ASSIGNMENT AND ASSUMPTION
OF
PURCHASE AND SALE AGREEMENT
THIS ASSIGNMENT made and entered into this 24th day of
May, 2006, by and between AEI FUND MANAGEMENT, INC., a
Minnesota corporation, ("Assignor") and AEI INCOME & GROWTH
FUND 24 LLC, a Delaware limited liability company, whose
corporate managing member is AEI Fund Management, XXI, Inc., a
Minnesota corporation, and AEI INCOME & GROWTH FUND 26 LLC, a
Minnesota limited partnership, whose corporate managing member
is AEI Fund Management XXI, Inc., a Minnesota corporation (as
tenants in common, together collectively referred to as
"Assignee");
WITNESSETH, that:
WHEREAS, on the 9th day of March, 2006, Assignor entered
into an Purchase and Sale Agreement (hereinafter referred to
as the "Agreement") for that certain property located at 00
Xxxxx Xxxxxxxxxx Xxxx., Xxxxxxxxxx, Xxxx which is more
particularly described within the Agreement, (the "Property")
with Blue Xxxx Partner LLC, a Ohio limited liability company,
as Seller; and
WHEREAS, Assignor desires to assign its right, title and
interest in and to the Agreement regarding the Property to AEI
Income & Growth Fund 24 LLC, an undivided forty-five percent
(45.0%) interest as a tenant in common, and AEI Income &
Growth Fund 26 LLC, an undivided fifty-five percent (55.0%) as
a tenant in common, and Assignee desires to assume all of
Assignor's rights, title and interest in, to and under the
Agreement regarding the Property 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 regarding the Property 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 regarding the
Property 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
Name: Xxxxxx X Xxxxxxx
Title: President
ASSIGNEE:
AEI INCOME & GROWTH FUND 24 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
AEI INCOME & GROWTH FUND 26 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
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
("Amendment") is made and entered into by and between BLUE XXXX
PARTNERS, LLC, an Ohio limited liability company ("Seller") and
AEI FUND MANAGEMENT, INC., a Minnesota corporation ("Buyer").
WITNESSETH:
WHEREAS, the Seller and the Buyer entered into that certain
Purchase and Sale Agreement dated March 9, 2006 (the
"Agreement"), for the sale and purchase of real property located
at 00 Xxxxx Xxxxxxxxxx Xxxx., Xxxxxxxxxx, XX 00000, said Property
being more particularly described in the Agreement.
WHEREAS, Seller and Buyer hereby agree to amend the
Agreement on the terms and conditions hereinafter appearing.
NOW THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the
sufficiency and receipt of which is hereby acknowledged, the
parties hereby amend the Agreement and agree as follows:
1. Purchase Price. Section 4 of the Agreement is hereby
amended to provide that the purchase price for the Property is
$1,820,400 (the "Purchase Price").
2. Except as amended or modified by this Amendment, all
terms and conditions of the Agreement shall remain unchanged and
in full force and effect. In the event of any conflict between
the terms and conditions of the Amendment and those of the
Agreement, this Amendment shall be controlling.
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.
[SIGNATURES TO CONTINUE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, Buyer and Seller have entered into this
Amendment on this 5th day of April, 2006.
"SELLER"
BLUE XXXX PARTNERS, LLC
By: /s/ Xxxxx X Xxxxxxxxxx
Its: Authorized Member
"BUYER"
AEI FUND MANAGEMENT, INC.
By: /s/ Xxxxxx X Xxxxxxx
Name: Xxxxxx X Xxxxxxx
Title: President
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (the "Agreement")
entered into as of this 9th day of March, 2006, by and
between BLUE XXXX PARTNERS, LLC, an Ohio limited liability
company (the "Seller") and AEI FUND MANAGEMENT, INC., a
Minnesota corporation, or its assigns (the "Buyer"). The
date on which last party hereto executes this Agreement is
hereafter referred to as the "Effective Date".
In consideration of the mutual covenants set forth herein
and other good and valuable consideration, the receipt and
sufficiency of which are herby mutually acknowledged, the
parties hereto covenant and agree as follows:
1. PROPERTY. Seller is the owner of a parcel of
real property, with all improvements thereon, known generally
as an Advance Auto Parts store located at 00 Xxxxx Xxxxxxxxxx
Xxxx., Xxxxxxxxxx, Xxxx 00000, currently leased for use as an
auto parts store, such property being more particularly
described on Exhibit "A" attached hereto (collectively, the
"Property"). The Property includes all of Seller's rights and
interests in and to all buildings and other improvements on or
within or appurtenant thereto, including easements, covenants,
and such warranties as Seller may own and that are assignable.
Seller wishes to sell and Buyer wishes to purchase the
Property on the terms and conditions set forth herein.
