ASSIGNMENT AND ASSUMPTION
OF
PURCHASE AGREEMENT
THIS ASSIGNMENT made and entered into this 22nd day of
August, 2005, by and between AEI FUND MANAGEMENT, INC., a
Minnesota corporation, ("Assignor") and AEI INCOME & GROWTH
FUND 23 LLC, a Delaware limited liability company, whose
corporate general partner is AEI Fund Management, XXI, Inc., a
Minnesota corporation, AEI ACCREDITED INVESTOR FUND V LP, a
Minnesota limited partnership, whose corporate general partner
is AEI Fund Management XVIII, Inc., a Minnesota corporation,
and AEI ACCREDITED INVESTOR FUND 2002 LIMITED PARTNERSHIP, a
Minnesota limited partnership, whose corporate general partner
is AEI Fund Management XVIII, Inc., a Minnesota corporation;
WITNESSETH, that:
WHEREAS, on the 1st day of August, 2005, Assignor entered
into an Purchase Agreement (hereinafter referred to as the
"Agreement") for that certain property located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ which is more particularly
described within the Agreement, (the "Property) with CM
Columbia SC, LLC, a Delaware limited liability company, as
Seller; and
WHEREAS, Assignor desires to assign to AEI Income &
Growth Fund 23 LLC, an undivided thirteen and a half percent
(13.5%) interest as a tenant in common, AEI Accredited
Investor Fund V LP, an undivided forty-five percent (45%) as a
tenant in common, and AEI Accredited Investor Fund 2002
Limited Partnership, an undivided forty-one and a half percent
(41.5%) (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 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/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary & Treasurer
ASSIGNEE:
AEI INCOME & GROWTH FUND 23 LLC,
a Delaware limited liability company
By: AEI Fund Management XXI, Inc.,
a Minnesota corporation, its Managing Member
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary & Treasurer
AEI ACCREDITED INVESTOR FUND V LP,
a Minnesota limited partnership
By: AEI Fund Management XVIII, Inc.,
a Minnesota corporation, its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary & Treasurer
[SIGNATURES TO FOLLOW ON THE NEXT PAGE]
AEI ACCREDITED INVESTOR
FUND 2002 LIMITED PARTNERSHIP,
a Minnesota limited partnership
By: AEI Fund Management XVIII, Inc.,
a Minnesota corporation, its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary & Treasurer
PURCHASE AGREEMENT
CarMax, Columbia, South Carolina
This Purchase Agreement (as amended from time to time,
this "Agreement") entered into and effective as of the
1st day of August, 2005, by and between CM Columbia SC,
LLC, a Delaware limited liability company (the "Seller") and
AEI Fund Management, Inc., a Minnesota corporation, or its
assigns (the "Buyer").
1. PROPERTY. Seller holds an undivided 100% interest in
the fee title to that certain real property legally
described in the attached Exhibit "A" (the "Parcel").
Seller wishes to sell and Buyer wishes to purchase the
Parcel and all improvements (the "Improvements") on the
Parcel (the Parcel and the Improvements collectively, the
"Property").
2. LEASE. The Property is being sold subject to an
existing Lease of the Property, dated February 24, 2005 (the
"Lease"), by and between Seller, as lessor, and CarMax, Inc.
as lessee (the "Lessee"). Buyer shall have the right to
review and approve such Lease during the First Contingency
Period, in Buyer's sole discretion.
3. CLOSING DATE. The closing date on the Buyer's purchase
of the Property shall be on or before August 30, 2005, or 10
days from the delivery of the Second Due Diligence
documents, if any should be occasioned as set forth below,
whichever is later (the "Closing Date").
4. PURCHASE PRICE. The purchase price for the Property is
$13,175,000. If all conditions precedent to Buyer's
obligations to purchase have been satisfied, Buyer shall
deposit the Purchase Price in cash with a title company
acceptable to Buyer as described in Article 6 hereof (the
"Closing Agent") on the Closing Date.
