ASSIGNMENT
OF
PURCHASE AGREEMENT
THIS ASSIGNMENT made and entered into this 1st day of
March, 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 17th day of December, 2003, Assignor
entered into a Purchase Agreement ("the Agreement") for that
certain property located at 0000 Xxxx Xxxxxx, Xxxxxxx, Xxx
Xxxx, and more particularly described in Exhibit A attached
hereto and incorporated herein (the "Property") with Xxxxxx
Xxxxxxxxx and Xxxxx X. Xxxxxxx, as Trustees under the
Xxxxxxx Xxxxxxxxx 0000-0 Trust dated September 22, 1993 and
Xxxxxxx Xxxxxx (together collectively referred to as
"Seller"); and
WHEREAS, Assignor desires to assign to AEI Income &
Growth Fund XXI, an undivided fifty percent (50.0%) interest
as a tenant in common; and AEI Accredited Investor Fund 2002
Limited Partnership, an undivided fifty percent (50.0%)
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 Buffalo, County of Erie, and State of New York, being
part of Xxx Xx. 00, Xxxxxxxx 00, Xxxxx 0 of the Holland Land
Company's Survey, bounded and described as follows:
Beginning at the intersection of the southeasterly line
of Main Street and the westerly line of Fillmore Avenue;
thence southerly and along the westerly line of Fillmore
Avenue a distance of 418.93 feet to a point' thence westerly
and along a line drawn at right angles to the westerly line
of Fillmore Avenue a measured distance of 147.38 feet
(147.69 feet) to a point' thence northerly at an interior
angle of 66 18' 29" a measured distance of 22.11 feet to a
point on a line drawn at right angles to a southeasterly
line of Main Street and measuring 139.22 feet (139.38 feet
deed) therefrom; thence westerly at a n interior angle of
255 16' 31" a measured distance 139.22 feet (138.38 feet
deed) to a point in the southeasterly line of Main Street;
thence northeasterly at an interior angle of 90 00' 00" and
along the southeasterly line of Main Street a distance of
398.43 feet to a point and place of beginning.
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "Agreement") is
entered into as of this 17th day of November, 2003 (the
"Effective Date") among XXXXXX XXXXXXXXX and XXXXX X.
XXXXXXX, as Trustees under the Xxxxxxx Xxxxxxxxx 0000-0
Trust dated September 22, 1993 (the "1993-1 Trust"), XXXXXXX
XXXXXX ("Xxxxxx") and AEI FUND MANAGEMENT, INC., a Minnesota
corporation ( "Buyer").
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. The Trustees of the
1993-1 Trust and Franco (collectively, "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 containing
approximately 1.337 acres and located at 0000
Xxxx Xxxxxx, Xxxxxxx, Xxx Xxxx, and more
particularly described in Exhibit A attached
hereto (the "Land"), all improvements located
on the Land, including a certain retail
building which consists of approximately
11,347 square feet of retail space (the
"Improvements"); and all rights, titles,
easements and interests appurtenant to the
Land and/or Improvements;
(b) any and all equipment, including without
limitation HVAC equipment, furniture,
fixtures and other personal property owned by
Seller and now or as of the Closing Date
installed on, attached to or otherwise
located on the Land or in the Improvements
(collectively, the "Personal Property"); and
(c) all of the landlord's interest in and rights
and obligations under the Lease dated
August 26, 1998, originally by and between
(i) Seller, as landlord, with the landlord's
interest thereunder having been assigned to
Xxxxxxx Xxxxxxxxx and Xxxxx X. Xxxxxxx, as
Trustees of the Xxxxxx Xxxxxxxxx 1995 Trust
dated December 29, 1995 (the "1995 Trust")
and Franco, and (ii) Xxx'x Incorporated, as
tenant, with the tenant's interest thereunder
having been assigned to or otherwise acquired
by Eckerd Corporation, a Delaware corporation
("Tenant"), which Lease provides for the use
and occupancy of the Improvements and Land
(the "Lease"), and all rents prepaid
thereunder for any period subsequent to the
Closing Date (defined below);
(d) all permits and other governmental approvals
