ASSIGNMENT
OF
AGREEMENT OF PURCHASE AND SALE
THIS
ASSIGNMENT made and
entered into this 21st day of
December, 2005, by and between AEI FUND
MANAGEMENT, INC.,
a
Minnesota corporation, ("Assignor") and AEI
Income &
Growth
Fund 25 LLC, a Delaware limited liability
company, and
AEI
Fund Management XVII, Inc., a Minnesota
corporation.
WITNESSETH,
that:
WHEREAS,
on the 16th day of December,
2005, Assignor
entered into a Agreement of Purchase and
Sale (referred to
as
the "Agreement") for that certain property
located at 6959 E.
21st N. Street, Wichita, Kansas (the
"Property") with
Silver
Capital Net Lease Fund I, LLC, a Virginia
limited liability
company, as Seller; and
WHEREAS,
Assignor desires to
assign to AEI Income &
Growth Fund 25 LLC, an undivided sixty percent (60.0%)
interest as a tenant in common, and AEI
Fund Management
XVII,
Inc., an undivided forty percent (40.0%)
interest as a tenant
in common, (together referred to as the
"Assignee") all
of
Assignor's rights, title and interest in, to
and under the
Agreement regarding the Property 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 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
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
Robert P. Johnson, its 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
Robert P. Johnson, its
President
AEI FUND MANAGEMENT XVII, 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 16 day of
December, 2005, by and between SILVER
CAPITAL NET LEASE
FUND
I, LLC, a Virginia limited liability
company ("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, with
improvements thereon known generally as
6959 East 21st Street,
Wichita, Kansas, currently leased for use
as a Gart Bros.
Sporting Goods Company 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,
of 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 Five Million
Five Hundred
Thousand Dollars ($5,500,000.00).
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 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
results of any 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
Section 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.
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 taxes, stamps
and similar recording charges on the
Deed. The Purchaser
shall pay for the examination of title to the Property,
premiums charged by the title insurance
company, and the
cost
of any updated survey, environmental report and other
feasibility studies. 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. E.S.T. 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.
EST
on the date specified for Settlement.
(e) Possession.
Subject only to the
rights of the
tenant under the Lease, possession of
th
