REAL ESTATE PURCHASE CONTRACT
THIS REAL ESTATE PURCHASE CONTRACT (the "Agreement") is made
and entered into by and between COMMERCIAL NET LEASE REALTY,
INC., a Maryland corporation ("Seller"), and AEI INCOME & GROWTH
FUND 25 LLC, a Delaware limited liability company ("Buyer").
WITNESSETH:
For and in consideration of Ten and 00/100 Dollars ($10.00),
the agreements made herein, and other good and valuable
considerations, the receipt and legal sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. The Property. Seller hereby agrees to sell and Buyer hereby
agrees to purchase, upon and subject to the terms and conditions
herein set forth, Seller's interest in a) that certain Lease
between Seller (as successor in interest to Captec Ster Aurora,
L.L.C.), as lessor, and Sterling Jewelers, Inc., a Delaware
corporation, as lessee (the "Tenant") dated January 23, 2000 (the
"Lease") and b) that certain Net Ground Lease between Seller (as
successor in interest to Captec Ster Aurora, L.L.C.), as tenant,
and Duke-Weeks Realty Limited Partnership, an Indiana limited
partnership, as landlord dated October 14, 1999 (the " Prime
Lease") for property located at 0000 X. Xxx. 00, Xxxxxx,
Xxxxxxxx as more particularly described in Exhibit "A" (Seller's
interest in the Lease and the Prime Lease shall hereinafter be
referred to as the "Property").
2. Purchase Price. The purchase price (the "Purchase Price")
for the Property shall be ONE MILLION NINE HUNDRED NINETY-TWO
THOUSAND SIX HUNDRED AND NO/100 DOLLARS ($1,992,600.00). The
Purchase Price shall be paid in federal funds by Buyer to Seller
at Closing by wire transfer to such account as Seller may direct.
3. Xxxxxxx Money. Within three (3) days of the Effective Date
of this Agreement, Buyer shall deposit the sum of TWENTY-FIVE
THOUSAND AND NO/100 DOLLARS ($25,000.00) as xxxxxxx money (the
"Xxxxxxx Money") with ") with First American Title Insurance
Company-National Division, 0000 Xxxxxxx Xxxxx, 000 Xxxxxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxx XxXxxxxx (the
"Escrow Agent"), which sum shall be held by Escrow Agent, in
escrow, however, subject to disbursement in accordance with the
terms and provisions of this Agreement. Provided that Buyer
furnishes Escrow Agent with a form W-9 containing Buyer's U.S.
Taxpayer Identification Number, the Xxxxxxx Money shall be held
by Escrow Agent in an interest bearing money market savings and
interest earned thereon shall be reported under Buyer's U.S.
Taxpayer Identification Number. Except as otherwise provided in
this Agreement, the Xxxxxxx Money shall be credited to and
considered as payment of part of the Purchase Price at the time
of and upon consummation of the Closing hereunder, and the
interest earned thereon shall be delivered to Buyer by Escrow
Agent.
4. Inspection Period.
a. Subject to rights of Tenant and the limitations imposed on
the Landlord's right of entry under the Lease and tenant's use
under the Prime Lease, Buyer's agents, employees and independent
contractors shall have fifteen (15) Business Days, commencing
upon Seller's delivery of written notice to Buyer that all of the
Due Diligence Items have been delivered (the "Inspection
Period"), in which to conduct, at Buyer's sole expense, such
physical, environmental, engineering and feasibility reports,
inspections, examinations, tests and studies as Buyer deems
appropriate in an effort to determine whether the Property is
suitable for Buyer's intended use of the Property including,
without limitation, those matters disclosed by any survey for the
Property obtained by Buyer as provided in Paragraph 5 hereof, and
those matters related to the title to the Property as provided in
Paragraph 6 hereof. During the Inspection Period, Buyer, Buyer's
agents, employees and independent contractors shall have the
right, subject to rights of Tenant and the limitations imposed on
Landlord's right of entry under the Lease, to come onto the
Property, at such time as reasonably designated by Seller, for
the purpose of conducting the foregoing reports, inspections,
examinations, tests and studies. No such report, inspection,
examination, test or study shall interfere with use of the
Property by Seller or Tenant or violate any law or regulation of
any governmental entity having jurisdiction over the Property.
