the
responsibilities of the Tenant and shall be the responsibility
of the Tenant under the Lease after the Closing Date, as well
as Tenant shall pay to Buyer Tenant's prorated portion of real
property taxes for its final year of occupancy which shall not
be assessed and payable until the year following expiration of
the Lease.
This provision and the respective obligations of the
parties under this Section 10 shall survive Closing.
11. Prorations. The Buyer and the Seller, as of the
Closing Date, shall prorate: (i) all rent due under the Lease
in accordance with Section 10 above, and (ii) any charges
arising under any of the encumbrances to the Property which
are not the obligation of Tenant if any. To the extent that
information for the payment is not available on the Closing
Date or if the actual amount of taxes or any expense due for
the Property which arises at Closing has not been paid by
Tenant, then the parties shall make any adjustments necessary
so that the amounts payable for the Property due for the
period shall be withheld from the disbursement of the Purchase
Price to Seller and placed in escrow pursuant to the terms of
an escrow agreement. The escrow agreement shall provide for
notice to Tenant of the unpaid amounts along with a
commercially reasonable cure period requiring payment by
Tenant and after such period has expired either disbursement
of an amount equal to the sum paid by Tenant or a
proportionate amount to be disbursed from the escrow and paid
to Buyer to pay such amount if Tenant failed to do so within
the cure period. All remaining sums shall be disbursed to
Seller to the extent the expenses are paid and otherwise to
Buyer if any expense remains unpaid. The parties agree to
make such reprorations as soon as possible after the actual
amount of real estate taxes, charges or expenses prorated at
closing becomes available, provided however that no actual
proration of such taxes, charges or expenses shall occur
unless and until Tenant has failed to pay the same when due.
In the event Tenant does not pay any expenses that are the
responsibility of the Tenant under the Lease, Seller and Buyer
agreed to each pay its prorata share of said taxes, charges,
and expenses as of the Closing Date. This provision and the
respective obligations of the parties shall survive Closing.
12. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller
represents and warrants as of this date and to the best of
Seller's knowledge that:
(a) Except for this Agreement and the Lease between
Seller and Tenant, and those matters disclosed in
the materials delivered to Buyer pursuant to
Sections 6 and 8, Seller is not aware of any other
agreements or leases with respect to the Property
entered into by Seller;
(b) Seller has all requisite power and authority to
consummate the transaction contemplated by this
Agreement and has by proper proceedings duly
authorized the execution and delivery of this
Agreement and the consummation of the transaction
contemplated hereunder;
(c) Seller does not have any actions or proceedings
pending, which would materially affect the Property
or Tenant, except matters fully covered by
insurance;
(d) The consummation of the transactions contemplated
hereunder, and the performance of this Agreement and
the delivery of the warranty deed to Buyer, will not
result in any breach of, or constitute a default
under, any instrument to which Seller is a party or
by which Seller may be bound or affected;
e) All of Seller's covenants, agreements, and
representations made herein, and in any and all
documents which may be delivered pursuant hereto,
shall survive the delivery to Buyer of the warranty
deed and other documents furnished in accordance
with this Agreement, and the provision hereof shall
continue to inure to Buyer's benefit and its
successors and assigns;
(f) The Property is in good condition, substantially
undamaged by fire and other hazards, and has not
been made the subject of any condemnation
proceeding;
(g) The use and operation of the Property now is in full
compliance with applicable local, state and federal
laws, ordinances, regulations and requirements;
(h) Seller has not caused or permitted the Property to
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;
(i) The transaction contemplated herein does not
represent a fraudulent conveyance by Seller;
(j) Neither Seller nor, to Seller's current, actual
knowledge, any of Seller's partners, are an entity
or person: (i) that is listed in the Annex to, or
is otherwise subject to the provisions of Executive
Order 13224 issued on September 24, 2001
("EO13224"); ii) whose name appears on the
United States Treasury Department's Office of
Foreign Assets Control ("OFAC") most current list of
"Specifically Designated National and
Blocked Persons" (which list may be published from
time to time in various mediums including, but not
limited to, the OFAC website,
(xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxx/x
11sdn.pdf); (iii) who commits, threatens to commit
or supports "terrorism," as that term is defined in
EO13224; (iv) is subject to sanctions of the United
States government or is in violation of any federal,
state, municipal or local laws, statutes, codes,
ordinances, orders, decrees, rules or regulations
relating to terrorism or money laundering,
including, without limitation, EO13224 and the
Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001; or (v) who is otherwise
affiliated with any entity or person listed above
(any and all parties or persons described in
subsections (i) - (v) above are herein referred to
as a "Prohibited Person"). Neither Seller nor its
members shall knowingly: (A) conduct any business,
nor engage in any transaction or dealing, with any
Prohibited Person, including, but not limited to,
the making or receiving of any contribution of
funds, goods, or services, to or for the benefit of
a Prohibited Person; or (B) engage in or conspire to
engage in any transaction that evades or avoids, or
has the purpose of evading or avoiding, or attempts
to violate, any of the prohibitions set forth in
EO13224; and
(k) These Seller's representations and warranties deemed
to be true and correct as of the Closing Date
subject to the following provisions. If the Seller
shall notify Buyer of a change in its representation
and warranties prior to the Closing Date, the Buyer
shall get five (5) business days to review such
change and terminate this Purchase Agreement if
Buyer deems necessary. If Buyer so terminates this
Agreement, the Xxxxxxx Money shall be returned in
full to Buyer immediately.