or consents relating to the Landlord/or the
Improvements including without limitation any
variances, conditional use permits, special
use permits or occupancy permits
(collectively, "Seller Permits"); and
(e) all rights and interests of either
Seller or the trustees of the 1995 Trust in
any of the following to the extent the same
relate to the Land and/or the Improvements:
(1) any warranties, guaranties and
indemnities, (2) plans, drawings,
specifications, surveys, engineering reports,
permits, governmental approvals and other
technical information, and (3) any trade
names or other intangible property relating
to the leasing, maintenance, service, use or
operation of the Land, Improvements, or the
Lease (collectively, the "Warranties, Plans
and Intangible 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 agree 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 Three Million
Two Hundred Thirteen Thousand and 00/100 Dollars
($3,213,000.00) to be paid in cash or cash equivalent as set
forth in Section 11 hereof. Such Purchase Price is based
upon a projected 8.25% yield for Buyer based on current base
rent payable under the Lease (on a fully net basis) .
Section 4. XXXXXXX MONEY. Within two (2) business
days after the Effective Date, Buyer shall deliver to
Commonwealth Land Title Insurance Company ("Title Company"),
at its office in St. Xxxx, Minnesota a check or wire
transfer in the amount of $50,000.00 which the Title Company
shall immediately deposit for collection in an interest-
bearing account, upon Buyer executing and delivering an IRS
Form W-9 to the Title Company and Seller and Buyer executing
an escrow agreement with respect to the Xxxxxxx Money in the
form attached hereto and incorporated herein as Exhibit B.
As used in this Agreement, the term "Xxxxxxx Money" shall
mean the amount deposited by Buyer, together with all
interest earned thereon while in the custody of Title
Company. At the Closing, the Xxxxxxx Money and any interest
earned thereon will be paid to Seller and applied as a
credit against the Purchase Price. If this Agreement is
terminated for any reason other than Buyer's default, the
Xxxxxxx Money and any interest earned thereon in full shall
be promptly returned to Buyer.
Section 5. DELIVERY OF INFORMATION BY SELLER.
Within five (5) days after the Effective Date hereof, Seller
shall deliver to Buyer all of the following (collectively,
"Due Diligence Documents"), to the extent the same are in
Seller's possession or control or otherwise reasonably
available to Seller:
(a) Any Phase I Environmental Reports, testing reports and
any other reports or documents regarding or relating to
the environmental condition of the Property;
(b) A copy of the executed Lease and any amendments or
modifications thereto;
(c) Any soils, geotechnical or other engineering reports;
(d) Any zoning letter or other written information
concerning the current zoning of the Property;
(e) As built Building and/or landscape plans and
specifications;
(f) The current real estate tax statement for the Land and
Improvements;
(l) Any management, maintenance or service agreements
relating to the Property ("Property Agreements");
(m) Seller's general construction contract with respect to
the Improvements;
(n) Seller's Permits;
(o) Any financial statements or sales reports received
by Seller from the Tenant applicable to years 2000
through 2003;
(p) Any appraisals of the Property or any part thereof;
(q) Copy of all Seller Permits;
(r) A copy of a survey of the Land and Improvements
dated February 7, 2000 prepared by X. Xxxxxx &
Associates (the "Existing Survey");
(s) Copies of any existing or proposed warranties,
guaranties or indemnities relating to the Land or
the Improvements; and
(t) All other books, records and reports prepared in
connection with the ownership, management or
maintenance of the Property.
Seller represents that the copies of the documents,
agreements and other materials delivered to Buyer hereunder
are true, correct and complete copies thereof.