Buyer shall promptly provide Seller with copies of all documents
resulting from or related to such reports, inspections,
examinations, tests and studies and surveys performed with
respect to the Property upon Buyer's receipt of same.
Notwithstanding the foregoing, Buyer shall not conduct any
invasive testing. Upon the completion of any inspection,
examination, test or study, if any, Buyer shall promptly restore
the Property to its former condition. Buyer agrees to indemnify,
defend and hold Seller and Tenant harmless from any and all loss
and expense (including, without limitation, attorney's fees)
resulting from claims and damages (including, but not limited to,
injury to, or death of persons, loss or damage to property, the
performance of any labor or services for the Buyer, or the
release, escape, discharge, emission, spillage, seepage or
leakage by Buyer on or from the Property of any hazardous
substance or any other violation by Buyer of any environmental
law) caused by, arising out of, or incurred in connection with
the exercise by Buyer of Buyer's rights under this Paragraph.
Any provision of this Agreement to the contrary notwithstanding,
the indemnification obligation of Buyer under this Paragraph 4
shall survive the Closing or any earlier termination of this
Agreement.
b. Within ten (10) days of the Effective Date, Seller shall
provide to Buyer copies of the with the following due diligence
items, to the extent such items are in Seller's possession (the
"Due Diligence Items"):
(i) Seller's most recent Phase I Environmental report.
(ii) Seller's most recent title insurance policy, including any
underlying exception documents.
(iii) Seller's most recent survey.
(iv) Copy of the fully executed Lease and Prime Lease, including
any memorandums of lease, amendments, assignments, estoppel
certificates, commencement agreement or letter agreements
thereto.
(v) Copy of Tenant's insurance certificate.
(vi) Building Plans and Specifications.
(vii) Any warranties for the improvements on the Property.
5. Survey. If Buyer desires a survey for the Property, Buyer
shall have the same surveyed at its expense prior to the
expiration of the Inspection Period described in Paragraph 4
hereof. If any such survey obtained by Buyer discloses any
encroachments or other adverse matters which are unacceptable to
Buyer in its sole discretion, Buyer shall be entitled to
terminate this Agreement by delivering written notice thereof to
Seller prior to the expiration of the Inspection Period,
whereupon this Agreement shall terminate as provided in Paragraph
7 hereof. In the event Buyer shall not terminate this Agreement
as a result of the inspections and investigations to be performed
by Buyer pursuant to Paragraph 4 hereof, then and in such event
Buyer shall be deemed to have agreed to accept title to and
acquire the Property from Seller subject to any matters disclosed
by or which would be disclosed by any such survey of the Property
obtained by Buyer.
6. Title Insurance. Seller shall deliver to Buyer an original
Commitment for Title Insurance issued by First American Title
Insurance Company, committing to provide a leasehold title
insurance polity to insure Buyer's interest in the Prime Lease,
as purchaser of the Property, in the amount of the purchase price
therefor (hereinafter referred to as the "Commitment"). During
the Inspection Period described in Paragraph 4 hereof, Buyer
shall determine whether Buyer is willing to accept title to and
acquire the Property from Seller subject to the title exceptions
set forth in the Commitment (the "Title Exceptions"). In the
event that Buyer shall determine that any one or more of the
Title Exceptions are unacceptable to Buyer in its sole
discretion, Buyer shall be entitled to terminate this Agreement
by delivering written notice thereof to Seller on or before the
expiration of the Inspection Period, whereupon this Agreement
shall terminate as provided in Paragraph 7 hereof. In the event
Buyer shall not terminate this Agreement as a result of the
investigations and inspections to be performed by Buyer pursuant
to Paragraph 4 hereof, then and in such event Buyer shall be
deemed to have approved the Title Exceptions and to have agreed
to accept title to and acquire the Property from Seller subject
to the Title Exceptions. Notwithstanding the foregoing, Seller
agrees that it shall be required, at closing, to satisfy any
monetary liens which have been placed against the title to the
Property by, through or under Seller.
