ASSIGNMENT AND ASSUMPTION
OF
PURCHASE AGREEMENT
THIS ASSIGNMENT made and entered into this 31st day of
October, 2005, by and between AEI FUND MANAGEMENT, INC., a
Minnesota corporation, ("Assignor") and AEI INCOME & GROWTH FUND
25 LLC, a Delaware limited liability company ("Assignee");
WITNESSETH, that:
WHEREAS, on the 7th day of October, 2005, Assignor entered
into an Purchase Agreement (hereinafter referred to as the
"Agreement") for that certain property located at 297 Loudon
Road, Concord, New Hampshire, which is more particularly
described within the Agreement, (the "Property) with Loudon Road
N.H. Rte. 9 Development, LLC, a New York limited liability
company, as Seller; and
WHEREAS, Assignor desires to assign to Assignee all of
Assignor's rights, title and interest in, to and under the
Agreement regarding the Property and Assignee desires to accept
the assignment thereof and assume Assignor's right, 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/ ROBERT P JOHNSON
Name: Robert P Johnson
Title: President
ASSIGNEE:
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/ ROBERT P JOHNSON
Name: Robert P Johnson
Title: President
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "Agreement") is
entered into as of this 7th day of October, 2005, between LOUDON
ROAD N.H. RTE. 9 DEVELOPMENT, LLC, a New York limited liability
company ("Seller"), and AEI FUND MANAGEMENT, INC., a Minnesota
corporation ("Buyer"). The date on which the last party hereto
executes this Agreement is hereafter referred to as the
"Effective Date".
In consideration of the mutual covenants set forth herein
and in consideration of the earnest money deposit herein called
for, the parties agree as follows:
Section 1. SALE AND PURCHASE. Seller shall sell, convey, and
assign to Buyer, and Buyer shall purchase, assume and accept from
Seller, for the Purchase Price (hereinafter defined) and on and
subject to the terms and conditions herein set forth, the
following:
(a) the tract or parcel of land comprised of approximately 0.60
acres and located at 297 Loudon Road, City of Concord, County of
Merrimack, New Hampshire, and more particularly described in
EXHIBIT A attached hereto, together with all rights and interests
appurtenant thereto, including all of Seller's right, title, and
interest in and to adjacent streets, alleys, rights-of-way, and
any adjacent strips and gores of real estate (the "LAND"); all
improvements located on the Land, including that certain one-
story building which consists of approximately 5,996 square feet
(the "IMPROVEMENTS"); and all rights, titles, and interests
appurtenant to the Land and Improvements;
(b) all of Seller's interest in and rights and obligations under
the Lease dated June 30, 2005, by and between Seller and
Sterling, Inc., an Ohio corporation (the "TENANT"), providing for
the use and occupancy of the improvements and Land (the "LEASE"),
and under that Guaranty of Lease of Sterling Jewelers, Inc. dated
June 24, 2005 (the "GUARANTY"), and all rents prepaid for any
period subsequent to the Closing Date (defined below); and
(c) to the extent assignable by Seller and not previously
assigned to Tenant as required under the Lease, all of the
following, if any, relating solely to the Land and the
Improvements; (1) warranties, guaranties, indemnities, and claims
(all subject to Seller's reservation of its rights with respect
to claims thereunder which arise from facts or circumstances
existing prior to the Closing Date or during any period when
Seller remains liable to Tenant or Buyer with respect to the
Property), (2) plans, drawings, specifications, surveys,
engineering reports, and other technical information, and (3)
other property (real, personal, or any other) relating to the
leasing, maintenance, service, or operation of the Land,
Improvements, or the Lease (such assignment to be subject to
Seller's reservation of its rights with respect to claims
thereunder which arise from facts or circumstances existing prior
to the Closing Date or during any period when Seller remains
liable to Tenant or Buyer with respect to the Property).
The above-listed items are herein collectively called the
"PROPERTY". All of the Property shall be sold, conveyed, and
assigned to Buyer at Closing (defined below) free and clear of
all liens except for the lien of real property taxes not yet due
and payable, and subject to the Permitted Encumbrances (defined
below).
