-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CyvrFkZ3orI/xGdzoDHPJDhg/X/QrT/RKMlOW9NPjtRJV9EvWDpuks3C8hvydfDR 5P/0e0MtnZCcn1oLDeD/rg== 0000771677-04-000079.txt : 20041112 0000771677-04-000079.hdr.sgml : 20041111 20041112124837 ACCESSION NUMBER: 0000771677-04-000079 CONFORMED SUBMISSION TYPE: 10QSB PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20040930 FILED AS OF DATE: 20041112 DATE AS OF CHANGE: 20041112 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AEI INCOME & GROWTH FUND XXI LTD PARTNERSHIP CENTRAL INDEX KEY: 0000931755 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE [6500] IRS NUMBER: 411789725 STATE OF INCORPORATION: MN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10QSB SEC ACT: 1934 Act SEC FILE NUMBER: 033-85076 FILM NUMBER: 041137490 BUSINESS ADDRESS: STREET 1: 1300 MINNESOTA WORLD TRADE CENTER STREET 2: 30 EAST SEVENTH ST CITY: ST PAUL STATE: MN ZIP: 55101 BUSINESS PHONE: 6122277333 MAIL ADDRESS: STREET 1: 1300 MINNESOTA WORLD TRADE CENTER STREET 2: 30 EAST SEVENTH STREET CITY: ST PAUL STATE: MN ZIP: 55101 10QSB 1 q213-04.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-QSB Quarterly Report Under Section 13 or 15(d) of The Securities Exchange Act of 1934 For the Quarter Ended: September 30, 2004 Commission file number: 0-29274 AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP (Exact Name of Small Business Issuer as Specified in its Charter) State of Minnesota 41-1789725 (State or other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) 30 East 7th Street, Suite 1300, St. Paul, Minnesota 55101 (Address of Principal Executive Offices) (651) 227-7333 (Issuer's telephone number) Not Applicable (Former name, former address and former fiscal year, if changed since last report) Check whether the issuer (1) filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No Transitional Small Business Disclosure Format: Yes No [X] AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP INDEX PART I. Financial Information Item 1. Balance Sheet as of September 30, 2004 and December 31, 2003 Statements for the Periods ended September 30, 2004 and 2003: Income Cash Flows Changes in Partners' Capital Notes to Financial Statements Item 2. Management's Discussion and Analysis Item 3. Controls and Procedures PART II. Other Information Item 1. Legal Proceedings Item 2. Unregistered Sales of Equity Securities and Use of Proceeds Item 3. Defaults Upon Senior Securities Item 4. Submission of Matters to a Vote of Security Holders Item 5. Other Information Item 6. Exhibits Signatures AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP BALANCE SHEET SEPTEMBER 30, 2004 AND DECEMBER 31, 2003 (Unaudited) ASSETS 2004 2003 CURRENT ASSETS: Cash and Cash Equivalents $ 2,536,063 $ 6,018,352 Receivables 26,045 579 ----------- ----------- Total Current Assets 2,562,108 6,018,931 ----------- ----------- INVESTMENTS IN REAL ESTATE: Land 5,556,728 4,770,063 Buildings and Equipment 10,187,122 10,063,261 Accumulated Depreciation (1,089,819) (862,718) ----------- ----------- 14,654,031 13,970,606 Real Estate Held for Sale 2,107,185 264,200 ----------- ----------- Net Investments in Real Estate 16,761,216 14,234,806 ----------- ----------- Total Assets $19,323,324 $20,253,737 =========== =========== LIABILITIES AND PARTNERS' CAPITAL CURRENT LIABILITIES: Payable to AEI Fund Management, Inc. $ 33,849 $ 160,512 Distributions Payable 405,911 951,129 Unearned Rent 12,769 0 ----------- ----------- Total Current Liabilities 452,529 1,111,641 ----------- ----------- PARTNERS' CAPITAL: General Partners 26,275 28,987 Limited Partners, $1,000 per Unit; 24,000 Units authorized and issued; 22,907 Units outstanding 18,844,520 19,113,109 ----------- ----------- Total Partners' Capital 18,870,795 19,142,096 ----------- ----------- Total Liabilities and Partners'Capital $19,323,324 $20,253,737 =========== =========== The accompanying Notes to Financial Statements are an integral part of this statement. AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP STATEMENT OF INCOME FOR THE PERIODS ENDED SEPTEMBER 30 (Unaudited) Three Months Ended Nine Months Ended 9/30/04 9/30/03 9/30/04 9/30/03 RENTAL INCOME $ 335,232 $ 218,463 $ 981,450 $ 646,145 EXPENSES: Partnership Administration - Affiliates 53,563 60,314 162,083 167,388 Partnership Administration and Property Management - Unrelated Parties 9,112 3,448 27,110 19,102 Depreciation 94,720 61,985 276,080 181,427 ---------- ----------- ----------- ---------- Total Expenses 157,395 125,747 465,273 367,917 ---------- ----------- ----------- ---------- OPERATING INCOME 177,837 92,716 516,177 278,228 OTHER INCOME: Interest Income 11,836 13,512 36,011 68,062 Gain on Sale of Real Estate 0 0 137,068 0 ---------- ----------- ----------- ---------- Total Other Income 11,836 13,512 173,079 68,062 ---------- ----------- ----------- ---------- INCOME FROM CONTINUING OPERATIONS 189,673 106,228 689,256 346,290 Income from Discontinued Operations 57,328 684,162 266,721 1,422,125 ---------- ----------- ----------- ---------- NET INCOME $ 247,001 $ 790,390 $ 955,977 $1,768,415 ========== =========== =========== ========== NET INCOME ALLOCATED: General Partners $ 2,470 $ 7,904 $ 9,560 $ 17,684 Limited Partners 244,531 782,486 946,417 1,750,731 ---------- ----------- ----------- ---------- $ 247,001 $ 790,390 $ 955,977 $1,768,415 ========== =========== =========== ========== INCOME PER LIMITED PARTNERSHIP UNIT: Continuing Operations $ 8.19 $ 4.57 $ 29.79 $ 14.89 Discontinued Operations 2.48 29.41 11.53 61.15 ---------- ----------- ----------- ---------- Total $ 10.67 $ 33.98 $ 41.32 $ 76.04 ========== =========== =========== ========== Weighted Average Units Outstanding 22,907 23,025 22,907 23,025 ========== =========== =========== ========== The accompanying Notes to Financial Statements are an integral part of this statement. AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP STATEMENT OF CASH FLOWS FOR THE NINE-MONTH PERIODS ENDED SEPTEMBER 30 (Unaudited) 2004 2003 CASH FLOWS FROM OPERATING ACTIVITIES: Net Income $ 955,977 $ 1,768,415 Adjustments to Reconcile Net Income to Net Cash Provided by Operating Activities: Depreciation 311,230 312,160 Gain on Sale of Real Estate (265,704) (993,576) (Increase) Decrease in Receivables (25,466) 15,194 Increase (Decrease) in Payable to AEI Fund Management, Inc. (126,663) 40,946 Increase in Unearned Rent 12,769 26,541 ----------- ----------- Total Adjustments (93,834) (598,735) ----------- ----------- Net Cash Provided By Operating Activities 862,143 1,169,680 ----------- ----------- CASH FLOWS FROM INVESTING ACTIVITIES: Investments in Real Estate (3,839,008) (3,044,950) Proceeds from Sale of Real Estate 1,267,072 3,395,778 ----------- ----------- Net Cash Provided By (Used For) Investing Activities (2,571,936) 350,828 ----------- ----------- CASH FLOWS FROM FINANCING ACTIVITIES: Decrease in Distributions Payable (545,218) (242,423) Distributions to Partners (1,227,278) (1,227,282) ----------- ----------- Net Cash Used For Financing Activities (1,772,496) (1,469,705) ----------- ----------- NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS (3,482,289) 50,803 CASH AND CASH EQUIVALENTS, beginning of period 6,018,352 4,653,629 ----------- ----------- CASH AND CASH EQUIVALENTS, end of period $ 2,536,063 $ 4,704,432 =========== =========== The accompanying Notes to Financial Statements are an integral part of this statement. AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP STATEMENT OF CHANGES IN PARTNERS' CAPITAL FOR THE PERIODS ENDED SEPTEMBER 30 (Unaudited) Limited Partnership General Limited Units Partners Partners Total Outstanding BALANCE, December 31, 2002 $ 17,954 $18,020,886 $18,038,840 23,025.33 Distributions (12,273) (1,215,009) (1,227,282) Net Income 17,684 1,750,731 1,768,415 -------- ----------- ----------- ---------- BALANCE, September 30, 2003 $ 23,365 $18,556,608 $18,579,973 23,025.33 ======== =========== =========== ========== BALANCE, December 31, 2003 $ 28,987 $19,113,109 $19,142,096 22,907.49 Distributions (12,272) (1,215,006) (1,227,278) Net Income 9,560 946,417 955,977 -------- ----------- ----------- ---------- BALANCE, September 30, 2004 $ 26,275 $18,844,520 $18,870,795 22,907.49 ======== =========== =========== ========== The accompanying Notes to Financial Statements are an integral part of this statement. AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP NOTES TO FINANCIAL STATEMENTS SEPTEMBER 30, 2004 (Unaudited) (1) The condensed statements included herein have been prepared by the Partnership, without audit, pursuant to the rules and regulations of the Securities and Exchange Commission, and reflect all adjustments which are, in the opinion of management, necessary to a fair statement of the results of operations for the interim period, on a basis consistent with the annual audited statements. The adjustments made to these condensed statements consist only of normal recurring adjustments. Certain information, accounting policies, and footnote disclosures normally included in financial statements prepared in accordance with generally