ASSIGNMENT
OF
PURCHASE AGREEMENT
THIS ASSIGNMENT made and entered into this 2 day of January,
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 Net
Lease Income & Growth Fund XX Limited Partnership, a Minnesota
Limited Partnership (as tenants in common, together collectively
referred to as "Assignee");
WITNESSETH, that:
WHEREAS, on the 24th day of November, 2003, Assignor entered
into a Purchase Agreement ("the Agreement") for that certain
property located at 0000 Xxxxxxx Xxxxx Xxxx., Xxxxxxx, XX (the
"Property") with TransMills, L.L.C., as Seller; and
WHEREAS, Assignor desires to assign to AEI Income & Growth
Fund XXI Limited Partnership, an undivided fifty percent (50.0%)
interest as a tenant in common; and AEI Net Lease Income & Growth
Fund XX Limited Partnership, an undivided fifty percent (50.0%)
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.
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, its President
ASSIGNEE:
AEI INCOME & GROWTH
FUND XXI LIMITED PARTNERSHIP
BY: AEI FUND MANAGEMENT XXI, INC.
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, its President
AEI NET LEASE INCOME & GROWTH
FUND XX LIMITED PARTNERSHIP
BY: AEI FUND MANAGEMENT XX, INC.
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, its President
AMENDMENT TO PURCHASE AGREEMENT
This Amendment to Purchase Agreement (the "Amendment") is
entered into this 2 day of January, 2004, by and between by and
between TRANSMILLS, L.L.C., a Nevada limited liability company
("Seller"), having an address at 0000 Xxxx Xxx Xxxxx Xxxxxxx,
Xxxxxxxxx, Xxxxxx 00000, and AEI Income & Growth Fund XXI Limited
Partnership, a Minnesota limited partnership, and AEI Net Lease
Income & Growth Fund XX Limited Partnership, a Minnesota limited
partnership (as tenants in common, together collectively referred
to as "Buyer"), having an address of 0000 Xxxxx Xxxxx Xxxxx, 00
Xxxxxxx Xxxxxx Xxxx, Xx. Xxxx, Xxxxxxxxx 00000.
WHEREAS, Seller and AEI Fund Management Inc., as buyer,
entered into a Purchase Agreement dated November 24, 2003, as
amended by a letter agreement dated December 23, 2003, as further
amended by a letter agreement dated January 9, 2004, as further
amended by a letter agreement dated January 16, 2004, as further
amended by a letter agreement dated January 20, 2004 (hereinafter
together collectively referred to as the "Purchase Agreement")
for property located at 0000 Xxxxxxx Xxxxx Xxxx., Xxxxxxx, XX
(the "Property").
WHEREAS, AEI Fund Management Inc. assigned its rights, title
and interest under the Purchase Agreement to AEI Income & Growth
Fund XXI Limited Partnership, an undivided fifty percent (50.0%)
interest as a tenant in common; and AEI Net Lease Income & Growth
Fund XX Limited Partnership, an undivided fifty percent (50.0%)
interest as a tenant in common, in that certain Assignment of
Purchase Agreement dated January 2, 2004.
WHEREAS, Seller and Buyer desire to modify certain
provisions of the Purchase Agreement as more fully set forth
herein.
NOW THEREFORE, in consideration of mutual covenants
contained herein, and for other valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Seller
and Buyer hereby agree as follows:
1. Purchase Price. Seller and Buyer hereby agree to modify
the Purchase Price as set forth in Section 2.1 of Purchase
Agreement, by deleting Four Million Four Hundred Forty Thousand
Dollars ($4,400,000) and inserting Three Million Nine Hundred
Twenty-Seven Thousand Six Hundred Dollars ($3,927,600.00) as the
Purchase Price.
2. Except for those modifications set forth in this Amendment,
the terms and conditions of the Purchase Agreement shall remain
unchanged and in full force and effect.
3. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, Seller and Buyer have executed this
Amendment as of the date first above written.
SELLER: TRANSMILLS L.L.C.,
a Nevada limited liability company
By: TransMills Management Corp.,
a Nevada corporation, its managing
member
By: /s/ Xxxxx X Xxxxxxxx
Name: Xxxxx X Xxxxxxxx
Title: Treasurer
[Signatures continue on the following page]
BUYER: 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 NET LEASE INCOME & GROWTH
FUND XX LIMITED PARTNERSHIP,
a Minnesota limited partnership
BY: AEI FUND MANAGEMENT XX, INC.,
a Minnesota corporation, its
General Partner
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 24 day
of November, 2003 (the "Effective Date") by and between
TRANSMILLS, L.L.C., a Nevada limited liability company
("Seller"), and AEI FUND MANAGEMENT, INC., a Minnesota
corporation, or its successors or assigns ("Buyer").
