ASSIGNMENT
OF
PURCHASE AGREEMENT
AEI Fund Management, Inc., a Minnesota corporation
("Assignor"), hereby assigns an undivided fifty-four percent
(54%) interest to AEI Income & Growth XXI Limited
Partnership, a Minnesota limited partnership, an undivided
sixteen percent (16%) interest to AEI Income & Growth Fund
23, LLC, a Delaware limited liability company, and an
undivided thirty percent (30%) interest to AEI Income &
Growth Fund 26, LLC, a Delaware limited liability company
(collectively "Assignee") in that certain Purchase Agreement
between Assignor and Eau Claire Equity Fund Limited
Partnership, a Tennessee limited partnership, dated January
15, 2007, with respect to property located in Eau Claire,
Wisconsin known as Best Buy, and Assignee hereby assumes all
management responsibilities and obligations thereunder.
ASSIGNOR:
AEI FUND MANGEMENT, INC.,
A Minnesota corporation
/s/ Robert P Johnson
By: Robert P. Johnson, Its President
ASSIGNEE:
AEI INCOME & GROWTH FUND XXI
LIMITED PARTNERSHIP, a Minnesota
limited partnership
By: AEI Fund Management XXI, Inc.,
a Minnesota corporation,
its General Partner
By:/s/ Robert P Johnson
Robert P. Johnson, Its President
AEI INCOME & GROWTH FUND 23, LLC,
a Delaware limited liability company
By: AEI Fund Management XXI, Inc.,
a Minnesota corporation
By: /s/ Robert P Johnson
Robert P. Johnson, Its President
AEI INCOME & GROWTH FUND 26, LLC,
a Delaware limited liability company
By: AEI Fund Management XXI, Inc.,
a Minnesota Corporation
By: /s/ Robert P Johnson
Robert P. Johnson, Its President
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT ("Agreement"), dated as of the 15th day of
January 2008, by and between EAU CLAIRE EQUITY FUND LIMITED
PARTNERSHIP, a Tennessee limited partnership ("Seller") and
AEI FUND MANAGEMENT, INC., a Minnesota corporation, or its
assigns ("Purchaser"), recites and provides:
RECITALS
Seller is the owner of a parcel of real property located
at 409 Commonwealth Avenue, Eau Claire, Eau Claire County,
Wisconsin, 54701, with improvements thereon known generally as
Best Buy Store No. 40A, consisting of approximately 45,586
s.f., currently leased for use as a Best Buy electronics
store, such property being more particularly described on
Exhibit "A" attached hereto (collectively, the "Property").
Seller wishes to sell and Purchaser wishes to purchase
the Property on the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of their mutual promises
hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby
mutually acknowledged, the parties hereto covenant and agree
as follows:
1. RECITALS. The recitals above are incorporated herein by
this reference as matters Purchaser. The Deposit shall be
applied to the Purchase Price at Settlement or shall be paid
to Purchaser or Seller in accordance with the provisions of
Sect of contract, and not mere recital.
2. CONTRACT. This Agreement shall constitute a binding
contract for the purchase and sale of the Property, on the
terms and conditions set forth herein.
3. PROPERTY. The Property includes all of Seller's right,
title and interest in and to all buildings and other
improvements on or within the Property and all appurtenances
thereto, including easements and covenants and the rights of
Seller as owner of the Property under that certain Reciprocal
Easement and Operation Agreement recorded May 24, 1990 (the
"Declaration"), and Seller's right, title and interest in and
to the lease of the Property dated January 20, 1998 between
Eau Claire Equity Fund, Limited Partnership and Best Buy
Store, L.P., (the "Lease").
