ASSIGNMENT
OF
PURCHASE AND SALE AGREEMENT AND
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS ASSIGNMENT made and entered into this 23rd day of
October 2003, by and between AEI FUND MANAGEMENT, INC., a
Minnesota corporation, ("Assignor") and AEI REAL ESTATE FUND
XVII LIMITED PARTNERSHIP, a Minnesota limited partnership
("Assignee");
WITNESSETH, that:
WHEREAS, on the 6th day of August, 2003, Assignor
entered into a Purchase and Sale Agreement and as further
amended by the First Amendment to Purchase and Sale
Agreement dated the 2nd day of September 2003 ("the
Agreement") for that certain property located at 0000
Xxxxxxxx Xxxx, Xxxxxx, XX 00000 (the "Property") with Xxxxx
00 & Xxxxxxxx Xxxx Development, LLC as the Seller and Eckerd
Corporation, as the Lessee; and
WHEREAS, Assignor desires to assign an undivided fifty
(50%) percent of its rights, title and interest in, to and
under the Agreement to the Assignee 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.
AEI FUND MANAGEMENT, INC.
("Assignor")
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, its President
AEI REAL ESTATE FUND XVII LIMITED PARTNERSHIP
LIMITED PARTNERSHIP ("Assignee")
BY: AEI FUND MANAGEMENT XVII, INC.
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, its President
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "Agreement") is
entered into as of this 6th day of August, 2003, between
XXXXX 00 & XXXXXXXX XXXX XXXXXXXXXXX, XXX, x Xxx Xxxx
limited liability company ("Seller"), and AEI FUND
MANAGEMENT, INC., a Minnesota corporation ("Buyer"). The
date on which the last party hereto executes this Agreement
is hereafter referred to as the "Effective Date".
In consideration of the mutual covenants set forth
herein and in consideration of the xxxxxxx money deposit
herein called for, the parties agree as follows:
Section 1. Sale and Purchase. Seller shall sell,
convey, and assign to Buyer, and Buyer shall purchase,
assume and accept from Seller, for the Purchase Price
(hereinafter defined) and on and subject to the terms and
conditions herein set forth, the following:
(a) the tract or parcel of land having a street
address of 0000 Xxxxxxxx Xxxx, Xxxxxx, XX, and more
particularly described in Exhibit A attached hereto,
together with all rights and interests appurtenant thereto,
including all of Seller's right, title, and interest in and
to adjacent streets, alleys, rights-of-way, and any adjacent
strips and gores of real estate (the "Land"); all
improvements located on the Land, including that certain one-
story building which consists of approximately 13,824 square
feet (the "Improvements"); and all rights, titles, and
interests appurtenant to the Land and Improvements;
(b) all of Seller's interest in and rights and
obligations under the Lease dated April 28, 2003, by and
between Seller and Eckerd Corporation (the "Tenant"),
providing for the use and occupancy of the Improvements and
Land (the "Lease"); and all rents prepaid for any period
subsequent to the Closing Date (defined
below); and
(c) 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 Land
and the Improvements;(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 Land, Improvements, 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).
The above-listed items are herein collectively called the
"Property". 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).
Section 2. Purchase and Sale. Seller agrees to
sell to Buyer, and Buyer agrees to purchase from Seller, the
Property upon the terms and conditions set forth in this
Agreement.
Section 3. Purchase Price. The Purchase Price
("Purchase Price") for the Property shall be $3,100,000,
(computed based upon a 8.15% capitalization of the current
annual rent) to be paid in cash or cash equivalent as set
forth in Section 9.
Section 4. Xxxxxxx Money. Within two (2) business
days after the Effective Date, Buyer shall deliver to the
party designated by Seller at the address to be supplied by
Seller, at Ticor Title Insurance Company, Syracuse, NY
("Title Company") a check or wire transfer in the amount of
$200,000.00, which the Title Company shall immediately
deposit for collection in an interest bearing account or
accounts bearing interest at not less than the daily
passbook rate. Interest shall accrue on the sum of $75,000
of such Xxxxxxx Money at the greater of (i) the daily
passbook rate on depository accounts at the financial
institution used by the Title Company or (ii) the rate of
interest actually accruing on such amount. Interest on the
balance of the Xxxxxxx Money for the period between the end
of the Inspection Period and Closing shall be deemed to
accrue at the rate of 2.78% per annum. If, for any reason
this Agreement is terminated prior to the expiration of the
Inspection Period, then the Xxxxxxx Money and any interest
accrued thereon shall be immediately returned to Buyer. If
this Purchase and Sale Agreement is not so terminated, and
the transaction contemplated hereby proceeds to Closing, the
Xxxxxxx 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 Xxxxxxx Money plus interest
accrued or deemed to have accrued thereon at the rates set
forth above. As used in this Agreement, the term "Xxxxxxx
Money" shall mean the amount deposited by Buyer, together
with all interest accrued thereon or deemed to have accrued
thereon, as provided above.
