ASSIGNMENT
OF
PURCHASE AGREEMENT
THIS ASSIGNMENT made and entered into this 15th day of
December, 2004, by and between AEI FUND MANAGEMENT, INC., a
Minnesota corporation, ("Assignor") and AEI Income & Growth
Fund XXI Limited Partnership, a Minnesota limited
partnership and AEI Income & Growth Fund 25 LLC a Delaware
limited liability company (as tenants in common, together
collectively referred to as "Assignee");
WITNESSETH, that:
WHEREAS, on the 28th day of October, 2004, Assignor
entered into a Purchase Agreement (referred to as the
"Agreement") for that certain property located at 0000
Xxxxxxx Xxxx, Xxxxxx Xxxxx, Xxxxxxxx (the "Property") with
LMB Auburn Hills I, LLC, a Ohio limited liability company,
as Seller; and
WHEREAS, Assignor desires to assign to AEI Income &
Growth Fund XXI Limited Partnership, an undivided forty
percent (40.0%) interest as a tenant in common, and AEI
Income & Growth Fund 25 LLC, an undivided sixty percent
(60.0%) interest as a tenant in common, of its rights, title
and interest in, to and under the Agreement as hereinafter
provided;
NOW, THEREFORE, for One Dollar ($1.00) and other good
and valuable consideration, receipt of which is hereby
acknowledged, it is hereby agreed between the parties as
follows:
1. Assignor assigns all of its rights, title and
interest in, to and under the Agreement to Assignee, to
have and to hold the same unto the Assignee, its
successors and assigns;
2. Assignee hereby assumes all rights, promises,
covenants, conditions and obligations under the
Agreement to be performed by the Assignor thereunder,
and agrees to be bound for all of the obligations of
Assignor under the Agreement.
All other terms and conditions of the Agreement shall remain
unchanged and continue in full force and effect.
ASSIGNOR:
AEI FUND MANAGEMENT, INC.,
a Minnesota corporation
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, its President
ASSIGNEE:
AEI Income & Growth fund XXI Limited Partnership,
a Minnesota limited partnership
By: AEI Fund Management XXI, Inc.,
a Minnesota corporation, its General Partner
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, its President
AEI Income & Growth Fund 25 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 AGREEMENT AND
ESCROW INSTRUCTIONS
THIS PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS (this
"Agreement") is made and entered into effective as of this
28 day of October, 2004 (the "Effective Date") by and
between LMB AUBURN HILLS I, LLC, a Ohio limited liability
company ("Seller"), and AEI FUND MANAGEMENT, INC., a
Minnesota corporation, or its successors or assigns (the
"Buyer").
RECITALS:
A. Seller is the owner of that certain parcel of real
property located at 0000 Xxxxxxx Xxxx, Xxxxxx Xxxxx, XX
00000, as more particularly described on Exhibit A attached
hereto (the "Land");
B. Constructed on the Land is a retail jewelry store
known as "Jared-The Galleria of Jewelry" (the
"Improvements") which is leased to Sterling Jewelers Inc., a
Delaware corporation ("Lessee") pursuant to that certain
lease agreement between Seller and Sterling Jewelers Inc. (
"Sterling"), a copy of which will be provided to Buyer
within three (3) days after the Effective Date hereof and
subjected to Buyer's approval prior to purchase.
C. Seller desires to sell the Land and the
Improvements (collectively, the "Property") to Buyer and
Buyer desires to purchase the Property from Seller upon the
terms and conditions set forth in this Agreement.
TERMS AND CONDITIONS
1. AGREEMENT FOR PURCHASE AND SALE. Seller hereby
agrees to sell the Property to Buyer, and Buyer hereby
agrees to purchase the Property from Seller, in accordance
with and subject to the terms and conditions of this
Agreement.
2. PURCHASE PRICE. The purchase price for the
Property will be Three Million Six Hundred Thousand Dollars
($3,600,000) (the "Purchase Price").
3. PAYMENT. The Purchase Price shall be paid as
follows:
(a) Deposit.
(1) DEPOSIT. Buyer will deposit
the amount of Twenty-Five Thousand Dollars
($25,000) into escrow with First American
Title Insurance Company of Minneapolis
("Escrow Holder") as Buyer's deposit (the
"Deposit") within one (1) business day
following the Effective Date.