These representations and warranties shall survive the Closing
for 12 months.
Buyer shall promptly notify Seller of any matter of which
Buyer becomes aware, without duty of inquiry or investigation,
which could make any representation or warranty untrue.
13. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer
represents and warrants to Seller that:
(a) 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 hereunder;
(b) To Buyer's knowledge, neither the execution and
delivery of this Agreement nor the consummation of
the transaction contemplated hereunder will violate
or be in conflict with any agreement or instrument
to which Buyer is a party or by which Buyer is
bound; and
(c) Neither Buyer nor, to the best of Buyer's knowledge,
any of Buyer's members, are an entity or person:
(i) that is listed in the Annex to, or is otherwise
subject to the provisions of Executive Order 13224
issued on September 24, 2001 ("EO13224"); ii) whose
name appears on the United States Treasury
Department's Office of Foreign Assets
Control ("OFAC") most current list of "Specifically
Designated National and Blocked Persons" (which list
may be published from time to time in
various mediums including, but not limited to, the
OFAC website,
(xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxx/x
11sdn.pdf); (iii) who commits, threatens to commit
or supports "terrorism," as that term is defined in
EO13224; (iv) is subject to sanctions of the United
States government or is in violation of any federal,
state, municipal or local laws, statutes, codes,
ordinances, orders, decrees, rules or regulations
relating to terrorism or money laundering,
including, without limitation, EO13224 and the
Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001; or (v) who is otherwise
affiliated with any entity or person listed above
(any and all parties or persons described in
subsections (i) - (v) above are herein referred to
as a "Prohibited Person"). Neither Buyer nor its
members shall knowingly: (A) conduct any business,
nor engage in any transaction or dealing, with any
Prohibited Person, including, but not limited to,
the making or receiving of any contribution of
funds, goods, or services, to or for the benefit of
a Prohibited Person; or (B) engage in or conspire to
engage in any transaction that evades or avoids, or
has the purpose of evading or avoiding, or attempts
to violate, any of the prohibitions set forth in
EO13224.
These Buyer's representations and warranties deemed to be
true and correct as of the Closing Date and shall survive
the Closing.
14. CLOSING.
(a) On or before the Closing Date, with simultaneous
copy to Buyer, Seller will deposit into escrow with the
Closing Agent the following documents on or before the Closing
Date:
(1) A special warranty deed conveying title to the Property
to Buyer, in the form and substance as attached hereto and
incorporated herein as Exhibit "C",;
(2) Amendment to Lease executed by Seller and Tenant in form
and substance as attached hereto and incorporated herein as
Exhibit "F" or as otherwise reasonably acceptable to Buyer;
(3) Estoppel letter from Tenant, in form and substance as
attached hereto and incorporated herein as Exhibit "G" or as
otherwise reasonably acceptable to Buyer;
(4) Estoppel letter from Xxxx'x Home Centers, Inc. relating
to the recorded Declaration of Easements, Covenants,
Restrictions, Rights and Obligations;
(5) Estoppel letter from Bradford Landing South LLC., as
Developer relating to the recorded Easements, Covenants,
Conditions and Restrictions;
(6) Amendment to Declaration of Easements and Maintenance
Agreement in form and substance as agreed to between Seller
and Buyer during the Due Diligence Period;
(7) Affidavit of Seller, in form and substance as agreed to
between Seller and Buyer during the Due Diligence Period;
(8) FIRPTA Affidavit, in form and substance as agreed to
between Seller and Buyer during the Due Diligence Period;
(9) Seller's counterpart to the Assignment and Assumption of
the Lease in the form and substance as attached hereto and
incorporated herein as Exhibit "D", accompanied by the
original Lease and originals of any and all documentation
modifying the Lease, including but not limited to,
assignments, amendments, commencement agreement, memorandum of
lease, and letter agreements;
(10) Assignment and assumption of warranties in the form and
substance as attached hereto and incorporated herein as
Exhibit "E";
(11) Notice of Sale and Assignment of Lease to Tenant;
(12) Tenant's Certificate of Insurance naming Buyer as
additional insured and/or loss payee, as required by the
Lease;
(13) A down-dated title commitment for an owner's title
insurance policy, reflecting only Permitted Exceptions and
endorsements required by Buyer during the Due Diligence
Period;
(14) A letter from Seller to Buyer wherein the Seller itemizes
(in percentages totaling 100%) the following percentages of
costs of the Premises: land acquisition, soft costs, building
construction, and site work (this assists Buyer in allocating
the Property onto its books at Closing).