2. LEASE. The Property is being sold subject to an
existing Lease of the Property, dated July 22, 2004 (the
"Lease") by and between Seller, as lessor, and Advance Stores
Company, Incorporated, as lessee (the "Tenant"). Buyer shall
have the right to review and approve such Lease during the Due
Diligence Period, in Buyer's sole discretion.
3. CLOSING DATE. The closing date on the Buyer's
purchase of the Property shall be fifteen (15) business days
from the expiration of the Due Diligence Period, as defined in
Section 8 below, or 10 business days from the expiration of
the Adverse Change Review Period, if any should be occasioned
as set forth below in Section 8.03, whichever is later (the
"Closing Date"). However, the Closing Date may be extended
pursuant to the provisions of Section 6.
4. PURCHASE PRICE. The purchase price for the Property
is $1,830,400.00 (the "Purchase Price"), If all conditions
precedent to Buyer's obligations to purchase have been
satisfied, Buyer shall deposit the Purchase Price with the
Closing Agent as defined below, on or before the Closing Date.
Within three (3) business days of Effective Date of this
Agreement, Buyer will deposit $25,000.00 (the "Xxxxxxx Money")
in an interest bearing account with Chicago Title Insurance
Company, 00 X. 0xx Xxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxx
00000, Attn: Xxxx Xxxxxxx (the "Closing Agent" or "Title
Company").
If for any reason this Agreement is terminated prior to
the expiration of the Due Diligence Period, or the Adverse
Change Review Period, if such occurs because of the
unanticipated occurrence of Adverse Change Due Diligence
Documents as defined below in Section 8.03, then the Xxxxxxx
Money and any interest accrued thereon shall be immediately
returned to Buyer. If the transaction contemplated hereby
proceeds to Closing, the Xxxxxxx Money shall be paid to Seller
at Closing and Buyer shall receive a credit against the
Purchase Price payable hereunder in the amount of the Xxxxxxx
Money plus interest accrued thereon. If the Buyer does not
terminate this Agreement as set forth herein, the Xxxxxxx
Money shall thereafter be deemed non-refundable, except to the
extent any of the contingencies to Buyer's performance
hereunder (including without limitation, Seller's performance
of its obligations hereunder) shall not be satisfied.
The balance of the Purchase Price in cash is to be
deposited by Buyer into an escrow account with the Closing
Agent on or before the Closing Date.
5. ESCROW. Escrow shall be opened by Seller with the
Closing Agent upon execution of this Agreement. A copy of this
Agreement will be delivered to the Closing Agent by Seller and
will serve as escrow instructions together with any additional
instructions required by Seller and/or Buyer or their
respective counsels. Seller and Buyer agree to cooperate with
the Closing Agent and sign any additional instructions
reasonably required by the Closing Agent to close escrow. If
there is any conflict between any other instructions and this
Agreement, this Agreement shall control.
6. TITLE. Seller shall order upon the Effective Date
of this Agreement, at its sole expense, a commitment for an
ALTA Owner's Policy of Title Insurance (most recent edition)
issued by the Closing Agent (the "Title Company"), insuring
marketable title in the Property, subject only to such matters
as Buyer may approve and contain such endorsements as Buyer
may require that are available for a property in Ohio,
including extended coverage and owner's comprehensive coverage
(the "Title Commitment"). The Title Commitment shall show
Seller as the present fee owner of the Property and show Buyer
as the fee owner to be insured.
The Title Commitment shall also include:
a) an itemization of all outstanding and pending special
assessments and an itemization of taxes affecting the Property
and the tax year to which they relate;
b) shall state whether taxes are current and if not, show
the amounts unpaid;
c) the tax parcel identification numbers and whether the
tax parcel includes property other than the Property to be
purchased.
All easements, restrictions, documents and other items
affecting title shall be listed in Schedule "B" of the Title
Commitment. Copies of all instruments creating such
exceptions must be attached to the Title Commitment.
Buyer shall be allowed ten (10) business days after
receipt of the Title Commitment and copies of all underlying
documents or until the end of the Due Diligence Period,
whichever is later to be consistent with Section 8.01 hereof,
for examination and the making of any objections thereto, said
objections to be made in writing or deemed waived. If any
objections are so made, the Seller shall be allowed thirty
(30) days to cure such objections or in the alternative to
obtain a commitment for insurable title insuring over Buyer's
objections. If Seller shall decide to make no efforts to cure
Buyer's objections, or is unable to obtain insurable title
within said thirty (30) day period, Buyer may terminate this
Agreement by written notice to Seller within three (3) days
after the expiration of said thirty (30) day period and this
Agreement shall be null and void and of no further force and
effect (and the Xxxxxxx Money shall be returned in full to
Buyer immediately and neither party shall have any further
duties or obligations to the other hereunder).