(2) RELEASE OF DEPOSIT. Upon
Buyer's acceptance or waiver of Buyer's due
diligence contingencies on or before the
expiration of the Due Diligence Period, the
Deposit will be non-refundable to Buyer
except in the event of Seller's default, a
material adverse change in the Due Diligence
provided to Buyer, or except as otherwise set
forth herein and Escrow Holder will release
the Deposit to Seller, without any further
written instructions from Buyer or Seller.
Buyer and Seller agree to indemnify and hold
Escrow Holder harmless from and against any
loss (including, without limitation,
reasonable attorneys' fees) arising out of or
incurred in connection with the release of
the Deposit to Seller.
(3) CREDIT AGAINST PURCHASE PRICE.
The amount of the Deposit will be applied to
the Purchase Price at the Close of Escrow,
but will be retained by Seller as its
liquidated damages as provided in
Section 12.2 if Escrow fails to close as a
result of Buyer's default.
(b) BALANCE DUE AT CLOSE. Not less than one
(1) business day before the Close of Escrow, Buyer
will deposit into escrow in immediately available
Federal Funds an amount equal to the balance of
the Purchase Price plus an amount sufficient to
cover all of Buyer's closing costs.
4. BUYER'S DUE DILIGENCE.
4.1 DUE DILIGENCE PERIOD. The "Due Diligence
Period" shall commence after Buyer's receipt of all items
hereafter listed in 4.1(a) and (b) below and expire thirty
(30) business days thereafter.
(a) Seller will provide the following items Due
Diligence for the Parcel in a form acceptable to Buyer in
its sole discretion and at no cost to Buyer:
(1) Current Phase I environmental report prepared by
Xxxxxxx Consultants dated August 7, 1999.
(2) Commitment for Owner's policy of title insurance
from First American Title Insurance Company accompanied
by underlying exception documents;
(3) Current as-built ALTA survey in Seller's possession;
(4) Building plans and specifications;
(5) Copy of landlord's insurance policy for the Parcel;
(6) Certificate of occupancy;
(7) Proposed limited warranty deed for the Parcel;
(8) Copy of 2003 and 2004 real estate tax statements for
the Parcel;
(9) Copy of the Lease by Sterling Jewelers, Inc.;
(10) Copy of Temporary Driveway License Agreement;
(11) Property Maintenance Manual;
(12) Master Declaration of Easements and Restrictions.
(b) Seller will also, without warranty as to
accuracy of content, except as otherwise set forth herein,
provide Buyer with complete copies of all studies, reports,
agreements, documents, plans, permits and entitlements in
Seller's possession concerning the Property, including, but
not limited to, all engineering drawings, soils reports,
site history investigations, toxic or hazardous materials
investigations or reports, planning studies, construction
warranties, and title reports in Seller's possession
(collectively the "Reports").
(c) If any matters of adverse change or
materially adverse information affecting the Due Diligence
and the Reports ("Supplemental Due Diligence") shall come to
the attention of Seller or Title, such Supplemental Due
Diligence shall be forwarded to Buyer and Buyer shall have a
minimum of five business days thereafter to review the same;
the Due Diligence Period shall be extended, if necessary, to
provide Buyer with such additional review period of five
business days after receipt of such Supplemental Due
Diligence.
4.2 EXPIRATION OF DUE DILIGENCE PERIOD. Buyer
shall approve or disapprove, in writing, Buyer's due
diligence on or before expiration of the Due Diligence
Period. If Buyer disapproves Buyer's due diligence, in
writing, on or before expiration of the Due Diligence
Period, this Agreement shall terminate and Escrow Holder
shall deliver to Buyer the Deposit and thereafter, neither
Seller nor Buyer shall have any further obligation or
liability under this Agreement, except for the Obligations
Surviving Termination (as hereinafter defined).
5. DURATION OF ESCROW AND ESCROW INSTRUCTIONS.
5.1 JOINT ESCROW INSTRUCTIONS AND GENERAL
CONDITIONS. This Agreement shall constitute both agreements
between Buyer and Seller and joint escrow instructions to
Escrow Holder. Escrow Holder's general conditions (the
"General Conditions") attached hereto as Exhibit B are
incorporated herein by reference to the extent they are not
inconsistent with the provisions of this Agreement. If
there is any inconsistency between the provisions of the
General Conditions and this Agreement, the provisions of
this Agreement shall control. If any provisions of this
Agreement are unacceptable to Escrow Holder, or if Escrow
Holder requires additional instructions, the Parties agree
to make any deletions, substitutions and additions as
counsel for the Parties shall mutually approve and which do
not materially alter the terms of this Agreement.