Section 5. Delivery of Information by Seller.
Within five (5) days of the Effective Date, Seller shall
deliver or cause to be delivered to Buyer the following:
(a) A title insurance commitment issued by the Title
Company naming Buyer as the proposed insured and
insuring Buyer in the amount of the Purchase
Price (the "Title Commitment");
(b) Copies of all documents referred to in the Title
Commitment (the "Title Commitment Documents");
(c) A copy of Seller's existing Phase I Environmental
Report and copies of any other environmental
reports on the Property in Seller's possession;
(d) A copy of Seller's existing ALTA/ACSM Land and
Improvements survey;
(e) A copy of the executed Lease and any amendments
thereto;
(f) Soil boring logs;
(g) If in Seller's possession, zoning information
concerning the current zoning of the Property;
(h) Site plans and building plans and specifications;
(i) Names, addresses and phone numbers of utility companies
servicing the Property;
(j) Copy of real estate tax statement;
(k) Two years of annual financial statements for
the Tenant.
Buyer shall have an Inspection Period of 21 days from
receipt of the foregoing to review and approve the
foregoing or terminate this Agreement in accordance
with the terms of subparagraph 6(b) below in AEI's sole
discretion.
Seller, at its own expense, shall provide Buyer with
the following, which Buyer shall have 15 days from the
receipt of the last of the following to review (the
"Review Period"); provided, however, Buyer shall use
its best efforts to complete its review of such items
in a timely manner to expedite the transaction toward
closing, and shall waive (in Buyer's sole but
reasonable discretion) the requirement of an entire 15
day review period as to a de minimis number of the
following items that may not be available until several
days prior to closing:
(l) A copy of any items to be specifically
assigned to Buyer under paragraph 1(c)
and the proposed assignment thereof;
(m) A current ALTA As-Built Survey certified to
Buyer and Title Company (AEI's review thereof
shall be confined to matters not theretofore
reflected on the Title Commitment of Seller
or Seller's existing survey as provided to
Buyer);
(n) Proposed general warranty deed;
(o) Balance Sheet of Seller;
(p) An original Reliance Letter certified to
Buyer from the engineer who prepared the
Seller's Phase I Environmental Report;
(q) Certificate of Occupancy, and Certificate of
Completion from a project architect or
general contractor certifying that as of the
date thereof and to their best knowledge, the
Improvements have been completed in
accordance with the plans and specifications
for the Property and substantially comply
with all applicable rules and regulations of
governmental authorities having jurisdiction
over the Property and the objective standards
of the Americans with Disabilities Act;
(r) Certificate of Insurance evidencing Tenant's
compliance with the Lease requirements;
(s) A project cost statement, signed by Seller,
itemizing in percentages totaling 100%, the
following costs: land acquisition, soft
costs, building construction, and site work;
(t) Copies of all warranties, and assignments
thereof, issued to or required to be provided
to Tenant as designated in the Lease.
The documents described in this Section are herein
collectively called the "Documents," and the information
contained in the Documents is herein collectively called the
"Information." Seller further agrees to deliver to Buyer any
information that shall come to Seller's attention prior to
the Closing that shall materially, adversely impact the
Documents, the Information, the Property, or the Tenant.
Buyer shall have a right to terminate this Agreement based
upon such materially adverse information and shall receive
the return of its Xxxxxxx Money together with any interest
thereon if this Agreement is so terminated on such basis.
Section 6. Right of Inspection
(a) Buyer may conduct a site inspection of the
Property during the Inspection Period (defined above)
and Buyer may elect to not purchase the Property and
terminate this Agreement in accordance with the terms
of Paragraph (b) below if, in its sole discretion, it
is not satisfied with the results of such inspection.
