ASSIGNMENT
OF
PURCHASE AGREEMENT
THIS ASSIGNMENT made and entered into this 16 day of August,
2004, by and between AEI FUND MANAGEMENT, INC., a Minnesota
corporation, ("Assignor") and AEI INCOME & GROWTH FUND XXI
LIMITED PARTNERSHIP, a Minnesota limited partnership, and AEI
ACCREDITED INVESTOR FUND 2002 LIMITED PARTNERSHIP, a Minnesota
limited partnership (as tenants in common, together collectively
referred to as "Assignee");
WITNESSETH, that:
WHEREAS, on the 18th day of March, 2004, Assignor entered
into a Purchase Agreement ("the Agreement") for that certain
property located at 000 Xxxxxxxx Xxxx, Xxxxx, Xxx Xxxx, and more
particularly described in Exhibit A attached hereto and
incorporated herein (the "Property") with Herkimer Rd. & Euclid
Rd. Development, LLC, a New York limited liability company (as
"Seller"); and
WHEREAS, Assignor desires to assign to AEI Income & Growth
Fund XXI, an undivided forty percent (40.0%) interest as a tenant
in common; and AEI Accredited Investor Fund 2002 Limited
Partnership, an undivided sixty percent (60.0%) 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.
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, 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/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, its President
AEI ACCREDITED INVESTOR FUND 2002
LIMITED PARTNERSHIP,
a Delaware corporation
BY: AEI FUND MANAGEMENT XVIII, INC.,
a Minnesota corporation, its General Partner
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, its President
EXHIBIT A
Legal description
All That Tract or Parcel of Land, situate in the City of
Utica, County of Oneida, and State of New York, being more
particularly bounded and described as follows:
Beginning at a point on the easterly street line of Northern
Road at its intersection with the division line between the lands
now or formerly of Quad Group Developers, Inc. as described in
Liber 2774 of Deeds at Page 326 on the North and the lands now or
formerly of Xxxxxx X. and Xxxxxx X. Xxxxxx as described in Liber
2062 of Deeds at Page 11 on the South, said point being North
42 51'00" East a distance of 116.33 feet along the said line of
Northern Road from its intersection with the northerly street
line of Herkimer Road; thence North 42 51'00" East along the said
line of Northern Road, a distance of 297.84 feet to a point;
thence South 47 13'00" East through the lands of said Quad Group
Developers, Inc. a distance of 300.19 feet to a point on the
westerly street line of Euclid Road; thence South 42 48'00" West
along the said line of Euclid Road, a distance of 392.32 feet to
a point on the said xxxxxxxxx xxxxxx xxxx xx Xxxxxxxx Xxxx;
thence North 51 22'28" West along said line of Herkimer Road, a
distance of 200.57 feet to a point on the division line between
the lands now or formerly of Xxxxxx X. and Xxxxxx X. Xxxxxx as
described in Liber 2062 of Deeds at Page 13 on the West and the
lands now or formerly of Xxxxxxx X. Xxxxxx as described in Liber
2797 of Deeds at Page 28 on the East; thence North 39 57'51" East
along said division line, a distance of 116.05 feet to a point on
the division line between the said lands of Quad Group
Developers, Inc. on the North and the said lands of Xxxxxx
(2061/13); thence North 51 19'00" West along said division line,
a distance of 51.30 feet to a point on the division line between
the said lands of Quad Group Developers, Inc. on the North and
the said lands of Xxxxxx (2062/11) on the south; thence North
51 27'00" West along said division line, a distance of 43.62 feet
to the point of beginning.
IMANAGE:2099697_2 (3-15-04) 10:53
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "AGREEMENT") is
entered into as of this 18th day of March, 2004, between HERKIMER
RD. & EUCLID RD. DEVELOPMENT, LLC, a New York 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 comprised of approximately
2.52 acres and located at the northeast corner of the intersection
of Xxxxxxxx Xxxx xxx Xxxxxx Xxxx, Xxxx xx Xxxxx, Xxxxxx of Oneida,
New York, 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 January 27, 2004, 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 $4,547,000 (computed based upon
a 8.23% capitalization of the current annual rent) to be paid in
cash or cash equivalent as set forth in Section 9, subject to
adjustment thereof pursuant to Section 9(e) hereof.
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 $50,000.00 (the "Xxxxxxx Money"), 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. 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, Buyer shall deposit with the
Title Company within two (2) business days after the end of the
Inspection Period an additional $50,000, which shall be part of
the Xxxxxxx Money and which shall also be deposited in an
interest bearing account and held in accordance with the terms
hereof. If 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 thereon. If Buyer does not terminate this Purchase and
Sale Agreement as set forth in and when allowed under Sections 5,
6 or 7 hereof, or otherwise as expressly allowed hereunder, the
Xxxxxxx Money shall, except to the extent any of the
contingencies to Buyer's performance hereunder (including without
limitation Seller's performance of its obligations hereunder)
shall not be satisfied, thereafter be deemed non-refundable. 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 (the "Existing 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 twenty-one (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 Buyer's sole discretion.
Seller, at its own expense, shall provide Buyer with the
following, which Buyer shall have fifteen (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 fifteen
(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 (Buyer's review thereof shall be confined to matters not
theretofore reflected on the Title Commitment or the 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
the project architect and 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, except as otherwise
expressly set forth herein.
Section 7. TITLE. Buyer may, at any time during the
Inspection Period, object in writing ("BUYER'S TITLE OBJECTION
NOTICE") and in good faith 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. Within five (5) days after receipt of
Buyer's Title Objection Notice, Seller shall provide an updated
title insurance commitment (the "Title Commitment Update"). If
the Title Commitment Update does not address all of Buyer's
objections set forth in Buyer's Title Objection Notice 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) business 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. The Lease is hereby
designated as a Permitted Encumbrance.