5.2 CLOSE OF ESCROW.
(a) CLOSING DATE. Unless the Parties agree
upon an earlier closing date, Escrow shall close
January 2, 2005 (the "Closing Date"), subject to
Seller satisfying all of its obligations herein.
(b) CLOSE OF ESCROW DEFINED. "Close of
Escrow" will have occurred when Escrow Holder
records a limited warranty deed (as defined below)
transferring the Property.
6. TITLE EXAMINATION.
6.1 PROCUREMENT OF TITLE COMMITMENT. As soon as
possible after the Effective Date, Buyer shall, at its
expense, obtain a current title commitment covering the
Property (the "Title Commitment") issued by Escrow Holder,
naming Buyer as proposed insured, in the amount of the
Purchase Price, together with legible copies of all
documents described in the Title Commitment.
6.2 TITLE EXCEPTIONS. On or before expiration of
the Due Diligence Period, Buyer may give written notice to
Seller of any objections Buyer may have with respect to any
conditions affecting the Property or as disclosed by the
Title Commitment (the "Title Objections"). If Buyer fails
to give any such notice with respect to any specific matters
disclosed in the Title Commitment on or before expiration of
the Due Diligence Period, then Buyer shall be deemed to have
waived any Title Objections with respect to all such matters
as to which no objection is made and any such matter shall
be deemed a "Permitted Exception". Any title matters
arising subsequent to the date of the provided Title
Commitment may be reviewed by Buyer and Buyer shall have at
least five business days to review the same; if necessary,
the Due Diligence Period shall be extended to provide Buyer
with at least five business days to review any such
supplemental matters. Any such extension of the Due
Diligence Period shall also extend, by like number of days,
the Response Period and Title Election Deadline as defined
below.
6.3 FAILURE TO CORRECT TITLE OBJECTIONS. Except
as hereinafter expressly provided in this Section 6.3,
Seller shall have no obligation whatsoever to remove,
satisfy, or otherwise cure, or to incur any expense in
connection with the curing of any Title Objections of which
Seller is notified by Buyer in accordance with Section 6.2.
Seller shall notify Buyer within ten (10) days after
Seller's receipt of written notice from Buyer of any Title
Objections (the "Response Period") whether or not Seller
agrees to take action to cause such Title Objections to be
cured on or before the Closing Date although Seller shall
not otherwise have any obligation to take any action to cure
any Title Objections other than to release liens evidenced
by mortgages, deeds of trust, financing statements, security
interests and similar security instruments created by Seller
(such instruments are collectively referred to herein as the
"Secured Encumbrances"). Buyer acknowledges that a Title
Objection shall be deemed cured if Escrow Holder agrees to
issue its policy of title insurance with respect to the
Property to Buyer without exception to such Title Objection.
If Seller expressly agrees in writing to take action to cure
any of such Title Objections pursuant to Buyer's notice,
then Seller shall have assumed the obligation to take action
to cure only such Title Objections as expressly set forth by
Seller, but not other Title Objections, on or before the
Closing Date. If Seller does not notify Buyer within the
Response Period that it has agreed in writing to take action
to cure Buyer's Title Objections, or if Seller thereafter
fails to take any action to cure on or before the Closing
Date any Title Objections made by Buyer pursuant to Section
6.2 in accordance with Seller's written agreement to take
such action (which Closing Date shall, at Buyer's election,
be extended for up to fifteen (15) additional days), Buyer
may, as its sole remedy, elect by written notice to Seller
on or before fifteen (15) days after the end of the Response
Period (the "Title Election Deadline"), to do one of the
following:
6.3.1 To waive any such Title Objection
(thereby making such Title Objection a "Permitted
Exception") and to close the transaction in
accordance with the terms of this Agreement
without reduction of the Purchase Price; or
6.3.2 To terminate this Agreement, and in
the event of such termination, Escrow Holder shall
deliver to Buyer the Deposit and thereafter,
neither Seller nor Buyer shall have any further
obligation or liability under this Agreement
except for Seller's indemnification obligations
under Section 11.2 of this Agreement (as limited
by Section 27 of this Agreement) and Buyer's
Indemnity Obligations under Sections 9.2 and 11.2
(collectively, the "Obligations Surviving
Termination").
If Buyer fails to elect either option under this
Section 6.3 on or before the Title Election Deadline,
Buyer shall be deemed to have elected to waive such
Title Objection(s) and to close the transaction in
accordance with the terms of this Agreement as provided
in Section 6.3.1 hereof.
