ASSIGNMENT AND ASSUMPTION
OF
PURCHASE AGREEMENT
THIS
ASSIGNMENT made and
entered into this 24th 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 21st day of September, 2005,
Assignor
entered into an Purchase Agreement
(hereinafter referred
to
as the "Agreement") for that certain
property located at 1016
North Route 59, Aurora., Illinois, which
is more particularly
described within the Agreement, (the
"Property) with LaFayette
Village, L.L.C., a Virginia 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
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT
("Agreement"), dated as of the 21 day of
September, 2005, by and between LAFAYETTE
VILLAGE, L.L.C., a
Virginia limited liability company
("Seller") and AEI FUND
MANAGEMENT, INC., a Minnesota corporation
("Purchaser"), recites
and provides:
RECITALS
Seller
is the owner of a parcel of real
property, with
improvements thereon known generally as 1016
North Route 59,
Aurora, Illinois, currently leased for use
as a Jared's
Jewelry
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 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
Seller's right, title
and
interest in and to the lease of the
Property (together with all
rents, charges and other matters arising or
otherwise accruing
thereunder) (the "Lease").
4.
Deposit.
Upon
execution hereof, Purchaser shall
deposit the sum of $50,000 as a "Deposit",
which will be held
by
First American Title Insurance Company
Minneapolis, Minnesota, as
the "Escrow Agent" in escrow pending "Settlement".
If this
Agreement is timely terminated pursuant to any
right contained
herein, the Deposit shall be returned to
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
Section 6 and/or 16 below.
5.
Purchase
Price. The purchase price (the "Purchase
Price") for the Property shall be Two Million Two Hundred
Thousand Dollars ($2,200,000.00).
The Purchase Price
shall be
payable all in cash at settlement by wire
transfer.
6. Feasibility.
(a) During
the fifteen (15) business day period
following the latest of the dates on which
Purchaser and
Seller
have both executed this Agreement (the "Feasibility
Period"),
Purchaser, its agents, employees and
contractors shall have
the
right to enter the Property for the purpose of inspecting
improvements, making surveys, updating the due diligence
materials previously delivered to Purchaser
pursuant to 6(b)
below, and performing other tests, studies
and examinations
as
Purchaser, in its sole discretion, desires and
to confirm
the
availability of financing, on terms and
conditions acceptable
to
Purchaser. If Purchaser is not satisfied, in its sole
discretion, with the results of all updated
tests including
any
materially adverse facts or conditions not
shown in the Due
Diligence Materials (defined below) which
may be revealed by
an
updated 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) Purchaser
acknowledges that Seller has delivered
to Purchaser the materials listed on Exhibit B (the "Due
Diligence Materials"), and that all matters
disclosed by such
deliveries are acceptable to Purchaser and
shall not be the basis
for any objection hereunder. The
matters of title
and survey
reflected in the materials already delivered to
Purchaser are
"Permitted Exceptions" deemed acceptable to
Purchaser.
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
expiration of the Feasibility Period, all
such matters shall
be
deemed acceptable and all such conditions
satisfied and/or waived
and the termination right under 6(a) shall
be extinguished.
(d) Purchaser
agrees to repair
any damage caused
directly by 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
the exercise of such right of access,
other than as a result
of
the Seller's negligence or willful misconduct. 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. Purchaser shall have received an
Estoppel
Certificate from 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 must
determine during the Feasibility Period if
this form of
Estoppel
is satisfactory to Purchaser.
(d)
Declaration for
Meridian Business Campus.
Purchaser shall have received a satisfactory
resolution of
the
three (3) title issues reported from review of
Due Diligence
Materials as follows:
(i) Estoppel
confirmation as to what entity is
authorized to bill and collect assessments
for Meridian
Business
Campus Phase II and confirmation that no
amounts are past
due
under the Declaration for Meridian Business
Campus Phase II;
(ii) Confirmation
in the tenant
estoppel that
tenant pays amounts assessed against the Property under the
Declaration; and
(iii)
Confirmation by the authorized billing
party under the Declaration as to what
specific common areas
it
makes assessments for (e.g., clarification as to the
responsibilities of tenant and the billing party under the
Declaration to maintain the "Access Drive"
and "Shared
Roadway",
respectively as such terms are used in the Lease and/or the
Declaration).
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. Failure to select one of the
foregoing on the date
of
Settlement shall constitute Purchaser's
election not to terminate
this Agreement and shall constitute waiver of all such
conditions.
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
ten
(10) business days 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.
(b) Purchaser's
Deliveries.
At Settlement, the
Purchaser shall pay the purchase price to Seller and shall
execute and deliver an instrument providing for Purchaser's
assumption of the Lease and Purchaser's
indemnity of Seller
with
respect to all matters occurring under the
Lease or with respect
to the Property from and after the date of
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) an
assignment of all of Seller's right, title
and interest in
the
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; and (vi) a
written
notice from Seller to the tenant 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.
(d) Costs.
The Seller shall pay the costs of
preparing the Deed, the title insurance company's reasonable
escrow settlement charges and any state
transfer taxe