In conducting its inspection Buyer shall not
unreasonably interfere with the business and
operations of Tenant or construction activities of
Seller. Further, Buyer shall indemnify, defend and
hold Seller harmless from any and all costs, damages,
and liabilities whatsoever, including reasonable
attorney's fees, arising out of Buyer's inspection of
the Property and the Information, which obligation
shall expressly survive any termination of this
Agreement. Except as may be required by law or by
legal proceedings, Buyer shall keep all Information
furnished to it by Seller or obtained by Buyer
strictly confidential; provided, however, that the
same may be disclosed to Buyer's lenders, accountants
and attorneys to the extent necessary to consummate
this transaction and to the extent such recipients
agree to maintain such confidentiality. Buyer's
obligations under this Section shall survive the
termination of this Agreement for any reason.
(b) If for any reason Buyer determines that it
shall not proceed with this transaction, then
Buyer may terminate this Agreement, by delivering
to Seller a written notice of termination at any
time during the period ending at 5:00 p.m.,
Minneapolis, Minnesota time, on the last day of
the Inspection Period. If Buyer does not so
terminate this Agreement, Buyer shall have waived
its right to terminate this Agreement.
Section 7. Title. Buyer may, at any time during
the Inspection Period, object in writing to any liens,
encumbrances, and other matters reflected by the Title
Commitment. All such matters to which Buyer so objects
shall be "Non-Permitted Encumbrances"; if no such objection
notice is given during the Inspection Period, all matters
reflected by the Title Commitment shall be "Permitted
Encumbrances." Seller may, but shall not be obligated to,
cure, remove or insure around all Non-Permitted
Encumbrances. In addition, Seller shall be obligated to
remove or insure around by Closing all mortgages, deeds of
trust, judgment liens, mechanic's and materialmen's liens,
and other monetary liens against the Property (other than
the liens for taxes and assessments which are not
delinquent), whether or not Buyer objects thereto during the
Inspection Period. If Seller does not cause all Non-
Permitted Encumbrances to be removed, cured or insured
around, then Buyer may either (a) terminate this Agreement
in accordance with Section 11(b) by delivering notice to
Seller within five (5) days after the end of the Inspection
Period, or (b) purchase the Property subject to the Non-
Permitted Encumbrances (other than monetary liens that
Seller is obligated to remove or insure around), and the Non-
Permitted Encumbrances (other than liens that Seller is
obligated to remove or insure around) shall thereafter be
deemed Permitted Encumbrances. The Lease is hereby
designated as a Permitted Encumbrance.
Section 8. Seller's Representations, Warranties,
and Covenants. Seller hereby represents and warrants to,
and covenants with, Buyer that:
(a) Except for this Agreement and the Lease and those
matters disclosed in the materials delivered to Buyer
pursuant to Section 5 hereof, it is not aware of any other
agreements or leases with respect to the Property, including
none of the following that will survive the Closing such as
maintenance, service, or utility contracts (the "Property
Agreements");
(b) It does not have any actions or proceedings
pending, which would materially affect the Property or
Tenant , except matters fully covered by insurance;
(c) The consummation of the transactions contemplated
hereunder, and the performance of this Agreement and the
delivery of the 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;
(d) All of Seller's covenants, agreements, and
representations made herein, and in any and all documents
which may be delivered pursuant hereto, shall survive for
one (1) year from the delivery to Buyer of the warranty deed
and other documents furnished in accordance with this
Agreement, and the provision hereof shall continue to inure
for one (1) year to Buyer's benefit and its successors and
assigns;
(e) The Property is in good condition, substantially
undamaged by fire and other hazards, and has not been made
the subject of any condemnation proceeding;
(f) Seller has full right, power, and authority to
execute and deliver this Agreement and to consummate the
purchase and sale transaction provided for herein without
obtaining any further consents or approvals from, or the
taking of any other actions with respect to, any third
parties; and this Agreement, when executed and delivered by
Seller and Buyer, will constitute the valid and binding
agreement of Seller, enforceable against Seller in
accordance with its terms;
(g) The Property is presently not in violation of
applicable environmental law, and contains no hazardous
materials except for the presence on the Property of such
materials as may be held by Tenant in customary amounts for
resale or maintenance of the Property;
(h) Seller has not received from any governmental
authority written notice of any violation of law, rule,
regulation, permit, certificate, or approval or license,
which has not heretofore been cured;
(i) To the best of Seller's knowledge, there are no
attachments, executions, assignments for the benefit of
creditors or voluntary or involuntary proceedings in
bankruptcy pending, or threatened against Seller;
(j) The copies of all documents and other documents
delivered by Seller to Buyer pursuant to this Agreement
shall, to Seller's current actual knowledge, be true and
complete in all material respects; provided, however, that
Seller makes no representation or warranty whatsoever as to
the contents or subject matter of any Documents, Information
or other items prepared by third parties;
(k) The Lease submitted to Buyer;
(1) is a true and complete copy of the Lease with all
exhibits attached;
(2) has not been modified, altered or amended; and
(3) is in full force and effect without any uncured
material default by either Landlord or Tenant.