RECITALS:
A. Seller is the owner of that certain parcel of real
property located at 0000 Xxxxxxx Xxxxx Xxxxxxxxx, Xxxxxxx,
Xxxxxxxx, 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 Inc., an Ohio corporation ("Sterling")
pursuant to that certain lease agreement between Seller and
Sterling dated April 26, 2001, as amended November 1, 2001, and
that certain Guaranty of Lease executed by Sterling Jewelers Inc,
copies of which will be provided to Buyer within three (3) days
after the Effective Date (the "Lease").
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 and Payment.
2.1 Purchase Price. The purchase price for the
Property will be Three Million Nine Hundred Forty-Eight
Thousand Dollars ($3,948,000) (the "Purchase Price").
2.2 Payment. The Purchase Price shall be paid as
follows:
(a) Deposit.
(1) Deposit. Buyer will deposit the
amount of Fifty Thousand Dollars ($50,000) into
escrow with First American Title Company of Nevada
("Escrow Holder") as Buyer's deposit (the
"Deposit") within two (2) days 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 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 ON THE EFFECTIVE DATE AND EXPIRE THIRTY (30) DAYS
THEREAFTER, EXCEPT AS OTHERWISE SET FORTH HEREIN RESPECTING
MATTERS OF ADVERSE CHANGE OR MATERIALLY ADVERSE INFORMATION
("SUPPLEMENTAL DUE DILIGENCE") AFFECTING THE REPORTS (AS DEFINED
BELOW), WHICH SUPPLEMENTAL DUE DILIGENCE IF KNOWN TO SELLER 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. SELLER HAS, PRIOR TO THE
EXECUTION OF THIS AGREEMENT, WITHOUT WARRANTY AS TO ACCURACY OF
CONTENT, EXCEPT AS OTHERWISE SET FORTH HEREIN, PROVIDED 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, SURVEYS, SOILS REPORTS, SITE HISTORY
INVESTIGATIONS, COPIES OF STERLING'S SALES REPORTS FOR THE
PROPERTY, TOXIC OR HAZARDOUS MATERIALS INVESTIGATIONS OR REPORTS,
PLANNING STUDIES, CONSTRUCTION WARRANTIES, AND TITLE REPORTS IN
SELLER'S POSSESSION (COLLECTIVELY THE "REPORTS").
4.2 Expiration of Due Diligence Period. Buyer shall,
in its sole discretion, 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 ten
(10) days after expiration of the Due Diligence Period
(the "Closing Date").
(b) Close of Escrow Defined. "Close of Escrow"
will have occurred when Escrow Holder records a special
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, Seller shall, at its expense,
provide Buyer with 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 valid 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 Title Company 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 pursuant to 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, Title Company 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 the State
of Nevada 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, based on the Environmental Site Assessment
Report prepared by Professional Service
Industries, Inc. dated November 7, 2000 and the
Subsurface Exploration and Geotechnical
Evaluations prepared by Professional Service
Industries, Inc. dated November, 2000
(collectively, the "Environmental Report"), and
except as disclosed in the Environmental Report,
no hazardous materials (as described in such
report) 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 Xxx Xxxxxxxx, Xxxx Xxxxxxxxx, Xxxx Xxxxxxxx or
Xxxxx Xxxxxxx. 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 Sterling
has obtained all licenses, permits and
certificates of occupancy necessary to conduct its
business on the Property. To Seller's Actual
Knowledge, Sterling 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 Sterling in material default under the
Lease. Furthermore, Sterling Jewelers Inc. 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 Guaranty of Sterling Jewelers
Inc., nor is Sterling Jewelers Inc. in material
default under the Guaranty.
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. From the Effective Date through and
including the Closing 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 agrees that,
in making any inspections of the Property, Buyer or Buyer's
agents 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
to make such inspection, 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 or as required by
law or court order) 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
reasonable 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 or its
agents or representatives 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 following (but only as such may be in the
Seller's or Seller's agents' or representatives' possession or
control or are otherwise readily obtainable):
9.3.1 A preliminary title commitment and
copies of all underlying documents covering the
Property as set forth in Section 6 above, and in
addition, including an ALTA survey of the
Property;
9.3.2 All existing contracts, construction
warranties, or other agreements affecting the
Property that shall survive Closing;
9.3.3 Copies of the most recent Phase I
Environmental Report with respect to the Property;
and
9.3.4 Drawings, plans or specifications for
Improvements.