The Buyer shall also have five (5) business days to
review and approve any easement, lien, hypothecation or other
encumbrance placed of record affecting the Property after the
date of the Title Commitment. If necessary, the Closing Date
shall be extended by the number of days necessary for the
Buyer to have Five (5) business days to review any such items.
Such Five (5) business day review period shall commence on the
date the Buyer is provided with a legible copy of the
instrument creating such exception to title.
The Seller agrees to inform the Buyer of any item executed by
the Seller placed of record affecting the Property after the
date of the Title Commitment. If any objections are so made,
the Seller shall be allowed thirty (30) days to cure such
objections or in the alternative to obtain a commitment for
insurable title insuring over Buyer's objections. If Seller
shall decide to make no efforts to cure Buyer's objections, or
is unable to obtain insurable title within said thirty (30)
day period, Buyer may terminate this Agreement by written
notice to Seller within three (3) days after the expiration of
said thirty (30) day period and this Agreement shall be null
and void and of no further force and effect (and the Xxxxxxx
Money shall be returned in full to Buyer immediately and
neither party shall have any further duties or obligations to
the other hereunder).
7. SITE INSPECTION. As a condition precedent to
Buyer's obligations hereunder, the Property shall be inspected
and approved by Buyer, in Buyer's sole discretion. Said
inspection shall be completed within the Due Diligence Period,
and Buyer shall provide Seller with its written notice of any
disapproval of the Premises prior to, the expiration of the
Due Diligence Period. If Buyer fails to provide its written
notice of disapproval prior to expiration of the due diligence
period, the condition precedent set forth in this Section 7
shall be deemed waived by Buyer.
8. DUE DILIGENCE AND DUE DILIGENCE PERIODS.
8.01 Due Diligence Documents and Due Diligence Period.
Buyer shall have thirty-five (35) days from the full execution
of this Agreement (the "Due Diligence Period") to conduct all
of its inspections, due diligence and review to satisfy itself
regarding each item, the Property and this transaction. The
following Due Diligence Documents, to the extent such
documents are in Seller's possession, are to be delivered by
Seller at Seller's expense (unless specifically designated
herein to be obtained by Buyer), to Buyer within five (5) days
of the full execution of this Agreement:
a) Copy of Seller's existing Owner's Title Policy for the
Property with copies of its underlying documents that are in
Seller's possession;
b) Copy of any survey of the Property. Buyer shall within
five (5) business days after receipt of Seller's survey to, at
its own expense, order an updated ALTA survey if Buyer shall
desire such. Buyer shall have the Due Diligence Period to
review and approve the updated ALTA survey;
c) A copy of the package submitted to Tenant upon completion
of the improvements on the Property and a copy of Tenant's
Project Acceptance Letter;
d) A complete copy of the Lease, along with and any
amendments thereto, including but not limited to lease
amendments, commencement date agreements, memorandum of lease,
assignments of lease and/or letter agreements;
e) Copy of any Phase I environmental report completed by
Seller for the Property. Buyer shall be responsible for
obtaining an updated Phase I environmental report, at its sole
expense, and shall have until the end of the Due Diligence
Period to review and approve of the same;
f) Any zoning information concerning the current zoning of
the Property;
g) Copy of the Tenant's insurance certificate for the
Property;
h) Copy of the soils report;
i) Copy of the Certificate of Occupancy from the governing
municipality;
j) Copy of the Certificate of Substantial Completion
executed by the project architect and/or general contractor
for the improvements;
k) Copies of the existing final building plans and
specifications for the improvements on the Property;
l) Copies of any and all certificates, permits, licenses and
other authorizations of any governmental body or authority
which are necessary to permit the use and occupancy of the
improvements;
m) Copy of the most recent real estate tax statement for the
Property;
n) A copy of the existing store sales of the Property for
the last six months, and if currently in Seller's possession,
the store sales numbers for the last three years, or the
number of years the store has been open if less than three
years;
o) A rent accounting for the last twelve (12) months showing
when Seller received each check from Tenant;
p) Proposed Limited Warranty Deed; and
q) Copy of the warranty for the roof.
(All of the above described documents (a) through (q) are
hereinafter collectively the "Due Diligence Documents"). The
Due Diligence Documents shall be sent under cover of
correspondence from Seller to Buyer advising Buyer of which of
the Due Diligence Documents are not being provided because
they are not in Seller's possession.
After receipt and review of the Due Diligence Documents
or after Buyer's inspection of the Property, Buyer may cancel
this Agreement for any reason, in its sole discretion, by
delivering a cancellation notice, return receipt requested, to
Seller and Closing Agent on or before the expiration of the
Due Diligence Period and the Xxxxxxx Money shall be returned
in full to Buyer immediately and neither party shall have any
further duties or obligations to the other hereunder. Such
notice shall be deemed effective upon receipt by Seller.
