ASSIGNMENT OF
PURCHASE AND SALE AGREEMENT
THIS ASSIGNMENT made and entered into this 29th day of
October, 2002 by and between AEI FUND MANAGEMENT, INC., a
Minnesota corporation, ("Assignor") and AEI Income & Growth
Fund 24 LLC and AEI Private Net Lease Millennium Fund
Limited Partnership, ("Assignees");
WITNESSETH, that:
WHEREAS, on the 1st day of October, 2002, Assignor
entered into a Purchase and Sale Agreement ("Agreement") for
that certain property known as Jared Jewelry Store located
in Pittsburgh, PA, (the "Property") with XxXxxxxx Road
Development, LLC, as Seller and
WHEREAS, Assignor desires to assign all of its rights,
title and interest in, to and under the Agreement to
Assignee as hereinafter provided;
AEI INCOME & GROWTH FUND 24 LLC 72%
AEI PRIVATE NET LEASE MILLENNIUM
FUND LIMITED PARTNERSHIP 28%
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 the
Assignees as noted above, to have and to hold the same
unto the Assignee, its successors and assigns;
2. Assignees 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.
3. The Purchase Price paid by the Assignees designated
herein is equal to the prorata share of the amounts to be
funded as of the date of this Agreement.
All other terms and conditions of the Commitment 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 INCOME & GROWTH FUND 24 LLC
BY: AEI FUND MANAGEMENT, XXI, INC.
("Assignee")
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, its President
AEI PRIVATE NET LEASE MILLENNIUM FUND LIMITED PARTNERSHIP
BY: AEI FUND MANAGEMENT XVIII, INC.
("Assignee")
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 1st day of October, 2002, between
XxXXXXXX ROAD 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 having a street
address of 0000 XxXxxxxx Xxxx, Xxxx Xxxxxxxx, 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 5,856 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 February 4, 2002, by and
between Seller and Sterling Inc. (the "TENANT"), as amended on
March 27, 2002, 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) all of Seller's interest in and rights and
obligations under the Guaranty of Lease dated February 6, 2002
given by Sterling Jewelers Inc. (the "GUARANTOR").
(d) 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 $3,570,000,
(computed based upon a 9.35% capitialization of the current
annual rent, to be verified by a Tenant Estoppel at closing) to
be paid in cash or cash equivalent as set forth in Section 10.
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
Chicago Title Insurance Company, Pittsburgh, PA. ("Title
Company"), a check or wire transfer in the amount of $75,000.00
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 the Title Company's form escrow agreement. 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,
for any reason this Agreement is terminated, prior to the
expiration of the Inspection Period, then the Xxxxxxx Money and
any interest earned thereon in full shall be promptly returned to
Buyer.
Section 5. DELIVERY OF INFORMATION BY SELLER. Buyer
acknowledges that Seller has delivered or caused to be delivered
to Buyer the following:
(a) Seller's existing policy of title insurance ("Title
Policy"), issued by the Title Company;
(b) Copies of all documents referred to in the Title
Policy (the "Title Policy Documents"); with respect
to the Parking and Access Agreement, Buyer will
review and notify Seller of any objections thereto
within 5 business days of the Effective Date,
(subject to Buyer's right to re-review the title
commitment to be delivered pursuant to subparagraph
5(w) below, but solely with respect to matters not
previously contained in seller's existing title
policy and survey). In the event Buyer objects to
anything contained within the Parking and Access
Agreement (except the requirement by Buyer that
Seller fulfill the monetary obligations thereunder
by Escrow), Seller may terminate this Agreement;
(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) A soils report;
(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) Copy of the executed Guaranty and the Lease and
any amendments thereto;
(l) Two years of annual financial statements for the
Guarantor.