7. FINANCING CONTINGENCY. [Intentionally Omitted]
8. REPRESENTATIONS.
8.1 SELLER'S REPRESENTATIONS. As an inducement
to Buyer to enter into this Agreement, Seller warrants,
covenants and represents to Buyer, which representations
shall be deemed to be true and correct as of the Closing
unless Seller shall have notified Buyer to the contrary, and
which warranties, covenants and representations shall
survive closing for a period of one (1) year, as follows:
8.1.1 AUTHORITY. Seller is a limited
liability company duly organized, validly
existing and in good standing under the laws
of its state of formation and has the right,
power, and authority to enter into this
Agreement and the right, power, and authority
to convey the Property in accordance with the
terms and conditions of this Agreement.
8.1.2 ENVIRONMENTAL. To the best of
Seller's Actual Knowledge (as defined below)
as of the date hereof, no hazardous
materials are present on the Property at
levels that require removal, remediation or
other corrective action under applicable
laws, ordinances, rules and regulations in
effect and applicable to the Property on such
date. For purposes of this Agreement,
"Seller's Actual Knowledge" shall mean the
actual (as opposed to constructive) knowledge
of Xxxxx Xxxxxxxxx, but without his
independent investigation. Seller
represents that such individuals are privy to
and hold such position within Seller as to be
familiar with the factual circumstances, if
the same might exist, for which knowledge may
be imputed under commercially reasonable
circumstances, upon such matters as Seller
may represent to its actual knowledge in this
Agreement.
8.1.3. PROPERTY AND STERLING MATTERS. To
Seller's Actual Knowledge, the Property is
not under threat of condemnation of eminent
domain, is in substantially good repair and
working order, all real estate taxes are
current, and lessee has obtained all
licenses, permits and certificates of
occupancy necessary to conduct its business
on the Property. To Seller's Actual
Knowledge, lessee has not declared Seller in
default under any term or provision of the
Lease relating to Landlord's work or
construction responsibilities, matters of
zoning, title, or environmental concern, or
any other matter, nor to the Seller's Actual
Knowledge, has any event occurred that, with
the passing of time, would constitute a
default by Seller under the Lease, nor is
lessee in material default under the Lease,
and the Guaranty of Lease is still in full
force and effect.
8.2 BUYER'S REPRESENTATIONS. As an inducement to
Seller to enter into this Agreement, Buyer warrants and
represents to Seller that AEI Fund Management, Inc. is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Minnesota and has
the right, power, and authority to enter into this Agreement
and the right, power, and authority to purchase the Property
in accordance with the terms and conditions of this
Agreement. Buyer further acknowledges, represents and
warrants to Seller that Buyer has the knowledge and
experience in financial and business matters to enable Buyer
to evaluate the merits and risks of the transaction
contemplated by this Agreement, and that Buyer is not in a
disparate bargaining position relative to Seller with
respect to this Agreement.
8.3 NO FURTHER REPRESENTATIONS OR WARRANTIES.
Buyer agrees that Buyer's election not to terminate this
Agreement pursuant to Section 9.4 below shall constitute a
representation by Buyer to Seller that Buyer has fully
inspected the Property and agrees to purchase the Property
wholly "as is, where is, with all faults", subject to
Seller's representations in Sections 8.1 and 11.2 hereof.
Buyer acknowledges that Seller has made no warranties or
representations whatsoever pertaining to the Property, the
condition thereof, the value thereof, or any other matter
with respect to the Property that will survive the Closing,
other than as may be contained in the documents to be
delivered at Closing as provided in Section 10.1.1, the
brokerage representation and indemnity set forth in
Section 11.2, and the representations set forth in
Section 8.1 above.
9. INSPECTIONS.
9.1 ACCESS. Buyer will conduct a site review and
inspection of the Parcel prior to closing and approve or
disapprove the Premises for purchase, in its sole
discretion, during the Due Diligence Period. From the
Effective Date, Buyer and its agents, shall have the right
to enter upon the Property to inspect, examine, and study
the physical integrity of the Property, which, in the
opinion of Buyer, are necessary to determine the physical
condition of the Property. Seller hereby agrees to
cooperate with Buyer and its agents, in connection with such
inspections.