Section 6. DUE DILIGENCE PERIOD. Buyer shall have
the right during a period commencing with the date of this
Agreement and ending thirty (30) days after the receipt of
the Due Diligence Documents (the "Due Diligence Period"), at
its sole cost, expense and risk, to examine and inspect the
physical and environmental condition of the Property, status
of compliance of the Property with applicable building,
zoning and health laws and to conduct feasibility studies
with regard to the ownership and operation of the Property.
Buyer, its contractors, consultants and representatives, may
enter upon the Property, whether before or after the end of
the Due Diligence Period, to inspect the Property and
conduct a due diligence review of the same, and may conduct
tests and examinations with regard thereto. Buyer shall
promptly restore the Property to substantially the same
condition in which it existed immediately prior to any
physical tests conducted by or on behalf of Buyer. Buyer
shall hold Seller harmless from any and all damages,
liabilities or claims caused by the negligence or wrongful
act of Buyer, their employees, agents or contractors, in
exercising their rights under this Section 6. If at the end
of the Due Diligence Period, Buyer elects to proceed with
the purchase of the transaction contemplated hereby, Buyer
shall so notify Seller in writing (a "Notice to Proceed"),
given within five (5) days after the expiration of the Due
Diligence Period. In the event that Buyer fails to provide
such notice, this Agreement, and the transactions
contemplated herein, will be considered terminated and all
Xxxxxxx Money, will be returned to Buyer. If Buyer does
provide Seller a Notice to Proceed as contemplated above,
the Xxxxxxx Money shall become non-refundable, except to the
extent that any of the contingencies to Buyer's performance
hereunder shall not be satisfied or waived by Buyer in
writing.
Section 7. TITLE; SURVEY. As soon as reasonably
possible, but in any event within the timeframes set forth
below, Seller shall, at its expense, furnish the following
(collectively, the "Title Evidence") to Buyer:
(a) Title Insurance Commitment and Abstract.
Within ten (10) days after the date hereof, a
current commitment for an ALTA 1992 Owner's
Policy of Title Insurance, with extended
coverage, issued by Ticor Title Insurance
Company copies of all documents referenced
therein, and endorsements for appurtenant
easements (if any), the so-called "Fairway"
endorsement, and such other matters as may be
reasonably identified by Buyer, in the amount
of the Purchase Price (the "Commitment").
The Commitment shall disclose in writing any
liens, charges or encumbrances which remain
of record but which the Title Company has
agreed to "insure over." The Commitment will
commit the Title Company to insure title to
the Real Property subject only to the
encumbrances permitted by Buyer in accordance
with the provisions set forth in this Section
7.
(b) UCC Searches. As soon as reasonably possible
after the date hereof, duly certified reports
covering the filing of security agreements
and/or financing statements, affecting any of
the Personalty (the "UCC Report").
Buyer shall be allowed fifteen (15) days after receipt of
all of the Title Evidence for examination of the same and
making of any objections thereto, said objections to be made
in writing or deemed to be waived; provided, however, that
Buyer shall not be obligated to object to liens or
encumbrances which may be removed by the payment of money.
If any objections are so made, Seller shall use reasonable
efforts to correct any valid title objections within thirty
(30) days after receipt of said objections and, pending such
correction, the closing hereunder shall be postponed, but
upon correction of such title objections and within twenty
(20) days after written notice of such correction given by
Seller to Buyer, Seller and Buyer shall perform this
Agreement according to its terms. If such objections are,
in Buyer's reasonable judgment, not correctable within
thirty (30) days, or if the same are not in fact corrected
within thirty (30) days for any reason, then Buyer may, at
its option, terminate this Purchase Agreement by notice to
Seller, in which case all Xxxxxxx Money paid by Buyer to
Seller hereunder (including all accrued interest thereon)
shall be promptly refunded to Buyer, or may proceed to
closing based on title in its then current condition. Any
matters or encumbrances set forth in the Title Evidence (i)
which are acceptable to Buyer or (ii) to which Buyer does
not object as provided above shall be deemed "Permitted
Encumbrances."