4. DEPOSIT. Upon execution hereof, Purchaser shall deposit
the sum of ONE HUNDRED THOUSAND Dollars ($100,000) as a
"Deposit," which will be held by First American Title
Insurance Company, Attention: Rita Bost; National Commercial
Services, 6077 Primacy Parkway, Suite 121-B, Memphis,
Tennessee, 38119; Phone: 901 818 6595; Fax: 901 680 9158;
Email: rbost@firstam.com as the "Escrow Agent" in. escrow
pending "Settlement." The Deposit shall be held by Escrow
Agent in an interest bearing account; all interest accruing on
the principal of the Deposit shall be deemed part of the
Deposit. If this Agreement is timely terminated pursuant to
any right contained herein, the Deposit shall be returned to
ion 6 and/or 16 below.
5. PURCHASE PRICE. The purchase price (the "Purchase
Price" for the Property shall be SIX MILLION, SIX HUNDRED
EIGHTY THOUSAND AND NO/100THS DOLLARS ($6,680,000.00). The
Purchase Price shall be payable all in cash at settlement by
wire transfer, less a credit for the Deposit and applicable
prorations, if any.
6. FEASIBILITY.
(a) Through 5:00 p.m. Central time, on January 29, 2008 (the
"Feasibility Period," Purchaser, its agents, employees and
contractors shall have the right to enter the Property for the
purpose of inspecting improvements, evaluating the Lease and
the Declaration, making surveys, updating the due diligence
materials delivered to Purchaser pursuant to Section 6(b)
below and performing other tests studies and examinations as
Purchaser in its sole discretion desires. If Purchaser, in its
sole discretion, is not satisfied with the Property, the "Due
Diligence Materials" or the results of any tests, including
any materially adverse facts or conditions which may be
revealed by a Phase I Environmental report, survey or title
examination, Purchaser shall have the right, upon written
notice to Seller given prior to expiration of the Feasibility
Period, to terminate this Agreement, in which event the
Deposit shall be returned to Purchaser.
(b) Seller has delivered, or will promptly deliver, to
Purchaser the materials listed on Exhibit B (the "Due
Diligence Materials"). Seller shall promptly deliver to
Purchaser such other due diligence materials in Seller's
possession as Purchaser may specifically identify in writing,
excluding any materials of a proprietary nature, not relating
to the condition or performance of the Property or the tenant.
All due diligence updates shall be at Purchaser's sole
expense.
(c) If notice of termination is not given prior to 5:00 p.m.
Central time on the last day of the Feasibility Period,
Purchaser shall be deemed to have waived the termination right
under Section 6(a) above.
(d) Purchaser agrees to repair any damage caused directly by
any negligence or other wrongful act or omission by Purchaser,
its agents, employees or contractors (collectively, the
"Purchaser Parties"), in connection with or relating to the
exercise of the right of access granted to Purchaser in this
paragraph, and to indemnify and hold the Seller harmless from
any and all losses actually incurred as a direct result of any
such negligence or wrongful act of any of the Purchaser
Parties in connection with or relating to the exercise of such
right of access. Seller will cooperate and assist Purchaser's
access to the buildings.
7. CONDITIONS PRECEDENT TO OBLIGATION OF PURCHASER. This
Agreement and all of Purchaser's obligations hereunder are
further subject to satisfaction of the following conditions on
or before Settlement:
(a) SELLER'S REPRESENTATIONS AND DELIVERIES. All
representations and warranties of Seller made herein shall be
true and correct in all material respects as of the date of
Settlement and Seller shall have taken all action and
delivered all documents and materials required by this
Agreement.
(b) NO LITIGATION. As of Settlement, there shall be no
litigation, proceeding or investigations pending, or to the
knowledge of Purchaser or Seller threatened, which might
prevent or adversely affect the use of the Property, or which
questions the validity of any action taken or to be taken by
Seller hereunder.
(c) LEASE; ESTOPPELS. Purchaser shall have received and
approved an Estoppel Certificate from Best Buy Stores, L.P.
("Tenant"), the tenant under the Lease, such Estoppel
Certificate to be in the form specified by the Lease,
confirming that the Lease is in full force and effect, that
there are no modifications or amendments, other than those
provided to Purchaser, the amount of rent and any security
deposit, that amounts due under the Lease are current and not
prepaid and that Seller is not in default under the Lease.