accepted accounting principles have been condensed or omitted pursuant to such rules and regulations, although the Partnership believes that the disclosures are adequate to make the information presented not misleading. It is suggested that these condensed financial statements be read in conjunction with the financial statements and the summary of significant accounting policies and notes thereto included in the Partnership's latest annual report on Form 10-KSB. (2) Organization - AEI Income & Growth Fund XXI Limited Partnership (Partnership) was formed to acquire and lease commercial properties to operating tenants. The Partnership's operations are managed by AEI Fund Management XXI, Inc. (AFM), the Managing General Partner. Robert P. Johnson, the President and sole director of AFM, serves as the Individual General Partner. AFM is a wholly owned subsidiary of AEI Capital Corporation of which Mr. Johnson is the majority shareholder. AEI Fund Management, Inc. (AEI), an affiliate of AFM, performs the administrative and operating functions for the Partnership. The terms of the Partnership offering call for a subscription price of $1,000 per Limited Partnership Unit, payable on acceptance of the offer. The Partnership commenced operations on April 14, 1995 when minimum subscriptions of 1,500 Limited Partnership Units ($1,500,000) were accepted. On January 31, 1997, the offering terminated when the maximum subscription limit of 24,000 Limited Partnership Units was reached. Under the terms of the Limited Partnership Agreement, the Limited Partners and General Partners contributed funds of $24,000,000 and $1,000, respectively. During operations, any Net Cash Flow, as defined, which the General Partners determine to distribute will be distributed 90% to the Limited Partners and 10% to the General Partners; provided, however, that such distributions to the General Partners will be subordinated to the Limited Partners first receiving an annual, noncumulative distribution of Net Cash Flow equal to 10% of their Adjusted Capital Contribution, as defined, and, provided further, that in no event will the General Partners receive less than 1% of such Net Cash Flow per annum. Distributions to Limited Partners will be made pro rata by Units. AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP NOTES TO FINANCIAL STATEMENTS (Continued) (2) Organization - (Continued) Any Net Proceeds of Sale, as defined, from the sale or financing of properties which the General Partners determine to distribute will, after provisions for debts and reserves, be paid in the following manner: (i) first, 99% to the Limited Partners and 1% to the General Partners until the Limited Partners receive an amount equal to: (a) their Adjusted Capital Contribution plus (b) an amount equal to 10% of their Adjusted Capital Contribution per annum, cumulative but not compounded, to the extent not previously distributed from Net Cash Flow; (ii) any remaining balance will be distributed 90% to the Limited Partners and 10% to the General Partners. Distributions to the Limited Partners will be made pro rata by Units. For tax purposes, profits from operations, other than profits attributable to the sale, exchange, financing, refinancing or other disposition of property, will be allocated first in the same ratio in which, and to the extent, Net Cash Flow is distributed to the Partners for such year. Any additional profits will be allocated in the same ratio as the last dollar of Net Cash Flow is distributed. Net losses from operations will be allocated 99% to the Limited Partners and 1% to the General Partners. For tax purposes, profits arising from the sale, financing, or other disposition of property will be allocated in accordance with the Partnership Agreement as follows: (i) first, to those partners with deficit balances in their capital accounts in an amount equal to the sum of such deficit balances; (ii) second, 99% to the Limited Partners and 1% to the General Partners until the aggregate balance in the Limited Partners' capital accounts equals the sum of the Limited Partners' Adjusted Capital Contributions plus an amount equal to 10% of their Adjusted Capital Contributions per annum, cumulative but not compounded, to the extent not previously allocated; (iii) third, the balance of any remaining gain will then be allocated 90% to the Limited Partners and 10% to the General Partners. Losses will be allocated 98% to the Limited Partners and 2% to the General Partners. The General Partners are not required to currently fund a