7. Objections to Investigations. In the event that the results
of the inspections, investigations, reviews and feasibility
studies to which reference is made in Paragraphs 4, 5 and 6 above
are, in Buyer's sole opinion and within Buyer's sole discretion,
unacceptable to Buyer for any reason whatsoever or in the event
Buyer cannot obtain a commitment for financing to acquire the
Property on terms and conditions acceptable to Buyer, in its sole
and absolute discretion, and Buyer (i) so notifies Seller of the
fact on or before the expiration of the Inspection Period
provided in Paragraph 4 hereof and (ii) delivers to Seller any
reports, materials, plans, surveys, documents and other
instruments which Buyer may have obtained from Seller to
facilitate Buyer's investigations, then, at Buyer's option and
upon Buyer's request, the Xxxxxxx Money Deposit lodged by Buyer
with Escrow Agent hereunder, together with all interest earned
thereon, shall be returned to Buyer and, this Agreement shall
thereupon be terminated, null and void, and be of no further
force and effect and all parties hereto shall thereupon be
relieved and absolved of any further liabilities or obligations
whatsoever to each other hereunder, except with respect to those
liabilities or obligations hereunder which are expressly stated
to survive the termination of this Agreement. The failure of the
Buyer to notify Seller of the unacceptability of any such
inspections, investigations, reviews and feasibility studies
prior to the expiration of the Inspection Period shall constitute
a waiver of Buyer's right to terminate this Agreement on account
thereof, in which event the Xxxxxxx Money Deposit shall be non-
refundable to Buyer, except in the event of a default hereunder
by Seller.
8. Landlord's Consent. Buyer and Seller acknowledge that the
Prime Lease requires the Seller to obtain the consent and
approval of the landlord under the Prime Lease to the assignment
of Seller's interest in the Prime Lease to Buyer (the "Landlord's
Consent"). Buyer and Seller agree that this Agreement shall be
expressly contingent upon Seller obtaining the Landlord's
Consent. In the event that Seller is unable to obtain the
Landlord's Consent or before the Closing Date, this Agreement
shall thereupon be terminated, null and void, and be of no
further force and effect, the Xxxxxxx Money Deposit lodged by
Buyer with Escrow Agent hereunder, together with all interest
earned thereon, shall be returned to Buyer, and all parties
hereto shall thereupon be relieved and absolved of any further
liabilities or obligations whatsoever to each other hereunder,
except with respect to those liabilities or obligations hereunder
which are expressly stated to survive the termination of this
Agreement.
9. Deliveries at Closing.
a. At the time of closing hereunder, Seller shall deliver the
following original documents:
(i) An appropriate "Seller's Affidavit" or other acceptable
evidence attesting to the absence of liens, lien rights, rights
of parties in possession (other than the Tenant under the Lease)
and other encumbrances arising under Seller (other than the Title
Exceptions and any matters disclosed by, or which would be
disclosed by, any survey obtained by Buyer pursuant to Paragraph
5 above) so as to enable Title Company to delete the "standard"
exceptions for such matters from Buyer's leasehold policy of
title insurance and otherwise insure any "gap" period occurring
between the closing and the recordation of any closing documents.
(ii) A duly executed Assignment and Assumption of Lease Agreement
for the Lease (the "Lease Assignment") in the form attached as
Exhibit "B", together with copies of all of the documents
assigned thereby.
(iii) A notice addressed to Tenant, signed by Seller,
providing notice of the sale of the Property and directing Tenant
to send future rent and notices to Buyer.
(iv) A duly executed Assignment and Assumption of Prime Lease
Agreement for the Lease (the "Prime Lease Assignment") in the
form attached as Exhibit "B", together with copies of all of the
documents assigned thereby.
(v) A duly executed counterpart of the closing statement.
(vi) Such other closing documents as are reasonably necessary and
proper in order to consummate the transaction contemplated by
this Agreement.
b. At the time of closing hereunder, Buyer shall deliver the
following original documents:
(i) A duly executed Lease Assignment in the form attached as
Exhibit "B".
(ii) A duly executed Prime Lease Assignment in the form attached
as Exhibit "B".
(iii) A duly executed counterpart of the closing statement.
(iv) Such other closing documents as are reasonably necessary and
proper in order to consummate the transaction contemplated by
this Agreement.
