Limited Option of First Sale
This Agreement, by and between The Xxxxxx X. Xxxxxxx Family
Limited Partnership ("Xxxxxxx"), and AEI Real Estate Fund XVIII
Limited Partnership (the "AEI Partnership"), is effective as of
the 21 day of March, 1997, and supercedes in its entirety that
certain Limited Option of First Sale dated March 3, 1997.
RECITALS
Whereas, Xxxxxxx has purchased an undivided 31.2892% interest in
that certain property legally described on Exhibit A attached
hereto (the "Property"), as a Co-Tenant with the AEI Partnership,
which as of the date hereof owns an undivided 37.9481% interest
in the Property; and
Whereas, as consideration for Xxxxxxx'x purchase of its interest
in the Property from the AEI Partnership, the AEI Partnership has
granted Xxxxxxx the Limited Option of First Sale of Xxxxxxx'x
interest in the Property, but only upon the limited terms set
forth herein.
Now, therefore, in Consideration of the purchase by Xxxxxxx
of its undivided interest in the Property, Xxxxxxx and the AEI
Partnership (in its individual capacity as a matter of contract
right and not as a covenant running with the AEI Partnership's
interest in the Property) agree that:
1. Freedom of Transfer. Xxxxxxx shall be free to dispose of
its interest in the Property, whether according to this
Agreement, or upon such terms and conditions as Xxxxxxx shall
determine. However, the rights afforded Xxxxxxx hereunder are
personal to Xxxxxxx, and may not be assigned and do not run with
Xxxxxxx'x interest in the Property. The AEI Partnership shall be
free to sell or transfer all any part of its interest in the
Property, provided, however, for as long as Xxxxxxx shall retain
an undivided interest in the Property, the AEI Partnership will
retain at least a 5% ownership interest in the Property, subject
to disposition by the AEI Partnership as further set forth
herein. The AEI Partnership's sale or transfer of its remaining
5% interest shall be governed by the terms hereof.
2. Limited Option of First Sale. At such time as the AEI
Partnership intends to sell all or any portion of its remaining
interest in the Property (provided such sale is not in connection
with a Liquidation Plan (defined below)), which sale would bring
the AEI Partnership's interest below an undivided 5% interest,
the AEI Partnership agrees it will:
AA. Notice of Intent to Sell. Provide Xxxxxxx with written
notice of the AEI Partnership's intent to sell the AEI
Partnership's remaining interest of or below 5% of the
Property ("Remaining Interest"), prior to accepting any
offer to sell such Remaining Interest;
BB. Notice of Buyer's Offer. Provide Xxxxxxx with written
notice ("AEI Partnership Notice") containing all of the
relevant terms and conditions of the offer, including a copy
of the Purchase Agreement from a buyer willing to make a
valid offer for the purchase of all or a portion of the
Remaining Interest held by the AEI Partnership, and a
statement of the costs incurred by the AEI Partnership
(including reasonable outside attorney's fees, if any) in
obtaining said offer.
C. Notice of Acceptance or Deemed Rejection. Within 10
business days of receipt of such AEI Partnership Notice,
Xxxxxxx will either:
(a) accept by written notification an assignment
of such offer for themselves and sell part, or all, of
its interest in the property to the buyer upon terms
contained in the AEI Partnership Notice, in which event
Xxxxxxx agrees to reimburse the AEI Partnership for the
costs incurred by the AEI Partnership in obtaining said
offer; or
(b) reject the offer contained in the AEI
Partnership Notice; if no written acceptance of the AEI
Partnership's offer to assign its interest is received
by the AEI Partnership within said ten days, Xxxxxxx
will have been deemed to have rejected such offer.
Upon Xxxxxxx'x rejection of the offer, the AEI Partnership
shall be free to sell all, or part, of its Remaining
Interest in the Property to such buyer upon such terms and
conditions as stated in the notice to Xxxxxxx.
D. Termination or Survival of Limited Option. If the
buyer is willing and able to acquire the entire interest
owned by Xxxxxxx, and Xxxxxxx decline to sell its entire
interest, then the AEI Partnership shall have no continuing
obligation to provide Xxxxxxx with any further notice of an
option to sell any interest in the Property. If the buyer
is willing to acquire only a portion of the interest in the
property owned by Xxxxxxx, then the AEI Partnership shall
remain subject to the provisions hereof until released
therefrom according to the terms hereof.
3. Plan of Liquidation. Notwithstanding anything herein to the
contrary, the aforesaid Option to Sell shall not apply nor be
binding on the AEI Partnership, if the AEI Partnership shall
dispose of all of its interest in the Property according to a
written plan of liquidation ("Plan of Liquidation") executed
prior to the disposition of the AEI Partnership's remaining
interest in the Property, said Plan of Liquidation contemplating
the sale of all of the AEI Partnership's assets over a continuous
period in a series of related transactions commenced with the
express design to liquidate the AEI Partnership's interests in
all assets, and no damages shall accrue to Xxxxxxx if in fact
such liquidation occurs within a commercially reasonable time in
accordance with such written Plan of Liquidation.
4. Miscellaneous.
A. All notices provided for herein shall be in writing and
shall be deemed to have been given when delivered, personally or
by registered or certified mail or nationally recognized
overnight carrier, return receipt requested, postage prepaid,
addressed as follows:
if to Xxxxxxx at:
Xxxxx Xxxxxxx, General Partner
0000 Xxxx Xxxxxx
Xxxxxx, Xx. 00000
and
Xxxxxx Xxxxxxx
000 Xxxx Xxxxxx
Xxxxxxxx, Xx. 00000
if to AEI at:
Attention: Xxxxxx X. Xxxxxxx, President
AEI Fund Management XVIII, Inc.