If notice of termination is not given on or before the
expiration of the Due Diligence Period, all such matters shall
be deemed acceptable and all such conditions satisfied and/or
waived and the right to termination under Section 8.01 shall
be extinguished and the Xxxxxxx Money shall be non-refundable
to Buyer and Closing Agent shall release the Deposit to
Seller, except in the event: of Seller's default; based upon
receipt of materially adverse information as set forth in
Section 8.03; or except as otherwise set forth herein, in
which case the Xxxxxxx Money shall be returned to Buyer.
8.02 Form of Closing Documents. Prior to the end of the
Due Diligence Period, Seller shall, at its sole expense,
provide to Buyer the following documents, and Seller and Buyer
shall agree on the form of the following documents to be
delivered to Buyer on the Closing Date by Seller as set forth
in Section 14 hereof:
(a) Limited warranty deed;
(b) Seller's Affidavit;
(c) FIRPTA Affidavit;
(d) Assignment and Assumption of the Lease, wherein Seller
shall indemnify Buyer from and against any and all obligations
accruing under the Lease prior to the Closing Date and Buyer
shall indemnify Seller from and against any and all
obligations accruing under the Lease from and after the
Closing Date;
(e) Assignment of warranties in the form as attached hereto
and incorporated herein as Exhibit "B"; and
(f) Estoppel from Tenant, in the form as attached hereto and
incorporated herein as Exhibit "C".
In the event that Seller and Buyer do not reach mutual
agreement on the form of the above described documents (a)
through (f) prior to the end of the Due Diligence Period, this
Agreement may be terminated by either Seller or Buyer and the
Xxxxxxx Money shall be returned in full to the Buyer
immediately and neither party shall have any further duties or
obligations to the other hereunder.
8.03 Adverse Change Due Diligence Documents and Adverse
Change Review Period. As soon as available, but in any event
no later than at least ten (10) business days prior to the
Closing Date (the "Adverse Change Review Period"), Seller
shall deliver to Buyer the following items for review and
acceptance:
(a) Any documents or written summary of facts known to Seller
that materially change or render incomplete, invalid, or
inaccurate any of the Due Diligence Documents (collectively,
if any, the "Adverse Change Due Diligence Documents").
Buyer shall have ten (10) business days to examine and to
accept all of the above-described Adverse Change Due Diligence
Documents. After Buyer's receipt and review of the Adverse
Change Due Diligence Documents, Buyer may cancel this
Agreement if any of the Adverse Change Due Diligence Documents
are not acceptable to Buyer, in its sole discretion, by
delivering a cancellation notice, as provided herein, to
Seller and Closing Agent prior to the end of the Adverse
Change Review Period. Such notice shall be deemed effective
upon receipt by Seller. If Buyer so terminates this Agreement,
the Xxxxxxx Money shall be returned in full to Buyer
immediately and thereafter neither party shall have any
further duties or obligations to the other hereunder.
It shall be a condition precedent to Buyer's obligations
to close hereunder that there have been no material changes in
any of the information reflected in the Due Diligence
Documents or Adverse Change Due Diligence Documents after the
date of such document and prior to closing.
Until this Agreement is terminated or the Closing has
occurred, the Seller shall deliver to the Buyer any
documentation that comes in the Seller's possession that
modifies any of the Due Diligence Documents or Adverse Change
Due Diligence Documents, including the Lease and the Guaranty,
or could render any of the Due Diligence Documents or Adverse
Change Due Diligence Documents materially inaccurate,
incomplete or invalid. The Buyer shall, in any event, have
five (5) business days before the Closing Date to review any
such document and, if necessary, the Closing Date shall be
extended by the number of days necessary for the Buyer to have
five (5) business days to review any such document or
documents.
9. CLOSING COSTS. Seller shall pay the following costs of
closing, including, but not limited to, one-half of the
recording costs associated with the Limited Warranty Deed and
Assignment and Assumption of Lease, one-half of the transfer
taxes and/or transfer fees, one-half of any and all escrow
fees charged by the Closing Agent, cost of deed preparation,
any and all brokerage commissions owed by Seller to Calkain
Companies, Inc., the costs of the updated title
commitment/search, the costs of the Owner's Title policy
premium, and all costs associated with recording any
document(s) or instrument(s) necessary to cure any title
objections raised by Buyer and which Seller agrees to cure.
Buyer shall pay the following costs of closing, including
but not limited to, one-half of the transfer taxes and/or
transfer fees, one-half of the recording costs associated with
the Limited Warranty Deed and Assignment and Assumption of
Lease, one-half of any and all escrow fees charged by the
Closing Agent, and any and all costs associated with obtaining
its required endorsements to the Owner's Title Policy. At
Closing, Buyer shall reimburse Seller in the amount of $333.33
for the cost of the Owner's Title policy premium.