10. Estoppel Certificate. Seller shall use good faith
reasonable efforts to obtain and deliver to Buyer by Closing an
estoppel certificate ("Estoppel Certificate") signed by the
Tenant in a form acceptable to Tenant. If Seller is unable to
obtain the Estoppel Certificate, Seller shall not be deemed to
have defaulted under this Contract, and Buyer and Seller shall
proceed to Closing. Seller shall deliver to Buyer the Estoppel
Certificate as soon as practically possible after Closing.
11. Closing. The Purchase Price and the aforesaid executed
closing documents shall be delivered, and the purchase and sale
transaction contemplated in this Agreement shall otherwise be
consummated (the "Closing" or "Closing Date") on a date mutually
agreeable to Seller and Buyer on or before fifteen (15) Business
Days after the end of the Inspection Period. The Closing shall
occur at the offices of Escrow Agent or at such other location as
is mutually agreeable to Buyer and Seller.
12. Closing Costs. Seller shall pay for (i) the premium and
related charges for the leasehold title insurance policy to be
issued pursuant to the Commitment; (ii) one-half (1/2) of any
transfer taxes required to be paid in connection with this
transaction; (iii) any recording costs to be paid in connection
with any memorandum of assignment of the Lease or Prime Lease;
and (iv) any escrow fee. Buyer shall pay for (i) the cost of any
mortgagee title policy or endorsements and survey endorsements;
(ii) any taxes on any mortgage entered into by Buyer; (iii) any
recording costs on any Buyer mortgage; (iv) the cost of any
survey obtained by Buyer and any other costs of Buyer's
inspection of the Property; (v) any and all of Buyer's mortgage
and loan financing costs incurred in connection with this
transaction; and (vi) one-half (1/2) of any transfer taxes
required to be paid in connection with this transaction. Each
of Buyer and Seller shall bear its own attorneys' fees.
13. Prorations. The following prorations shall be made between
Buyer and Seller as of the date of Closing:
a. Seller shall receive a credit for any ad valorem taxes,
assessments, maintenance costs or other costs and expenses
advanced by Seller (collectively the "Advances") which (i) are
attributable to the Closing Date and the period subsequent
thereto, (ii) are reimbursable to Landlord by Tenant pursuant to
the Lease, but (iii) have not been received by Seller as of the
Closing Date. Seller agrees to remit to Buyer, within thirty
(30) days of receipt of same, all reimbursements received from
Tenant after the Closing Date for all such Advances that are
credited to Seller at Closing.
b. All rent and additional rent under the Lease of the Property
(together the "Rent") attributable to the period prior to the
Closing Date shall be the property of Seller, and all Rent
attributable to the Closing Date and the period subsequent
thereto shall be the property of Buyer. If Rent for the month in
which the Closing Date occurs has been paid by Tenant to Seller
prior to the Closing Date, then such rent shall be the property
of Seller and Buyer shall receive a credit for all such Rent
attributable to the Closing Date and the period subsequent
thereto. If Rent for the month in which the Closing Date occurs
has not been paid by Tenant to Seller prior to the Closing Date,
then such rent shall be the property of Buyer and Seller shall
receive a credit for all such Rent attributable to the period
prior to the Closing Date. Any Rent prepaid or due and owing
under the Prime Lease shall be prorated as of the Closing. Buyer
and Seller each agree to remit to the other, within thirty (30)
days after receipt of same, all Rent received by them after the
Closing Date which is defined as the property of the other party
pursuant to the terms of this subparagraph, which obligation
shall expressly survive Closing hereunder.
c. Ad valorem taxes and assessments for the year of closing
hereunder which are not payable by Tenant under the Lease
(together the "Taxes") and which are attributable to the period
prior to the Closing Date shall be the responsibility of Seller,
and such Taxes which are attributable to the Closing Date and the
period subsequent thereto shall be the responsibility of Buyer,
and shall be prorated accordingly.
14. Commissions. Buyer and Seller warrant and represent to each
other that the sale has not been brought about through the
efforts of any broker. Buyer and Seller agree that in the event
of a breach of this warranty and representation, the offending
party shall indemnify and hold the non-offending party harmless
with respect to any loss or claim for brokerage commission,
including all attorneys' fees and costs of litigation through
appellate proceedings. This paragraph shall expressly survive
the Closing under this Agreement.
