ASSIGNMENT
OF
AGREEMENT OF PURCHASE AND SALE
THIS ASSIGNMENT made and entered into this 3rd day of March,
2005, by and between AEI FUND MANAGEMENT, INC., a Minnesota
corporation, ("Assignor") and AEI Income & Growth Fund XXI
Limited Partnership, a Minnesota limited partnership, AEI Income
& Growth Fund 24 LLC, a Delaware limited liability company, AEI
Income & Growth Fund 25 LLC, a Delaware limited liability
company, and AEI Private Net Lease Millennium Fund Limited
Partnership, a Minnesota limited partnership (as tenants in
common, together collectively referred to as "Assignee");
WITNESSETH, that:
WHEREAS, on the 3rd day of February, 2005, Assignor entered
into a Agreement of Purchase and Sale (referred to as the
"Agreement") for that certain property located at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (the "Property") with Silver
Capital Net Lease Fund II, LLC, a Virginia limited liability
company, as Seller; and
WHEREAS, Assignor desires to assign to AEI Income & Growth
Fund XXI Limited Partnership, an undivided twenty percent (20.0%)
interest as a tenant in common, AEI Income & Growth Fund 24 LLC,
an undivided fourteen percent (14.0%) interest as a tenant in
common, AEI Income & Growth Fund 25 LLC, an undivided forty-five
percent (45.0%) interest as a tenant in common, AEI Private Net
Lease Millennium Fund Limited Partnership, an undivided twenty-
one percent (21.0%) interest as a tenant in common, of its
rights, title and interest in, to and under the Agreement 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/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 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/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, its President
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/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, its President
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/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, its President
AEI PRIVATE NET LEASE MILLINIUM
FUND LIMITED PARTNERSHIP,
a Minnesota limited partnership
By: AEI Fund Management XVIII, Inc.,
a Minnesota corporation, its Managing Member
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, its President
Carmax/GA
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT ("Agreement"), dated as of the 3rd day of
February, 2005, by and between SILVER CAPITAL NET LEASE FUND II,
LLC, 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 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, currently leased to Car Max, 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 all leases of the Property (together with all
rents, charges and other matters arising or otherwise accruing
thereunder) (the "Leases").
4. DEPOSIT. Upon execution hereof, Purchaser shall
deposit the sum of $50,000 as a "Deposit", which will be held by
LANDAMERICA TITLE INSURANCE COMPANY, Richmond, Virginia branch,
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. If this Agreement is not terminated
prior to expiration of the Feasibility Period, Purchaser shall
deposit an additional $50,000 with Escrow Agent, increasing the
Deposit to $100,000.
5. PURCHASE PRICE. The purchase price (the "Purchase
Price") for the Property shall be Nine Million Three Hundred
Twenty Thousand Dollars ($9,320,000.00). 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 all aspects of the Property and the results of
all tests and studies, and the availability of the specified
financing, 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, 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.
(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 fifteen
(15) 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 Leases 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
Leases; and (v) 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 transfer taxes, stamps and
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 Leases are responsible for,
which shall not be prorated. In addition, any security deposit
under the Leases 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 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. 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 examinations,
other than the Permitted Exceptions (as to which Purchaser has
waived any objection), 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 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 may 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, restrictions and other matters 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, 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.
(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 (A) make or authorize to be made any alterations to the
Property, (B) enter into any 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 or 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, without the prior written consent of Purchaser.
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. No governmental agency has served any
written notice on the Seller regarding any repairs, alterations
or corrections of any existing condition on the Property.
(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 the
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 any portion of the
Property other than the Lease, the Permitted Exceptions and title
matters of record. Neither Tenant nor Seller is in default in
performing its obligations under the Lease.
(f) Seller has not entered into any agreements
affecting the Property other than the Lease 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 Leases and all related matters. The "best of
Seller's knowledge" as used herein shall be deemed to mean the
actual knowledge, without investigation, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇▇▇.
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. Each party hereunder represents
and warrants that it did not consult or deal with any broker or
agent, real estate or otherwise, with regard to this Agreement or
the transactions contemplated hereby, other than Progressive
Properties who shall receive a commission, payable by Seller if
and only if Closing occurs, equal to one percent (1%) of the
Purchase Price. Each party hereto agrees to indemnify and hold
harmless the other party from all liability, expense, loss, cost
or damage, including reasonable attorneys' fees, that may arise
by reason of any claim, demand or suit of any agent or broker
arising out of facts constituting a breach of the foregoing
representations and warranties.