(l) Seller represents and warrants the transaction
contemplated herein does not represent a fraudulent
conveyance.
All of Seller's representations and warranties shall be true
as of the Closing Date and shall survive the Closing for one
(1) year; Buyer may not take any action for breach of such
representations and warranties unless it shall have given
Seller written notice of such breach in reasonable detail
not later than a date that is one (1) year from the Closing
Date. Seller shall have thirty (30) days to commence to
cure any such breach after receipt of Buyer's timely written
notice and so long thereafter is reasonably necessary to
complete such cure.
Section 9. Closing. The closing of the sale of the
Property by Seller to Buyer (the "Closing") shall occur upon
the later of: (a) on or before the 10th business day after
the expiration of the Inspection Period or (b) within ten
(10) business days after the Tenant takes possession of the
building and begins paying rent (the "Closing Date"). The
parties may elect to close prior to the scheduled Closing
Date upon mutual consent. An escrow officer of the Title
Company at its office in Syracuse, New York shall close this
transaction. Time is of the essence with regard to the
Closing Date. At the Closing, the following, which are
mutually concurrent conditions, shall occur;
(a) Buyer, at its expense, shall deliver or cause
to be delivered to Seller the following:
(1) the Purchase Price in funds available for
immediate value in Seller's accounts;
(2) the Xxxxxxx Money shall be delivered to
Seller and credited against the Purchase Price;
(3) an Assignment and Assumption of Lease in
the form to be mutually agreed upon by the parties
prior to the expiration of the Inspection Period,
fully executed and acknowledged by Buyer;
(4) evidence satisfactory to Seller and Title
Company that the person executing the Closing
documents on behalf of Buyer has full right,
power, and authority to do so; and
(5) such other documents as may be reasonably
requested by the Title Company or Seller in
accordance with this Agreement.
(b) Seller, at its expense, shall deliver or
cause to be delivered to Buyer the following:
(1) An Assignment and Assumption of Lease in
the form to be mutually agreed upon by the parties
prior to the expiration of the Inspection Period,
fully executed and acknowledged by Seller,
accompanied by the original Lease and original
Amendments thereto, if any;
(2) A New York statutory form of general
warranty deed in the form to be mutually agreed
upon by the parties prior to the expiration of the
Review Period, fully executed and acknowledged by
Seller, conveying to Buyer the Land and
Improvements;
(3) A tenant estoppel certificate in the form
as shown on Exhibit B attached hereto, fully
executed by Tenant;
(4) Evidence reasonably satisfactory to Buyer
and Title Company that the persons executing and
delivering the Closing documents on behalf of
Seller have full right, power and authority to do
so;
(5) A certificate meeting the requirements of
Section 1445 of the Internal Revenue Code of 1986,
executed and sworn to by Seller;
(6) such other documents as may be reasonably
requested by the Title Company or by Buyer in
accordance with this Agreement, or as are
customarily executed in New York to effectuate the
conveyance of property similar to the Property;
(7) Assignment of documents as required in
paragraph 1 (c) hereof.
(c) Seller shall pay the following costs of
closing: escrow fees, recording costs, and any brokerage
fees to third parties engaged by Seller. Each party shall
pay one-half of all other closing costs, such as realty
transfer tax (deed stamps), and fees to obtain the title
insurance commitment and policy premiums; each party shall
pay its own attorney's fees. Buyer shall pay the mortgage
tax due on any mortgage granted by Buyer at closing, if any.