(b) On or before the Closing Date, Buyer will deposit the
following with the Closing Agent: i) the Purchase Price; and
ii) its counterpart to the Assignment and Assumption of Lease.
(c) Both parties will sign and deliver to the Closing Agent
any other documents reasonably required by the Closing Agent
and/or the Title Company.
15. TERMINATION. This Agreement may be terminated prior
to closing at Buyer's option (and the Xxxxxxx Money returned
to Buyer immediately) in the event of any of the following
occurrences:
(a) Seller fails to comply with any of the terms hereof
for a period of ten (10) days after receipt of
written notice from Buyer to Seller requesting
compliance. However, if such matter cannot be cured
within ten (10) days, and Seller has commenced cure
within such ten (10) day period and is diligently
pursuing such cure, Seller shall be afforded such
additional time, not to exceed thirty (30) days, as
is necessary to cure such matter. If necessary, the
Closing Date shall be extended so long as Seller is
diligently pursuing a cure pursuant to this Section
15(a);
(b) A default exists in any material financial
obligation of Seller or Tenant;
(c) Any representation made or contained in any
submission from Seller or Tenant, or in the Due
Diligence Documents, proves to be untrue, in any
material respect or substantially false or
misleading at any time prior to the Closing Date;
(d) There has been a material adverse change in the
financial condition of Tenant or there shall be a
material action, suit or proceeding pending or
threatened against Seller which affects Seller's
ability to perform under this Agreement or against
Tenant which affects their respective abilities to
perform under the Lease;
(e) Any bankruptcy, reorganization, insolvency,
withdrawal, or similar proceeding is instituted by
or against Seller or Tenant;
(f) Seller or Tenant shall be dissolved, liquidated or
wound up;
(g) Tenant does not take possession of the Property
and/or commence paying rent under the Lease by the
Closing Date;
(h) Notice of termination given by Buyer pursuant to any
right to do so hereunder.
16. DAMAGES, DESTRUCTION AND EMINENT DOMAIN. If, prior
to the Closing Date, the Property, or any part thereof, should
be destroyed or further damaged by fire, the elements, or any
cause, due to events occurring subsequent to the date of this
Agreement (which damage exceeds 10% of the Purchase Price of
the Property or abates payment of rent by Tenant or renders
the Lease invalid), this Agreement shall become null and void,
at Buyer's option, exercised by written notice to Seller
within ten (10) business 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 (a) all contingencies set forth in Section 8 hereof
have been satisfied, or waived; and (b) any period provided
for above in Section 8 hereof for Buyer to elect to terminate
this Agreement has expired or Buyer has, by written notice to
Seller, waived Buyer's right to terminate this Agreement. If
Buyer elects to proceed and to consummate the purchase despite
said damage or destruction, there shall be no reduction in or
abatement of the Purchase Price, and Seller shall assign to
Buyer the Seller's right, title and interest in and to all
insurance proceeds resulting from said damage or destruction
to the extent that the same are payable with respect to damage
to the Property, subject to rights of the Tenant.
If prior to closing, the Property, or any part thereof,
is taken by eminent domain (which taking delays commencement
of the Lease or delays payment of rent by the Tenant or
renders the Lease invalid) 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 all the Seller's right, title and
interest in and to any award made, or to be made, in the
condemnation proceeding, subject to the rights of the Tenant.
In the event that this Agreement is terminated by Buyer
as provided above, the Xxxxxxx Money shall be returned to
Buyer immediately after execution by Buyer of such documents
reasonably requested by Seller to evidence the termination
hereof.