Within two (2) business days of full execution of this
Agreement by all parties, Buyer will deposit $100,000 (the
"▇▇▇▇▇▇▇ Money") in an interest bearing escrow account with
First American Title Insurance Company, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the
"Closing Agent"). The ▇▇▇▇▇▇▇ Money will be credited against
the Purchase Price paid by Buyer at closing when and if the
transaction contemplated herein closes and the sale is
completed. The accrued interest will be paid to Buyer at
closing when and if the transaction contemplated herein
closes and the sale is completed. In all other instances
interest is to be paid to Buyer.
The balance of the Purchase Price in cash is to be
deposited by Buyer into an escrow account with the Closing
Agent on the Closing Date.
5. ESCROW. Escrow shall be opened by Seller with the
Closing Agent upon execution of this Agreement. A fully
executed 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. Buyer shall order, coincident with notice to
Buyer of the deposit of the copy of this fully executed
Purchase Agreement with Closing Agent, a commitment for an
ALTA Owner's Policy of Title Insurance (ALTA owner-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 South Carolina, 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 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 ▇▇▇▇▇▇▇ Money and interest 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 ▇▇▇▇▇▇▇ Money and interest 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 10 business days from
the date the last party hereto executes this Agreement, and
shall be subject to the requirements and limitations set
forth in the Lease.
8. DUE DILIGENCE AND CONTINGENCY PERIODS.
8.01 FIRST DUE DILIGENCE DOCUMENTS AND FIRST CONTINGENCY
PERIOD. Buyer shall have until the end of the fifteenth
(15th) business day after the delivery of the last of the
First Due Diligence Documents, as described below, (the
"First Contingency Period") to conduct all of its
inspections, due diligence and review to satisfy itself
regarding each item set forth below, the Property and this
transaction. The following Due Diligence Documents are to
be delivered by Seller at Seller's expense (unless
specifically designated herein to be obtained by Buyer), and
such documents to be of current or recent date and certified
to Buyer where so indicated, or otherwise the most recent of
such item in Seller's possession,:
(a) Seller's existing Title Policy;
(b) Seller's existing ALTA boundary survey of the Property
(any update of the same shall be done by Buyer at Buyer's
expense within the first five business days after mutual
execution of this Agreement); Buyer shall have fifteen
business days from receipt of the updated survey to review
and approve any changes to the survey not reflected on the
Seller's existing survey.
(c) Copies of the Lease and all amendments and
assignments thereto;
(d) Seller's existing Phase I environmental assessment
report and letter from the company preparing such
report allowing Buyer to rely on the same;
(e) Copies of the certificates for the insurance
polices for Lessee as required by the Lease;
(f) Final plans and specifications for the
Improvements, if in Seller's possession;
(g) Soils report, if in Seller's possession;
(h) Certificate of Occupancy from the governing
municipality and, if in Seller's possession, Certificate of
Substantial Completion executed by the project architect
and/or general contractor for the Improvements;
(i) Proposed Limited Warranty Deed;
(j) Copy of most recent Real Estate Tax Statement, if
in Seller's possession; and
(k) Copies of all warranties, and assignments thereof
to Buyer and/or Lessee, issued to or required to be provided
to Lessee as designated in the Lease, if any.
(All of the above described documents (a) through (k)
are hereinafter collectively the "First Due Diligence
Documents").
After receipt and review of the First 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 prior to the
end of the First Contingency Period (and the ▇▇▇▇▇▇▇ Money
(less the One Hundred Dollar Option consideration) and
interest shall be returned in full to Buyer immediately) and
neither party shall have any further duties or obligations
to the other hereunder. Such notice shall be deemed
effective upon receipt by Seller.