Section 2. PURCHASE AND SALE. Seller agrees to sell to
Buyer, and Buyer agrees to purchase from Seller, the Property
upon the terms and conditions set forth in this Agreement.
Section 3. PURCHASE PRICE. The Purchase Price ("PURCHASE
PRICE") for the Property shall be $4,072,800.00 to be paid in
cash or cash equivalent as set forth in Section 9, subject to
adjustment thereof pursuant to Section 9(e) hereof.
Section 4. EARNEST MONEY. Within two (2) business days after
the Effective Date, Buyer shall deliver to Hebert & Uchida, 244
North Main Street, Concord, New Hampshire 03301, as agent for
Chicago Title Insurance Company ("TITLE COMPANY") a check or wire
transfer in the amount of $50,000.00 (the "Earnest Money"), which
the Title Company shall immediately deposit for collection in an
interest bearing account or accounts bearing interest at not less
than the daily passbook rate.
If for any reason this Agreement is terminated prior to the
expiration of the Inspection Period, then the Earnest Money and
any interest accrued thereon shall be immediately returned to
Buyer. If the transaction contemplated hereby proceeds to
Closing, the Earnest 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 Earnest Money plus interest
accrued thereon. If Buyer does not terminate this Purchase and
Sale Agreement as set forth in and when allowed under Sections 5,
6 or 7 hereof, or otherwise as expressly allowed hereunder, the
Earnest Money shall, 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, thereafter be deemed non-refundable. As
used in this Agreement, the term "EARNEST MONEY" shall mean the
amount deposited by Buyer, together with all interest accrued
thereon or deemed to have accrued thereon, as provided above.
Section 5. DELIVERY OF INFORMATION BY SELLER. Within five
(5) business days of the Effective Date, Seller shall deliver or
cause to be delivered to Buyer the following:
(a) A title insurance commitment issued by-the Title Company
naming Buyer as the proposed insured and insuring Buyer in the
amount of the Purchase Price (the "TITLE COMMITMENT");
(b) Copies of all documents referred to in the Title Commitment
(the "TITLE COMMITMENT DOCUMENTS");
(c) A copy of Seller's existing Phase I Environmental Report and
copies of any other environmental reports on the Property in
Seller's possession;
(d) A copy of Seller's existing ALTA/ACSM Land and Improvements
survey (the "EXISTING SURVEY");
(e) A copy of the executed Lease and any amendments thereto;
(f) A copy of the executed Guaranty of Lease and any amendments
or modifications thereto;
(g) Any soil boring logs, geotechnical or other engineering
reports;
(h) If in Seller's possession, zoning information concerning the
current zoning of the Property;
(i) Site plans and building plans and specifications;
(j) Names, addresses and phone numbers of utility companies
servicing the Property; and
(k) Copy of current real estate tax statement.
Buyer shall have an "INSPECTION PERIOD" of fifteen (15) business
days from receipt of the last of the foregoing to review and
approve the foregoing or terminate this Agreement in accordance
with the terms of subparagraph 6(b) below in Buyer's sole
discretion.
Seller, at its own expense, shall provide Buyer with the
following, which Buyer shall have fifteen (15) days from the
receipt of the last of the following to review (the "REVIEW
PERIOD"); provided, however, Buyer shall use its best efforts to
complete its review of such items in a timely manner to expedite
the transaction toward Closing, and shall waive (in Buyer's sole
but reasonable discretion) the requirement of an entire fifteen
(15) day review period as to a de minimis number of the following
items that may not be available until several days prior to
Closing:
(l) A copy of any items to be specifically assigned to Buyer
under paragraph 1(c). The form of said Assignment and Assumption
of Warranties, Guaranties, Indemnities and Intangibles shall be
as attached hereto as EXHIBIT D;
(m) A current ALTA As-Built Survey, certified to Buyer and Title
Company (Buyer's review thereof shall be confined to matters not
theretofore reflected on the Title Commitment or the Existing
Survey as provided to Buyer);
(n) Proposed general warranty deed;
(o) Balance Sheet of Seller;
(p) An original Reliance Letter certified to Buyer from the
engineer who prepared the Seller's Phase I Environmental Report;
(q) Certificate of Occupancy, and Certificate of Completion from
the project architect and general contractor certifying that as
of the date thereof and to their best knowledge, the Improvements
have been completed in accordance with the plans and
specifications for the Property and substantially comply with all
applicable rules and regulations of governmental authorities
having jurisdiction over the Property and the objective standards
of the Americans with Disabilities Act;
(r) Certificate of Insurance evidencing Tenant's compliance with
the Lease requirements;
(s) A project cost statement, signed by Seller, itemizing in
percentages totaling 100%, the following costs: land acquisition,
soft costs, building construction, and site work;
(t) Copies of any and all warranties and assignments thereof,
issued to or required to be provided to Tenant as designated in
the Lease. Seller's interest in any and all warranties, which
are to be jointly held between Landlord and Tenant under the
Lease, shall be assigned to Buyer at Closing.