9.2 INSURANCE AND INDEMNIFICATION. Buyer will
(i) carry not less than One Million Dollars ($1,000,000.00)
commercial general liability insurance with contractual
liability endorsement naming Seller as an additional insured
thereunder and insuring Buyer's Indemnity Obligations (as
hereinafter defined) and, prior to the entering upon the
Property, will provide Seller with written evidence of same,
(ii) will not reveal to any third party not approved by
Seller (other than Buyer's agents, employees, contractors,
design professionals, and lenders) the results of its
inspections, and (iii) will restore promptly any physical
damage caused by the inspections. Buyer shall give Seller
reasonable prior notice of its intention to conduct any
inspections, and Seller reserves the right to have a
representative present at such inspections. Buyer agrees to
provide Seller with a copy of any inspection report upon
Seller's written request. Buyer agrees to indemnify,
defend, and hold Seller free and harmless from any loss,
injury, damage, claim, lien, allegation, cost or expense,
including attorneys' fees, arising out of a breach of the
foregoing agreements by Buyer in connection with the
inspection of the Property, or otherwise from the exercise
by Buyer of the right of access under Section 9.1
(collectively, the "Buyer's Indemnity Obligations"). Any
inspections shall be at Buyer's sole cost and expense. The
provisions of this Section 9.2 shall survive Closing.
9.3 REPORTS. Within five (5) business days after
the Effective Date, Seller will provide, if not previously
provided, to Buyer all of the items listed in Section 4.1(a)
above.
Seller makes no representations or warranties as to the
truth, accuracy or completeness of any materials, data or
other information supplied to Buyer in connection with
Buyer's inspection of the Property (e.g., that such
materials are complete, accurate or the final version
thereof, or that all such materials are in Seller's
possession). To Seller's Actual Knowledge, such materials
are not inaccurate. It is the parties' express
understanding and agreement that such materials are provided
only for Buyer's convenience in making its own examination
of the Property, and, in doing so, Buyer shall rely
exclusively on its own independent investigation and
evaluation of every aspect of the Property and not on any
materials supplied by Seller. Buyer expressly disclaims any
intent to rely on any such materials provided to it by
Seller in connection with its inspection, except to the
extent otherwise represented, warranted and covenanted
herein by Seller, and agrees that it shall rely solely on
its own independently developed or verified information.
9.4 RIGHT TO TERMINATE. If, notwithstanding the
Buyer's right to terminate pursuant to Section 9.1 herein,
in the sole and absolute opinion of Buyer, the Property is
not suitable or acceptable to Buyer for any reason or no
reason, Buyer shall have the right at any time prior to
5:00 p.m. Pacific Time on the date which the Due Diligence
Period expires, to terminate this Agreement by sending
written notice of termination to Seller. In the event of
termination pursuant to this Section 9.4, Escrow Holder
shall, within two (2) business days after such written
notice of termination, return the Deposit to Buyer, less one-
half of the Escrow Holder's cancellation fees, and
thereafter, neither Seller nor Buyer shall have any further
obligation or liability under this Agreement except for
Obligations Surviving Termination. If Buyer does not elect
to terminate this Agreement as provided in this Section 9.4,
Buyer shall be deemed to have waived its right to terminate
this Agreement under this Section 9.4, and the Deposit shall
be fully earned by Seller and non-refundable to Buyer,
except as otherwise expressly provided in this Agreement.
10. THE CLOSING.
10.1 DELIVERIES AT CLOSING. The Closing shall
occur as follows, subject to satisfaction of all of the
terms and conditions of this Agreement:
10.1.1 Seller shall convey its interest in
and to the Property to Buyer by depositing
into Escrow a limited warranty deed (the
"Deed"), which Deed shall convey fee simple
title to the Property to Buyer, subject to
the Permitted Exceptions. The Deed shall be
expressly accepted by and binding upon Buyer,
its successors and assigns and the Property
from and after the Closing Date.
10.1.1.1 Such assignment, documents and
other instruments and agreements,
executed, witnessed and acknowledged in
recordable form, as shall be reasonably
required by Escrow Holder to release of
record the Property from the Secured
Encumbrances and all Title Objections
which Seller has agreed to remove in
accordance with the provisions of
Section 6 above;
10.1.1.2 Such other documents,
instruments, and agreements as are
customarily executed and delivered at
closing by sellers of real property in
Auburn Hills, Michigan, including but
not limited to a standard Seller's
affidavit respecting mechanic's liens,
and a FIRPTA Affidavit.