Purchaser shall also have received and approved a written
communication from Best Buy Co., Inc. ("Guarantor"), the
guarantor of the obligations of the Tenant under the Lease
pursuant to Section 54 of the Lease (the "Guaranty"),
confirming to Purchaser that the Guaranty remains in full
force and effect
(d) Default by Tenant. No default by Tenant under the Lease,
and no event which with the passage of time or the giving of
notice would constitute a default by Tenant under the Lease,
shall have occurred and be continuing.
In the event any of the foregoing conditions is not
satisfied on the date of Settlement, then Purchaser, at its
sole option, shall either: (i) waive such condition in writing
and proceed to consummate Settlement; or (ii) terminate this
Agreement by written notice to Seller, whereupon the Deposit
shall be promptly repaid to Purchaser, subject to Purchaser's
right to exercise its remedies hereunder in the event of a
Seller default. If Purchaser fails to notify Seller of its
election of either of the foregoing remedies as of 5:00 P.M.
on the Settlement Date, Purchaser shall be deemed to have
elected to terminate this Agreement.
8. SETTLEMENT.
(a) TIME AND PLACE. Unless this Agreement has been terminated
as provided above, Seller and Purchaser shall make settlement
on the sale and purchase of the Property in accordance with
the terms hereof ("Settlement") on the date which is one (1)
business day after the expiration of the Feasibility Period
(the "Settlement Date"), time being of the essence. Settlement
shall take place at the offices of the Escrow Agent, or as
mutually agreed by the parties. The parties attendance at
Settlement shall not be required.
(b) PURCHASER'S DELIVERIES. At Settlement, the Purchaser
shall pay the purchase price to Seller and shall execute and
deliver (i) an "Assignment and Assumption of Lease" in the
form attached hereto and incorporated herein as Exhibit "C"
and (ii) such other documents and instruments as shall be
customary and reasonably required to consummate Settlement.
(c) SELLER'S DELIVERIES. Seller shall deliver the following
to Purchaser: (i) the Deed (as defined in Paragraph 10); (ii)
an affidavit as to mechanics' liens and parties in possession
in customary form as reasonably required to cause owner's
title policy to be issued without exception for Mechanics
Liens or parties in possession (other than the Lease); (iii) a
Certificate of Non-Foreign Status as required by Section 1445
of the Internal Revenue Code of 1986 and any other
certificates required by any governmental authority or agency;
(iv) the Assignment and Assumption of Lease; (v) an assignment
of all of Seller's right, title and interest
in and to any warranties applicable to the Property, to the
extent any are in effect and assignable;
(vi) a written notice from Seller to the Tenant and Guarantor
stating that the Property has been sold to Purchaser and
directing Tenant to regard Purchaser as its Landlord and make
rental payments payable to Purchaser at the address specified
by Purchaser and set forth in such notice;
(vii) a "bring down certificate" confirming that all of
Seller's representations and warranties contained herein are
true and correct in all material respects as of the date of
Settlement; (viii) an insured closing letter or other evidence
acceptable to the Purchaser that the Escrow Agent has the
authority to issue the "Title Policy" (as defined in
subsection 8(d) below) to Purchaser on behalf of First
American Title Insurance Company and (ix) such other documents
and instruments as shall be customary and reasonably required
to consummate Settlement.