The documents described in this Section are herein collectively
called the "DOCUMENTS," and the information contained in the
Documents is herein collectively called the "INFORMATION." Seller
further agrees to deliver to Buyer any information that shall
come to Seller's attention prior to the Closing that shall
materially, adversely impact the Documents, the Information, the
Property, or the Tenant. Buyer shall have a right to terminate
this Agreement based upon such materially adverse information and
shall receive the return of its Earnest Money together with any
interest thereon if this Agreement is so terminated on such
basis.
Section 6. RIGHT OF INSPECTION.
(a) Buyer may conduct a site inspection of the Property during
the Inspection Period (defined above) and Buyer may elect to not
purchase the Property and terminate this Agreement in accordance
with the terms of Paragraph (b) below if, in its sole discretion,
it is not satisfied with the results of such inspection. In
conducting its inspection Buyer shall not unreasonably interfere
with the business and operations of Tenant or construction
activities of Seller. Further, Buyer shall indemnify, defend and
hold Seller harmless from any and all costs, damages, and
liabilities whatsoever, including reasonable attorney's fees,
arising out of Buyer's inspection of the Property and the
Information, which obligation shall expressly survive any
termination of this Agreement. Except as may be required by law
or by legal proceedings, Buyer shall keep all Information
furnished to it by Seller or obtained by Buyer strictly
confidential; provided, however, that the same may be disclosed
to Buyer's lenders, accountants and attorneys to the extent
necessary to consummate this transaction and to the extent such
recipients agree to maintain such confidentiality. Buyer's
obligations under this Section shall survive the termination of
this Agreement for any reason.
(b) If for any reason Buyer determines that it shall not proceed
with this transaction, then Buyer may terminate this Agreement,
by delivering to Seller a written notice of termination at any
time during the period ending at 5:00 p.m., CST time, on the last
day of the Inspection Period. If Buyer does not so terminate this
Agreement, Buyer shall have waived its right to terminate this
Agreement, except as otherwise expressly set forth herein.
Section 7. TITLE. Buyer may, at any time during the
Inspection Period, object in writing ("BUYER'S TITLE OBJECTION
NOTICE") and in good faith to any liens, encumbrances, and other
matters reflected by the Title Commitment. All such matters to
which Buyer so objects shall be "NON-PERMITTED ENCUMBRANCES"; if
no such objection notice is given during the Inspection Period,
all matters reflected by the Title Commitment shall be "PERMITTED
ENCUMBRANCES." Seller may, but shall not be obligated to, cure,
remove or insure around all Non-Permitted Encumbrances. In
addition, Seller shall be obligated to remove or insure around by
Closing all mortgages, deeds of trust, judgment liens, mechanic's
and materialmen's liens, and other monetary liens against the
Property (other than the liens for taxes and assessments which
are not delinquent), whether or not Buyer objects thereto during
the Inspection Period. Within five (5) days after receipt of
Buyer's Title Objection Notice, Seller shall provide an updated
title insurance commitment (the "Title Commitment Update"). If
the Title Commitment Update does not address all of Buyer's
objections set forth in Buyer's Title Objection Notice to the
reasonable satisfaction of Buyer, then Buyer may either
(a) terminate this Agreement in accordance with Section 11(b) by
written notice to Seller within five (5) business days after
receipt of the Title Commitment Update or (b) purchase the
Property subject to the Non-Permitted Encumbrances (other than
monetary liens that Seller is obligated to remove or insure
around), and the Non-Permitted Encumbrances (other than liens
that Seller is obligated to remove or insure around) shall
thereafter be deemed Permitted Encumbrances. The Lease is hereby
designated as a Permitted Encumbrance.