15. Property Sold "As-Is". The Property shall be sold and
conveyed by Seller and accepted by Buyer in its "as is, where is"
condition with all faults, known and unknown, expected and
unexpected, without any warranty or representation whatsoever on
the part of Seller, express or implied, as to its condition,
classification, past or present use, or merchantability, fitness
or suitability for any particular purpose, use, design,
construction or development, including without limitation any
warranty or representation as to surface or subsurface condition,
hazardous materials, zoning, or the sufficiency, accessibility
and capacity of utilities for Buyer's intended use of the
Property, it being agreed that all such risks are to be borne by
Buyer and that Buyer is relying solely on its own inspection and
investigation of the Property with respect thereto and not on any
statement, representation or warranty made by Seller or anyone
acting or claiming to act on behalf of Seller, except as
specifically otherwise set forth herein.
16. Representations and Warranties.
a. Each party warrants and represents the following to the
other:
(i) It shall perform its duties and obligations under this
Agreement in accordance with the terms and conditions of this
Agreement.
(ii) This Agreement constitutes the valid and binding obligation
of each party, enforceable against each party in accordance with
the Agreement's terms. All actions required to be taken by each
party to authorize it to enter into and carry out this Agreement
have been, or prior to the date of closing hereunder shall be,
duly and validly taken.
b. Seller warrants and represents to Buyer:
(i) Except for this Agreement, the Prime Lease, the Lease, and
those matters disclosed in the materials delivered to Buyer
pursuant to Section 4 hereof, it is not aware of any other
agreements or leases with respect to the Property.
(ii) To the best of Seller's Knowledge the Lease and the Prime
Lease are in full force and effect; no event has occurred or
condition arisen which either constitutes, or would constitute
with the passage of time or giving of notice or both, a default
by Landlord or Tenant under the Lease or the Prime Lease;
(iii) The consummation of the transactions contemplated
hereunder, and the performance of this Agreement and the delivery
of the Assignment of Lease 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;
(iv) Seller has full right, power, and authority to execute and
deliver this Agreement and to consummate the purchase and sale
transaction provided for herein without obtaining any further
consents or approvals from, or the taking of any other actions
with respect to, any third parties; and this Agreement, when
executed and delivered by Seller and Buyer, will constitute the
valid and binding agreement of Seller, enforceable against Seller
in accordance with its terms;
(v) There are no outstanding or unpaid claims, actions, or
causes of action related to any transaction or obligation entered
into or incurred by Seller with respect to the Property prior to
the date hereof;
(vi) The Property has not been used by Seller for the storage or
disposal of any hazardous or toxic substance as defined in any
applicable state or federal law governing or relating to the
environment;
(vii) Seller is not a "foreign person" (as defined in Section
1445(f) (3) of the Internal Revenue Code and regulations issued
thereunder); and
(viii) To the best of Seller's Knowledge Seller has received
no written notice that, and has no actual knowledge of: (a) any
condition on or about the Property which would cause the Property
or any part thereof to be in violation of, or out of compliance
with, any building codes, zoning ordinances, health and safety
codes or other applicable rules, regulations or laws; (b) any
actions or proceedings pending, which would materially affect the
Property; (c) any litigation pending or threatened against or
relating to the Property; or (d) any pending investigation,
condemnation or proceeding of any kind which may have a material
adverse affect upon the Property.
Seller hereby agrees that the truthfulness of each of said
representations and warranties and all other representations and
warranties herein made in a condition precedent to the
performance by Buyer of Buyer's obligations hereunder; and that
the said representations and warranties shall be true as of the
date hereof and on the Closing Date. Upon the breach of any
thereof, Buyer, prior to the Closing Date, may declare this
Agreement to be null and void, or Buyer may elect to close this
sale. If Buyer elects to declare this Agreement null and void,
neither party shall have any rights or obligations hereunder,
except that all Xxxxxxx Money herein paid, plus interest thereon,
shall be promptly refunded to Buyer. "Seller's Knowledge" as
used herein shall mean the actual knowledge of Xxx Xxxxxxx.
Each representation and warranty of each party contained in
this Agreement shall be true and accurate as of the date hereof
and shall be deemed to have been made again at and as of Closing
and shall then be true and accurate in all material respects and
shall survive Closing for a period of six (6) months.