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, 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, Title Company shall
return the Deposit to Buyer, less one-half of the Title Company'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 special warranty deed (the "Deed"), which Deed
shall convey fee simple title to the Property to
Buyer, subject to the Permitted Exceptions and the
reservations, covenants and restrictions set forth
in Exhibit C attached hereto and made a part
hereof (the "Deed Restrictions"). The Deed
(including the Deed Restrictions) 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
Title Company 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, including, but not limited
to, an Assignment of Lease, Assignment of
Warranties, Permits, Plans and
Specifications, if any, and any other
documents as are customarily executed and
delivered at closing by sellers of real
property in Xxxx Arundel County, Maryland
(the "County"), 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 and Guaranty 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 Sterling and
Sterling Jewelers Inc. in the form attached
hereto as Exhibit D, dated no more than ten
(10) 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 (i) the fees and
expenses of Seller's attorneys, (ii) the transfer
and recordation tax due with respect to the Deed
by which the Property is conveyed to Buyer, (iii)
such recording fees and filing fees for all
recordable instruments necessary to clear title to
the Property of any Secured Encumbrances and any
other Title Objections that Seller has agreed to
remove, (iv) one-half of any escrow fees charged
by Title Company, (v) prorated taxes and
assessments and other charges as may be applicable
to the Property; (vi) the cost of providing a
standard ALTA Owner's Policy of Title Insurance to
Buyer, (vii) real estate commissions payable to
Brokers, as set forth in Section 11.1 of this
Agreement, and (viii) any other amounts sufficient
to cover costs which are customarily borne by
sellers of real property in the County. In
addition, Seller shall instruct Escrow Holder to
make appropriate adjustments for prepaid rent and
security deposits, if any.
10.2.2 Buyer shall pay (i) the fees and
expenses of Buyer's attorneys, (ii) the cost of
recording the Grant Deed, (iii) any other charges
relating to Buyer's inspection of the Property,
(iv) one-half of any escrow fees charged by Title
Company, (v) prorated taxes and assessments and
other charges as may be applicable to the
Property, except to the extent payable by
Sterling; (vi) real estate commissions payable to
Brokers, as set forth in Section 10.1 of this
Agreement, and (vii) any other amounts sufficient
to cover costs which are customarily borne by
buyers of real property in Xxxx Arundel County,
Maryland.
11. Real Estate Brokers.
11.1 Commission. Seller shall pay at Closing real
estate commissions in the total amount of three and one-half
percent (3.5%) of the Purchase Price to Marcus & Millichap
(the "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 reasonable 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 reasonable 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 shall be entitled, as
Buyer's sole and exclusive remedies, (i) to terminate this
Agreement, receive the Deposit and receive reimbursement of
Buyer's due diligence costs up to the date of Seller's breach or
(ii) to seek specific performance of this Agreement against
Seller.
Notwithstanding anything in this Section 12.1 to the
contrary, in the event of any default by Seller hereunder other
than in Seller's obligations to sell the Property, there shall be
no limitation on remedy with respect to such default, and Buyer
shall have all of its rights and remedies available at law or in
equity with respect to such default.
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, as
Seller's sole and exclusive remedy with respect thereto, to
unilaterally direct Title Company in writing (with a copy to
Buyer), to pay the Deposit to Seller as full liquidated damages
for such default of Buyer. Buyer and Seller agree to indemnify
and hold Title Company 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. The parties hereto expressly acknowledge that
it is impossible to estimate more precisely the damages to be
suffered by Seller upon Buyer's default in its obligation to
purchase the Property, and that retention of the Deposit is
intended not as a penalty, but as full liquidated damages. The
parties further acknowledge that the amount of the Deposit is a
reasonable estimate by the parties of the amount of probable loss
that Seller should be expected to suffer in the event the sale
and purchase of the Property is not closed because of Buyer's
default. Seller's right to retain the Deposit as full liquidated
damages is Seller's sole and exclusive remedy in the event of
default hereunder by Buyer with respect to its obligation to
purchase the Property, and Seller hereby waives and releases any
right to (and hereby covenants that it shall not) xxx Buyer (i)
for specific performance of this Agreement or (ii) to prove that
Seller's actual damages resulting from such default exceed the
Deposit which is hereby provided Seller as full liquidated
damages. In the event the purchase and sale contemplated in this
Agreement is not consummated because of Buyer's default, Buyer
hereby waives and releases any right to xxx (and hereby covenants
that it shall not xxx) Seller or Title Company to recover the
Deposit or any part thereof on the grounds that it is
unreasonable in amount or that its retention by Seller is a
penalty and not agreed upon and reasonable liquidated damages.
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 Maryland, 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: TransMills, L.L.C.
0000 Xxxx Xxx Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Xx.
Fax: (000) 000-0000
with a copy to: TransMills, L.L.C.