In addition, Buyer may, within five (5) days after receipt
of the As-Built Survey to be delivered by Seller to Buyer
pursuant to Section 5(m) hereof, object in writing to matters
reflected on such As-Built Survey so long as (i) such objections
are to matters which render title to the Property unmarketable,
which constitute a material deviation from the Site Plan attached
to the Lease, or which otherwise constitute a violation of
applicable zoning ordinances and (ii) such objections, to the
extent not previously covered by Buyer's Title Objections, relate
to matters not reflected on the Existing Survey heretofore
delivered by Seller to Buyer. Seller may, but shall not be
obligated to, cure or remove any such survey objections made by
Buyer in accordance with this Section 7. If Seller does not
cause all such survey objections to be removed, cured or insured
around to Buyer's reasonable satisfaction within fifteen (15)
days after receipt by Seller of such survey objections, then
Buyer may either (a) terminate this Agreement in accordance with
Section 11(b) by delivering notice to Seller prior to the
expiration of such fifteen (15) day period or (b) purchase the
Property subject to such survey objections.
Section 8. SELLER'S REPRESENTATIONS, WARRANTIES, AND
COVENANTS. Seller hereby represents and warrants to, and
covenants with, Buyer that:
(a) Except for this Agreement and the Lease and those matters
disclosed in the materials delivered to Buyer pursuant to Section
5 hereof, it is not aware of any other agreements or leases with
respect to the Property, including none of the following that
will survive the Closing such as maintenance, service, or utility
contracts (the "PROPERTY AGREEMENTS");
(b) It does not have any actions or proceedings pending, which
would materially affect the Property or Tenant, except matters
fully covered by insurance;
(c) The consummation of the transactions contemplated hereunder,
and the performance of this Agreement and the delivery of the
warranty deed to Buyer, will not result in any breach of, or
constitute a default under, any instrument to which Seller is a
party or by which Seller may be bound or affected;
(d) All of Seller's covenants, agreements, and representations
made herein, and in any and all documents which may be delivered
pursuant hereto, shall survive for one (1) year from the delivery
to Buyer of the warranty deed and other documents furnished in
accordance with this Agreement, and the provision hereof shall
continue to inure for one (1) year to Buyer's benefit and its
successors and assigns;
(e) The Property is in good condition, substantially undamaged
by fire and other hazards, and has not been made the subject of
any condemnation proceeding;
(f) 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;
(g) To the best of Seller's knowledge, the Property is presently
not in violation of applicable environmental law, and contains no
hazardous materials in excess of amounts allowed by applicable
law except for the presence on the Property of such materials as
may be held by Tenant in customary amounts for resale or
maintenance of the Property;
(h) Seller has not received from any governmental authority
written notice of any violation of law, rule, regulation, permit,
certificate, or approval or license, which has not heretofore
been cured;
(i) To the best of Seller's knowledge, there are no attachments,
executions, assignments for the benefit of creditors or voluntary
or involuntary proceedings in bankruptcy pending, or threatened
against Seller;
(j) The copies of all documents and other documents delivered by
Seller to Buyer pursuant to this Agreement shall, to Seller's
current actual knowledge, be true and complete in all material
respects; provided, however, that Seller makes no representation
or warranty whatsoever as to the contents or subject matter of
any Documents, Information or other items prepared by third
parties;
(k) The Lease and Guaranty submitted to Buyer;
(1) are true and complete copies of the Lease, with all exhibits
attached, and Guaranty;
(2) have not been modified, altered or amended; and
(3) are in full force and effect without any uncured material
default by either Landlord or Tenant.