(d) Costs. Seller shall pay for the examination of title to
the Property (including the cost of issuance to Purchaser of
the "Title Commitment", as that term is defined in Section 9
below), premiums charged by the title insurance company to
issue the Owner's Policy of Title Insurance (the "Title
Policy"), the costs of preparing the Deed, one-half of the
Escrow Agent's reasonable escrow settlement charges, the
Wisconsin real estate transfer tax imposed on Grantors, if
any, and Purchaser shall pay the cost of the updated survey
certified to Purchaser and the cost of the updated Phase I
environmental assessment of the Property. Purchaser shall pay
for any endorsements it may require or request on its Owner's
Title Policy (except that Seller shall pay for any
endorsements required to insure over any of Purchaser's title
objections that Seller undertakes to cure and Seller shall pay
for any costs associated with the removal of the standard
exceptions for mechanic's liens and real estate taxes unpaid
but not yet due and payable), the cost of any feasibility
studies, recording fees on the Deed and one-half of the Escrow
Agent's reasonable escrow Settlement charges. Each party shall
pay its own legal, accounting and other expenses incurred in
connection with this Agreement or Settlement hereunder. It is
the intent of the parties that Seller shall be entitled to all
income for the period of time up to but not including the date
of Settlement, and Purchaser shall be entitled to all income
and shall be responsible for all expenses for the period of
time from, after and including the date of Settlement. Such
adjustments shall be shown on the Settlement Statement (with
such supporting documentation as the parties hereto may
require). Without limiting the generality of the foregoing,
the items of income and expense allocated at Settlement shall
include rent, maintenance charges, any other additional rent,
real and personal property taxes, amounts due under contracts
assigned to and assumed by Purchaser, if any, and utility
charges, except for costs which the tenants under the Lease
are responsible for, which shall not be prorated. In addition,
any security deposit under the Lease shall be assigned and
delivered to Purchaser at Settlement. For purposes of this
Section, Settlement shall not be deemed to have occurred
unless and until Seller's proceeds are received by Seller
prior to 2:00 p.m. Central time on such date. Settlement and
any prorations shall be computed as of the following day in
the event Seller's proceeds cannot be delivered by 2:00 p.m.
Central time on the date specified for Settlement.
(e) Possession. Subject only to the rights of the tenant
under the Lease, possession of the Property shall be delivered
to Purchaser immediately upon consummation of Settlement.
(f) Closing Documents. All closing documents to be executed
and delivered by the parties pursuant hereto shall be in form,
execution and substance as required herein.
9. TITLE AND SURVEY OBJECTIONS. Seller shall cause the
Escrow Agent to issue to Purchaser a current standard
commitment for an ALTA-Form B title insurance policy (the
"Title Commitment"), naming Purchaser as the proposed
purchaser of the Property and including copies of all
documents and instruments noted on Schedule B thereto as
encumbrances on title (collectively the "Title Commitment") as
soon as reasonably possible and in any event within ten (10)
days of the date hereof. The Purchaser shall have until
expiration of the Feasibility Period to report to Seller in
writing any survey or title defects or other objections
regarding the Property that are disclosed by Purchaser's
examination of the Title Commitment which, in Purchaser's sole
discretion, materially adversely affect use of the Property as
currently operated or make the title to the Property
uninsurable or which impose restrictions on existing or future
use of the Property which are not acceptable to Purchaser.
Seller shall have the right, but not the duty to cure any such
title objections reported by Purchaser. If the Seller is
unable or unwilling to cure objections to the Purchaser's
satisfaction prior to Settlement then, notwithstanding
anything herein to the contrary, the Purchaser shall, at its
option, either (i) terminate this Agreement, in which event
the Deposit shall be refunded; or (ii) waive such defects and
proceed to Settlement, with no reduction in the Purchase
Price; provided, however, that all mortgages, deeds of trusts
and other monetary liens shall be deemed to have been objected
to by Purchaser, shall be paid at Settlement, and the parties
hereby authorize application of the Purchase Price proceeds to
effect the same. If any additional matters of record are
created after the date of the examination of title
contemplated hereby, and prior to Settlement, Purchaser shall
have the right to further delay Settlement a reasonable time
to permit Seller to complete curative action. Any matters of
title or survey not timely objected to by Purchaser or which
are reported but not cured by Settlement shall be deemed
waived.