10.1.1.3 An Assignment and Assumption
of Lease document providing, inter alia,
that Seller has good and indefeasible
title to the Lease free and clear of all
liens and encumbrances except the
Permitted Exceptions, and a mutual
indemnification of Buyer and Seller,
respectively, for lessor obligations
under the Lease, pre and post closing,
respectively. The form of said
Assignment and Assumption Agreement
shall be negotiated in good faith
between the parties during the Due
Diligence Period, and failure to agree
on the form of the same shall be grounds
for either party to terminate this
Agreement.
10.1.1.4 An estoppel from lessee in the
form attached hereto as Exhibit C, ,
dated no more than thirty (30) days
prior to the closing.
10.2 CLOSING COSTS. Seller and Buyer shall
respectively pay the following costs and expenses:
10.2.1 Seller shall pay half of all costs
of closing, including but not limited to:
transfer taxes, transfer fees, recording
costs, and escrow fee. Seller shall pay any
brokerage commissions as set forth in Section
11.1. Seller shall pay at closing up to but
not exceeding $4,500 total for the following
costs: an Owner's Policy of Title Insurance
in favor of Buyer and one-half of the costs
of any survey or environmental report update
incurred by Buyer otherwise at Buyer's sole
cost and expense. Seller shall be solely
responsible for the fees and expenses of
Seller's attorneys, or other legal costs.
10.2.2 Buyer shall pay half of all costs
of closing as listed in Section 10.2.1 above,
subject to Seller's contribution toward
title, survey and environmental report costs
as set forth therein, and excluding all
brokerage commissions. Buyer shall be solely
responsible for the fees and expenses of
Buyer's attorneys, or other legal costs.
11. REAL ESTATE BROKERS.
11.1 COMMISSION. Seller shall be solely
responsible for and pay at Closing all real estate
commissions to any party claiming commission through
Seller ("Seller's Broker")
11.2 REPRESENTATIONS AND INDEMNITY REGARDING
BROKERS. Except as specifically set forth in
Section 11.1, Seller and Buyer each represent and
warrant to the other that neither has employed,
retained, or consulted any broker, agent, or finder in
carrying on the negotiations in connection with this
Agreement or the purchase and sale referred to herein.
Seller hereby indemnifies Buyer and agrees to hold
Buyer harmless from and against any and all claims (and
all expenses, including attorneys' fees incurred in
defending any such claim or in enforcing this
indemnity) for real estate commissions (including,
without limitation, the said commission payable by
Seller to Broker) or similar fees if such claims are
made by an agent or broker claiming to have dealt with
Seller. Buyer hereby indemnifies Seller and agrees to
hold Seller harmless from and against any and all
claims (and all expenses, including attorneys' fees
incurred in defending any such claim or in enforcing
this indemnity) for real estate commissions or similar
fees if such claims are made by an agent or broker
claiming to have dealt with Buyer. The indemnities
contained in this Section 11.2 shall survive the
Closing or any termination of this Agreement.
11.3 FAILURE TO CLOSE. Neither Seller nor Buyer
shall have any liability to Brokers in the event the
sale of the Property should fail to close for any
reason whatsoever, including, without limitation, a
default by Seller or Buyer.
12. DEFAULT.
12.1 SELLER'S DEFAULT. If the sale and purchase
of the Property contemplated by this Agreement is not
consummated on account of Seller's default, then Buyer
retains all remedies available at law or equity in the
event of default hereunder by Seller with respect to
its obligation to sell the Property.
12.2 BUYER'S DEFAULT. If the sale and purchase of
the Property as contemplated by this Agreement is not
consummated because of Buyer's default, then Seller
shall be entitled to unilaterally direct Escrow Holder
in writing (with a copy to Buyer) to pay the Deposit to
Seller. Buyer and Seller agree to indemnify and hold
Escrow Holder harmless from and against any loss
(including, without limitation, attorneys' fees)
arising out of or incurred in connection with the
release of the Deposit to Seller. Seller retains all
remedies available at law or equity in the event of
default hereunder by Buyer with respect to its
obligation to purchase the Property.
13. NO RECORDING. The parties acknowledge that this
Agreement is not in recordable form and agree not to record
this Agreement.
14. DATE OF PERFORMANCE. 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.
15. GOVERNING LAW. This Agreement shall be construed,
interpreted, and enforced in accordance with the internal
laws of the State of Michigan, without regard to the
principles of conflicts of law.