(l) Seller represents and warrants the transaction contemplated
herein does not represent a fraudulent conveyance.
All of Seller's representations and warranties shall be true as
of the Closing Date and shall survive the Closing for one (1)
year; Buyer may not take any action for breach of such
representations and warranties unless it shall have given Seller
written notice of such breach in reasonable detail not later than
a date that is one (1) year from the Closing Date. Seller shall
have thirty (30) days to commence to cure any such breach after
receipt of Buyer's timely written notice and so long thereafter
as is reasonably necessary to complete such cure.
Section 9. CLOSING. The closing of the sale of the Property
by Seller to Buyer (the "CLOSING") shall occur upon the later of:
(a) on or before the tenth (10th) business day after the
expiration of the Review Period or (b) within ten (10) business
days after the Tenant takes possession of the building and begins
paying rent (the "CLOSING DATE"). The parties may elect to close
prior to the scheduled Closing Date upon mutual consent. An
escrow officer of the Title Company at its office in Concord, New
Hampshire shall close this transaction. Time is of the essence
with regard to the Closing Date. At the Closing, the following,
which are mutually concurrent conditions, shall occur;
(a) Buyer, at its expense, shall deliver or cause to be
delivered to Seller the following:
(1) the Purchase Price in funds available for immediate value in
Seller's accounts;
(2) the Earnest Money shall be delivered to Seller and credited
against the Purchase Price;
(3) an Assignment and Assumption of Lease and Guaranty in the
form attached hereto and incorporated herein as EXHIBIT B (the
"ASSIGNMENT AND ASSUMPTION OF LEASE AND GUARANTY"), fully
executed and acknowledged by Buyer;
(4) evidence satisfactory to Seller and Title Company that the
person executing the Closing documents on behalf of Buyer has
full right, power, and authority to do so; and
(5) such other documents as may be reasonably requested by the
Title Company or Seller in accordance with this Agreement.
(b) Seller, at its expense, shall deliver or cause to be
delivered to Buyer the following:
(1) The Assignment and Assumption of Lease and Guaranty, fully
executed and acknowledged by Seller, accompanied by the original
Lease, and its original Amendments thereto, if any, and by the
original Guaranty, and its original Amendments thereto, if any;
(2) A New Hampshire statutory form of general warranty deed in
the form to be mutually agreed upon by the parties prior to the
expiration of the Review Period, fully executed and acknowledged
by Seller, conveying to Buyer the Land and Improvements;
(3) A tenant estoppel certificate substantially in the form as
shown on EXHIBIT C attached hereto, fully executed by Tenant. In
the event that the executed Tenant Estoppel Certificate shall
list any incomplete items of Landlord's Work (as defined in the
Lease), Seller agrees to diligently complete such incomplete
items within six (6) months following Closing. As a condition to
Closing, the parties further agree that the estimated amount of
the costs needed to complete the incomplete items of Landlord's
Work must be less than $300,000.00 and the Title Company shall
retain from the funds due to Seller at Closing, pursuant to an
escrow agreement reasonably acceptable to the parties, one and
one-quarter of the amount reasonably estimated to be needed by
Seller to complete the unfinished items of Landlord's Work until
all the incomplete items have been completed. In the event that
the estimate of the costs to complete the incomplete items of
Landlord's Work shall exceed $300,000.00, Buyer shall not be
obligated to close until Seller completes enough of the
incomplete items such that the estimated amount of the costs
needed to complete the incomplete items becomes less than
$300,000.00;
(4) Evidence reasonably satisfactory to Buyer and Title Company
that the persons executing and delivering the Closing documents
on behalf of Seller have full right, power and authority to do
so;
(5) A certificate meeting the requirements of Section 1445 of
the Internal Revenue Code of 1986, executed and sworn to by
Seller;
(6) such other documents as may be reasonably requested by the
Title Company or by Buyer in accordance with this Agreement, or
as are customarily executed in New York to effectuate the
conveyance of property similar to the Property; and
(7) Assignment of Warranties as required in Sections 1 (c) and 5
(t) hereof. The form of said Assignment and Assumption of
Warranties, Guaranties, Indemnities and Intangibles shall be as
EXHIBIT D attached hereto and incorporated herein.