deficit capital balance. Upon liquidation of the Partnership or withdrawal by a General Partner, the General Partners will contribute to the Partnership an amount equal to the lesser of the deficit balances in their capital accounts or 1% of total Limited Partners' and General Partners' capital contributions. (3) Reclassification - Certain items in the prior year's financial statements have been reclassified to conform to 2004 presentation. These reclassifications had no effect on Partners' capital, net income or cash flows. AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP NOTES TO FINANCIAL STATEMENTS (Continued) (4) Investments in Real Estate - On September 19, 2003, the Partnership purchased a 37% interest in a Winn-Dixie store in Panama City, Florida for $1,714,965. The property is leased to Winn-Dixie Montgomery, Inc. under a Lease Agreement with a primary term of 20 years and annual rental payments of $138,380. The remaining interests in the property were purchased by AEI Net Lease Income & Growth Fund XIX Limited Partnership and AEI Income & Growth Fund 24 LLC, affiliates of the Partnership. Through March 31, 2004, the Partnership sold 16.5975% of the Winn-Dixie store in Panama City, Florida, in four separate transactions, to unrelated third parties. The Partnership received net sale proceeds of $900,843, which resulted in a net gain of $139,707. The cost and related accumulated depreciation of the interests sold was $769,300 and $8,164, respectively. For the nine months ended September 30, 2004 and 2003, the net gain was $137,068 and $-0-, respectively. On December 30, 2003, the Partnership purchased a Johnny Carino's restaurant in Laredo, Texas for $2,605,079. The property is leased to Kona Restaurant Group, Inc. under a Lease Agreement with a primary term of 13 years and annual rental payments of $215,646. On February 9, 2004, the Partnership purchased a 50% interest in a Jared Jewelry store in Hanover, Maryland for $1,984,828. The property is leased to Sterling Jewelers Inc. under a Lease Agreement with a primary term of 20 years and annual rental payments of $153,228. The remaining interest in the property was purchased by AEI Net Lease Income & Growth Fund XX Limited Partnership, an affiliate of the Partnership. In March 2004, the Partnership entered into an agreement to purchase a 50% interest in an Eckerd drug store in Buffalo, New York for approximately $1,606,500. In May 2004, by mutual agreement of the parties, the agreement was terminated. On September 20, 2004, the Partnership purchased a 40% interest in an Eckerd drug store in Utica, New York for $1,843,884. The property is leased to Eckerd Corporation under a Lease Agreement with a primary term of 20 years and annual rental payments of $149,671. The remaining interest in the property was purchased by AEI Accredited Investor Fund 2002 Limited Partnership, an affiliate of the Partnership. (5) Payable to AEI Fund Management, Inc. - AEI Fund Management, Inc. performs the administrative and operating functions for the Partnership. The payable to AEI Fund Management represents the balance due for those services. This balance is non-interest bearing and unsecured and is to be paid in the normal course of business. AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP NOTES TO FINANCIAL STATEMENTS (Continued) (6) Discontinued Operations - During the first nine months of 2003, the Partnership sold the Children's World in Mundelein, Illinois, in seven separate transactions, to unrelated third parties. The Partnership received total net sale proceeds of $2,010,839, which resulted in a net gain of $495,127. The total cost and related accumulated depreciation of the interests sold was $1,618,824 and $103,112, respectively. During the third quarter of 2003, the Partnership sold its 25% interest in the Champps Americana restaurant in Centerville, Ohio, in five separate transactions, to unrelated third parties. The Partnership received total net sale proceeds of $1,384,939, which resulted in a net gain of $498,449. The total cost and related accumulated depreciation of the interests sold was $984,426 and $97,936, respectively. During the fourth quarter of 2003, the Partnership sold 37.0128% of the Garden Ridge retail store in Pineville, North Carolina, in eleven separate transactions, to unrelated third parties. The Partnership received total net sale proceeds of $3,968,116, which resulted in a net gain of $1,347,739. The total cost and related accumulated depreciation of the interests sold was $3,310,163 and $689,786, respectively. On January 13, 2004, the Partnership sold its remaining 3.7372% interest in the Garden Ridge retail store to an unrelated third party. The Partnership received net sale proceeds of $392,836, which resulted in a net gain of $128,636. At December 31, 2003, the property was classified as Real Estate Held for Sale with a book value of $264,200. On October 31, 2002, the Partnership purchased a parcel of land in Farmington, New Mexico for $810,000. The Partnership obtained title to the land in the form of an undivided fee simple interest. The land is leased to SFG Farmington I Limited Partnership (SFG) under a Lease Agreement with a primary term of 20 years and annual rental payments of $85,050. Simultaneously with the purchase of the land, the Partnership entered into a Development Financing Agreement under which the Partnership advanced funds to SFG for the construction of a Johnny Carino's restaurant on the site. Pursuant to the Lease, any improvements to the land during the term of the Lease, become property of the lessor. The Partnership charged interest on the advances at a rate of 10.5%. On May 28, 2003, after the development was completed, the Lease Agreement was amended to require annual rental payments of $231,000. Total acquisition costs, including the cost of the land, were $2,183,344. AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP NOTES TO FINANCIAL STATEMENTS (Continued) (6) Discontinued Operations - (Continued) In June 2004, the Partnership entered into an agreement to sell the Johnny Carino's restaurant in Farmington, New Mexico to an unrelated third party. Subsequent to September 30, 2004, the sale closed with the Partnership receiving net sale proceeds of approximately $2,900,000, which resulted in a net gain of approximately $793,000. At September 30, 2004, the property was classified as Real Estate Held for Sale with a book value of $2,107,185. During the first nine months of 2004 and 2003, the Partnership distributed $225,776 and $140,284 of net sale proceeds to the Limited and General Partners as part of their quarterly distributions, which represented a return of capital of $9.76 and $6.04 per Limited Partnership Unit, respectively. The Partnership anticipates the remaining net sale proceeds will either be reinvested in additional property or distributed to the Partners in the future. The financial results for these properties are reflected as Discontinued Operations in the accompanying financial statements. The following are the results of discontinued operations for the periods ended September 30: Three Months Ended Nine Months Ended 9/30/04 9/30/03 9/30/04 9/30/03 Rental Income $ 57,750 $ 177,097 $ 174,504 $ 566,330 Property Management Expenses (422) (4,016) (1,269) (7,048) Depreciation 0 (44,582) (35,150) (130,733) Gain on Disposal of Real Estate 0 555,663 128,636 993,576 ---------- ---------- ---------- ---------- Income from Discontinued Operations $ 57,328 $ 684,162 $ 266,721 $1,422,125 ========== ========== ========== ========== ITEM 2.MANAGEMENT'S DISCUSSION AND ANALYSIS The Management's Discussion and Analysis contains various "forward looking statements" within the meaning of federal securities laws which represent management's expectations or beliefs concerning future events, including statements regarding anticipated application of cash, expected returns from rental income, growth in revenue, taxation levels, the sufficiency of cash to meet operating expenses, rates of distribution, and other matters. These, and other forward looking statements made by the Partnership, must be evaluated in the context of a number of factors that may affect the Partnership's financial condition and results of operations, including the following: Market and economic conditions which affect the value of the properties the Partnership owns and the cash from rental income such properties generate; the federal income tax consequences of rental income, deductions, gain on sales and other items and the affects of these consequences for the Partners; resolution by the General Partners of conflicts with which they may be confronted; the success of the General Partners of locating properties with favorable risk return characteristics; the effect of tenant defaults; and the condition of the industries in which the tenants of properties owned by the Partnership operate. The Application of Critical Accounting Policies The preparation of the Partnership's financial statements requires management to make estimates and assumptions that may affect the