16. NOTICES. Any notices, requests, or other
communications required or permitted to be given hereunder
shall be in writing and shall be delivered by hand or
courier without limitations (including an overnight courier
service such as FedEx) or mailed by United States certified
mail, return receipt requested, postage prepaid and
addressed to each party at the address set forth below, or
transmitted by facsimile to the facsimile number set forth
below with confirmed receipt and hard copy sent within three
(3) days thereof by one of the other approved methods of
delivery. Any such notice, request, or other communication
shall be considered given, delivered or received, as the
case may be, on the date of hand or courier delivery or
facsimile transmission or on the third (3rd) day following
deposit in the United States mail as provided above.
Rejection or other refusal to accept or inability to deliver
because of changed address of which no notice was given
shall be deemed to be receipt of the notice, request, or
other communication. By giving at least five (5) days'
prior written notice thereof, any party may from time to
time and at any time change its mailing address or facsimile
number hereunder.
To Seller: LMB Auburn Hills I, LLC
0000 Xxxx Xxxxxx, Xxxxx 00
Xxxxxxxxxx, Xxxx 00000
Fax: (000) 000-0000
with a copy to: Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxxx & Shohl
1900 Chemed Center
000 X. Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Fax: (000) 000-0000
To Buyer: AEI Fund Management, Inc.
0000 Xxxxx Xxxxx Xxxxx
00 Xxxxxxx Xxxxxx Xxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx and Xxxx
Xxxxxxxxx
Fax (000) 000-0000
with a copy to: Xxxxxxx X. Xxxxxxxxx, Esq.
0000 Xxxxx Xxxxx Xxxxx
00 Xxxxxxx Xxxxxx Xxxx
Xx. Xxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
To Escrow Holder: First American Title Insurance Company
Attn: Xxx Xxxx
0000 Xxxxxxx Xxxxx Xxxx
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
17. ENTIRE AGREEMENT; MODIFICATION. This Agreement
supersedes all prior discussions and agreements between
Seller and Buyer with respect to the Property and contains
the sole and entire understanding between Seller and Buyer
with respect thereto. All promises, inducements, offers,
letters of intent, solicitations, agreements, commitments,
representation, and warranties heretofore made between such
parties with respect to the Property are merged into this
Agreement. This Agreement shall not be modified or amended
in any respect except by a written instrument executed by or
on behalf of each of Buyer and Seller.
18. SURVIVAL OF COVENANTS. All covenants,
representations, warranties, obligations and agreements
contained in this Agreement shall survive the Close of
Escrow and the delivery and recordation of all documents or
instruments in connection therewith. Notwithstanding the
foregoing, however, a Party's obligation to perform a
certain act or take a certain action as required hereunder
shall cease upon that Party's timely and proper performance
thereof.
19. EXHIBITS. Each and every exhibit referred to or
otherwise mentioned in this Agreement is attached to this
Agreement and shall be construed to be made a part of this
Agreement by such reference or other mention at each point
at which such reference or other mention occurs, in the same
manner and with the same effect as if each exhibit were set
forth in full and at length every time it is referred to or
otherwise mentioned.
20. CAPTIONS. All captions, headings, section and
subsection numbers and letters, and other reference numbers
or letters are solely for the purpose of convenience and
shall not be deemed to supplement or limit the subject of
such Sections or to be considered in their construction.
21. COUNTERPARTS. This Agreement may be executed in
multiple counterparts, each of which shall constitute an
original and all of which when taken together shall
constitute one and the same instrument.
22. WAIVER. Any condition or right of termination,
cancellation, or rescission granted by this Agreement to
Buyer or Seller may be waived by such party; provided,
however, that no waiver shall be binding on a party hereto
unless made expressly and in writing.
23. RIGHTS CUMULATIVE. Except as expressly limited by
the terms of this Agreement, all rights, powers, and
privileges conferred hereunder shall be cumulative and not
restrictive of those given by law.
24. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure of the benefit of the parties hereto
and their respective heirs, successors, and assigns.
25. ASSIGNMENT. Except as provided in paragraph 31
hereof, without the prior written consent of Seller, Buyer
shall not assign, mortgage, pledge, or in any other way
encumber or transfer any of Buyer's rights hereunder or any
part thereof to any person, firm, partnership, corporation,
or other entity by operation of law or otherwise; provided,
however, Buyer may assign its rights hereunder to any
person, corporation, partnership, limited liability company,
or other entity, if the same controls Buyer, is controlled
by Buyer or is under common control with Buyer. In the
event of such permitted assignment, Buyer shall remain
liable for Buyer's obligations under this Agreement.