Each party will pay its own attorneys' fees to close this
transaction.
10. REAL ESTATE TAXES AND ASSESSMENTS. To Seller's
actual knowledge, all real estate taxes and installments of
special assessments due and payable on or before the Closing
Date have been or will be paid in full as of the Closing Date.
11. PRORATIONS. The Buyer and the Seller, as of the
Closing Date, shall prorate: (i) all rent due under the Lease,
if any, (ii) ad valorem taxes, personal property taxes,
charges or assignments affecting the Property (on a calendar
year basis), (iii) utility charges, including charges for
water, gas, electricity, and sewer, if any, (iv) other
expenses relating to the Property which have accrued but not
paid as of the Closing Date, based upon the most current
ascertainable tax xxxx and other relevant billing information,
including any charges arising under any of the encumbrances to
the Property. To the extent that information for any such
proration is not available on the Closing Date or if the
actual amount of such taxes, charges or expenses differs from
the amount used in the prorations at closing, then the parties
shall make any adjustments necessary so that the prorations at
closing are adjusted based upon the actual amount of such
taxes, charges or expenses. The parties agree to make such
reprorations as soon as possible after the actual amount of
real estate taxes, charges or expenses prorated at closing
becomes available. This provision and the respective
obligations of the parties shall survive Closing.
12. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller
represents and warrants as of this date and to the best of
Seller's actual knowledge, without investigation or inquiry
that:
(a) Except for the Lease between Seller and Tenant, and
those matters disclosed in the materials delivered
to Buyer pursuant to Sections 6 and 8, it is not
aware of any other leases with respect to the
Property.
(b) Seller has all requisite power and authority to
consummate the transaction contemplated by this
Agreement and has by proper proceedings duly
authorized the execution and delivery of this
Agreement and the consummation of the transaction
contemplated hereunder.
(c) It does not have any actions or proceedings pending,
which would materially affect the Property or Tenant
or Guarantor, except matters fully covered by
insurance;
(d) The consummation of the transactions contemplated
hereunder, and the performance of this Agreement and
the delivery of the limited warranty deed to Buyer,
will not result in any breach of, or constitute a
default under, any instrument to which Seller is a
party or by which Seller may be bound or affected;
(e) Intentionally deleted;
(f) The Property is in good condition, substantially
undamaged by fire and other hazards, and has not
been made the subject of any condemnation
proceeding;
(g) The use and operation of the Property now is in full
compliance with applicable local, state and federal
laws, ordinances, regulations and requirements;
(h) The Property is not in violation of any federal,
state or local law, ordinance or regulations
relating to industrial hygiene or to the
environmental conditions, on, under or about the
Property. For purposes of this Section 12(h),
Seller's "actual knowledge" shall mean the
information set forth in that certain Phase I
Environmental Assessment prepared by Xxxxxxx
Environmental, Inc. and dated December 8, 2003;
(i) There is no proceeding by any governmental authority
with respect to the presence of hazardous materials
on the Property or the migration of hazardous
materials to other property; and
(h) These Seller's representations and warranties deemed
to be true and correct as of the Closing Date. If
the Seller shall notify Buyer of a change in its
representation and warranties prior to the Closing
Date, the Buyer shall get five (5) business days to
review such change and terminate this Purchase
Agreement if Buyer deems necessary. If Buyer so
terminates this Agreement, the Xxxxxxx Money shall
be returned in full to Buyer immediately.
These representations and warranties shall survive the
Closing for a period of ninety (90) days.
13. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer
represents and warrants to Seller that:
(a) Buyer has all requisite power and authority to
consummate the transaction contemplated by this
Agreement and has by proper proceedings duly
authorized the execution and delivery of this
Agreement and the consummation of the transaction
contemplated hereunder;
(b) Neither the execution and delivery of this Agreement
nor the consummation of the transaction contemplated
hereunder will violate or be in conflict with any
agreement or instrument to which Buyer is a party or
by which Buyer is bound;
These Buyer's representations and warranties deemed to be
true and correct as of the Closing Date and shall survive the
Closing for a period of ninety (90) days.