reported amounts of assets, liabilities, revenues and expenses, and related disclosure of contingent assets and liabilities. Management evaluates these estimates on an ongoing basis, including those related to the carrying value of real estate and the allocation by AEI Fund Management, Inc. of expenses to the Partnership as opposed to other funds they manage. The Partnership purchases properties and records them in the financial statements at the lower of cost or estimated realizable value. The Partnership initially records the properties at cost (including capitalized acquisition expenses). The Partnership is required to periodically evaluate the carrying value of properties to determine whether their realizable value has declined. For properties the Partnership will hold and operate, management determines whether impairment has occurred by comparing the property's probability-weighted cash flows to its current carrying value. For properties held for sale, management determines whether impairment has occurred by comparing the property's estimated fair value less cost to sell to its current carrying value. If the carrying value is greater than the realizable value, an impairment loss is recorded to reduce the carrying value of the property to its realizable value. A change in these assumptions or analysis could cause material changes in the carrying value of the properties. ITEM 2.MANAGEMENT'S DISCUSSION AND ANALYSIS. (Continued) AEI Fund Management Inc. allocates expenses to each of the funds they manage primarily on the basis of the number of hours devoted by their employees to each fund's affairs. They also allocate expenses at the end of each month that are not directly related to a fund's operations based upon the number of investors in the fund and the fund's capitalization relative to other funds they manage. The Partnership reimburses these expenses subject to detailed limitations contained in the Partnership Agreement. Management of the Partnership has discussed the development and selection of the above accounting estimates and the management discussion and analysis disclosures regarding them with the managing partner of the Partnership. Results of Operations For the nine months ended September 30, 2004 and 2003, the Partnership recognized rental income from continuing operations of $981,450 and $646,145, respectively. In 2004, rental income increased as a result of additional rent received from four property acquisitions in 2003 and 2004 and rent increases on two properties. For the nine months ended September 30, 2004 and 2003, the Partnership incurred Partnership administration expenses from affiliated parties of $162,083 and $167,388, respectively. These administration expenses include costs associated with the management of the properties, processing distributions, reporting requirements and correspondence to the Limited Partners. During the same periods, the Partnership incurred Partnership administration and property management expenses from unrelated parties of $27,110 and $19,102, respectively. These expenses represent direct payments to third parties for legal and filing fees, direct administrative costs, outside audit and accounting costs, taxes, insurance and other property costs. For the nine months ended September 30, 2004 and 2003, the Partnership recognized interest income of $36,011 and $68,062, respectively. In 2004, interest income decreased due to the Partnership receiving interest from construction advances in 2003. For the nine months ended September 30, 2004, the Partnership recognized gain on sale of real estate from continuing operations of $137,068 from the sale of the Winn-Dixie store. Since the Partnership retains an ownership interest in the property, the operating results and gain on sale of the property were not classified as discontinued operations. Through March 31, 2004, the Partnership sold 16.5975% of the Winn-Dixie store in Panama City, Florida, in four separate transactions, to unrelated third parties. The Partnership received net sale proceeds of $900,843, which resulted in a net gain of $139,707. The cost and related accumulated depreciation of the interests sold was $769,300 and $8,164, respectively. For the nine months ended September 30, 2004 and 2003, the net gain was $137,068 and $-0-, respectively. ITEM 2.MANAGEMENT'S DISCUSSION AND ANALYSIS. (Continued) In accordance with Statement of Financial Accounting Standards No. 144, Accounting for the Impairment or Disposal of Long-Lived Assets, upon complete disposal of a property