10. THE DEED. At the time specified in Paragraph 8 above for
Settlement the Seller shall deliver to Purchaser a Special
Warranty Deed (the "Deed") conveying fee simple title to the
Property, described according to the applicable legal
description attached hereto as Exhibit "A," subject to all
liens, encumbrances, conditions and restrictions of record,
unless otherwise agreed in writing.
11. RISK OF LOSS. The risk of loss or damage to the Property
by fire or other casualty prior to Settlement thereon shall be
on the Seller. If such loss or damage is substantial,
materially and adversely affects the Purchaser's intended use
and enjoyment of the Property as of Settlement or gives rise
to the right of the tenant to terminate the Lease as a result
of such casualty or if Purchaser determines in its discretion
that the occurrence of such damage renders the Property unfit
for investment purposes, the Purchaser shall have the option
to (i) terminate this Agreement and have the Deposit refunded,
in which event the parties hereto shall have no further
obligations or liabilities to one another hereunder; or (ii)
proceed to Settlement with an assignment of any right of
Seller in and to the proceeds of insurance.
12. CONDEMNATION. If all or any portion of the Property is
subject to actual or threatened taking pursuant to the power
of eminent domain prior to Settlement, the Purchaser shall be
entitled to elect either to (a) terminate this Agreement and
have the Deposit refunded in which event the parties shall
have no further obligations hereunder, or (b) proceed to
Settlement, in which event, at Purchaser's option all
proceeds, awards and other payments arising from any such
taking or sale shall be assigned and paid to the Purchaser.
13. COVENANTS.
(a) SELLER'S COVENANTS. Seller covenants and agrees
with Purchaser that, prior to Settlement:
(i) Seller, as Landlord, shall not violate the provisions of
the Lease and shall use reasonable efforts to cause tenant to
fully comply with the terms and provisions of the Lease.
Seller shall cooperate in good faith with Purchaser in an
effort to discuss and explain the provisions of the Lease and
the Declaration as part of Purchaser's due diligence.
(ii) Seller shall continue to maintain all of Seller's
existing insurance policies relating to the Property, or any
part thereof, if any, in full force and effect until the
Settlement has occurred, and shall cause tenant to maintain
all of tenant's policies relating to the Property as required
under the Lease.
(iii) Seller shall provide Purchaser with a copy of any
written notice hereafter received by Seller relating to any
violations or alleged violations of any federal, state or
municipal laws, ordinances, rules and regulations affecting
the Property, or any pending or threatened actions,
proceedings or claims affecting the Property.
(iv) From and after the date hereof, Seller shall not, except
as required by the Lease, (A) make or authorize to be made any
alterations to the Property, (B) enter into any amendments or
modifications of the Lease or other agreements, leases or
undertakings with respect to the Property or any part thereof,
(C) submit or file any applications with governmental
authorities to change the zoning of the Property, or (D)
record or consent to the recordation of any liens, mortgages,
or encumbrances of any kind affecting the Property, except as
would be discharged at Settlement.
14. Representations and Warranties of the Seller. The
Seller represents and warrants as of the date hereof that to
the best of its actual knowledge without investigation:
(a) Repairs; Notice of Violation. No governmental agency has
served any written notice on the Seller regarding any repairs,
alterations or corrections of any existing condition on the
Property. Seller has not received any written notice from
Tenant, any governmental agency or authority or other third
party that any part of the Property, including any
improvements located thereon, in any way violates the
Declaration or any applicable statute, ordinance, rule,
regulation or other law.
(b) Condemnation. There is no pending or threatened
proceedings for condemnation or the exercise of the right of
eminent domain as to any part of the Property or for the
limiting or denying of any right of access thereto.
(c) Authorization and Execution. This Agreement has been duly
authorized by all necessary action on the part of Seller and
has been duly executed and delivered by the Seller. Seller
shall deliver to Purchaser, prior to Settlement, all
organizational documents, resolutions, certificates and other
materials reasonably required by Purchaser to confirm the
foregoing.