(d) Rent due under the Lease shall be prorated as
of the Closing Date, Seller being charged and credited for
all of same up to the Closing Date and Buyer being charged
and credited for all of same on and after the Closing Date;
provided, however, that, if the wire payoff to Seller's
mortgagee is received later than 1:00pm EST on the day of
closing then the Seller, and not Buyer, shall be credited
for the Rent paid under the Lease that is attributable to
the day of closing. Utility charges and taxes are paid by
the Tenant and shall not be prorated at Closing. All
prorations made at Closing shall be considered a final
settlement between the parties.
Section 10. Destruction, Damage, or Taking Before
Closing. If, before Closing, all or any material part of
the Land or Improvements are destroyed or damaged, or become
subject to condemnation or eminent domain proceedings, then
Seller shall promptly notify Buyer thereof. Buyer may elect
to proceed with the Closing (subject to the other provisions
of this Agreement and with no reduction in the Purchase
Price) by delivering notice thereof to Seller within five
(5) business days of receipt of Seller's notice respecting
the damage, destruction, or taking, but in such event Buyer
shall be entitled to all insurance proceeds or condemnation
awards payable as a result of such damage or taking and, to
the extent the same may be necessary or appropriate, Seller
shall assign to Buyer at Closing Seller's rights to such
proceeds or awards. If, within five (5) business days of
receipt of Seller's notice respecting the damage,
destruction, or taking, Buyer notifies Seller of its intent
to terminate this Agreement, or if Buyer gives no notice
within such period, then Buyer shall be deemed to have
terminated this Agreement pursuant to Section 11(b). For
the purposes of this Section 10, damage or a taking shall be
considered to be "material" if the value of the portion of
the Land or Improvements damaged or taken exceeds an amount
equal to twenty five percent (25%) of the Purchase Price,
or, in the case of a taking, if the portion of the Land or
Improvements taken are such that Tenant has the right to
terminate the Lease.
Section 11. Termination and Remedies
(a) If Buyer fails to consummate the purchase of
the Property pursuant to this Agreement for any reason other
than termination hereof pursuant to a right granted to Buyer
in herein, or if Buyer breaches any covenant or provision of
this Agreement, then Seller, as its sole remedy, may
terminate this Agreement by notifying Buyer thereof, in
which event Title Company shall deliver the Xxxxxxx Money,
together with all interest thereon, to Seller as LIQUIDATED
DAMAGES. In addition to the foregoing, Seller shall also be
entitled to recover all reasonable expenses, including
reasonable attorney's fees and litigation costs, incurred in
connection with obtaining the Xxxxxxx Money following a
breach hereof by Buyer.
(b) If Buyer terminates this Agreement pursuant
to its rights to do so hereunder and is not in default under
this Agreement, then the Xxxxxxx Money, together with all
interest thereon, shall be returned to Buyer, whereupon
neither party hereto shall have any further rights or
obligations hereunder, except for those which expressly
survive the termination of this Agreement.
(c) If Seller fails to consummate the sale of the
Property pursuant to this Agreement for any reason other
than Buyer's failure to perform its obligations hereunder,
or termination hereof by Buyer in accordance with Section
11(b), then Buyer, as its exclusive remedies therefore, may:
(1) terminate this Agreement by notifying Seller thereof, in
which case the Xxxxxxx Money, together with all interest
thereon, shall be returned to Buyer and neither party hereto
shall have any further rights or obligations hereunder,
except for those which expressly survive the termination of
this Agreement; or (2) enforce specific performance of the
obligations of Seller hereunder.
(d) The provision for payment of liquidated
damages in Section 11(a) has been included because, in the
event of a breach by Buyer, the actual damages to be
incurred by Seller can reasonably be expected to approximate
the amount of liquidated damages called for herein and
because the actual amount of such damages would be difficult
if not impossible to measure accurately.
(e) This Agreement shall not be recorded in any
public records in the State of New York or the county where
the Property is located, and any such recording by or for
Buyer shall be a default hereunder.
Section 12. Notices. All notices provided or
permitted to be given under this Agreement must be in
writing and may be served by depositing same in the United
States mail, addressed to the party to be notified, postage
prepaid and registered or certified with return receipt
requested; by delivering the same in person to such party;
by reputable overnight courier delivery; or by facsimile
copy transmission with printed confirmation of receipt
thereof. Notice given in accordance herewith shall be
effective upon delivery to the address of the addressee.