(c) Seller shall pay the following costs of closing: escrow
fees, recording costs, and any brokerage fees to third parties
engaged by Seller. Each party shall pay one-half of all other
closing costs, such as realty transfer tax (deed stamps), and
fees to obtain the title insurance commitment and policy
premiums; each party shall pay its own attorney's fees. Buyer
shall pay the mortgage tax due on any mortgage granted by Buyer
at closing, if any.
(d) Rent due under the Lease shall be prorated as of the Closing
Date, Seller being charged and credited for all of same up to the
Closing Date and Buyer being charged and credited for all of same
on and after the Closing Date; provided, however, that, if the
wire payoff to Seller's mortgagee is received later than l:00 pm
EST on the day of Closing then the Seller, and not Buyer, shall
be credited for the Rent paid under the Lease that is
attributable to the day of closing. Utility charges and taxes
are paid by the Tenant and shall not be prorated at Closing. All
prorations made at Closing shall be considered a final settlement
between the parties. This provision shall survive closing.
(e) Notwithstanding anything contained herein to the contrary,
in the event that the amount of "Rent" (as defined in the Lease)
is adjusted after the Closing pursuant to Section 2.3 of the
Lease, the parties shall adjust the Purchase Price within ten
(10) days after determination of such final adjustment of Rent to
an amount based upon an 7.00% capitalization rate of the final
annual Rent payable by Tenant under the Lease. Upon
determination of the adjusted Purchase Price, the amounts due and
owing from either party hereunder shall be paid in full within
ten (10) days thereafter.
Section 10. DESTRUCTION, DAMAGE, OR TAKING BEFORE CLOSING.
If, before Closing, all or any material part of the Land or
Improvements are destroyed or damaged, or become subject to
condemnation or eminent domain proceedings, then Seller shall
promptly notify Buyer thereof. Buyer may elect to proceed with
the Closing (subject to the other provisions of this Agreement
and with no reduction in the Purchase Price) by delivering notice
thereof to Seller within five (5) business days of receipt of
Seller's notice respecting the damage, destruction, or taking,
but in such event Buyer shall be entitled to all insurance
proceeds or condemnation awards payable as a result of such
damage or taking and, to the extent the same may be necessary or
appropriate, Seller shall assign to Buyer at Closing Seller's
rights to such proceeds or awards. If, within five (5) business
days of receipt of Seller's notice respecting the damage,
destruction, or taking, Buyer notifies Seller of its intent to
terminate this Agreement, or if Buyer gives no notice within such
period, then Buyer shall be deemed to have terminated this
Agreement pursuant to Section 11(b). For the purposes of this
Section 10, damage or a taking shall be considered to be
"material" if the value of the portion of the Land or
Improvements damaged or taken exceeds an amount equal to twenty
five percent (25%) of the Purchase Price, or, in the case of a
taking, if the portion of the Land or Improvements taken are such
that Tenant has the right to terminate the Lease.
Section 11. TERMINATION AND REMEDIES.
(a) If Buyer fails to consummate the purchase of the Property
pursuant to this Agreement for any reason other than termination
hereof pursuant to a right granted to Buyer in herein, or if
Buyer breaches any covenant or provision of this Agreement, then
Seller, as its sole remedy, may terminate this Agreement by
notifying Buyer thereof, in which event Title Company shall
deliver the Earnest Money, together with all interest thereon, to
Seller as LIQUIDATED DAMAGES. In addition to the foregoing,
Seller shall also be entitled to recover all reasonable expenses,
including reasonable attorney's fees and litigation costs,
incurred in connection with obtaining the Earnest Money following
a breach hereof by Buyer.
(b) If Buyer terminates this Agreement pursuant to its rights to
do so hereunder and is not in default under this Agreement, then
the Earnest Money, together with all interest thereon, shall be
returned to Buyer, whereupon neither party hereto shall have any
further rights or obligations hereunder, except for those which
expressly survive the termination of this Agreement.