(d) HAZARDOUS MATERIALS. No hazardous materials, as
hereinafter defined, are located on or about the Property, nor
has Seller used the Property for the storage, manufacture or
disposal of hazardous materials. For the purposes of this
Agreement, "hazardous materials" shall mean any "hazardous
substance," "hazardous waste" and "hazardous material," as
defined in the Comprehensive Environmental Response
Compensation and Liability Act of 1984, 42 U.S.C. Section
9601, et. seq., as amended, the Resource Conservation and
Recovery Act of 1976, as amended, and the Hazardous and Solid
Waste Amendment of 1984, as amended, the regulations adopted
pursuant thereto and any other federal, state and local law,
statute or ordinance or any court or administrative decree or
any private agreement with any governmental authority
pertaining to hazardous or toxic materials, substances,
pollutants, contaminants or waste to Seller's knowledge.
(e) LEASES. There are no leases, tenancies, licenses or other
rights of occupancy or use for, or any private restriction cm,
any portion of the Property other than the Lease, the
Declaration and other title matters of record. Neither tenant
nor Seller is in default in performing its obligations under
the Lease or the Declaration.
(f) NO OTHER AGREEMENTS. Seller has not entered into any
agreements affecting the Property other than the Lease and the
Declaration and other matters that would be revealed by
inquiry and proper search of the land records and/or zoning
and planning records in the local jurisdiction.
Except for the foregoing representations, Seller makes no
representations or warranties with respect to the Property and
Purchaser acknowledges and agrees that the Property is being
sold "AS IS, WHERE IS," and that Purchaser is relying on its
own inspections, consultants and inquiries with respect to the
Property, the Lease and all related matters. The "best of
Seller's knowledge" as used herein shall be deemed to mean the
actual knowledge of the Seller, without investigation. The
representations and warranties of Seller contained in this
Section 14, as well as the representations and warranties of
Purchaser contained in Section 15 below, shall survive
Settlement and delivery of the Deed for a period of six
months.
15. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser represents and warrants as of the date hereof
and shall be deemed to represent and warrant as of
Settlement that:
(a) ORGANIZATION. Purchaser is a corporation duly
organized and in good standing under the laws of Minnesota,
and has qualified (or will be qualified) to do business in all
jurisdictions in which such qualification is necessary to
consummate the transactions described herein.
(b). Authorization and Execution. The execution,
delivery and performance of this Agreement by Purchaser has
been duly authorized by all necessary action, if any, as
applicable, and has been duly executed and delivered by the
Purchaser. This Agreement is enforceable against Purchaser in
accordance with its terms and does not conflict with any
indenture, operating agreement, bylaw, or any other agreement
to which Purchaser is bound. The individual signing on behalf
of Purchaser is authorized to act for and on behalf of and to
bind Purchaser in connection with this Agreement.
(c) AGREEMENTS. There is no agreement to which
Purchaser is a party or, to Purchaser's knowledge, is binding
on Purchaser, which adversely affects Purchaser's ability to
perform its obligations under this Agreement.
16. DEFAULT. In the event of a default by Purchaser, Seller's
sole and exclusive remedy, in lieu of all other remedies,
shall be to retain the Deposit as liquidated damages, and
Seller hereby specifically waives the right to seek specific
performance of this Agreement by Purchaser. If Seller defaults
hereunder, Purchaser may terminate this Agreement, in which
event the Deposit shall be promptly refunded to Purchaser or
Purchaser may seek specific performance of this Agreement as
its sole remedy at law or in equity.
17. Agents and Brokers. Neither party has been represented by
a real estate broker or agent in connection with the execution
of this Agreement or the consummation of the transaction set
forth herein except for Investment Associates Realty
("Broker"), which shall receive a commission at closing, and
only in the event of closing, in the amount of four and one-
half (4.5%) percent of the Purchase Price. The commission to
Broker shall be paid by Seller. Each party agrees to
indemnify, defend and hold the other harmless from and against
any and all claims, fees, commissions and suits of any other
real estate broker or agent with respect to services claimed
to have been rendered at the request of or through or under
such party in connection with the execution of this Agreement
or the Lease or the transactions set forth herein..
