Limited Option of First Sale
This Agreement, by and between The Xxxxxx X. Xxxxxxx Family
Limited Partnership ("Xxxxxxx"), and AEI Real Estate Fund XVIII
Limited Partnership (the "AEI Partnership"), is effective as of
the 21 day of March, 1997, and supercedes in its entirety that
certain Limited Option of First Sale dated March 3, 1997.
RECITALS
Whereas, Xxxxxxx has purchased an undivided 29.138% interest in
that certain property legally described on Exhibit A attached
hereto (the "Property"), as a Co-Tenant with the AEI Partnership,
which as of the date hereof owns an undivided 37.6447% interest
in the Property; and
Whereas, as consideration for Xxxxxxx'x purchase of its interest
in the Property from the AEI Partnership, the AEI Partnership has
granted Xxxxxxx the Limited Option of First Sale of Xxxxxxx'x
interest in the Property, but only upon the limited terms set
forth herein.
Now, therefore, in Consideration of the purchase by Xxxxxxx
of its undivided interest in the Property, Xxxxxxx and the AEI
Partnership (in its individual capacity as a matter of contract
right and not as a covenant running with the AEI Partnership's
interest in the Property) agree that:
1. Freedom of Transfer. Xxxxxxx shall be free to dispose of
its interest in the Property, whether according to this
Agreement, or upon such terms and conditions as Xxxxxxx shall
determine. However, the rights afforded Xxxxxxx hereunder are
personal to Xxxxxxx, and may not be assigned and do not run with
Xxxxxxx'x interest in the Property. The AEI Partnership shall be
free to sell or transfer all any part of its interest in the
Property, provided, however, for as long as Xxxxxxx shall retain
an undivided interest in the Property, the AEI Partnership will
retain at least a 5% ownership interest in the Property, subject
to disposition by the AEI Partnership as further set forth
herein. The AEI Partnership's sale or transfer of its remaining
5% interest shall be governed by the terms hereof.
2. Limited Option of First Sale. At such time as the AEI
Partnership intends to sell all or any portion of its remaining
interest in the Property (provided such sale is not in connection
with a Liquidation Plan (defined below)), which sale would bring
the AEI Partnership's interest below an undivided 5% interest,
the AEI Partnership agrees it will:
AA. Notice of Intent to Sell. Provide Xxxxxxx with written
notice of the AEI Partnership's intent to sell the AEI
Partnership's remaining interest of or below 5% of the
Property ("Remaining Interest"), prior to accepting any
offer to sell such Remaining Interest;
BB. Notice of Buyer's Offer. Provide Xxxxxxx with written
notice ("AEI Partnership Notice") containing all of the
relevant terms and conditions of the offer, including a copy
of the Purchase Agreement from a buyer willing to make a
valid offer for the purchase of all or a portion of the
Remaining Interest held by the AEI Partnership, and a
statement of the costs incurred by the AEI Partnership
(including reasonable outside attorney's fees, if any) in
obtaining said offer.
C. Notice of Acceptance or Deemed Rejection. Within 10
business days of receipt of such AEI Partnership Notice,
Xxxxxxx will either:
(a) accept by written notification an assignment
of such offer for themselves and sell part, or all, of
its interest in the property to the buyer upon terms
contained in the AEI Partnership Notice, in which event
Xxxxxxx agrees to reimburse the AEI Partnership for the
costs incurred by the AEI Partnership in obtaining said
offer; or
(b) reject the offer contained in the AEI
Partnership Notice; if no written acceptance of the AEI
Partnership's offer to assign its interest is received
by the AEI Partnership within said ten days, Xxxxxxx
will have been deemed to have rejected such offer.
Upon Xxxxxxx'x rejection of the offer, the AEI Partnership
shall be free to sell all, or part, of its Remaining
Interest in the Property to such buyer upon such terms and
conditions as stated in the notice to Xxxxxxx.
D. Termination or Survival of Limited Option. If the
buyer is willing and able to acquire the entire interest
owned by Xxxxxxx, and Xxxxxxx decline to sell its entire
interest, then the AEI Partnership shall have no continuing
obligation to provide Xxxxxxx with any further notice of an
option to sell any interest in the Property. If the buyer
is willing to acquire only a portion of the interest in the
property owned by Xxxxxxx, then the AEI Partnership shall
remain subject to the provisions hereof until released
therefrom according to the terms hereof.
3. Plan of Liquidation. Notwithstanding anything herein to the
contrary, the aforesaid Option to Sell shall not apply nor be
binding on the AEI Partnership, if the AEI Partnership shall
dispose of all of its interest in the Property according to a
written plan of liquidation ("Plan of Liquidation") executed
prior to the disposition of the AEI Partnership's remaining
interest in the Property, said Plan of Liquidation contemplating
the sale of all of the AEI Partnership's assets over a continuous
period in a series of related transactions commenced with the
express design to liquidate the AEI Partnership's interests in
all assets, and no damages shall accrue to Xxxxxxx if in fact
such liquidation occurs within a commercially reasonable time in
accordance with such written Plan of Liquidation.
