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 65
North University
Blvd., Middletown, Ohio which is more
particularly described within the Agreement, (the "Property")
with Blue Bell 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/ Robert P Johnson
Name: Robert P
Johnson
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/ Robert P Johnson
Name: Robert P
Johnson
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/ Robert P Johnson
Name: Robert P
Johnson
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 BELL
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 65 North University Blvd., Middletown, OH 45042, 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 BELL PARTNERS, LLC
By: /s/ David A
Kitzmiller
Its: Authorized
Member
"BUYER"
AEI FUND MANAGEMENT, INC.
By: /s/ Robert P Johnson
Name: Robert P
Johnson
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
BELL 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 65 North University
Blvd., Middletown, Ohio 45042, 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 "Earnest Money")
in an interest bearing account with
Chicago Title
Insurance
Company, 36
E. 7th Street, Suite 2430, Cincinnati, Ohio
45202, Attn:
Ruth Brunner
(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 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
the Buyer does
not
terminate this
Agreement as set forth
herein, the Earnest
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
Earnest 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 Earnest
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 Dili