18. Notices. Any notice, request or demand required or
permitted to be given pursuant to this Agreement shall be in
writing and shall be deemed sufficiently given if delivered by
hand by messenger at the address of the intended recipient,
sent prepaid by Federal Express (or a comparable guaranteed
overnight delivery service), or deposited in the United States
first class mail (registered or certified, postage prepaid,
with return receipt requested), addressed as follows:
For the c/o George Rerat
Purchaser: Managing Director of
Acquisitions 1300
Wells Fargo Place
30 Seventh Street East
St. Paul, Minnesota
55101 Telephone No.:
(651) 227-7333 Fax
No.: (651) 227-7705
E-mail:
grerat@aeifimds.com
and
Marissa Kim
Acquisitions Closer
1300 Wells Fargo Place
30 Seventh Street East
St. Paul, Minnesota
55101 Telephone No.:
(651)227-7333 Fax
No.: (651) 227-7705
E-Mail:
mkim@aeifunds.com
with a copy to: Thomas M. Hart
Winthrop &
Weinstine, P.A.
225 South Sixth
Street
Suite 3500
Minneapolis, MN
55402-4629 Phone:
(612) 604-6624
Fax: (612) 604-6824
For the Email:
Seller: thart@winthrop.com
Patricia R. Young
Perrone & Young
109 Westpark Drive,
Suite 330
Brentwood,Tennessee 37027
Phone: 615 /373.6910
Fax: 615/ 373.8716
Email: pyoung@pylaw.net
Notice may also be given by confirmed facsimile transmission,
provided notice is also sent subsequently by one of the
methods specified above. Notice shall be deemed given on the
date of the receipt or upon confirmed facsimile transmission
to the party named therein at the applicable fax number above.
19. APPLICABLE LAW. This Agreement shall be construed,
performed and enforced in accordance with the laws of the
State of Wisconsin, however jurisdiction for any dispute
hereunder shall be the U.S. District Court in Memphis, Shelby
County, Tennessee.
20. ENTIRE AGREEMENT; MODIFICATION. This Agreement contains
the entire agreement between the parties hereto relating to
the Property and supersedes all prior and contemporaneous
negotiations, understandings and agreements, written or oral,
between the parties hereto. This Agreement shall not be
amended or modified and no waiver of any provision hereof
shall be effective unless set forth in a written instrument
executed with the same formality as this Agreement.
21. SURVIVAL. Except as otherwise expressly set forth herein,
the provisions of this Agreement shall not survive Settlement
hereunder and shall be deemed merged into the deed at
Settlement.
22. TIME OF THE ESSENCE. The parties expressly acknowledge
and agree that TIME IS OF THE ESSENCE with respect to each and
every provision of this Agreement; provided, however, that if
the final date of any period which is set out in any provision
of this Agreement falls on a Saturday, Sunday or legal holiday
under the laws of the United States, then such time period
shall be extended to the next day which is not a Saturday,
Sunday or legal holiday.
23. Severability. In the event any one or more of the
provisions contained in this Agreement are held to be invalid,
illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other
provision hereof, and this Agreement shall be construed as if
such invalid, illegal, or unenforceable provision had not been
contained herein.
24. CAPTIONS. Any paragraph headings or captions contained in
this Agreement shall be for convenience of reference only and
shall not affect the construction or interpretation of any
provision of this Agreement.
25. COUNTERPARTS. Upon written notice to Seller, this
Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which
when taken together shall constitute one and the same
instrument.
26. TAX-FREE EXCHANGE. The parties acknowledges that
Purchaser and/or Seller may wish to close this transaction as
part of a tax-free exchange. The parties shall cooperate with
the other and take any reasonable actions necessary, including
the execution of appropriate documents, to assist the other so
to acquire or sell the Property as part of a 1031 deferred
exchange provided that: (a) neither party shall not be
required to incur any liability or expense in connection with
the others exchange; and (b) the exchange does not delay
Settlement.