Any notice given by facsimile transmission shall be followed
by a hard copy or by hand delivery. For purposes of notice,
the addresses of the parties shall be as follows:
If to Seller, to:
Xx. Xxxxxx X. Xxxx
Route 31 & Xxxxxxxx Road Development, LLC
X/X Xxxxxxxx Xxxxxxxxxxx, XXX
Xxxxxxx Xxxxxxxx, Xxxxx X-0
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxx, Esq.
Shulman, Curtin, Xxxxxxxx & Xxxxx, PC
000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
If to Buyer, to:
AEI Fund Management, Inc.
00 Xxxx 0xx Xxxxxx, Xxxxx 0000
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
With a copy to:
Xxxxxx X. Xxxx
Winthrop & Weinstine, P.A.
Suite 3500
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Phone No.: 000-000-0000
Fax: 000-000-0000
Either party hereto may change its address for notice by
giving three (3) days' prior written notice thereof to the
other party.
Section 13. Assigns/Beneficiaries. Buyer may assign
its rights and obligations under this Agreement to a wholly
owned or controlled affiliate or subsidiary of Buyer and at
Closing designate such entity to take title to the Property
and to all rights conveyed by Seller to Buyer under this
Agreement without the written consent of Seller. Except for
the assignments provided for in the preceding sentence,
Buyer may neither assign its rights under this Agreement nor
delegate its duties hereunder without prior written consent
of Seller, which Seller may grant or withhold in its sole
and absolute discretion. Should Buyer assign this Agreement
or delegate its duties without the prior written consent of
Seller, then in addition to all the rights, remedies, and
recourses available at law or in equity, Seller may
terminate this Agreement and the Title Company shall
forthwith deliver the Xxxxxxx Money to Seller. Seller may
assign all of its right, title and interest in and to this
Agreement to any other entity that is directly or indirectly
wholly-owned by Seller. Such permitted assignment shall
include any assignment that may be deemed to occur by
operation of law in connection with any merger or
consolidation of Seller entity with and/or into any other
entity directly or indirectly wholly-owned by Seller (an
"Intragroup Merger"). Any such Intragroup Merger shall not
be deemed a breach of, cause a default under or trigger any
right of termination under, any other provision of this
Agreement. Furthermore, Seller may assign this Agreement or
any rights hereunder to any corporation that acquires all or
substantially all of the assets of Seller. This Agreement
is for the sole benefit of Seller and Buyer, and no third
party is intended to be a beneficiary of this Agreement.
Section 14. Commissions. Buyer and Seller represent
that neither engaged a broker for this transaction.
Section 15. Computation of Time. If the expiration
date of any period or time for performance hereunder falls
on a Saturday, Sunday, or legal holiday, then, in such
event, the expiration date of such period or time for
performance shall be extended to the next business day.
Section 16. Governing Law. This Agreement shall be
governed and construed in accordance with the laws of the
State in which the Property is located.
Section 17. Entire Agreement. This Agreement is the
entire agreement between Seller and Buyer concerning the
sale of the Property, and no modification hereof or
subsequent agreement relative to the subject matter hereof
shall be binding on either party unless reduced to writing
and signed by both parties. All Exhibits attached hereto
are incorporated herein by this reference for all purposes.
Section 18. Rule of Construction; No Waiver. Buyer
and Seller acknowledge that each party has reviewed this
Agreement and has had adequate opportunity to consult legal
counsel with respect thereto and that the rule of
construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in
the interpretation of this Agreement or any amendments
hereto. No provision of this Agreement shall be deemed to
have been waived by either party unless the waiver is in
writing and signed by that party. No custom or practice
which may evolve between the Buyer and Seller during the
term of this Agreement shall be deemed or construed to waive
or lessen the right of either of the parties hereto to
insist upon strict compliance with the terms of this
Agreement.
Section 19. No Recording. Neither this Agreement
nor any memorandum hereof shall be recorded in any public
records where the Property is located or elsewhere.
Section 20. Attorney's Fees. If a dispute arises
between the parties as a result of or in connection with
this Agreement, then the prevailing party shall be entitled
to a reimbursement of its reasonable costs and expenses,
including reasonable attorney's fees, in addition to all
other remedies.
Section 21. Expiration. This offer to Purchase by
Buyer shall expire if not executed by Seller and returned to
Buyer on or before August 7 (jpk), 2003.
Executed effective as of the date first set forth above.