17. Damage and Condemnation. Seller shall notify Buyer upon the
occurrence of any damage, destruction, taking or threat of taking
affecting the Property. In the event of any material damage to
or material destruction of the Property, or any material portion
thereof, or in the event of any material taking or threat of
material taking of the Property, or any material portion thereof,
by exercise of the power of eminent domain, Buyer may elect to:
(i) terminate this Agreement by giving notice thereof to Seller
within ten (10) days of receipt of notice from Seller, whereupon
the Xxxxxxx Money shall be promptly refunded to Buyer, this
Agreement shall become null and void and the parties shall be
relieved of and released from any and all further rights, duties,
obligations and liabilities hereunder or (ii) consummate the
purchase of the Property, whereupon at Closing Seller shall
assign any rights to any insurance proceeds or condemnations
awards, subject to the rights of Tenant and obligations of
Landlord under the Lease. Seller shall provide Buyer with all
information received by Seller regarding any such damage,
destruction, taking or threat of taking which is reasonably
necessary or useful to Buyer in making the election between such
alternative.
18. Default by Buyer; Seller's Remedies. If the purchase and
sale of the Property is not consummated in accordance with the
terms and conditions of this Agreement due to default or breach
on the part of Buyer, Seller, at its election, may (i) terminate
this Agreement by written notice to Buyer, whereupon the Seller
may seek all damages allowed by law or equity; (ii) avail itself
of the remedy of specific performance of this Agreement; or (iii)
terminate this Agreement and obtain as liquidated damages the
entire Xxxxxxx Money.
19. Default by Seller; Buyer's Remedies. If the purchase and
sale of the Property is not consummated in accordance with the
terms and conditions of this Agreement due to default or breach
on the part of Seller, then Buyer, at its election, may (i) avail
itself of the remedy of specific performance or (ii) terminate
this Agreement and receive a refund of the Xxxxxxx Money and
interest earned thereon as Buyer's sole and exclusive remedies.
20. Release. Buyer and Seller acknowledge that Buyer intends to
acquire the fee interest in the property located at 0000 X. Xxx.
00, Xxxxxx, Xxxxxxxx which is subject to the Lease and the Prime
Lease. In the event that Buyer or any affiliate of Buyer
acquires such fee interest, Buyer or such affiliate shall release
and hold Commercial Net Lease Realty, Inc. harmless from any
claim, liability or cost or arising out of any obligation or
liability of the Commercial Net Lease Realty, Inc. under Prime
Lease. This Paragraph shall survive the Closing of this
Agreement.
21. Duties of Escrow Agent. The duties of the Escrow Agent are
only as herein specifically provided, and Escrow Agent shall
incur no liability whatever except for willful misconduct or
gross negligence as long as the Escrow Agent has acted in good
faith. The Seller and Buyer each release the Escrow Agent from
any act done or omitted to be done by the Escrow Agent in good
faith in the performance of its duties hereunder. Buyer and
Seller hereby authorize the payment of said Xxxxxxx Money, with
interest earned thereon, by the Escrow Agent in accordance with
the terms and provisions set forth in this Agreement. In the
event, however, that in the discretion of the Escrow Agent there
exists some doubt as to how or under what circumstances the
Xxxxxxx Money or interest earned thereon shall be disbursed
hereunder, and the parties hereto are unable to agree and direct,
in writing, as to whom or under what circumstances the Escrow
Agent shall disburse the same, Escrow Agent shall be entitled to
interplead said Xxxxxxx Money and interest into the county
wherein the Property is situate, without further liability or
responsibility on its part. Costs, expenses and attorneys fees
associated with any such interpleader shall be deducted from the
amount of the Xxxxxxx Money and interest earned thereon.
22. Assignment. Buyer may not assign its interest under this
Agreement without obtaining Seller's prior written consent, which
may be withheld at Seller's sole discretion. Upon any assignment
by Buyer approved by Seller, Buyer shall not be entitled to a
release or substitution of the Xxxxxxx Money, but shall seek
reimbursement of same from Buyer's assignee. Notwithstanding
anything contained in this paragraph to the contrary, Buyer shall
be permitted, upon prior written notice to Seller not later than
five (5) days prior to the Closing Date, to assign its interest
under this Agreement to an entity which is controlled by, or
under common control with, Buyer.