14. CLOSING.
(a) On or before the Closing Date, with simultaneous
copy to Buyer, Seller will deposit into escrow with the
Closing Agent the following documents on or before the Closing
Date:
(1) A limited warranty deed conveying title to the Property
to Buyer, in form and substance as agreed to between Seller
and Buyer during the Due Diligence Period;
(2) Estoppel letter from Tenant, in form attached hereto as
Exhibit "C";
(3) Affidavit of Seller, in form and substance as agreed to
between Seller and Buyer during the Due Diligence Period;
(4) FIRPTA Affidavit, in form and substance as agreed to
between Seller and Buyer during the Due Diligence Period;
(5) Seller's counterpart to the Assignment and Assumption of
the Lease, in form and substance as agreed to between Seller
and Buyer during the Due Diligence Period;
(6) Assignment and assumption of warranties in the form and
substance as attached hereto and incorporated herein as
Exhibit "B";
(7) The original Lease, and originals of any and all
documentation modifying the Lease, including but not limited
to: lease amendments, commencement agreements, memorandum of
lease, assignments of lease and/or letter agreements;
(8) Tenant's Certificate of Insurance naming Buyer as
additional insured and/or loss payee, as required by the
Lease;
(9) A down dated title commitment for an Owner's Title
Insurance Policy; reflecting only permitted exceptions
approved by Buyer during the Due Diligence Period and
including all endorsements required by Buyer;
(10) A letter from Seller to Buyer itemizing (in percentages
totaling 100%), the following percentages of costs of the
Property: land acquisition, soft costs, building
construction, and site work; and
(11) Notice of Sale to Tenant.
(b) On or before the Closing Date, Buyer will deposit the
following: i) the Purchase Price with the Closing Agent; and
ii) its counterpart to the Assignment and Assumption of Lease.
(c) Both parties will sign and deliver to the Closing Agent
any other documents reasonably required by the Closing Agent
and/or the Title Company, including, but not limited to a
settlement statement.
15. TERMINATION. This Agreement may be terminated prior
to closing at Buyer's option (AND THE XXXXXXX MONEY RETURNED
TO BUYER IN FULL IMMEDIATELY) in the event of any of the
following occurrences:
(a) Seller fails to comply with any term of this
Agreement for a period of ten (10) days after
receipt of written notice from Buyer to Seller
requesting compliance. However, if such matter
cannot be cured within ten (10) days, and Seller has
commenced cure within such ten (10) day period and
is diligently pursuing such cure, Seller shall be
afforded such additional time, not to exceed thirty
(30) days, as is necessary to cure such matter. If
necessary, the Closing Date shall be extended so
long as Seller is diligently pursuing a cure
pursuant to this Section 15(a);
(b) Any representation made or contained in any
submission from Seller or Tenant, or in the Due
Diligence Documents, proves to be untrue,
substantially false or misleading at any time prior
to the Closing Date;
(c) There shall be a material action, suit or proceeding
pending or threatened against Seller which affects
Seller's ability to perform under this Agreement;
(d) Seller or Tenant shall be dissolved, liquidated or
wound up;
(e) Notice of termination is given by Buyer pursuant to
any other Section of this Agreement within the
applicable time periods.
16. DAMAGES, DESTRUCTION AND EMINENT DOMAIN. If, prior
to the Closing Date, the Property, or any part thereof, should
be destroyed or further damaged by fire, the elements, or any
cause, due to events occurring subsequent to the date of this
Agreement (which damage exceeds 10% of the Purchase Price of
the Property or abates payment of rent by Tenant or renders
the Lease invalid), this Agreement shall become null and void,
at Buyer's option, exercised by written notice to Seller
within ten (10) business days after Buyer has received written
notice from Seller of said destruction or damage. Seller,
however, shall have the right to adjust or settle any insured
loss until (a) all contingencies set forth in Section 8 hereof
have been satisfied, or waived; and (b) any period provided
for above in Section 8 hereof for Buyer to elect to terminate
this Agreement has expired or Buyer has, by written notice to
Seller, waived Buyer's right to terminate this Agreement. If
Buyer elects to proceed and to consummate the purchase despite
said damage or destruction, there shall be no reduction in or
abatement of the Purchase Price, and Seller shall assign to
Buyer the Seller's right, title and interest in and to all
insurance proceeds resulting form said damage or destruction
to the extent that the same are payable with respect to damage
to the Property, subject to rights of the Tenant.
If prior to closing, the Property, or any part thereof,
is taken by eminent domain (which taking delays commencement
of the Lease or delays payment of rent by the Tenant or
renders the Lease invalid) this Agreement shall become null
and void, at Buyer's option. If Buyer elects to proceed and
to consummate the purchase despite said taking, there shall be
no reduction in, or abatement of, the Purchase Price and
Seller shall assign to Buyer all the Seller's right, title and
interest in and to any award made, or to be made, in the
condemnation proceeding, subject to the rights of the Tenant.
In the event that this Agreement is terminated by Buyer
as provided above, the Xxxxxxx Money shall be returned to
Buyer immediately after execution by Buyer of such documents
reasonably requested by Seller to evidence the termination
hereof.