8.02 FORM OF CLOSING DOCUMENTS. Prior to the end of the
First Contingency Period, Seller and Buyer shall agree on
the form of the following documents to be delivered to Buyer
on the Closing Date by Seller as set forth in Article 14
hereof:
(a) Limited warranty deed;
(b) Seller's Affidavit;
(c) FIRPTA Affidavit;
(d) Assignment and Assumption of the Lease;
(e) Assignment of warranties from the party or parties
constructing the Improvements on the Property, if Seller has
any such warranties in its possession, and if such
warranties are not assignable on their face, the written
consents of the assignments thereof by the party giving the
warranty from the party or parties constructing the
Improvements on the Property;
(f) Estoppel from Lessee;
(g) Indemnity of Seller in favor of Buyer over
representations and warranties, if any for which
the Landlord is liable under the Lease prior to
the Closing Date;
In the event that Seller and Buyer do not reach mutual
agreement on the form of the above described documents (a)
through (g) prior to the end of the First Contingency
Period, this Agreement may be terminated by either Seller or
Buyer and the ▇▇▇▇▇▇▇ Money and interest shall be returned
in full to the Buyer immediately and neither party shall
have any further duties or obligations to the other
hereunder.
8.03 SECOND DUE DILIGENCE DOCUMENTS AND SECOND CONTINGENCY
PERIOD. As soon as available, but in any event no later
than at least ten (10) business days prior to the Closing
Date (the "Second Contingency Period"), Seller shall deliver
to Buyer the following items for review and acceptance:
Any documents or written summary of facts actually
known to Seller that materially change or render
incomplete, invalid, or inaccurate any of the First Due
Diligence Documents (collectively, if any, the "Second
Due Diligence Documents").
Buyer shall have the Second Contingency Period, if
occasioned by the delivery of Second Due Diligence
Documents, to examine and to accept only the above-described
Second Due Diligence Documents. After Buyer's receipt and
review of the Second Due Diligence Documents, Buyer may
cancel this Agreement if any of the Second Due Diligence
Documents are not acceptable to Buyer, in its sole
discretion, by delivering a cancellation notice, as provided
herein, to Seller and Closing Agent prior to the end of the
Second Contingency Period. Such notice shall be deemed
effective upon receipt by Seller. If Buyer so terminates
this Agreement, the ▇▇▇▇▇▇▇ Money shall be returned in full
to Buyer immediately and thereafter neither party shall have
any further duties or obligations to the other hereunder.
It shall be a condition precedent to Buyer's
obligations to close hereunder that there have been no
material changes in any of the material information
reflected in the First (or Second Due Diligence Documents,
if any) after the date of such document and prior to
closing.
Until this Agreement is terminated or the Closing has
occurred, whichever is earlier, the Seller shall deliver to
the Buyer any documentation that comes in the Seller's
possession that modifies any of the First or Second Due
Diligence Documents, including the Lease, or could render
any of the First or Second Due Diligence Documents
materially and adversely inaccurate, incomplete or invalid.
The Buyer shall, in any event, have five (5) business days
before the Closing Date to review any such document and, 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 document or documents.
9. CLOSING COSTS. Buyer shall pay all costs of closing,
including, but not limited to, the owner's title insurance
policy, recording fees, escrow fees, the costs of the
updating and certifying all Due Diligence Documents, unless
otherwise designated herein to be paid by Seller. Each
party will pay its own attorneys' fees to close this
transaction. Seller shall pay 100% of any commission owed to
Marcus & Millichap or any broker claiming through their
representation of Seller.
10. REAL ESTATE TAXES AND ASSESSMENTS. Seller represents
to Buyer that to its actual 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.)
11. PRORATIONS. The Buyer and the Seller, as of the Closing
Date, shall prorate: all Basic Rent (as defined in the
Lease) due under the Lease.
12. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller
represents and warrants as of this date that:
(a) Except for this Agreement, the Lease between
Seller and Lessee and the assignment by Lessee of
the Lease to CarMax Auto Superstores, Inc., it has
no actual knowledge of any other agreements or
leases with respect to the Property;
(b) Seller has all requisite power and authority to
consummate the transaction contemplated by this
Agreement and has by proper proceedings duly
authorized the execution and delivery of this
Agreement and the consummation of the transaction
contemplated hereunder;
(c) It does not have any actual knowledge of any
actions or proceedings pending, which would
materially affect the Property or Lessee, except
matters fully covered by insurance and matters
that are public information.;
(d) The consummation of the transactions contemplated
hereunder, and the performance of this Agreement
and the delivery of the limited warranty deed to
Buyer, will not result in any breach of, or
constitute a default under, any instrument to
which Seller is a party or by which Seller may be
bound or affected;
e) All of Seller's covenants, agreements, and
representations made herein, and in any and all
documents which may be delivered pursuant hereto,
shall survive the delivery to AEI of the limited
warranty deed and other documents furnished in
accordance with this Agreement, and the provision
hereof shall continue to inure to Buyer's benefit
and its successors and assigns;
(f) To Seller's actual knowledge, the Property is
substantially undamaged by fire and other hazards, and has
not been made the subject of any condemnation proceeding;
(g) Seller has no actual knowledge that the use and
operation of the Property violates any applicable
local, state and federal laws, ordinances,
regulations and requirements in any material
respect, including applicable environmental laws;
(h) Seller has no actual knowledge of any proceeding
or inquiry by any governmental authority with
respect to the presence of hazardous materials on
the Property or the migration of hazardous
materials from or to other property;
(i) These Seller's representations and warranties
shall be deemed to be true and correct as of the
Closing Date, except to the extent Seller notifies
Buyer otherwise prior to the Closing Date. If
Seller shall notify Buyer of a change in its
representations and warranties prior to the
Closing Date, then Buyer shall get five (5)
business days to review such change and terminate
this Purchase Agreement if Buyer deems necessary.
This provision shall survive the closing;
(j) Seller represents and warrants the transaction
contemplated herein does not represent a fraudulent
conveyance.
13. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer
represents and warrants to Seller that:
(a) Buyer has all requisite power and authority to
consummate the transaction contemplated by this
Agreement and has by proper proceedings duly
authorized the execution and delivery of this
Agreement and the consummation of the transaction
contemplated hereunder; Buyer has not used the
services of any broker whose commission payment is
not accounted for herein.
(b) Neither the execution and delivery of this
Agreement nor the consummation of the transaction
contemplated hereunder will violate or be in
conflict with any agreement or instrument to which
Buyer is a party or by which Buyer is bound;
(c) These Buyer's representations and warranties shall
be deemed to be true and correct as of the Closing
Date and shall survive the closing.
14. CLOSING.
(a) On or before the Closing Date, Seller will deposit into
escrow with the Closing Agent the following documents:
(1) A limited warranty deed conveying title to the
Property to Buyer, in form and substance as agreed
to between Seller and Buyer during the First
Contingency Period;
(2) Estoppel letter from Lessee, in form and substance
as agreed to between Seller and Buyer during the
First Contingency Period;
(2) Affidavit of Seller, in form and substance as
agreed to between Seller and Buyer during the
First Contingency Period;
(3) FIRPTA Affidavit, in form and substance as agreed
to between Seller and Buyer during the First
Contingency Period;
(4) Assignment of Lease, in form and substance as
agreed to between Seller and Buyer during the
First Contingency Period;
(5) Assignments of all warranties (and the written
consents of the assignments thereof by the party
giving the warranty) from the party or parties
constructing the Improvements on the Property, if
any such warranties are in Seller's possession.
(6) Insurance certificates representing the insurance
policies of Lessee as required by the Lease;
(7) Copy of the final unconditional Certificate of
Occupancy for the Property authorizing Lessee's
use and occupancy of the Property;
(8) Such documents as the Closing Agent may reasonably
require of Seller otherwise consistent herewith
(it being understood that in no event shall Seller
be obligated to become liable with respect to
matters for which the Lessee is responsible under
the Lease) to allow Closing Agent to issue a down-
dated title commitment for an owner's title
insurance policy, reflecting only permitted
exceptions approved by Buyer during the First
Contingency Period and including all endorsements
required by Buyer, with all Schedule C
requirements removed;
(9) Copies of any and all certificates, permits,
licenses and other authorizations of any
governmental body or authority as may be in
Seller's possession which are necessary to permit
the use and occupancy of the Improvements;
(10) Seller indemnification from Seller to Buyer for
Landlord's representation and warranties in the
Lease, if any, to the extent related to the time
period prior to the Closing Date; and
(11) The original Lease and any Amendments thereto,
executed by all parties.