23. Notices. Any notice, request, demand, tender or other
communication under this Agreement shall be in writing, and shall
be deemed to have been duly given at the time and on the date
when personally delivered, or upon being delivered to a
nationally recognized commercial courier for next day delivery,
to the address for each party set forth below, or upon delivery
if deposited in the United States Mail, Certified Mail, Return
Receipt Requested, with all postage prepaid, to the address for
each party set forth below, or by facsimile with proof of
delivery of same. The time period in which a response must be
made, or action taken, by a party receiving such communication
shall commence on the date of actual receipt by such party.
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 such communication. By giving prior
notice to all other parties, any party may designate a different
address for receiving notices. Any notice to Seller hereunder
shall not be effective unless and until a copy thereof has also
been delivered in accordance with the foregoing requirements to
Escrow Agent at the address set forth below.
Notices to Seller: Commercial Net Lease Realty, Inc.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Lowndes, Drosdick, Doster, Xxxxxx &
Xxxx, P.A.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Xx.,
Esquire
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices to Buyer: AEI Fund Management, Inc.
0000 Xxxxx Xxxxx Xxxxx
00 Xxxx Xxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With copy to: Xxxxxxx X. Xxxxxxxxx
Attorney at Law
0000 Xxxxx Xxxxx Xxxxx
00 Xxxx Xxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
24. Governing Law and Binding Effect. This Agreement shall be
governed by and construed and enforced in accordance with the
laws of the State of Illinois and shall be binding upon, inure to
the benefit of, and be enforceable by the parties hereto as well
as their respective heirs, personal representatives, successors
and assigns.
25. Time of Essence. Time shall be of the essence in the
performance of the terms and conditions of this Agreement. In
the event any time period specified in this Agreement expires on
a Saturday, Sunday or bank holiday on which national banks in
Orlando, Florida are closed for business, then the time period
shall be extended so as to expire on the next Business Day
immediately succeeding such Saturday, Sunday or bank holiday. As
used herein, the term "Business Day" means any day that is not a
Saturday, Sunday or bank holiday on which national banks in
Orlando, Florida are closed for business.
26. Captions. All captions, headings, paragraph and
subparagraph numbers and letters and other reference numbers or
letters are solely for the purpose of facilitating reference to
this Agreement and shall not supplement, limit or otherwise vary
in any respect the text of this Agreement. All references to
particular paragraphs and subparagraphs by number refer to the
paragraph or subparagraph so numbered in this Agreement.
27. Entire Agreement. This Agreement supersedes all prior
discussions and agreements between Seller and Buyer with respect
to the purchase and sale of the Property. This Agreement
contains the sole and entire understanding between Seller and
Buyer with respect to the transactions contemplated by this
Agreement, and all promises, inducements, offers, solicitations,
agreements, representations and warranties heretofore made
between the parties are merged into this Agreement. This
Agreement shall not be modified or amended in any respect except
by a written agreement executed by or on behalf of the parties to
this Agreement in the same manner as this Agreement is executed.
28. Survival of Provisions. The warranties, representations,
agreements, covenants and indemnities of the Seller and Buyer
provided for in this Agreement shall survive the Closing under or
termination of this Agreement only to the extent expressly
provided herein.
29. Validity. In the event any term or provision of this
Agreement is determined by the appropriate judicial authority to
be illegal or otherwise invalid, such provision shall be given
its nearest legal meaning or be construed or deleted as such
authority determines, and the remainder of this Agreement shall
remain in full force and effect.
30. Attorney's Fees. In the event of any litigation arising out
of this Agreement, the party prevailing in obtaining the relief
sought, in addition to all other sums that it may be entitled to
recover, shall be entitled to recover from the other party its
reasonable attorney's fees and expenses incurred as a result of
such litigation. This Paragraph shall survive Closing or
termination of this Agreement.
31. Effective Date. This Agreement shall be effective on the
date that the last of both parties have executed this Agreement,
as evidenced by the date set forth beneath their signatures
hereinbelow (the "Effective Date").
32. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same
agreement, and shall become a binding agreement when one or more
counterparts have been signed by each of the parties and
delivered to the other party.
33. No Recordation. Neither this Agreement nor any notice or
memorandum thereof shall be recorded in the public records of any
jurisdiction.
34. Subsequent Offers. Notwithstanding anything else provided
in this Agreement, Seller will be entitled to accept back-up
offers and back-up contracts contingent upon Buyer's rights under
this Agreement.
35. Confidentiality. Buyer acknowledges that all Confidential
Information is the confidential, proprietary, and commercial or
financial trade secret information of Seller, and Buyer agrees to
hold all Confidential Information in strict confidence. All
Confidential Information is and shall remain the sole property of
Seller and may be used only for the purposes set forth in this
Agreement. Buyer agrees that Buyer will not directly or
indirectly disclose, duplicate, reproduce, distribute,
disseminate, transmit, discuss, or otherwise communicate, either
verbally or in writing to any person or entity other than its
responsible shareholders, directors, officers, employees,
attorneys, accountants, consultants, agents, and other authorized
representatives (collectively "Authorized Persons") any
Confidential Information or documents or information derived from
Confidential Information, nor use or allow the use of any
Confidential Information for any purpose other than evaluating a
possible purchase of the Property from Seller. Prior to any such
disclosure Buyer shall inform the Authorized Persons by
instruction, agreement, or otherwise that the Confidential
Information is the confidential, proprietary, and trade secret
information of Seller and may not be further disseminated to
other persons or entities without prior written consent, which
must be requested from, and may be given or withheld at the sole
discretion of, Seller.
The term "Confidential Information" means any and all
documents or information received directly or indirectly at any
time by Buyer, verbally or in writing, from Seller relating to
Seller or the Property (the terms "Buyer" and "Seller" as used by
this Section shall include their respective subsidiaries,
affiliates, shareholders, directors, officers, employees,
attorneys, accountants, consultants, agents, or other
representatives and their successors and assigns).
36. Strict Construction. The rule of strict construction shall
not apply to this Agreement. This Agreement has been prepared by
Seller and its professional advisors and reviewed and modified by
Buyer and its professional advisors. Seller, Buyer, and their
separate advisors believe that this Agreement is the product of
all of their efforts, that it expresses their agreement, and that
it should not be interpreted in favor of or against either Seller
or Buyer merely because of their efforts in preparing it.
37. Tax Deferred Exchange. Seller and Buyer agree to cooperate
with each other in effecting for the benefit of either party a
delayed like-kind exchange of real property pursuant to Section
1031 of the United States Internal Revenue Code and similar
provisions of applicable state law; provided that (i) neither
party shall be obligated to delay the closing hereunder and (ii)
neither party shall be obligated to execute any note, contract,
deed or other document not otherwise expressly provided for in
this Agreement providing for any personal liability, nor shall
either party be obligated to take title to any property other
than the Property as otherwise contemplated in this Agreement or
incur additional expense for the benefit of the other party.
Each party shall indemnify and hold the other harmless against
any liability which arises or is claimed to have arisen on
account of any exchange proceeding which is initiated on behalf
of the indemnifying party.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.
SIGNATURES TO FOLLOW ON THE NEXT PAGE]
The parties have each caused this Real Estate Purchase Contract
to be executed on their behalf as of the date set forth beneath
their respective signatures below.
"SELLER"
COMMERCIAL NET LEASE REALTY,
INC., a Maryland corporation
By: /s/ Xxxxxx X Xxxxxxxxxx
Name: Xxxxxx X Xxxxxxxxxx
Title: Executive Vice President
Date: 11/18/05
"BUYER"
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
Name: Xxxxxx X Xxxxxxx
Title: President
Date: 11/16/2005
EXHIBITS ATTACHED
Exhibit "A" - Legal Description of Property
EXHIBIT "A"
LEGAL DESCRIPTION
Xxx 0 xx Xxxxxxxx Xxxxxxxx Xxxxxx Xxxxx 0 Unit 8, being a
subdivision in Section 16, Township 38 North, Range 9,
east of the third principal meridian, according to the
plat thereof recorded October 30, 1998 as Document No. R98-
226549, in DuPage County, Illinois.