17. NOTICES. All notices from either of the parties
hereto to the other shall be in writing and shall be
considered to have been duly given or served if sent by first
class certified mail, return receipt requested, postage
prepaid, or by a nationally recognized courier service
guaranteeing overnight delivery to the party at his or its
address set forth below, or by facsimile transaction to the
respective fax number(s) set forth below with printed
confirmation of receipt thereof, or to such other address as
such party may hereafter designate by written notice to the
other party. Notice given in accordance herewith shall be
effective upon delivery to the address of the addressee. Any
notice given by facsimile transmission shall be followed by a
hard copy or by hand delivery.
If to Seller: Blue Xxxx Partners, LLC
c/o Core Resources, Inc.
Attn: Xxxxx X. Xxxxxxxxxx
0000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxxxxxx@xxxx-0.xxx
With a copy to:
Blue Xxxx Partners, LLC
c/o Core Resources, Inc.
Attn: Xxxxxx X. Xxxxx, Esq.
0000 Xxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
Email: xxxxxx@xxxx-0.xxx
If to Buyer:
AEI Fund Management, Inc.
1300 Xxxxx Fargo Center
00 X. 0xx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Xxxxxx Xxxxx, Director of Acquisitions
Phone No.: (000) 000-0000
Fax: (651) -225-8144
Email: xxxxxx@xxxxxxxx.xxx
With a copy to:
Xxxxxxx Xxxxxxxxx
Xxxxxxxxx Law Firm
00 Xxxx Xxxxxxx Xxxxxx, Xxx 0000
Xx. Xxxx, Xxxxxxxxx 00000
Phone: (000) 000-0000
Fax: 000-000-0000
E-Mail: xxxxxx@xxxxxxxxxx.xxx
18. MISCELLANEOUS.
a. This Agreement may be amended only by written agreement
signed by both Seller and Buyer, and all waivers must be in
writing and signed by the waiving party. Time is of the
essence. This Agreement will not be construed for or against
a party whether or not that party has drafted this Agreement.
If there is any action or proceeding between the parties
relating to this Agreement, the prevailing party will be
entitled to recover attorney's fees and costs. This is an
integrated agreement containing all agreements of the parties
about the Property and the other matters described, and it
supersedes any other agreement or understandings. Exhibits
attached to this Agreement are incorporated into this
Agreement.
b. If the transaction contemplated hereunder does not close
by the Closing Date, through no fault of Buyer, Buyer may
either, at its election, extend the Closing Date, or terminate
this Agreement and receive its Xxxxxxx Money back in full
immediately. If the transaction contemplated by this
Agreement does not close by the Closing Date, through no fault
of Seller, Seller may either, at its election, extend the
Closing Date, or terminate this Agreement and promptly receive
the Xxxxxxx Money as liquidated damages.
c. This Agreement shall be assignable by Buyer, at its
option, in whole or in part, in such manner as Buyer may
determine, to an affiliate of affiliates of Buyer, following
written notice to Seller. However, an assignment by Buyer
pursuant to this Section 18.c. shall not reliever Buyer of its
obligations under this Agreement.
d. Seller shall pay any and all real estate commissions due
and payable to any broker claiming commission by and through
its representation of Seller.
e. Buyer hereby represents and warrants that it is not
represented by any broker on this transaction and no real
estate commissions are due and payable to any broker.
f. When executed by both parties, this Agreement will
be a binding agreement for valid and sufficient consideration
which will bind and benefit Seller, Buyer and their respective
successors and assigns.
g. The parties have entered into a separate Purchase
and Sale Agreement ("Batesville Agreement"), dated the date
hereof, pursuant to which Buyer is to purchase certain real
property from Seller commonly known as 0000 Xxxxx Xxxx 000
Xxxxx, Xxxxxxxxxx, Xxxxxxx. The parties hereby acknowledge,
understand, and agree that the closing of the transactions
contemplated in this Agreement and the transactions
contemplated in the Batesville Agreement are to be
simultaneous and that if the Batesville Agreement is
terminated, or the transactions contemplated by the Batesville
Agreement should fail to close, this Agreement shall terminate
and neither party shall have any further obligations, except
those that expressly survive termination of this Agreement.
Buyer is submitting this offer by signing a copy of this
Agreement and delivering it to Seller. Seller has until the
____ day of ___________________, 2006, within which time to
accept this offer by signing and returning this Agreement to
Buyer. When executed by both parties, this Agreement will be
a binding agreement for valid and sufficient consideration
which will bind and benefit Seller, Buyer, and their
respective successors.
[SIGNATURES ARE TO FOLLOW ON THE NEXT PAGE]
IN WITNESS WHEREOF, Seller and Buyer have executed this
Agreement effective as of the date last set forth below.
SELLER:
BLUE XXXX PARTNERS, LLC
By: /s/ Xxxxx X Xxxxxxxxxx
Its: Authorized Member
Date: March 01, 2006
STATE OF OHIO )
) ss.