SELLER:
XXXXX 00 & XXXXXXXX XXXX
DEVELOPMENT, LLC
A New York limited liability company
By: Westlake Holding, Inc., its sole member,
a New York corporation
By: /s/ Xxxxxx X Xxxx
Name: Xxxxxx X. Xxxx
Title: President:
Date: 8/6/03
BUYER:
AEI FUND MANAGEMENT, INC.,
a Minnesota corporation
By: /s/ Xxxxxx X Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
Date: 8/4/03
EXHIBIT A
LEGAL DESCRIPTION OF LAND
ALL THAT CERTAIN PIECE OR PARCEL OF LAND SITUATE IN THE town
Off Cicero, County of Onondaga, State of New York, known
and distinguished as part of Military Lot No. 55 in said
Town and being more particularly bounded and described as
follows:
Beginning at a point on the westerly boundary of Xxxxxxxx
Road (a.k.a. County Route 14) at its intersection with the
southerly boundary of New York State Route 31 (a.k.a. Cicero-
Bridgeport S.H. No. 9084); thence South 12 deg. 43 min. 44
sec. West along said boundary of Thomposon Road, a distance
of 186.88 feet to its intersection with the division line
between the lands now or formerly of Group One Development,
LLC as described in Book 4740 of Deeds at Page 691 on the
North and lands now or formerly of Xxxxxx G & Xxxxxx X
Xxxxxx as described in Book 3467 of Deeds at Page 259 on the
South; thence North 77 deg. 16 min. 16 sec. West along said
division line, a distance of 200.00 feet to a point on the
division line between the said lands of Group One
Development, LLC on the Wet and the said lands of Xxxxxx and
the lands now or formerly of Xxxxxx Xxxxxxxxx and Xxxxx
Xxxxx as described in Book 2390 of Deeds at Page 505, in
part by each, on the East, thence South 12 deg. 43 min. 44
sec. West along said lands of Group One Development, LLC on
the North and lands now or formerly of Xxxxxx and Xxx Xxxx
Xxxxxxxx as described in Book 3747 of Deeds at Page 6, the
lands nor or formerly of Raphael WIII and Xxxxxx X Xxxxx as
described in Book 3575 of Deeds at Page 33, and the lands
now or formerly of Xxx Xxxxxx Xxxxxxxxx as described in Book
3615 of Deeds at Page 13, in part by each, on the South,
said line also being the northerly line of the Mystic Xxxxx
Subdivision, Section 3 as shown on filed map no. 6729;
thence north 77 deg. 11 mi. 50 sec. West along said division
line and northerly line of Mystic Xxxxx Subdivision, a
distance of 205.35 feet to a point on the division line
between the said lands of Group One Development, LLC on the
East and the lands now or formerly of Faith Lutheran Church
of Cicero, N.Y. as described in Book 2623 of Deeds at Page
1081 on the West; thence North 12 deg. 22 min 40 sec. East
along said division line, a distance of 440.80 feet to a
point on the said boundary of New York State Route 31;
thence South 77 deg. 11 min. 50 sec East along said boundary
of New York State Route 31, a distance of 408.05 feet to the
point of beginning, Containing 2.950 acres of lands, more or
less.
Being the lands conveyed to Group One Development, LLC by
NOCO Energy Corp. by deed dated August 7, 2002 and recorded
in the Onondaga County Clerk's Office on August 22, 2002 at
Book 4740 of Deeds at Page 691.
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
This First Amendment to Purchase and Sale Agreement is
made and entered into effective as of this 2nd day of
September, 2003 by and between XXXXX 00 & XXXXXXXX XXXX
XXXXXXXXXXX, XXX, x Xxx Xxxx limited liability company
("Seller") and AEI FUND MANAGEMENT, INC., a Minnesota
corporation ("Buyer").
WHEREAS, Seller and Buyer entered into a certain
Purchase and Sale Agreement dated August 6, 2003 (the
"Purchase Agreement") pursuant to which Seller agreed to
sell to Buyer, and Buyer agreed to purchase from Seller,
certain real estate located at 0000 Xxxxxxx Xxxx, Xxxxxx,
Xxx Xxxx, as more particularly described in the Purchase
Agreement (the "Property"); and
WHEREAS, pursuant to the Purchase Agreement, the
Inspection Period, as extended, expires at 5 o'clock p.m.