(c) If Seller fails to consummate the sale of the Property
pursuant to this Agreement for any reason other than Buyer's
failure to perform its obligations hereunder, or termination
hereof by Buyer in accordance with Section 11(b), then Buyer, as
its exclusive remedies therefore, may: (1) terminate this
Agreement by notifying Seller thereof, in which case the Earnest
Money, together with all interest thereon, shall be returned to
Buyer and neither party hereto shall have any further rights or
obligations hereunder, except for those which expressly survive
the termination of this Agreement; or (2) enforce specific
performance of the obligations of Seller hereunder.
(d) The provision for payment of liquidated damages in Section
11 (a) has been included because, in the event of a breach by
Buyer, the actual damages to be incurred by Seller can reasonably
be expected to approximate the amount of liquidated damages
called for herein and because the actual amount of such damages
would be difficult if not impossible to measure accurately.
(e) This Agreement shall not be recorded in any public records
in the State of New Hampshire or the county where the Property is
located, and any such recording by or for Buyer shall be a
default hereunder.
Section 12. SELLER'S CONTINUING OBLIGATIONS. Notwithstanding
assignment of the Lease to Buyer as contemplated by Section 9
hereof, Seller shall remain liable for the performance of the
obligations of Landlord under the Lease with respect to Section
15 of the Lease. The provisions of this paragraph shall survive
Closing of the sale of the Property to Buyer, and the parties
agree to confirm such survival in writing at Closing.
Section 13. NOTICES. All notices provided or permitted to be
given under this Agreement must be in writing and may be served
by depositing same in the United States mail, addressed to the
party to be notified, postage prepaid and registered or certified
with return receipt requested; by delivering the same in person
to such party; by reputable overnight courier delivery; or by
facsimile copy transmission with printed confirmation of receipt
thereof. 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. For purposes of notice, the addresses of the
parties shall be as follows:
If to Seller, to:
Mr. Joseph P. Kane
Loudon Road N.H. Rte. 9 Development, LLC
C/O Westlake Development, LLC
Skyline Building, Suite B-1
753 James Street
Syracuse, NY 13203
Phone No.: (315) 471-5462
Fax No.: (315) 471-6436
Email: westlak1@twcny.rr.com
With a copy to:
Stephen G. Etoll, Esq.
Shulman, Curtin, Grundner & Regan, PC
250 S. Clinton Street, Suite 502
Syracuse, NY 13202
Phone No.: (315) 424-8944
Fax No.: (315) 424-8205
Email: setoll@scgrslaw.com
If to Buyer, to:
AEI Fund Management, Inc.
30 East 7th Street, Suite 1300
St. Paul, Minnesota 55101
Attention: George Rerat, Director of Acquisitions
Phone No.: (651) 227-7333
Fax No.: (651) 227-7705
Email: grerat@aeifunds.com
With a copy to:
Michael B. Daugherty
Daugherty Law Firm
1300 Wells Fargo Place
30 East Seventh Street
St. Paul MN 55101
Phone No.: 612-720-0777
Fax No.: 612-677-3181
Email: mbdlaw@usinternet.com
Either party hereto may change its address for notice by giving
three (3) days' prior written notice thereof to the other party.
Section 14. ASSIGNS/BENEFICIARIES. Buyer may assign its
rights and obligations under this Agreement to a wholly owned or
controlled affiliate or subsidiary of Buyer and at Closing
designate such entity to take title to the Property and to all
rights conveyed by Seller to Buyer under this Agreement without
the written consent of Seller. Except for the assignments
provided for in the preceding sentence, Buyer may neither assign
its rights under this Agreement nor delegate its duties hereunder
without prior written consent of Seller, which Seller may grant
or withhold in its sole and absolute discretion. Should Buyer
assign this Agreement or delegate its duties without the prior
written consent of Seller, then in addition to all the rights,
remedies, and recourses available at law or in equity, Seller may
terminate this Agreement and the Title Company shall forthwith
deliver the Earnest Money to Seller. Seller may assign all of
its right, title and interest in and to this Agreement to any
other entity that is directly or indirectly wholly owned by
Seller. Such permitted assignment shall include any assignment
that may be deemed to occur by operation of law in connection
with any merger or consolidation of Seller entity with and/or
into any other entity directly or indirectly wholly-owned by
Seller (an "INTRAGROUP MERGER"). Any such Intragroup Merger
shall not be deemed a breach of, cause a default under or trigger
any right of termination under, any other provision of this
Agreement. Furthermore, Seller may assign this Agreement or any
rights hereunder to any corporation that acquires all or
substantially all of the assets of Seller. This Agreement is for
the sole benefit of Seller and Buyer, and no third party is
intended to be a beneficiary of this Agreement.