(b) On the Closing Date, Buyer will deposit the Purchase
Price with the Closing Agent;
(c) Both parties will sign and deliver to the Closing Agent
any other documents reasonably required by the Closing Agent
and/or the Title Company that are consistent with the terms
of this Agreement.
15. TERMINATION. This Agreement may be terminated prior to
closing at Buyer's option (and the ▇▇▇▇▇▇▇ Money (less the
Option Consideration which shall not be returned) and
interest returned to Buyer in full immediately) in the event
of any of the following occurrences:
(a) Seller fails to comply with any of the terms
hereof;
(b) A default exists in any material financial
obligation of Seller or Lessee;
(c) Any representation made or contained in any
submission from Seller or Lessee, or in the Due
Diligence Documents, proves to be untrue,
substantially false or misleading in any material
respect at any time prior to the Closing Date that
would adversely affect the Property or the
ability of Lessee to perform its obligations under
the Lease;
(d) There has been a material adverse change in the
financial condition of Lessee that would affect
their ability to perform under the Lease or there
shall be a material action, suit or proceeding
pending or threatened against Seller which affects
Seller's ability to perform under this Agreement
or against Lessee, which affects their respective
abilities to perform under the Lease;
(e) Any bankruptcy, reorganization, insolvency,
withdrawal, or similar proceeding is instituted by
or against Seller or Lessee;
(f) Seller or Lessee shall be dissolved, liquidated or
wound up; and
(g) Lessee is not in possession of the Property and/or
commence paying rent under the Lease by the
Closing Date; and
(h) Notice given by Buyer pursuant to Article 6, 7, 8,
16 or 18 hereof.
16. DAMAGES, DESTRUCTION AND EMINENT DOMAIN. If, prior to
the Closing Date, the Property, or any part thereof, should
be destroyed or further damaged by fire, the elements, or
any cause, due to events occurring subsequent to the date of
this Agreement (which damage exceeds 10% of the Purchase
Price of the Property or abates payment of rent by the
Lessee or renders the Lease invalid), this Agreement shall
become null and void, at Buyer's option, exercised by
written notice to Seller within ten (10) business days after
Buyer has received written notice from Seller of said
destruction or damage. Seller, however, shall have the
right to adjust or settle any insured loss until (a) all
contingencies set forth in Article 8 hereof have been
satisfied, or waived; and (b) any period provided for above
in Article 8 hereof for Buyer to elect to terminate this
Agreement has expired or Buyer has, by written notice to
Seller, waived Buyer's right to terminate this Agreement.
If Buyer elects to proceed and to consummate the purchase
despite said damage or destruction, there shall be no
reduction in or abatement of the Purchase Price, and Seller
shall assign to Buyer the Seller's right, title and interest
in and to all insurance proceeds resulting from said damage
or destruction to the extent that the same are payable with
respect to damage to the Property, subject to rights of the
Lessee.
If prior to closing, the Property, or any part thereof,
is taken by eminent domain, (which taking delays payment of
rent by the Lessee or renders the Lease invalid) this
Agreement shall become null and void, at Buyer's option. If
Buyer elects to proceed and to consummate the purchase
despite said taking, there shall be no reduction in, or
abatement of, the Purchase Price and Seller shall assign to
Buyer all of the Seller's right, title and interest in and
to any award made, or to be made, in the condemnation
proceeding pro-rata in relation to the Property's subject to
rights of the Lessee.