0000 Xxxx Xxx Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxx 00000
Attention: General Counsel
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
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 Title Company: First American Title Company of Nevada
000 Xxxxx Xxxxxxxx Xxxxxx Xxxxx #000
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
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. 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, the
direct or indirect partners of Seller or the members of Seller or
their respective officers, directors, trustees, advisors,
members, agents, shareholders, employees, or contractors, 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. The provisions of this Section 27 shall
survive Closing.
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. Seller agrees that it will
cooperate, without cost or expense to Seller, with Buyer in
effectuating an Internal Revenue Service Section 1031 Exchange
with this Property, provided (a) Seller will not be required to
take title to any exchange property and (b) the exchange does not
delay Closing.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have duly signed,
sealed and delivered this Agreement as of the date first written
above.
SELLER:
TRANSMILLS, L.L.C.,
a Nevada limited liability company
By: TransMills Management Corp.,
a Nevada corporation, its Managing
Member
By: /s/ Xxxxx X Xxxxxxxx
Name: Xxxxx X Xxxxxxxx
Title: Treasurer
Date of Execution:November 24, 2003
BUYER:
AEI FUND MANAGEMENT, INC.,
a Minnesota corporation
By: /s/ Xxxxxx X Xxxxxxx
Name: Xxxxxx X Xxxxxxx
Title: President
Date of Execution: November 21, 2003
CONSENT OF ESCROW HOLDER
Escrow Holder hereby agrees to be bound by and perform its
duties in accordance with the foregoing instructions.
FIRST AMERICAN TITLE COMPANY OF
NEVADA
Date: December 1, 2003 By: /s/ Xxxxxx Xxxxxxxxxx
Name:Xxxxxx Xxxxxxxxxx
Title: Commercial Escrow Officer
EXHIBIT A
CSI File No. 001658 Policy No. 001658
All that certain lot, piece, or parcel of land, together with the
improvements thereon, situate in Xxxx Arundel County, Maryland,
and being more particularly described as follows:
Xxx 0, Xxxxx E, as shown on the plat dated November 2000,
entitled "Administrative Plat Regional Commercial Complex Arundel
Xxxxx" and recorded in Plat Book 232 pages 31 through 41.
TOGETHER WITH the easements, covenants and restrictions
benefiting the above described property as contained in the
following instruments:
1. Master Development Agreement recorded in Liber 9247 at
folio 1. Notice and Reconfirmation dated December 1, 1999
by and between Arundel Xxxxx Limited Partnership,
Dorchester Associates, L.L.C., Dorchester Limited
Partnership, Piney-100 Land Limited Partnership and Xxxx
Property Limited Partnership, recorded in Liber 9798 at
page 381.
2. Memorandum of Agreement between Dorchester Limited
Partnership, Piney-100 Land Limited Partnership and Arundel
Xxxxx Limited Partnership dated November 30, 1999, recorded
December 1, 1999 in Liber 9529 at folio 394.
3. Arundel Xxxxx Master Declaration of Easements, Covenants,
Conditions and Restrictions dated May 9, 2000, made by
Arundel Xxxxx Limited Partnership and Arundel Xxxxx
Residual Limited Partnership, and recorded in Liber 9769 at
folio 701. As amended by First Amendment to Master
Declaration of Easements, Covenants, Conditions and
Restrictions dated August 23, 2000, recorded in Liber 9917
at folio 492. As amended by Second Amendment to Master
Declaration of Easements, Covenants, Conditions and
Restrictions dated December 11, 2000 and recorded December
14,2000 in Liber 10086 at folio 678.
4. Restrictive Covenant and Easement Agreement (Sewer
Facilities) dated November 30, 1999, by and between Arundel
Xxxxx Limited Partnership, Dorchester Associates, L.L.C.,
Xxxx Property Limited Partnership, Dorchester Limited
Partnership and Piney-100 Land Limited Partnership, and
recorded in Liber 9798 at folio 108.
5. Restrictive Covenant (Disclosure of Future Development)
dated November 30, 1999, by and between Dorchester
Associates, L.L.C., Dorchester Limited Partnership, Piney-
100 Land Limited Partnership, Xxxx Property Limited
Partnership and Arundel Xxxxx Limited Partnership, and
recorded in Liber 9798 at folio 226.
6. Restrictive Covenant (Future Development Use Restrictions)
dated November 30, 1999, by and between Dorchester
Associates, L.L.C., Dorchester Limited Partnership, Piney-
100 Land Limited Partnership, Xxxx Property Limited
Partnership and Arundel Xxxxx Limited Partnership, and
recorded in Liber 9798 at folio 284.
7. Deed vesting title in the Insured, as recorded in Liber
10108 at folio 639.
A portion of tax account number:00-000-00000000.
A.LTA 1992 Owners Policy