Section 8. SELLER'S REPRESENTATIONS, WARRANTIES,
AND COVENANTS. Seller hereby represents and warrants to,
and covenants with Buyer that:
(a) There are no unrecorded agreements or
restrictions, other than the Lease and that
certain Ground Lease dated August 1, 1998 by
and between Seller, as ground lessor, and
Franco and the trustees of the 1995 Trust, as
ground lessee (the "Ground Lease"), relating
to the Property or by which the Property or
Buyer would be bound;
(b) There are no Property Agreements which will
survive Closing, unless Buyer shall otherwise
agree in writing;
(c) There are no actions or proceedings pending,
which would materially affect the Property,
or interrupt or delay construction of the
Improvements;
(d) The Lease is in full force and effect; no
event has occurred or condition arisen which
either constitutes, or would constitute with
the passage of time or giving of notice or
both, a default by Tenant under the Lease;
(e) The consummation of the transactions
contemplated hereunder, and the performance
of this Agreement and the delivery of the
"Deed" (as define below) 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;
(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 abuts on and has direct
vehicular and pedestrian access to a public
road;
(h) There is no litigation pending or, to the
best knowledge of Seller, threatened against
or relating to the Property;
(i) To Seller's best knowledge, there is no
pending investigation, condemnation or
proceeding of any kind which may have a
material adverse affect upon the Property;
(j) There are no outstanding or unpaid claims,
actions, or causes of action related to any
transaction or obligation entered into or
incurred by Seller with respect to the
Property prior to the date hereof;
(k) The Property has not been used by Seller for
the storage or disposal of any hazardous or
toxic substance as defined in any applicable
state or federal law governing or relating to
the environment;;
(l) Seller is not a "foreign person" (as defined
in Section 1445(f) (3) of the Internal
Revenue Code and regulations issued
thereunder);
(m) Seller has received no written notice that,
and has no actual knowledge of, any condition
on or about the Property which would cause
the Property or any part thereof to be in
violation of, or out of compliance with, any
building codes, zoning ordinances, health and
safety codes or other applicable rules,
regulations or laws;
(n) The present zoning of the Property permits
the proposed use thereof by the Tenant under
the Lease and the Property has, or will have
upon completion of the Improvements, a
legally adequate number of on-site parking
spaces; and
(o) Seller is not insolvent and is not and will
not be rendered insolvent as a result of the
transaction contemplated hereby.
Seller hereby agrees that the truthfulness of each of said
representations and warranties and all other representations
and warranties herein made in a condition precedent to the
performance by Buyer of Buyer's obligations hereunder; and
that the said representations and warranties shall be true
as of the date hereof and on the Closing Date. Upon the
breach of any thereof, Buyer, prior to the Closing Date, may
declare this Agreement to be null and void, or Buyer may
elect to close this sale. If Buyer elects to declare this
Agreement null and void, neither party shall have any rights
or obligations hereunder, except that all Xxxxxxx Money
herein paid, plus interest thereon, shall be promptly
refunded to Buyer.
Section 9. CONTINGENCIES TO BUYERS' PERFORMANCE.
The obligation of Buyer to close this transaction, at the
option of Buyer, shall be subject to each of the following
conditions precedent:
(a) All of the representations and warranties by
Seller contained in Section 8 hereof shall be
true and correct as of the Closing Date.
(b) Seller shall have fully complied with and
performed the conditions and agreements on
its part required by the terms hereof.
(c) Tenant shall not have ceased business
operations at and from the Property.
(d) All necessary government permits for the use
and occupancy of the Property for the
purposes contemplated by the Lease, including
without limitation a permanent or
unconditional certificate of occupancy, shall
have been duly issued to Seller.
(e) Seller shall have delivered to Buyer, not
later than ten (10) days prior to the Closing
Date an estoppel letter from Tenant, in form
attached hereto and incorporated herein as
Exhibit C (the "Tenant Estoppel").