Central Daylight Time on September 2, 2003; and
WHEREAS, the parties wish to amend the Purchase
Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the Recitals, which
are hereby made a part hereof, and for other good and
valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, it is hereby agreed as follows:
1. The fourth sentence of Section 7 of the Purchase
Agreement shall be deleted and the following shall be
substituted in its place and stead:
Seller acknowledges receipt of Buyer's title
objection letter dated August 28, 2003 ("Buyer's
Title Objections"). Seller shall provide to Buyer
an updated title insurance commitment within five
(5) days after the date hereof (the "Title
Commitment Update"). If the Title Commitment
Update does not address all of Buyer's Title
Objections to the reasonable satisfaction of
Buyer, then Buyer may either (a) terminate this
Agreement in accordance with Section 11(b) by
written notice to Seller within five (5) days
after receipt of the Title Commitment Update or
(b) purchase the Property subject to the
Non-Permitted Encumbrances (other than monetary
liens that Seller is obligated to remove or insure
around), and the Non-Permitted Encumbrances (other
than liens that Seller is obligated to remove or
insure around) shall thereafter be deemed
Permitted Encumbrances.
2. Section 7 of the Purchase Agreement shall also be
amended by adding thereto the following:
Buyer may, within five (5) days after receipt of
the As-Built Survey to be delivered by Seller to
Buyer pursuant to Section 5(m) hereof, object in
writing to matters reflected on such As-Built
Survey so long as (i) such objections are to
matters which render title to the Property
unmarketable, which constitute a material
deviation from the Site Plan attached to the
Lease, or which otherwise constitute a violation
of applicable zoning ordinances and (ii) such
objections, to the extent not previously covered
by Buyer's Title Objections, relate to matters not
reflected on the Boundary Survey heretofore
delivered by Seller to Buyer. Seller may, but
shall not be obligated to, cure or remove any such
survey objections made by Buyer in accordance with
this Section 7. If Seller does not cause all such
survey objections to be removed, cured or insured
around to Buyer's reasonable satisfaction within
fifteen (15) days after receipt by Seller of such
survey objections, then Buyer may either (a)
terminate this Agreement in accordance with
Section 11(b) by delivering notice to Seller prior
to the expiration of such fifteen (15) day period
or (b) purchase the Property subject to such
survey objections.
3. The following shall be added as new subsection 9(e) of
the Purchase Agreement:
(e) Notwithstanding anything contained herein to
the contrary, in the event that the amount of
"Rent" (as defined in the Lease) is adjusted after
the Closing pursuant to Section 9.7.5 of the
Lease, the parties shall adjust the Purchase Price
within ten (10) days after determination of such
final adjustment of Rent to an amount based upon
an 8.15% capitalization rate of the final annual
Rent payable by Tenant under the Lease. Upon
determination of the adjusted Purchase Price, the
amounts due and owing from either party hereunder
shall be paid in full within ten (10) days
thereafter.
4. Notwithstanding assignment of the Lease to Buyer as
contemplated by Section 9 of the Purchase Agreement, Seller
shall remain liable for the performance of the obligations
of Landlord under the Lease with respect to: (i) Landlord's
obligations under Sections 9.7.5 and 9.7.11 of the Lease;
and (ii) performance under any warranty claims received from
Tenant with respect to the Premises pursuant to the
"One-Year Warranty" set forth in Section 9.4 of the Lease.
The provisions of this paragraph shall survive Closing of
the sale of the Property to Buyer, and the parties agree to
confirm such survival in writing at Closing
5. Except as otherwise expressly amended hereby, the terms
and conditions of the Purchase Agreement shall remain in
full force and effect.
6. This First Amendment may be executed in counterparts
and by exchange of facsimile signatures, each of which shall
be deemed to be an original, but all of which, taken
together, shall constitute one and the same instrument.
7. Any capitalized terms not otherwise defined herein
shall have the meaning assigned to such term in the Purchase
Agreement.
IN WITNESS WHEREOF, the Seller and the Buyer have
caused their respective duly authorized representatives to
execute this First Amendment to Purchase and Sale Agreement
effective as of the date and year first above written.
SELLER:
XXXXX 00 & XXXXXXXX XXXX
DEVELOPMENT, LLC
a New York limited
liability company
By: Westlake Holding,
Inc., its sole
member, a New York
corporation
By: /s/ Xxxxxx X Xxxx
Name: Xxxxxx X. Xxxx
Title: President
BUYER:
AEI FUND MANAGEMENT, INC.,
a Minnesota corporation
By: /s/ Xxxxxx X Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
