ASSIGNMENT
OF
COMMERCIAL PURCHASE AND SALE CONTRACT
THIS
ASSIGNMENT
made and entered into
this 16th day of
January, 2006,
by and between AEI FUND MANAGEMENT, INC., a
Minnesota corporation,
("Assignor") and AEI NET LEASE INCOME &
GROWTH FUND
XIX LIMITED PARTNERSHIP, a Minnesota limited
partnership.
WITNESSETH, that:
WHEREAS, on the 16th day of November, 2005, Assignor entered
into a Commercial Purchase and Sale Contract (referred to as
the
"Agreement") for that
certain property located at 621 South 77
Sunshine Strip,
Harlingen, Texas (the
"Property") with
Meyer-
Lamph Development
Group, Ltd., a Texas limited partnership, as
Seller; and
WHEREAS,
Assignor desires to assign to AEI Net Lease Income
& Growth
Fund XIX Limited Partnership ("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
[SIGNATURES TO CONTINUE ON THE FOLLOWING PAGE]
ASSIGNEE:
AEI Net Lease Income & Growth Fund XIX Limited Partnership,
a Minnesota limited partnership
By: AEI Fund
Management XIX, Inc.,
a
Minnesota corporation, its General Partner
By: /s/ Robert P
Johnson
Robert P. Johnson, its President
COMMERCIAL PURCHASE AND SALE CONTRACT
Advance Auto Parts
This Purchase
and Sale Contract
("Agreement") is
entered into
this 16th day of
November, 2005, between MEYER-LAMPH DEVELOPMENT
GROUP, LTD.,
a
Texas
Limited
Partnership,
(hereinafter referred
to as "Seller") and AEI FUND MANAGEMENT,
INC., a Minnesota corporation, or its
assigns ("Buyer").
The
date on which the last party hereto
executes this Agreement is
hereafter referred to as the "Effective Date".
Seller is the owner of that certain real property, and
improvements thereon, referred to as Advance Auto
Parts generally located at 621 South 77 Sunshine Strip in the
City of Harlingen, County of Cameron, State of Texas, and more
particularly described on Exhibit "A" attached hereto and
incorporated herein (the "Property").
The Property
shall also include Seller's interests in the
following items:
1. Any and all privileges and
appurtenances pertaining to the
Property, including any right, title and interest of Seller in
or
to
adjacent streets, easements, alleys or right(s)-of-way;
2. Any and all trade names used in connection with the
Property;
3. All personal property utilized by
Seller in the operation of
the
Property that is currently located on the Property;
4. All of Seller's interest in and
rights and obligations under
the
Lease dated January
28, 2005, by and between Seller and
Advance Stores Company, Incorporated, a Virginia corporation
(the
"Tenant"), providing for the use and occupancy of the Property
(the
"Lease"), and all rents prepaid for any period subsequent to
the
Closing date (defined below); and
5. 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 Property; (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
Property, 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).
Save and Except; any Oil, Gas, and other Minerals which have
not
been previously reserved. Said Oil, Gas, and other Minerals,
if
any, will be reserved by Seller.
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).
TERMS AND CONDITIONS
For the mutual covenants contained in this
Agreement,
Seller
agrees to convey the Property to Buyer, and
Buyer agrees to
purchase the
Property from Seller,
on the following terms
and
conditions:
1) PURCHASE
PRICE: The total purchase price for the
Property
is
One Million, Five Hundred Sixty One Thousand, Nine Hundred
Dollars ($1,561,900) (the "Purchase Price").
2) EARNEST
MONEY DEPOSIT: Within
two (2) business days
after
the
Effective Date of this Agreement, Buyer
shall deposit
$25,000.00 (the
"Earnest Money") in
an interest bearing
account with
First American Title
Insurance Company,
1900
Midwest Plaza,
801 Nicollet Mall, Minneapolis,
Minnesota
55402 (the "Closing
Agent") in its capacity as escrow agent
in
one or more fully insured accounts of
Federally insured
banking or savings institution(s), pursuant to the terms
of
this
Agreement.