(f) There shall have been no material adverse
change in the physical or environmental
condition of the Property between the end of
the Due Diligence Period and the Closing
Date.
(g) Seller shall have delivered to Buyer an
amendment to the Lease, in form and substance
acceptable to the Buyer in its reasonable
discretion, pursuant to which the Tenant has
agreed to convert the Lease to a "fully net"
lease.
Buyer shall have the right to unilaterally waive any
condition herein set forth and proceed to close. If any
such condition has not been satisfied or waived by Buyer as
of the Closing Date, Buyer may terminate this Purchase
Agreement by written notice to Seller. If this Agreement is
so terminated, the Xxxxxxx Money, plus interest accrued
thereon, shall be promptly refunded to Buyer.
Notwithstanding anything contained herein to the contrary,
in the event that Seller is unable to satisfy the
contingency set forth in subparagraph (g) above and this
Purchase Agreement is terminated as a result, Seller shall
reimburse to Buyer all of Buyer's reasonable out of pocket
expenses, including without limitation attorney's fees, paid
or incurred by Buyer in connection with (i) negotiation and
preparation of this Purchase Agreement or any amendments
thereto, (ii) review of the Due Diligence Documents and/or
Title Evidence or (iii) exercise of its rights under Section
6 hereof (collectively, "Buyer Expenses"), in any event not
to exceed the aggregate sum of $25,000.00. In such event,
Buyer shall deliver to Seller an itemized list of all
Buyer's Expenses, with reasonable backup information; Seller
shall reimburse Buyer the amount due pursuant to the
preceding sentence within fifteen (15) days after receipt
thereof.
Section 10. CLOSING. The closing of the sale of the
Property by Seller to Buyer (the "Closing") shall occur on
or before the later of (i) a date fifteen (15) days after
the satisfaction of the contingencies to Buyer's performance
set forth in Section 9 or (ii) a date sixty (60) days from
the Effective Date hereof (the "Closing Date"). The parties
may elect to close prior to the scheduled Closing Date upon
mutual consent. The Closing shall occur through the
submission of all executed closing documents and funds
necessary to close the transaction contemplated hereby to
the Title Company along with written escrow instructions
from each party. An escrow officer of the Title Company
will coordinate the Closing with the Title Company's branch
office or its affiliate in the county in which the Property
is located. Time is of the essence with regard to the
Closing Date.
Section 11. BUYER'S CLOSING DELIVERIES. Buyer, at
their expense, shall deliver or cause to be delivered to
Seller at Closing the following:
(1) the Purchase Price, by wire transfer or
other immediately available funds;
(2) an Assignment and Assumption of Lease
and an Assignment of the Guaranty in the
form to be prepared by Seller and to be
mutually agreed upon by the parties
prior to the expiration of the Due
Diligence Period, fully executed and
acknowledged by Buyer;
(3) evidence satisfactory to Seller and
Title Company that the persons executing
the Closing documents on behalf of Buyer
have full right, power, and authority to
do so; and
(4) such other documents as may be
reasonably requested by the Title
Company or Seller in accordance with
this Agreement.
Section 12. SELLER'S CLOSING DELIVERIES. Seller, at
its expense, shall deliver or cause to be delivered to Buyer
the following:
(1) Termination of the Ground Lease, duly
executed by all parties thereto, along
with evidence that the landlord's
interest thereunder and all rights and
interests of the ground lessess under
the Ground Lease in and to any portion
of the Property shall have been re-
assigned to Seller by Franco and the
Trustees of the 1995 Trust;
(2) An Assignment and Assumption of Lease,
assigning to Buyer the landlord's
interest in and to the Lease, free and
clear of liens, claims or encumbrances,
in a 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;
(3) A New York statutory form of
general warranty deed in the form to be
prepared by Seller and to be mutually
agreed upon by the parties prior to the
expiration of the Due Diligence Period,
fully executed and acknowledged by
Seller, conveying to Buyer the Land and
Improvements (the "Deed");
(4) A warranty Xxxx of Sale as to the
Personal Property;
(5) An assignment of Seller's rights in and
to all Seller Permits, pursuant to an
assignment in form acceptable to Buyer
in its reasonable discretion.