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 Purchaser: c/o ▇▇▇▇▇▇ ▇▇▇▇▇
Managing Director of Acquisitions
1300 ▇▇▇▇▇ Fargo Place
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
For the Seller: Silver Capital LLC
Sabre Center II, Suite 600
6001 Broken Sound Parkway
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. Silver
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇, Esquire
Sabre Center II, Suite 600
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Phone No.: (▇▇▇)-▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Notice may also be given by 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
if delivered by hand or mail, one day after posting with FedEx or
other comparable carrier 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 Georgia.
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. 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. No assignment
by Purchaser shall relieve him of his obligations and liabilities
hereunder.
[SIGNATURE PAGE TO FOLLOW.]
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/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Title: President
Date: Feb 3, 2005
SELLER: SILVER CAPITAL NET LEASE FUND II, LLC,
a Virginia limited liability
company
By: SILVER CAPITAL MANAGER, LLC, a
Virginia limited liability
company, Its Manager
By:/s/ ▇▇▇▇ ▇ ▇▇▇▇▇
Title: Member
Date: 2-8-05
EXHIBIT A
(▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ and ▇▇▇▇ County, Georgia)
Legal Description:
ALL THAT TRACT or parcel of land lying and being in Land Lots
421 and 482 of the 18th District of ▇▇▇▇▇▇▇ and ▇▇▇▇ Counties,
Georgia, and being more particularly described as follows:
COMMENCING at the intersection of the northerly right of way
of ▇▇▇▇▇▇▇▇ Road (290 foot right of way) and the west line of
Land Lot 482; thence south 50 degrees 55 minutes 15 seconds
east for 41.76 feet, to a 1/2 inch rebar set, and the Point of
Beginning; thence departing the right of way of ▇▇▇▇▇▇▇▇ Road,
north 25 degrees 55 minutes 10 seconds east, for 1,140.63
feet, to a 1/2 rebar on the southerly bank of ▇▇▇▇▇▇▇ Creek;
thence continuing along said line, north 25 degrees 55 minutes
10 seconds east, a distance of 11.52 feet, to the centerline
of ▇▇▇▇▇▇▇ Creek; thence along the centerline of ▇▇▇▇▇▇▇ Creek
the following bearing and distances: south 78 degrees 11
minutes 32 seconds east, for 56.74 feet; thence north 83
degrees 11 minutes 55 seconds east, for 184.43 feet; thence
south 47 degrees 35 minutes 48 seconds east, for 342.71 feet;
thence north 61 degrees 34 minutes 57 seconds east, for 46.11
feet; thence south 30 degrees 29 minutes 28 seconds east, for
159.12 feet; thence south 78 degrees 35 minutes 46 seconds
east, for 229.72 feet, to the east line of Land Lot 421;
thence departing the centerline of ▇▇▇▇▇▇▇ Creek and
continuing along the easterly line of Land Lots 421 and 482,
south 07 degrees 36 minutes 22 seconds west, for 22.76 feet,
to a 1/2 inch rebar; thence south 07 degrees 36 minutes 22
seconds west, for 231.54 feet, to a metal fence post in
concrete cut off at ground level; thence departing the
easterly line of Land Lot 482, south 66 degrees 36 minutes 20
seconds west, for 1,286.85 feet, to a 1/2 inch rebar on the
northerly right of way of ▇▇▇▇▇▇▇▇ Road (290 foot right of
way); thence continuing along the northerly right of way of
▇▇▇▇▇▇▇▇ Road the following bearings and distances: north 48
degrees 41 minutes 08 seconds west, for 46.51 feet; thence
north 49 degrees 46 minutes 25 seconds west, for 103.93 feet;
thence north 50 degrees 55 minutes 15 seconds west, for 16.51
feet, to the Point of Beginning, containing 806,639 square
feet, or 18.518 acres, more or less, as shown on ALTA/ACSM
Land Title Survey for Silver Capital Net Lease Fund II, LLC,
South Trust Bank and Chicago Title Insurance Company, made by
Greenhorne & O'Mara, Inc. bearing the seal of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Ga. R.L.S. No. 2679, dated November 4, 2003.