In the event that this Agreement is terminated by Buyer
as provided above, the ▇▇▇▇▇▇▇ Money and interest shall be
returned to Buyer immediately after execution by Buyer of
such documents reasonably requested by Seller to evidence
the termination hereof.
17. NOTICES. All notices from either of the parties hereto
to the other shall be in writing and shall be considered to
have been duly given or served if sent by first class
certified mail, return receipt requested, postage prepaid,
or by a nationally recognized courier service guaranteeing
overnight delivery to the party at his or its address set
forth below, or to such other address as such party may
hereafter designate by written notice to the other party.
If to Seller:
c/o SunTrust Equity Funding, LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Mail Code 3951
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Phone No.: 404/▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone No.: 312/▇▇▇-▇▇▇▇
If to Buyer:
AEI Fund Management, Inc.
1300 Minnesota World Trade Center
▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Law Firm
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Notice shall be deemed received 48 hours after proper
deposit in US Mail, or 24 hours after proper deposit with a
nationally recognized overnight courier.
18. MISCELLANEOUS.
a. This Agreement may be amended only by written agreement
signed by both Seller and Buyer, and all waivers must be in
writing and signed by the waiving party. Time is of the
essence. This Agreement will not be construed for or
against a party whether or not that party has drafted this
Agreement. If there is any action or proceeding between the
parties relating to this Agreement, the prevailing party
will be entitled to recover attorney's fees and costs. This
is an integrated agreement containing all agreements of the
parties about the Property and the other matters described,
and it supersedes any other agreement or understandings.
Exhibits attached to this Agreement are incorporated into
this Agreement.
b. If the transaction contemplated hereunder does not
close by the Closing Date, through no fault of Buyer, Buyer
may either, at it election, extend the Closing Date,
exercise any remedy available to it by law, or terminate
this Agreement (and receive its ▇▇▇▇▇▇▇ Money (less the
Option Consideration) and interest back in full
immediately).
c. This Agreement shall be assignable by Buyer, at its
option, in whole or in part, in such manner as Buyer may
determine, to an affiliate of affiliates of Buyer.
d. The Buyer and Seller each warrant to the other that
neither party hereto has had any dealing with any real
estate brokers or salespersons which would result in a claim
for a commission, except as otherwise set forth herein.
e. In the event that Buyer does not deliver the Purchase
Price on the Closing Date in accordance with this Agreement,
unless Buyer has terminated this Agreement prior to the
Closing Date in accordance with the terms hereof, Seller
shall be entitled to receive the ▇▇▇▇▇▇▇ Money on the
Closing Date, free and clear of any lien or claim of Buyer.
Buyer is submitting this offer by signing a copy of
this Agreement and delivering it to Seller. Seller has until
August 5, 2005 within which time to accept this offer by
signing and returning this Agreement to Buyer. When executed
by both parties, this Agreement will be a binding agreement
for valid and sufficient consideration which will bind and
benefit Seller, Buyer and their respective successors and
assigns.
IN WITNESS WHEREOF, Seller and Buyer have executed this
Agreement effective as of the day and year above first
written.
SELLER:
CM COLUMBIA SC, LLC.
By: SunTrust Equity Funding, LLC, its manager
By: /s/ R ▇▇▇▇ ▇▇▇▇▇▇▇
Its: Senior Vice President and Manager
STATE OF GA)
) ss.
COUNTY OF ▇▇▇▇▇▇)
On this 1 day of Aug, 2005, before me, the undersigned,
a Notary Public in and for said State, personally appeared R
▇▇▇▇ ▇▇▇▇▇▇▇, personally known to me to be the person who
executed the within instrument as the senior vice president
and manager of SunTrust Equity Funding, LLC., the manager of
CM Columbia SC, LLC, a Delaware limited liability company,
on behalf of said company.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Notary Public
(Notary Seal)
BUYER:
AEI FUND MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, its President
STATE OF MINNESOTA )
) ss.