(6) An assignment of all of Seller's right
in and to the Warranties, Plans and
Intangible Property, pursuant to an
assignment in form acceptable to Buyer
in its reasonable discretion;
(7) The original Tenant Estoppel;
(8) Evidence reasonably satisfactory to
Buyer and Title Company that the persons
executing and delivering the Closing
documents on behalf of Seller and/or the
Trustees of the 1995 Trust have full
right, power and authority to do so;
(9) A certificate meeting the requirements
of Section 1445 of the Internal Revenue
Code of 1986, executed and sworn to by
Seller;
(10) A bring down certificate, warranting
that all Seller's representations
contained herein are true and correct as
of the Closing Date;
(11) 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;
(12) Keys to the Improvements; and
(13) An opinion of Seller's in house legal
counsel, in form and substance as
acceptable to Buyer in its reasonable
discretion that (i) the Lease is valid,
binding and enforceable on Tenant and
(ii) to the best of such counsel's
knowledge, (A) the execution and
delivery of the Lease have been
authorized by all necessary corporate
action on behalf of the Tenant, (B) the
Lease does not conflict with Tenant's
Articles of Incorporation, Bylaws or
other organizational documents, and (C)
the person(s) signing the Lease on
behalf of Tenant have been duly
authorized to do so.
Section 13. CLOSING COSTS; PRORATIONS.
(a) Seller shall pay at Closing (i) all transfer
taxes, deed taxes, intangible taxes or
similar taxes payable in connection with
transfer of title to real property in the
county in which the Property is located; (ii)
all filing and recording fees for all
documents required to be filed or recorded as
a condition to delivery of the Deed to buyer,
with title to the Property in the condition
required thereunder; (iii) one half of
Buyer's title insurance premiums for a
standard form ALTA policy of owner's title
insurance, with extended coverage, including
the premiums or charges for those
endorsements identified in Section 7 hereof,
but excluding the cost of any lender's title
policy (collectively, "Buyer's Title Costs");
and (iv) one half of the Title Company's
escrow and closing fee.
(b) Buyer shall pay at Closing (i) all filing and
recording fees with respect to the Deed, (ii)
the balance of Buyer's Title Costs and (iii)
one half of the Title Company's escrow and
closing fee.
(c) All other closing costs shall be allocated
between the parties consistent with the
custom and practice in similar transactions
in the county in which the Property is
located.
(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
1:00 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.
Section 14. 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 twenty
(20) 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 twenty (20) 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.
Section 15. 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 Seller defaults in performance of any
of its duties or obligations contained
herein, 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, or (3) exercise any other right or
remedy available at law or in equity.
(c) The provision for payment of liquidated
damages in Section 15(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.
Section 16. 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:
Xxxxxx Xxxxxxxxx, Xxxxx X. Xxxxxxx and Xxxxxxx
Xxxxxx
c/o Benderson Development Company, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxx Xxxxxx, Esq.
Benderson Development Company, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Facsimile No.: (000) 000-0000
If to Buyer, to:
AEI Fund Management, Inc.
00 Xxxxxxx Xxxxxx Xxxx, Xxxxx 0000
Xx. Xxxx, XX 00000-0000
Attention: Xx. Xxxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxxx X. Xxxx
Winthrop & Weinstine, P.A.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Facsimile No.: (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 17. ASSIGNS/BENEFICIARIES. Either Seller or
Buyer may assign its or their rights and obligations under
this Agreement to a third party or parties and shall provide
written notice thereof to the other not later than five (5)
business days prior to the Closing Date. No such assignment
shall relieve Seller or Buyer of its or their covenants,
duties and obligations hereunder.