If
this Agreement is timely terminated pursuant to any right
contained herein,
the Earnest Money
shall be immediately
returned to
Buyer. With the removal of the
contingencies
set
forth in Paragraph(s) 4 and 8 hereof, or any other right
of
termination
herein reserved to Buyer, and if this
Agreement is
not terminated prior to expiration of the
Feasibility Period (as
defined below), Buyer shall deposit
an
additional $25,000.00
with the Closing Agent, increasing
the
Earnest Money to $50,000.00 and the entire Earnest Money
shall be non-refundable. The entire Earnest Money, any
additions thereto and any interest earned thereon, shall
be
credited to
the Purchase Price at the Closing Date (as
defined below), unless
otherwise provided herein. If Buyer
fails to
timely deliver the additional Earnest Money
deposit, Seller
may, at Seller's option, terminate this
Agreement by
delivering a written
termination
notice to
Buyer.
If
for any reason this
Agreement is terminated prior to the
expiration of
the Feasibility Period, or the Second
Feasibility Period (as
defined below) if such occurs, 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, or as allowed in Paragraphs 4, 8, 9, 14, 15, and
37
hereof, or
otherwise as expressly
allowed hereunder,
then
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).
Buyer has paid Seller $0.00 as independent consideration for
Buyer's right to terminate by tendering such amount directly
to
Seller or Seller's agent. If Buyer terminates under this
paragraph, the deposit will be refunded to Buyer and Seller
will
retain the independent
consideration. The
independent
consideration will
be credited to
the sales price upon
closing of the sale, if Buyer does not terminate within
the
time
required. In the event of termination, pursuant to the
terms and rights
contained herein, Buyer to return all due
diligence to broker within 5 calendar days.
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.
3) CLOSING DATE:
Closing of this transaction shall occur within
fifteen (15) business days following the expiration of the
Feasibility Period (as
defined below), or
to the extent
additional time is
needed to review the Updated Survey per
Paragraph 4(B),
whichever is latter
(the "Closing
Date").
If
either party fails to close by the Closing Date, the non-
defaulting party
may exercise the
remedies set
forth in
Paragraph 15.
A.
At
closing, Seller will execute and deliver, at
Seller's expense,
a special warranty
deed, in form and
substance as
agreed upon by Seller
and Buyer during the
Feasibility Period.
The deed must include
a vendor's lien
if
any part of the sales
price is financed. The
deed must
convey good and indefeasible title to the Property and show
no
exceptions other than
those permitted under Paragraph 4
or
any other provisions of the Agreement. Seller must
convey the Property at closing:
1.
with no liens,
assessments, or Uniform Commercial Code or
other security interest against the Property which will not be
satisfied out of the sales price, unless the Buyer is assuming
existing loans;
2.
without any
assumed loans in default; and
3.
with no persons
in possession of any part of the Property as
lessees, tenants at sufferance, or trespassers except tenants
under the written leases assigned to Buyer under this
Agreement.
B.
On
or before the Closing Date, Seller,
at Seller's
expense, will also deliver:
1. tax
statements showing no delinquent taxes on the Property;
2. a Bill of
Sale with warranties to title conveying title,
free and clear of all liens, to any personal property defined
as
part of the Property above, or sold under this Agreement, in
form
and substance as agreed upon by Seller and Buyer during the
Feasibility Period;
3. an Assignment
and Assumption of Lease in the form attached
hereto and incorporated herein as Exhibit "B" (the "Assignment
and Assumption of Lease");
4.
to the extent
that the following items are assignable, an
Assignment and Assumption of Warranties, Guaranties,
Indemnities
and Intangibles (the form of said Assignment and Assumption of
Warranties, Guaranties, Indemnities and Intangibles shall be in
the form attached hereto and incorporated herein as Exhibit
"C")
to Buyer of the following items as they relate to the Property
or
its operations:
(a) licenses and
permits;
(b) maintenance,
management, and other contracts;
(c) warranties and
guaranties; and
(d) consent to such
warranties and guaranties, in the event that
assignment of such is prohibited.