Section 15. COMMISSIONS. Buyer and Seller represent that
neither engaged a broker for this transaction.
Section 16. COMPUTATION OF TIME. If the expiration date of
any period or time for performance hereunder falls on a Saturday,
Sunday, or legal holiday, then, in such event, the expiration
date of such period or time for performance shall be extended to
the next business day.
Section 17. GOVERNING LAW. This Agreement shall be governed
and construed in accordance with the laws of the State in which
the Property is located.
Section 18. ENTIRE AGREEMENT. This Agreement is the entire
agreement between Seller and Buyer concerning the sale of the
Property, and no modification hereof or subsequent agreement
relative to the subject matter hereof shall be binding on either
party unless reduced to writing and signed by both parties. All
Exhibits attached hereto are incorporated herein by this
reference for all purposes.
Section 19. RULE OF CONSTRUCTION; NO WAIVER. Buyer and Seller
acknowledge that each party has reviewed this Agreement and has
had adequate opportunity to consult legal counsel with respect
thereto and that the rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Agreement or any
amendments hereto. No provision of this Agreement shall be
deemed to have been waived by either party unless the waiver is
in writing and signed by that party. No custom or practice which
may evolve between the Buyer and Seller during the term of this
Agreement shall be deemed or construed to waive or lessen the
right of either of the parties hereto to insist upon strict
compliance with the terms of this Agreement.
Section 20. NO RECORDING. Neither this Agreement nor any
memorandum hereof shall be recorded in any public records where
the Property is located or elsewhere.
Section 21. ATTORNEY'S FEES. If a dispute arises between
the parties as a result of or in connection with this Agreement,
then the prevailing party shall be entitled to a reimbursement of
its reasonable costs and expenses, including reasonable
attorney's fees, in addition to all other remedies.
Section 22. EXPIRATION. This offer to Purchase by Buyer shall
expire if not executed by Seller and returned to Buyer on or
before October 10, 2005.
Executed effective as of the date last set forth below.
SELLER:
LOUDON ROAD N.H. RTE. 9 DEVELOPMENT, LLC
a New York limited liability company
By: Westlake Holding, Inc., its sole
member, a New York corporation
By: /s/ Joseph P Kane
Name: Joseph P. Kane
Title: President
Date: October 7, 2005
BUYER:
AEI FUND MANAGEMENT, INC.,
a Minnesota corporation
By: /s/ Robert P Johnson
Name: Robert P. Johnson
Title: President
Date: October 6, 2005
EXHIBIT A
(Legal Description)
Berkshire Development - Loudon Road Concord
Proposed Lot 1
Commencing at a steel pin on the northerly sideline of Loudon
Road, said steel pin marking the southeasterly most corner of the
lot herein described and being S63 53'05"W a distance of 145.97
feet from a granite bound marking the southeasterly corner of
other land of the Grantor and the southwesterly corner of land
now or formerly of Milano Real Estate Associates, LLC, thence
S63 53'05"W a distance of 89.18 feet, along said Loudon Road, to
a steel pin; thence N35 33'45" W a distance of 185.26 feet to a
steel pin; thence N54 25'40"E a distance of 145.50 feet to steel
pin; thence S345 34'20"E a distance of 105.40 feet to a steel
pin; thence by a curve to the left, having a central angle of
24 22'03" and a radius of 184.50 feet, a distance of 78.47 feet
to a point; thence by a curve to the right, having a central
angle of 47 21'09" and a radius of 39.50 feet, a distance of
32.65 feet to the point of beginning.
Containing 26,055 square feet or 0.60 acres.