Section 18. COMMISSIONS. Seller agrees at Closing
to pay a commission to Horn Capital Realty, Inc. ("Seller
Broker") in an amount equal to two percent (2%) of the
Purchase Price at Closing as required under Seller's written
agreement with Seller's Broker. Buyer and Seller agree to
hold each other harmless and defend one another from claims
made by or arising from any other broker claiming by, under
or through the indemnifying party.
Section 19. 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 20. GOVERNING LAW. This Agreement shall be
governed and construed in accordance with the laws of the
State in which the Property is located.
Section 21. 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 22. 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 23. NO RECORDING. Neither this Agreement
nor any memorandum hereof shall be recorded in any public
records where the Property is located or elsewhere.
Section 24. EXPIRATION. This offer to Purchase by
Buyer shall expire if not executed by Seller and returned to
Buyer on or before December 19, 2003.
Section 25. ATTORNEY'S FEES. In the event of
litigation between the parties in connection with this
Agreement, the prevailing party (i.e. the party whose
position is substantially upheld) shall be entitled to
recover its reasonable attorneys' fees and costs from the
non-prevailing party. The obligation in the immediately
preceding sentence shall survive any termination of this
Agreement or the closing.
Section 26. SELLER'S CONTINUING OBLIGATIONS.
Notwithstanding anything contained herein to the contrary,
Seller shall remain responsible after Closing for timely
performance of any warranties regarding the condition of
the Improvements and/or the Personalty granted to Tenant
under the Lease. The provisions of this Section 26 shall
survive Closing of the transaction contemplated hereby.
Section 27. CONSTRUCTION. The parties acknowledge
that this Agreement has been fully negotiated at arm's
length and in good faith and that, if any ambiguity shall
arise hereunder, these shall be no presumption that either
party drafted this Agreement or shall have such ambiguity
resolved against either party by virtue of its role in
drafting or preparing this Agreement.
IN WITNESS WHEREOF Seller and Buyer have caused their
respective duly authorized representatives to execute this
Purchase and Sale Agreement, which shall be effective as of
the Effective Date.
SELLERS:
/s/ Xxxxxxx Xxxxxx
XXXXXXX XXXXXX
/s/ Xxxxx X Xxxxxxx
XXXXX X. XXXXXXX, Trustee of
the Xxxxxxx Xxxxxxxxx 1993-1
Trust dated September 22, 1993
Date: December 15, 2003
BUYER:
AEI FUND MANAGEMENT, INC.
By: /s/ Xxxxxx X Xxxxxxx
Its President
Date: December 17, 2003
EXHIBIT A
LEGAL DESCRIPTION OF LAND
EXHIBIT A
Legal description
All That Tract or Parcel of Land, situate in the City
of Buffalo, County of Erie, and State of New York, being
part of Xxx Xx. 00, Xxxxxxxx 00, Xxxxx 0 of the Holland Land
Company's Survey, bounded and described as follows:
Beginning at the intersection of the southeasterly line
of Main Street and the westerly line of Fillmore Avenue;
thence southerly and along the westerly line of Fillmore
Avenue a distance of 418.93 feet to a point' thence westerly
and along a line drawn at right angles to the westerly line
of Fillmore Avenue a measured distance of 147.38 feet
(147.69 feet) to a point' thence northerly at an interior
angle of 66 18' 29" a measured distance of 22.11 feet to a
point on a line drawn at right angles to a southeasterly
line of Main Street and measuring 139.22 feet (139.38 feet
deed) therefrom; thence westerly at a n interior angle of
255 16' 31" a measured distance 139.22 feet (138.38 feet
deed) to a point in the southeasterly line of Main Street;
thence northeasterly at an interior angle of 90 00' 00" and
along the southeasterly line of Main Street a distance of
398.43 feet to a point and place of beginning.