5. evidence that
the person executing this Agreement is legally
capable and authorized to bind Seller; and
6.
Owner's/Seller's Affidavit, in form and substance as agreed
upon by Seller and Buyer during the Feasibility Period;
7. FIRPTA
Affidavit, in form and substance as agreed upon by
Seller and Buyer during the Feasibility Period;
8. Estoppel from
Tenant, in form and substance as defined in
the Lease. Buyer must
decide during the Feasibility Period if
this form is satisfactory to Buyer.
9. The original
Lease and any and all
documentation modifying
the Lease, including but not limited to, assignments,
amendments,
and letter agreements;
10. Any notices,
statements, certificates, affidavits,
releases, and other documents required by this Agreement, the
title commitment, or applicable law that is necessary for the
closing of the sale and the issuance of the title policy;
11. an Owner's
Policy of Title Insurance issued by the Title
Company in the amount of the Sales Price dated at or after the
Closing, insuring Buyer against all loss under the Title
Policy,
subject only to only permitted exceptions approved by Buyer
during the Feasibility Period by Buyer pursuant to Paragraph 4;
12. Certificate
of Insurance of Lessee naming Buyer as
additional insured and/or loss payee, as required by the Lease;
13. A project
cost letter, signed by Seller, itemizing in
percentages totaling
100%, the following costs: land
acquisition, building construction, and site work.
Until
Closing, Seller will
operate the Property in the same
manner
as on the Effective Date and will
not transfer or
dispose
of any of the personal property described
in this
Agreement
or to be sold under this Agreement
before Closing
that is not
authorized by separate agreement.
C.
On or before the
Closing Date, Buyer will:
1. deposit the
Purchase Price with the Closing Agent;
2. deliver
evidence that the person executing this Agreement is
legally capable and
authorized to bind Buyer;
3. execute and
deliver any notices, statements, certificates,
or other documents required by this Agreement, Title Company,
or
law necessary to close the sale.
D.
Seller
represents to Buyer
that to the best
of its
knowledge, all real estate taxes and installments of special
assessments due and
payable on or before the Closing Date
have
been or will be paid in full as of the
Closing Date.
It
is understood between Seller and
Buyer that all
unpaid
levied and
pending special
assessments are
paid by the
Lessee and shall be
the responsibility of the Lessee under
the
Lease after the Closing Date.
In
the event Lessee does
not pay any special assessments or
real
estate taxes that are
the responsibility of the Lessee
under the Lease, Seller and Buyer agreed to
each pay its
prorata share of said assessments or taxes as of the Closing
Date.
The
Buyer and the Seller, as of the Closing
Date, shall
prorate: (i) all rent due under the Lease, if any, (ii) ad
valorem taxes,
personal
property taxes, charges or
assignments affecting
the Property
(on a calendar year
basis), (iii) utility charges, including charges for water,
gas,
electricity,
and sewer, if any,
(iv) other
expenses
relating to the Property which have accrued but not paid
as
of
the Closing Date, based upon the most current
ascertainable
tax bill
and other relevant billing
information, including any charges arising under any of
the
encumbrances to
the Property. To the extent that
information for any such proration is not available on the
Closing Date or if the
actual amount of such taxes, charges
or
expenses differs from
the amount used in the
prorations
at
closing, then the parties shall make
any adjustments
necessary so
that the prorations at
closing are
adjusted
based upon
the actual amount of such taxes, charges or
expenses. The
parties agree to make
such reprorations
as
soon
as possible after the actual amount
of real estate
taxes, charges
or expenses prorated at closing becomes
available. This
provision and the respective obligations of
the
parties shall survive closing.
E.
SALES
EXPENSES:
1.