Buyer shall have an Inspection Period of 21 business days
from the Effective Date hereof to review and approve the
foregoing 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
minimus number of the following items that may not be
available until several days prior to closing:
(m) A copy of any items to be specifically assigned to
Buyer under paragraph 1d) and the proposed
assignment thereof;
(n) 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 Policy of Seller or Seller's existing
survey as provided to Buyer);
(o) Proposed general warranty deed;
(p) Balance Sheet of Seller;
(q) An original Reliance Letter certified to Buyer
from the engineer who prepared the Seller's Phase
I Environmental Report;
(r) 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 and the soils report 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;
(s) Certificate of Insurance evidencing Tenant's
compliance with the Lease requirements;
(t) A project cost statement, signed by Seller,
itemizing in percentages totaling 100%, the
following costs: land acquisition, soft costs,
building construction, and site work;
(u) Copies of all warranties, and assignments thereof,
issued to or required to be provided to Tenant as
designated in the Lease;
(v) Affirmative coverage, or an endorsement or
endorsements from the Title Company, insuring
Buyer (and agreeing to provide the same coverage
to Buyer's successors and assigns in subsequently
purchased policies) that the right of first
refusal in the Parking and Access Agreement has
been terminated;
(w) 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, accompanied, unless previously provided, by
true copies of all documents that are exceptions
to coverage.
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 below) and Buyer
may elect to not purchase the Property 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 foregoing Inspection
Period or Review 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 or Review 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 12(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 9. 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 or
Guarantor, 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 and the amendment thereto 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 except in
writing and disclosed to Buyer; 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 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 10. 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
Pittsburgh, Pennsylvania, who will coordinate the Closing with
the Title Company's branch office in the county in which the
Property is located, 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 and an
Assignment of the Guaranty 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 and an
Assignment of the Guaranty 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 Pennsylvania statutory form of general
warranty deed 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,
conveying to Buyer the Land and Improvements;
(3) A tenant and guarantor estoppel certificate in
the form as shown on EXHIBIT C attached hereto, fully
executed by Tenant and Guarantor;
(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) An Option to Purchase 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, conveying to Buyer such option
rights as are set forth in the Letter of Intent between
the parties. The Letter of Intent is attached as
EXHIBIT B hereto,
(7) 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 Pennsylvania to effectuate the conveyance
of property similar to the Property.
(8) Assignment of documents as required in
paragraph 1 (d) 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 11. 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 12. 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 12(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 12(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 Pennsylvania or the county where the
Property is located, and any such recording by or for Buyer shall
be a default hereunder.
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:
Mr. Xxxxxx Xxxx
XxXxxxxx Road Development, LLC
X/X Xxxxxxxx Xxxxxxxxxxx
Xxxxxxx Xxxxxxxx, Xxxxx X-0
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
With a copy to:
Xxxxxxx X Xxxxx, Esq.
Xxxxxxx, Curtin, Grundner, & Regen, PC
000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
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: Xxxxxxx Xxxxxxxxx, Esq.
Attorney at Law
00 Xxxx 0xx Xxxxxx
Xxxxx 0000
Xx. Xxxx, Xxxxxxxxx 00000
Phone No.: (000) 000-0000
Fax 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 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. Seller hereby acknowledges that it
dealt only with the below mentioned broker in connection with
this transaction and shall be solely responsible for the payment
of any fees owed to such broker. Buyer represents that it did
not engage a broker for this transaction. Buyer and Seller agree
to hold each other harmless and defend one another from claims
made by or arising from any broker claiming by, under or through
the indemnifying party. The Seller is solely responsible to pay a
total brokerage fee of $50,000 to Progressive NNN Properties C/O
Xxxxxxx Xxxxxxx and Terrace Associates, Inc. C/O Xxxxx Xxxxxxxx.
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 October 3, 2002.
Section 23. EXISTING RIGHT OF FIRST REFUSAL. Buyer
acknowledges that the Property is subject to an existing right of
first refusal in favor of Cofal Partners, L.P. (the "Right of
First Refusal"). If the Right of First Refusal is exercised in
accordance with its terms, Seller shall provide Buyer with
written notice thereof, this Agreement shall automatically
terminate, and the Xxxxxxx Money shall be returned by the Title
Company to Buyer forthwith.
Executed effective as of the date first set forth above.
XxXxxxxx Road 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: 10-3-02
BUYER:
AEI FUND MANAGEMENT, INC.,
a Minnesota corporation
By: /s/ Xxxxxx X Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
Date: 10-1-02
EXHIBIT A
LEGAL DESCRIPTION OF LAND
All that certain parcel of land situate in the Township of Xxxx,
County of Allegheny and commonwealth of Pennsylvania, being all
of Lot No. 1 in Xxxxxxx Xxxxxxxxxxx Plan of record in the
Recorder's Office of Allegheny county in Plan Book Volume 200,
pages 104-and 105.
Being designated as Block 431-B, Lot 17 in the Deed Registry
Office of Allegheny County, Pennsylvania.