26. TIME OF ESSENCE. Time is of the essence in the
performance of each provision of this Agreement.
27. LIMITATION OF LIABILITY. Buyer (on behalf of
itself, its direct and indirect partners, all persons or
entities controlling, controlled by, or under common control
with Buyer, and all officers, directors, employees,
trustees, advisors, agents, shareholders, or contractors of
any of the foregoing) agrees and acknowledges that the
obligations of Seller under this Agreement do not constitute
personal obligations of Seller, and that Buyer agrees that
it will look solely to the interest of Seller in the
Property and the proceeds thereof (including, without
limitation, the Purchase Price) for satisfaction of any
liability of Seller with respect to this Agreement, and will
not seek recourse against any other assets of Seller, or the
members of Seller, or their respective officers, directors,
trustees, advisors, members, agents, shareholders, employees
or contractors, or any of their personal assets, for such
satisfaction. In addition, the obligations of the members of
Seller to make capital contributions to Seller shall not
constitute assets of Seller against which recourse may be
sought for purposes hereof.
Seller (on behalf of itself, its direct and indirect
partners, all persons or entities controlling, controlled
by, or under common control with Seller, and all officers,
directors, employees, trustees, advisors, agents,
shareholders, or contractors of any of the foregoing) agrees
and acknowledges that the obligations of Buyer under this
Agreement do not constitute personal obligations of the
direct or indirect partners of Buyer or the members of Buyer
or their respective officers, directors, trustees, advisors,
members, agents, shareholders, employees, or contractors,
and that Seller agrees that it will look solely to the
interest of Buyer in the Property and the proceeds thereof
and Buyer's assets for satisfaction of any liability of
Buyer with respect to this Agreement, and will not seek
recourse against any members of Buyer, or their respective
officers, directors, trustees, advisors, members, agents,
shareholders, employees or contractors, or any of their
personal assets, for such satisfaction. In addition, the
obligations of the members of Buyer to make capital
contributions to Buyer shall not constitute assets of Buyer
against which recourse may be sought for purposes hereof.
The provisions of this Section 27 shall survive Closing.
28. SEVERABILITY. If any portion of this Agreement
becomes illegal, null, void or against public policy, for
any reason, or is held by any court of competent
jurisdiction to be illegal, null, void or against public
policy, the remaining portions of this Agreement shall not
be affected thereby and shall remain in effect to the
fullest extent permitted by law.
29. INTERPRETATION. No provision of this Agreement
shall be construed against or interpreted to the
disadvantage of any party hereto by any court or other
governmental or judicial authority by reason of such party
having or being deemed to have structured, drafted or
dictated such provision.
30. ATTORNEY'S FEES. If Seller or Buyer shall engage
an attorney in connection with any action or proceeding to
enforce this Agreement, the prevailing party in such action
or proceeding shall be entitled to recover its court costs
including reasonable attorneys' fees, to the extent
permitted by law. If different parties are the prevailing
parties on different issues, the respective court costs and
related attorneys' fees shall be apportioned in proportion
to the value of the issues decided for or against the
parties.
31. SECTION 1031 EXCHANGE. Notwithstanding any
language in the contract to the contrary, either party may
assign this contract and all his interests in and rights
under it to other persons or corporations. Either Party may
assign its interest in the contract therein for purposes of
making a Like Kind Exchange pursuant to Section 1031 of the
Internal Revenue Code, but makes no representation or
warranty as to whether or not the transaction qualifies as
such.
32. Buyer is aware the Seller intends to perform an
IRC Section 1031 tax deferred exchange. Seller requests
Buyer's cooperation in such an exchange and agrees to hold
Buyer harmless from any and all claims, costs, liabilities,
or delays in time resulting from such an exchange. Buyer
agrees to an assignment of this contract by the Seller for
such purposes subject to the terms hereof.
IN WITNESS WHEREOF, the parties hereto have duly
signed, sealed and delivered this Agreement as of the date
first written above.
SELLER:
LMB AUBURN HILLS I, LLC
a Ohio limited liability
corporation
By: /s/ Xxxxx X Xxxxxxxxx
Name: Xxxxx X Xxxxxxxxx
Title: Manager
Date of Execution: 10/27/04
BUYER:
AEI FUND MANAGEMENT, INC.,
a Minnesota corporation
By: /s/ Xxxxxx X Xxxxxxx
Name: Xxxxxx X Xxxxxxx
Title: President
Date of Execution: October 28, 2004