or classification of a property as Real Estate Held for Sale, the Partnership includes the operating results and sale of the property in discontinued operations. In addition, the Partnership reclassifies the prior periods operating results and any partial sales of the property to discontinued operations. For the nine months ended September 30, 2004, the Partnership recognized income from discontinued operations of $266,721, representing rental income less property management expenses and depreciation of $138,085 and gain on disposal of real estate of $128,636. For the nine months ended September 30, 2003, the Partnership recognized income from discontinued operations of $1,422,125, representing rental income less property management expenses and depreciation of $428,549 and gain on disposal of real estate of $993,576. During the first nine months of 2003, the Partnership sold the Children's World in Mundelein, Illinois, in seven separate transactions, to unrelated third parties. The Partnership received total net sale proceeds of $2,010,839, which resulted in a net gain of $495,127. The total cost and related accumulated depreciation of the interests sold was $1,618,824 and $103,112, respectively. During the third quarter of 2003, the Partnership sold its 25.0% interest in the Champps Americana restaurant in Centerville, Ohio, in five separate transactions, to unrelated third parties. The Partnership received total net sale proceeds of $1,384,939, which resulted in a net gain of $498,449. The total cost and related accumulated depreciation of the interests sold was $984,426 and $97,936, respectively. During the fourth quarter of 2003, the Partnership sold 37.0128% of the Garden Ridge retail store in Pineville, North Carolina, in eleven separate transactions, to unrelated third parties. The Partnership received total net sale proceeds of $3,968,116, which resulted in a net gain of $1,347,739. The total cost and related accumulated depreciation of the interests sold was $3,310,163 and $689,786, respectively. On January 13, 2004, the Partnership sold its remaining 3.7372% interest in the Garden Ridge retail store to an unrelated third party. The Partnership received net sale proceeds of $392,836, which resulted in a net gain of $128,636. At December 31, 2003, the property was classified as Real Estate Held for Sale with a book value of $264,200. In June 2004, the Partnership entered into an agreement to sell the Johnny Carino's restaurant in Farmington, New Mexico to an unrelated third party. Subsequent to September 30, 2004, the sale closed with the Partnership receiving net sale proceeds of approximately $2,900,000, which resulted in a net gain of approximately $793,000. At September 30, 2004, the property was classified as Real Estate Held for Sale with a book value of $2,107,185. ITEM 2.MANAGEMENT'S DISCUSSION AND ANALYSIS. (Continued) In 2003 and the first quarter of 2004, the Partnership realized significant gains from the sale of property. While the real estate market is expected to remain attractive for sellers of property, there can be no assurance the Partnership will be able to achieve a similar level of sales activity or sales profitability during the remainder of 2004 due to unforeseen changes in the real estate market. In addition, it is likely the Partnership will curtail its selling activity as it is becoming more difficult to find attractive property in which to reinvest the proceeds from property sales. Inflation has had a minimal effect on income from operations. Leases may contain rent increases, based on the increase in the Consumer Price Index over a specified period, which will result in an increase in rental income over the term of the leases. In addition, leases may contain rent clauses which entitle the Partnership to receive additional rent in future years if gross receipts for the property exceed certain specified amounts. Increases in sales volumes of the tenants, due to inflation and real sales growth, may result in an increase in rental income over the term of the leases. Inflation also may cause the real estate to appreciate in value. However, inflation and changing prices may have an adverse impact on the operating margins of the properties' tenants, which could impair their ability to pay rent and subsequently reduce the Net Cash Flow available for distributions. Liquidity and Capital Resources During the nine months ended September 30, 2004, the Partnership's cash balances decreased $3,482,289 as a result of cash used to purchase property and