In addition, 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 Existing 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.
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) To the best of Seller's knowledge, the Property is presently
not in violation of applicable environmental law, and contains no
hazardous materials in excess of amounts allowed by applicable
law 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
as 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 tenth (10th) business day after the
expiration of the Review 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
attached hereto and incorporated herein as EXHIBIT B (the "ASSIGNMENT
AND ASSUMPTION OF LEASE"), 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) The Assignment and Assumption of Lease, 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 C 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
theTitle 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; and
(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 l:00 pm
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.
(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 Sections 9.7.5 - 9.7.10
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 8.23% 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.
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. SELLER'S CONTINUING OBLIGATIONS. Notwithstanding
assignment of the Lease to Buyer as contemplated by Section 9
hereof, 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 to deliver plans or other documents relating to design of
the Improvements or the construction thereof; 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.
Section 13. 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
Herkimer Rd. & Euclid Rd. Development, LLC
X/X Xxxxxxxx Xxxxxxxxxxx, XXX
Xxxxxxx Xxxxxxxx, Xxxxx X-0
753James Street
Syracuse, NY 13203
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: Xxxxxxxx Xxxxxxxxx
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 14. 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 15. COMMISSIONS. Buyer and Seller represent that
neither engaged a broker for this transaction.
Section 16. 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 17. GOVERNING LAW. This Agreement shall be governed
and construed in accordance with the laws of the State in which
the Property is located.
Section 18. 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 19. 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 20. NO RECORDING. Neither this Agreement nor any
memorandum hereof shall be recorded in any public records where
the Property is located or elsewhere.
Section 21. 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 22. EXPIRATION. This offer to Purchase by Buyer shall
expire if not executed by Seller and returned to Buyer on or
before March 19, 2004.
Executed effective as of the date first set forth above.
SELLER:
HERKIMER RD. & EUCLID RD.
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: March 18, 2004
BUYER:
AEI FUND MANAGEMENT, INC.,
a Minnesota corporation
By: /s/ Xxxxxx X Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
Date: March 15, 2004
2099697v21
EXHIBIT A
(Legal Description)
ALL THAT CERTAIN PIECE OR PARCEL OF LAND SITUATE IN THE CITY OF
UTICA, COUNTY OF ONEIDA, STATE OF NEW YORK, BEING MORE
PARTICULARLY BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE EASTERLY STREET LINE OF NORTHERN ROAD
AT ITS INTERSECTION WITH THE DIVISION LINE BETWEEN THE LANDS NOW
OR FORMERLY OF QUAD GROUP DEVELOPERS, INC. AS DESCRIBED IN LIBER
2774 OF DEEDS AT PAGE 326 ON THE NORTH AND THE LANDS NOW OR
FORMERLY OF XXXXXX X. & XXXXXX X. XXXXXX AS DESCRIBED IN LIBER
2062 OF DEEDS AT PAGE 11 ON THE SOUTH, SAID POINT BEING NORTH 42
DEG. 51 MIN. 00 SEC. EAST A DISTANCE OF 116.33 FEET ALONG THE
SAID LINE OF NORTHERN ROAD FROM ITS INTERSECTION WITH THE
NORTHERLY STREET LINE OF HERKIMER ROAD; THENCE NORTH 42 DEG. 51
MIN 00 SEC. EAST ALONG THE SAID LINE OF NORTHERN ROAD, A DISTANCE
OF 297.84 FEET TO A POINT; THENCE SOUTH 47 DEG. 13 MIN. 00 SEC.
EAST THROUGH THE LANDS OF SAID QUAD GROUP DEVELOPERS, INC. A
DISTANCE OF 300.19 FEET TO A POINT ON THE WESTERLY STREET LINE OF
EUCLID ROAD; THENCE SOUTH 42 DEG. 48 MIN. 00 SEC. WEST ALONG THE
SAID LINE OF EUCLID ROAD, A DISTANCE OF 392.22 FEET TO A POINT ON
THE SAID NORTHERLY STREET LINE OF HERKIMER ROAD; THENCE NORTH 51
DEG. 22 MIN. 28 SEC. WEST ALONG SAID LINE OF HERKIMER ROAD, A
DISTANCE OF 200.57 FEET TO A POINT ON THE DIVISION LINE BETWEEN
THE LANDS NOW OR FORMERLY OF XXXXXX X. & XXXXXX X. XXXXXX AS
DESCRIBED IN LIBER 2062 OF DEEDS AT PAGE 13 ON THE WEST AND THE
LANDS NOW OR FORMERLY OF XXXXXXX X. XXXXXX AS DESCRIBED IN LIBER
2797 OF DEEDS AT PAGE 28 ON THE EAST; THENCE NORTH 39 DEG. 57
MIN. 51 SEC. EAST ALONG SAID DIVISION LINE, A DISTANCE OF 116.05
FEET TO A POINT ON THE DIVISION LINE BETWEEN THE SAID LANDS OF
QUAD GROUP DEVELOPERS, INC. ON THE NORTH AND THE SAID LANDS OF
XXXXXX (2062/11 & 13); THENCE NORTH 51 DEG. 27 MIN. 00 SEC. WEST
ALONG SAID DIVISION LINE, A DISTANCE OF 94.92 FEET TO THE POINT
OF BEGINNING. CONTAINING 2.520 ACRES OF LANDS, MORE OR LESS.