COUNTY OF XXXXXXXX)
On this 1st day of March, 2006, before me, the
undersigned, a Notary Public in and for said State, personally
appeared Xxxxx X Xxxxxxxxxx, personally known to me to be
the person who executed the within instrument as the authorized
member of Blue Xxxx Partners LLC, an Ohio limited liability company
on behalf of said corporation.
/s/ Xxxxxx Xxxx Xxxxx
Notary Public
[Notary Seal]
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.
SIGNATURES TO CONTINUE ON THE FOLLOWING PAGE]
BUYER:
AEI FUND MANAGEMENT, INC.
By: /s/Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, its President
Date: March 9, 0000
XXXXX XX XXXXXXXXX)
) ss.
COUNTY OF XXXXXX )
On this 9th day of March, 2006, before me, the
undersigned, a Notary Public in and for said State, personally
Xxxxxx X. Xxxxxxx, personally known to me to be the person
who executed the within instrument as the President of AEI
Fund Management, Inc., a Minnesota corporation, on behalf of
said corporation.
/s/ Xxxxxxxx X Xxxxxxxx
Notary Public
[Notary Seal]
EXHIBIT "A"
LEGAL DESCRIPTION
DESCRIPTION FOR,: Core Resourees,Inc
LOCATION: University
Boulevard, City of
Middletown Lot 20
1.58
0.8801 Acres
Situate in Xxxxxxx 00, Xxxx 0, Xxxxx 0, Xxxx of
Middletown, Third Xxxx, Xxxxxx County, Ohio, and
being all of Consolidated Lot No. 2,0158, consisting
of part of Lot 692 and all of Lots 693, 694, 695,
696, 697 and 698 of the Plat of the City of
Middletown, and being more particularly described as
follows:
Beginning in 5/8" iron pin existing in the northwest
corner of said Lot 20158, said iron pin being in the
intersection of the south right of way line of
Manchester Avenue and the east right of way line of
University Boulevard; thence
in said south right of way line of .Manchester
Avenue, South 76 14'46" East, 202.44 feet to a
5/8" iron pin set in the northeast corner of said
Lot 20158, said iron pin also being in the
northwest corner of Lot 20159; thence
in said west xxxx xx said Lot 20139 and in the cast
line of said Xxx 000.00, Xxxxx 00 00'00" Xxxx, 180.18
feet to a fling nail set in the southeast corner of
Lot 20138, said rung nail also being in the north
right of way line of a 16' wide alley; thence
in said north right of way line of a 16 wide alley,
North 76"00'09" West, 178.03 feet to a 5/8" iron
pill existing in i xxxxx of a right of way take as
shown in the City of Middletown, Ohio, University
Boulevard, Grand Avenue to Miami Avenue, No. A-21-3
Right of Way Plans; thence
in the right of way lines of said Right of Way Plans, the
following five courses:
1. North 1359'51" East, 1.74-feet to a 5/8" iron pin existing.,
thence
2. North 76 00'09" West, 19:53 feet to a cross notch existing;
thence
3. along an arc deflecting to the right, having a radius of
40.00 feet, an arc distance of
26.53 feet, said arc bears North 41'08'13" West, 26.05
feet to a cross notch existing,
thence
4. along an arc deflecting to the left, having a radius of
64:00 feet, an .arc distance of 22.33 feet, said arc bears
North 18 43'24" East, 22.22 feet to a cross notch existing;
thence
5. along an arc deflecting to the right, having a radius of
292.00 feet, an arc distance of 84.37 feet, said arc bears
North 17'00'18" East, 84.0'7 feet to a cross notch existing;
thence
6. North 64 43'03" West, 1.00 feet to a cross notch existing in
the west line of aforesaid Lot 20158; thence
00000 Xxxxxxxxxxxxx Xxxxxxxxx Xxxxxxxxxx, Xxxx 00000
Tel: 000.000.0000 Fax: 000.000.0000
In the west line of said Xxx 00000, Xxxxx
00"00'00" Xxxx, 57.50 feet to the point of
beginning. Containing +/- 0.8801 acres, or 38,337
square feet of land.
Subject to all easements, covenants and restrictions of
record.
The above description is the result of a field
survey supervised by Xxxxxxx X. Xxxx of Preferred
Surveying Company, Inc., Ohio Registered Surveyor
No. 7181, dated 12-January 2004.
The above described real estate is a part of the same
premises conveyed to :Xxxxx Holdings, Ltd, by (Iced recorded
in Official Record 6050, Page 1640, of the Xxxxxx County,
Ohio Recorder's Office.
00000 Xxxxxxxxxxxxx Xxxxxxxxx Xxxxxxxxxx, Xxxx 00000
Tel: 000.000.0000 Fax: 000.000.0000