27. ASSIGNMENT. This Agreement shall not be assignable by
Purchaser without Seller's prior written consent, which
consent shall not be unreasonably withheld or delayed.
Provided, however, if Purchaser shall remain primarily liable
hereunder, the Purchaser may assign, with written notice to
the Seller, all or a portion of its interest herein to an
affiliate of Purchaser. No assignment by Purchaser shall
relieve it of its obligations and liabilities hereunder.
28. LITIGATION COSTS. If any litigation is initiated by
either party hereto arising under this Agreement or otherwise
in connection with conveyance of the Property by Seller to
Purchase, the prevailing party in such litigation (i.e. the
party whose position is substantially upheld) shall be
entitled to reimbursement from the non-prevailing party for
all costs and expenses, including without limitation
reasonable attorney's fees, paid or incurred by the prevailing
party in connection with such litigation.
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be executed in its name pursuant to due
authority as of the dates set forth below.
PURCHASER: AEI FUND MANAGEMENT,
INC., a Minnesota
corporation
By /s/ Robert P Johnson
Printed Name: Robert P Johnson
Its: President
Date: January 15, 2008
SELLER: EAU CLAIRE EQUITY FUND, LIMITED PARTNERSHIP
a Tennessee limited partnership
By H.S Munster
Dr. H.S. Grafzu Munster
Date January 15, 2008
Exhibit A
(Legal Description)
The land referred to in this commitment/policy is situated in the State
of Wisconsin, County of EauClaire and is described as follows:
Part of Lot 6, Plat of Oak Pointe, described as follows: Lot 8, of the
Certifited Survey Map recorded in Volume 4, Page 97 and 98 of the Eau
Claire County Registry, located in the Nrothwest 1/4 of the Southeast
1/4, the Southwest 1/4 of the Southeast 1/4, and the Southeast 1/4 of
of the Southeast 1/4 all in Section 35, Township 27 North, Range 9
West, City of EauClaire, Eau Claire County, Wisconsin, more particularly
described as: Commencing at the Southwest corner of said Section 35,
thence N 88 43' 29" E. on the South section line, 2,582.70 feet to the
South 1/4 corner of said Section 35, thence N. 00 14' 29" W. on the
North-South 1/4 line, 1,031.35 feet; thence S 85 46' 32" E. 46.21
feet; thence continuing S 85 46' 32" E 160.00 feet to the Southwest
corner of said Lot 6, thence N 41 16' 57" E 257.49 fee to the Southerly
right-of-way of Commonwalth Avenue, thence N 88 45' 02" E.502.00 feet;
thence 113.97 feet along the arc of a curve to the left having a radius
of 300.45 feet, a central angle of 21 44' 04" and a113.29 foot chord
that bears N 77 53'00" E thence N 67 00' 58" E148.10 feet to the point
of beginning; thence 213.34 feet along the arc of a curve to the right
having a radius of 260.00 feet, a central angle of 47 00' 50" and a 207.41
foo tchord that bears S 89 28' 37" E;thence S 44 55' 58" E 183.73 feet;
thence S 32 15' 06" E 204.97 feet; thence S 41 39' 38" E 200.00 feet;
thence S 48 20' 22" W.268.25 feet; thence N 41 54'07" W 294.58 feet;
thence N 64 26'35" W 54.23 feet; thence N 41 54' 07" W 207.92 feet; thence
N 03 58'30"W 194.25 feet; thence N 24 18' 47" E 45.93 feet to the point
of beginning. Subject to existing easements.
Also known as: Lot 8 of Certified Survey Map #713 recorded in Volume 3
of Certified Survey Maps, Page 390 as Document #596743, re-recorded as
Certified Survy Map #768 in Volume 4 of Certified Survey Maps, Page 97
as Document #607512.
Tax Parcel #15-4416