1300 Minnesota World Trade Center
00 Xxxx Xxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxx 00000
or addressed to any such party at such address as such party
shall hereinafter furnish by notice to the other parties.
B. This Agreement shall be construed according to the laws
of the State of Minnesota and the parties agree to be governed by
the jurisdiction of and consent to venue of any action to enforce
this agreement in the State of Minnesota or the principal place
of business of Xxxxxxx or the situs of the Property, said choice
of venue to be at the sole discretion of AEI.
C. In the event it becomes necessary for either party to
bring suit to enforce the terms or conditions hereof, the
successful party shall have the right to recover reasonable
attorney's fees and costs.
In witness whereof, the parties have executed this Agreement
effective as of the date first written above.
THE XXXXXX X. XXXXXXX FAMILY LIMITED PARTNERSHIP
By: /s/ Xxxxxx X Xxxxxxx
Its General Partner
By: /s/ Xxxxx X Xxxxxxx
Its General Partner
AEI REAL ESTATE FUND XVIII LIMITED PARTNERSHIP
By: AEI FUND MANAGEMENT XVIII, INC.
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, President
EXHIBIT A
Legal Description
Premises: XXXXXXXX'X NEIGHBORHOOD GRILL & BAR
A portion of Section 26, Township 2 South. Range 21 West,
Xxxxxx County, Florida, being more particularly described as
follows:
Commence at the intersection with the East line of the
aforesaid Section 26 and the North Right-of-way Line of
State Road 30 (U.S. 98. 100' R/W); thence go North 77
degrees 09 minutes 03 seconds West along the aforesaid Right-
of-way line, a distance of 1233.51 feet to a point of
curvature: thence go along a curve to the left, having a
radius of 5779.65 feet, an arc distance of 1060.26 feet (CH.
= 1058.78', CH. BRG. = North 82 degrees 24 minutes 26
seconds West); thence departing the aforesaid North Right-of-
way line, go North 02 degrees 59 seconds 27 minutes East, a
distance of 10.00 feet to a point on a curve, being concave
southerly and having a radius of 5789.65 feet and the Point
of Beginning: thence go northwesterly along the aforesaid
curve, an arc distance of 180.00 feet (CH. = 179.99', CH.
BRG. = North 88 degrees 33 minutes 11 seconds West): thence
go North 02 degrees 59 minutes 27 seconds East, a distance
of 215.00 feet: thence go South 88 degrees 38 minutes 25
seconds East, a distance of 178.79 feet to a Point on a
curve, being concave southwesterly and having a radius of
44.90 feet: thence go Southeasterly along the aforesaid
curve, an arc distance of 10.44 feet (CHI. = 10.42'. CHI.
BRAG. = South 03 degrees 39 minutes 46 seconds East) to the
Point of Tangency: thence go South 02 degrees 59 minutes 27
seconds East, a distance of 204.89 feet to the Point of
Beginning.
EXCEPTING THEREFROM THAT PORTION
lying Northerly of and within 66 feet of the centerline of
survey of State Road 30 (US 98) Section 60020, Westerly of
Station 248+00 and lying Northerly of and within 67 feet of
said centerline of survey, between Station 248+00 and
Station 256+51 and lying Northerly of said centerline of
survey and within a transition from 67 feet at Station
256+51 to 87 feet at Station 256+76; and lying Northerly of
and within 110 feet of said centerline of survey, between
Station 256+76 and Station 257+36; and lying Northerly of
said centerline of survey and within a transition from 87
feet at Station 257+36 to 67 feet at Station 257+61; and
lying Northerly of and within 67 feet of said centerline of
survey Easterly of Station 257+611; said centerline to be
described and said Stations to be located as follows:
Commence on a capped rod (RLS # 1835) at the Southeast
corner of Sandestin Estates Subdivision, as per plat
recorded in Plat Book 4, Page 25 of the Public Records of
Xxxxxx County, Florida; thence South 44 16' 49" East 101.64
feet; thence North 83 48' 54" East 3476.74 feet (crossing
the East line of Section 27, Township 2 South, Range 21 West
and the West line of Xxxxxxx 00, Xxxxxxxx 0 Xxxxx 0 Xxxxx,
Xxxxx 21 West) to the POINT OF BEGINNING of centerline of
survey to be described herein, said point being the
beginning of a curve, concave Southerly, having a radius of
5729.58 feet; thence run Northeasterly, Easterly and
Southeasterly 1302.52 feet along said curve, thru a central
angle of 13 o1' 31" to Station 248+00; thence continue
Southeasterly 695.62 feet along said curve, thru a central
angle of 6 57' 22" to the end of curve; thence South 76 12'
14" East 155.38 feet to Station 256+51; thence continue
South 76 12' 14" East 25.0 feet to Station 256+76; thence
continue South 76 12' 14" East 60.00 feet to Station 257+36;
thence continue South 76 12'14" East 25.0 feet to Station
257+61; thence continue South 76 12' 14" East 977.87 feet to
the East line of said Section 26 (West line of Section 25,
Township 2 South Range 21 West) at a point 4561.50 feet
South 1 50' 37" West of a four inch by four inch concrete
monument on the Northeast corner of said Section 26
(Northwest corner of said Section 25); thence continue South
76 12' 14" East 1359.55 feet to a point of intersection with
the Southerly extension of the Easterly line of Parcel A of
Tract 308 of said Section 25; and end of centerline of
survey herein described; said point being 518.40 feet South
2 00' 23" West of a capped rod (RLS # 2535) on the Northeast
corner of said partial A; containing 1080 square feet, more
or less.