17. NOTICES. 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 by facsimile transaction to the
respective fax number(s) set forth below with printed
confirmation of receipt thereof, or to such other address as
such party may hereafter designate by written notice to the
other party. Notice given in accordance herewith shall be
effective upon delivery to the address of the addressee. Any
notice given by facsimile transmission shall be followed by a
hard copy or by hand delivery.
If to Seller: Xxxx Xxxxx
Bradford Landing South LLC
c/o Bradford Real Estate Services Corp.
00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Email: xxxxx@xxxxxxxxxxxxxxx.xxx
with a copy to: Xxxxxxxxx Xxxxx
Xxxxx & Xxxxxxx LLP
000 X. Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Email: xxxxxx@xxxxx.xxx
If to Buyer: AEI Fund Management, Inc.
1300 Xxxxx Fargo Center
00 X. 0xx Xxxxxx
Xx. Xxxx, XX 00000
Attention: Xxxxxx Xxxxx / Xxxxxxx Xxx
Phone: 000-000-0000
Fax: 000-000-0000
Email: xxxxxx@xxxxxxxx.xxx / xxxx@xxxxxxxx.xxx
With a copy to: Xxxxxxx Xxxxxxxxx
30 East Seventh Street
Suite 0000
Xxxxx Xxxxx Xxxxx
Xx. Xxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
Email: xxxxxx@xxxxxxxxxx.xxx
18. Miscellaneous.
18.1 ENTIRE AGREEMENT; AMENDMENTS; RULE OF CONSTRUCTION;
WAIVERS; ATTORNEYS' FEES. 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 agreement or understandings.
Exhibits attached to this Agreement are incorporated into this
Agreement.
18.2 DEFAULT. If the transaction contemplated hereunder
does not close by the Closing Date, through no fault of Buyer,
Buyer may either, at its election, as its sole and exclusive
choice of remedy, enforce specific performance or terminate
this Agreement and receive its Xxxxxxx Money back in full
immediately. If the transaction contemplated by this
Agreement does not close by the Closing Date, through no fault
of Seller (if this Agreement has not been terminated by Buyer
pursuant to Buyer's right to terminate hereunder), Seller may
at its election, as its sole and exclusive choice of remedy,
enforce specific performance or terminate this Agreement and
receive the Xxxxxxx Money in full.
18.3 ASSIGNMENT. With written notice to Seller, this
Agreement shall be assignable by Buyer, at its option, in
whole or in part, in such manner as Buyer may determine, to an
affiliate or affiliates of Buyer.
18.4 BROKERS. Seller shall pay any and all real estate
commissions due and payable to any broker claiming commission
by and through its representation of Seller according to the
terms of Seller's agreement with any such broker. Seller
agrees to pay to Xxx Xxx, May Center Advisors ("Agent") a
commission pursuant to a separate written agreement between
Agent and Seller, for its services in connection with this
transaction.
18.5 COMPUTATION OF TIME. If the time period or date by
which any right, option, or election provided under this
Agreement must be exercised, or by which any act required
hereunder must be performed, or by which the Closing must be
held, expires or occurs on a Saturday, Sunday, or legal or
bank holiday, then such time period or date shall be
automatically extended through the close of business on the
next regularly scheduled business day.
18.6 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which will be deemed to be an
original and which together shall constitute the agreement of
the parties hereto.
18.7 EXPIRATION. Buyer is submitting this offer by
signing a copy of this Agreement and delivering it to Seller.
Seller has until February ___, 2009, within which time to
accept this offer by signing and returning this Agreement to
Buyer. When executed by both parties, this Agreement will be
a binding agreement for valid and sufficient consideration
which will bind and benefit Seller, Buyer and their respective
successors and assigns.
[SIGNATURES FOLLOW ON THE NEXT PAGE]
IN WITNESS WHEREOF, Seller and Buyer have executed this
Agreement effective as of the date last set forth below.
SELLER:
Bradford Landing South LLC,
an Illinois limited liability company
By: Bradford Real Estate Services Corp.,
its authorized member
By: /s/ Xxxxxx M Pagnotra
Name: Xxxxxx M Pagnotra
Its: President
Date: 2/23/09
BUYER:
AEI Fund Management, Inc.,
a Minnesota corporation
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx
Its: President
Date: February 24, 2009
EXHIBIT "A"
LEGAL DESCRIPTION
XXX 0 XX XXX XXXXXXX XX XXXXX'X LANDING SUBDIVISION OF PARTS
OF SECTION 28 AND 33, TOWNSHIP 44 NORTH, RANGE 11, EAST OF THE
THIRD PRINCIPAL MERIDIAN.