COUNTY OF ▇▇▇▇▇▇ )
On this 1st day of August, 2005, before me, the
undersigned, a Notary Public in and for said State,
personally ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, personally known to me to be
the person who executed the within instrument as the
President of AEI Fund Management, Inc., a Minnesota
corporation, on behalf of said corporation.
/s/ ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ (Notary Seal)
Notary Public
EXHIBIT "A"
LEGAL DESCRIPTION
All that certain piece, parcel or lot of land with
improvements thereon, situate, lying and being in the State
of South Carolina, County of Lexington, near the City of
Columbia and being shown on a plat entitled "CarMax Auto
Superstores, Inc." by ▇.▇. ▇▇▇▇▇▇ & Associates, Inc. dated
February 3, 2005, said plat having the following metes and
bounds to wit:
COMMENCING at a 1/2" rebar in 3" concrete at the
intersection of the eastern right-of-way of Chippenham
Circle and the southern right-of-way of Jamil Road (a
southwestern frontage road of I-26), thence proceeding along
the southern right-of-way of Jamil Road the following
courses and distances: in a direction of S84 07'24"E for a
distance of 90.70' to a 1/2" rebar in 3" concrete, thence in
a direction of S26 53' 14"E for a distance of 46.20' to a
5/8" rebar, and then in a direction of ▇▇▇ ▇▇'▇▇"▇ for a
distance of 76.14' to a 5/8" rebar, this being the Point of
Beginning. Thence turning and proceeding along the southern
right-of-way of Jamil Road the following courses and
distances: in a direction of ▇▇▇ ▇▇'▇▇"▇ for a distance of
39.17' to a mag nail, thence in a direction of S84 09'00"E
for a distance of 322.91' to a 5/8" rebar, thence along a
curve to the right in a direction of S80 53'19"E for a chord
distance of 67.78' to a 5/8" rebar (said curve having an arc
distance of 67.81' and a radius of 636.62'), and then in a
direction of S57 23'00"E for a distance of 386.50' to a
railroad spike; thence turning and proceeding along the
properties of ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Estate
in a direction of S64 45'36"W for a distance of 563.31' to a
1/4" pipe; thence turning and proceeding along the property
of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Estate the following courses and
distances: in a direction of S75'5 1'55"W for a distance of
85.00' to a 1/4" pinched top pipe, thence in a direction of
S33 01'09"E for a distance of 185.82' to a 1/4" pipe, thence
in a direction of S23 24'01 "E for a distance of 260.06' to
a 1/4" pipe, and then in a direction of S27 11'40"E for a
distance of 93.83' to a 5/8" rebar; thence turning and
proceeding along the property of CarMax Auto Superstores,
Inc., the following courses and distances: in a direction of
S66 32'20"W for a distance of 432.83' to a 5/8" rebar,
thence in a direction of ▇▇▇ ▇▇'▇▇"▇ for a distance of
37.00' to a 5/8" rebar, and then in a direction of
S66 32'20"W for a distance of 180.35' to a 5/8" rebar;
thence turning and proceeding along the property of Grove
Park Development Company in a direction of ▇▇▇ ▇▇'▇▇"▇ for a
distance of 538.46' to a 5/8" rebar; thence turning and
proceeding along the property of CarMax Auto Superstores,
Inc., the following courses and distances: in a direction of
▇▇▇ ▇▇'▇▇"▇ for a distance of 200.23' to a 5/8'' rebar,
thence in a direction of ▇▇▇ ▇▇'▇▇"▇ for a distance of
169.50' to a 5/8" rebar, thence in a direction of
▇▇▇ ▇▇'▇▇"▇ for a distance of 202.19' to a 5/8" rebar,
thence in a direction of N28 50' 11 "E for a distance of
220.73' to a 5/8" rebar, and then in a direction of
▇▇▇ ▇▇'▇▇"▇ for a distance of 138.90' to a 5/8" rebar, this
being the Point of Beginning. This parcel contains 15.514
acres (675,793 square feet).