4. Miscellaneous.
A. All notices provided for herein shall be in writing and
shall be deemed to have been given when delivered, personally or
by registered or certified mail or nationally recognized
overnight carrier, return receipt requested, postage prepaid,
addressed as follows:
if to Xxxxxxx at:
Xxxxx Xxxxxxx, General Partner
0000 Xxxx Xxxxxx
Xxxxxx, Xx. 00000
and
Xxxxxx Xxxxxxx
000 Xxxx Xxxxxx
Xxxxxxxx, Xx. 00000
if to AEI at:
Attention: Xxxxxx X. Xxxxxxx, President
AEI Fund Management XVIII, Inc.
1300 Minnesota World Trade Center
00 Xxxx Xxxxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxx 00000
or addressed to any such party at such address as such party
shall hereinafter furnish by notice to the other parties.
B. This Agreement shall be construed according to the laws
of the State of Minnesota and the parties agree to be governed by
the jurisdiction of and consent to venue of any action to enforce
this agreement in the State of Minnesota or the principal place
of business of Xxxxxxx or the situs of the Property, said choice
of venue to be at the sole discretion of AEI.
C. In the event it becomes necessary for either party to
bring suit to enforce the terms or conditions hereof, the
successful party shall have the right to recover reasonable
attorney's fees and costs.
In witness whereof, the parties have executed this Agreement
effective as of the date first written above.
THE XXXXXX X. XXXXXXX FAMILY LIMITED PARTNERSHIP
By: /s/ Xxxxxx X Xxxxxxx
Its General Partner
By: /s/ Xxxxx X Xxxxxxx
Its General Partner
AEI REAL ESTATE FUND XVIII LIMITED PARTNERSHIP
By: AEI FUND MANAGEMENT XVIII, INC.
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, President
EXHIBIT A LEGAL DESCRIPTION
A certain tract of land, containing 2.74 acres, more or less,
situated, lying, and being in the City of Bristol and in the
County of Washington, State of Virginia, as described by metes
and bounds as follows:
Located in Washington County and the City of Bristol,
Virginia within the Wal-mart Shopping Center Development;
being a portion of Tract No. 8 (Wal-Mart Stores, Inc.) as
shown on Plat of Record in Plat Book 4, Page 63, in the
recorders office for Washington County, Virginia; being more
particularly described as follows;
BEGINNING at an iron pin corner to Walnut Grove Church and
Tract 5 of the Wal-Mart Development, thence proceeding with
the line of Walnut Grove Church North 86 degrees 02 minutes 35
seconds West for a distance of 337.57 feet to an iron pin set
this survey; thence leaving the line of Walnut Grove Church
and proceeding with a new line North 46 degrees 10 minutes 34
seconds East for a distance of 591.56 feet to an iron pin set
this survey in the line of Tract 7; said iron pin being on the
south side of said road South 43 degrees 49 minutes 26
seconds East for a distance of 250.00 feet to an iron pin set
this survey and corner to Tract 5; thence with the line of
Tract 5 South 46 degrees 10 minutes 34 seconds West for a
distance of 364.723 feet to the BEGINNING, containing 2.74 acres
more or less as surveyed by Xxxxxxxx Engineering July, 1995.
A part or, but NOT all of Tract No. 8 of the subdivision of the
Wal-Mart Shopping Center as shown on a plat dated April 20, 1993
which plat is of record in the Office of the Clerk of the Circuit
Court of Washington County, Virginia in Plat Book 28, pages 42
through 45, and in records of the City of Bristol in Plat Book 4,
pages 60 through 63, to which plat reference is hereto made for a
more particular description.
TOGETHER WITH a non-exclusive easement for the use of the drive
lanes, as set forth in Easements With Convenants And Restrictions
Affecting Land ("ECR") by and between Wal-Mart Stores, Inc., a
Delaware corporation and Xxxx'x Home Center, Inc., a North
Carolina corporation, dated November 16, 1993, recorded in the
Clerk's Office Circuit Court, County of Washington, Virginia, in
Deed Book 888, page 345.
BEING a portion of the same real estate conveyed to Tractor
Supply Company, a Tennessee corporation by deed from Wal-Mart
Stores, Inc., a Delaware corporation, dated October 2, 1995,
recorded November 29, 1995, recorded in the Clerk's Office,
Circuit Court, County of Washington, Virginia, in Deed Book 931,
page 231, and in the Clerk's Office, Circuit Court, City of
Bristol, Virginia, in Deed Book 329, page 19.