Seller's
Expenses: Seller will pay for the following costs,
at
or before closing, unless otherwise designated herein:
a) any and all costs associated with
obtaining any releases of
existing liens, other than those liens assumed by Buyer,
including prepayment penalties and recording fees:
b) any and all
costs associated with obtaining a release of
Seller's loan liability, if applicable;
c) any
and all costs associated with obtaining any tax
statements or certificates and any and all costs associated
with
bring all real estate
taxes current except those due and payable
in the year of closing and payable by Tenant under the Lease;
d) any and all
costs associated with the preparation of the
Deed and any Bill of Sale as described in Paragraph 3;
e)
any and all
costs associated with obtaining the updated
title commitment/search and exam fee;
f) any and all
costs associated the Owner's Title policy
premium;
g) one-half of
any and all costs of any escrow fee;
h) one-half of
any and all costs of the transfer taxes and/or
transfer fees;
i) one-half of
any and all costs associated with the recording
of the Deed and Assignment and Assumption of Lease;
j) any and all
costs to record any documents to cure title
objections that Seller must cure;
k) any and all
costs associated with the assignment of
warranties and guaranties described in Paragraph 3(B)(4) or the
costs associated with obtaining the consent to such assignments
where required;
l) any and all
costs relating to any brokerage commissions; and
m) any and all
other expenses that Seller will pay under other
provisions of this Agreement.
2.
Buyer's
Expenses: Buyer will pay for the following costs, at
or
before closing:
a) one-half of
any and all costs of the transfer taxes and/or
transfer fees,
b) one-half of
any and all costs associated with the recording
of the Deed and Assignment and Assumption of Lease;
c) one-half of
any and all costs of any escrow fee;
d) any and all
costs associated with obtaining Buyer's required
title policy endorsements;
e) any and all
costs of the updating and certifying the Due
Diligence
Documents unless otherwise designated herein to be
paid by Seller; and
f) any and all
other expenses that Buyer will pay under other
provisions of this Agreement
Each
party will pay its own attorneys' fees incurred
during this transaction.
4) TITLE AND
SURVEY:
A.
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
Texas, 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 Feasibility Period,
whichever is later to
be consistent with Article 8 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,
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, 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).
B.
Survey:
Within two (2)
business days from receipt of
Seller's existing
ALTA survey, Buyer
shall, at its sole
expense, order an updated as-built ALTA Survey (the "Updated
Survey").
Prior to the expiration of the Feasibility Period, or within
seven (7) business
days from receipt of the Updated Survey,
whichever occurs latter, Buyer shall specify in writing
any
survey matters to which Buyer reasonably objects. If Buyer
fails to object within this time period,
all of Buyer's
survey objections
shall be deemed to
be waived and the
Earnest Money
shall be deemed non-refundable.
If Buyer
objects to any survey
matter(s), Seller shall, within five
(5)
business
days
after receipt of Buyer's survey
objections, deliver to Buyer
written notice that either (i)
Seller will,
at Seller's expense,
attempt to
remove the
survey matter(s)
to which Buyer has objected
before the
Closing Date
or (ii) Seller is unwilling or unable to
eliminate said
matter(s).
If Seller fails
to so notify
Buyer or is unwilling or unable to remove any such matter(s)
by
the Closing Date, Buyer may either (i) elect to terminate
this
Agreement and receive back the entire Earnest Money, in
which event
Buyer and Seller shall have no further
obligations under
this Agreement; or,
alternatively,
(ii)
Buyer may elect to
purchase the Property hereunder subject
to
such matter(s).
5) NOTICES:
A.
SPECIAL
ASSESSMENT
DISTRICTS:
If the Property is
determined to be situated within a utility district or other
statutorily
created district
providing water, sewer,
drainage, or flood control facilities and services, Chapter
49
of the Texas Water Code requires Seller
to deliver to
Buyer as part of the title documents the
required written
notice ("MUD
Notice") and Buyer agrees to acknowledge
receipt of
the MUD Notice in
writing prior to the
Closing
Date.