distributions paid to the Partners in excess of cash generated from operating activities, which were partially offset by cash generated from the sale of property. During the nine months ended September 30, 2003, the Partnership's cash balances increased $50,803 as a result of cash generated from the sale of property, which was partially offset by cash used to purchase property and distributions paid to the Partners in excess of cash generated from operating activities. Net cash provided by operating activities decreased from $1,169,680 in 2003 to $862,143 in 2004 as a result of a decrease in total rental and interest income in 2004 and net timing differences in the collection of payments from the lessees and the payment of expenses. The major components of the Partnership's cash flow from investing activities are investments in real estate and proceeds from the sale of real estate. During the nine months ended September 30, 2004 and 2003, the Partnership generated cash flow from the sale of real estate of $1,267,072 and $3,395,778, respectively. During the same periods, the Partnership expended $3,839,008 and $3,044,950, respectively, to invest in real properties (inclusive of acquisition expenses) as the Partnership reinvested cash generated from property sales. ITEM 2.MANAGEMENT'S DISCUSSION AND ANALYSIS. (Continued) On October 31, 2002, the Partnership purchased a parcel of land in Farmington, New Mexico for $810,000. The Partnership obtained title to the land in the form of an undivided fee simple interest. The land is leased to SFG Farmington I Limited Partnership (SFG) under a Lease Agreement with a primary term of 20 years and annual rental payments of $85,050. Simultaneously with the purchase of the land, the Partnership entered into a Development Financing Agreement under which the Partnership advanced funds to SFG for the construction of a Johnny Carino's restaurant on the site. Pursuant to the Lease, any improvements to the land during the term of the Lease, become property of the lessor. The Partnership charged interest on the advances at a rate of 10.5%. On May 28, 2003, after the development was completed, the Lease Agreement was amended to require annual rental payments of $231,000. Total acquisition costs, including the cost of the land, were $2,183,344. On September 19, 2003, the Partnership purchased a 37% interest in a Winn-Dixie store in Panama City, Florida for $1,714,965. The property is leased to Winn-Dixie Montgomery, Inc. under a Lease Agreement with a primary term of 20 years and annual rental payments of $138,380. The remaining interests in the property were purchased by AEI Net Lease Income & Growth Fund XIX Limited Partnership and AEI Income & Growth Fund 24 LLC, affiliates of the Partnership. On December 30, 2003, the Partnership purchased a Johnny Carino's restaurant in Laredo, Texas for $2,605,079. The property is leased to Kona Restaurant Group, Inc. under a Lease Agreement with a primary term of 13 years and annual rental payments of $215,646. On February 9, 2004, the Partnership purchased a 50% interest in a Jared Jewelry store in Hanover, Maryland for $1,984,828. The property is leased to Sterling Jewelers Inc. under a Lease Agreement with a primary term of 20 years and annual rental payments of $153,228. The remaining interest in the property was purchased by AEI Net Lease Income & Growth Fund XX Limited Partnership, an affiliate of the Partnership. On September 20, 2004, the Partnership purchased a 40% interest in an Eckerd drug store in Utica, New York for $1,843,884. The property is leased to Eckerd Corporation under a Lease Agreement with a primary term of 20 years and annual rental payments of $149,671. The remaining interest in the property was purchased by AEI Accredited Investor Fund 2002 Limited Partnership, an affiliate of the Partnership. The Partnership's primary use of cash flow, other than investment in real estate, is distribution and redemption payments to Partners. The Partnership declares its regular quarterly distributions before the end of each quarter and pays the distribution in the first ten days after the end of each quarter. The Partnership attempts to maintain a stable distribution rate from quarter to quarter. Redemption payments are paid to redeeming Partners in the fourth quarter of each year. ITEM 2.MANAGEMENT'S DISCUSSION AND ANALYSIS. (Continued) For the nine months ended September 30, 2004 and 2003, the Partnership declared distributions of $1,227,278 and $1,227,282, respectively, which were distributed 99% to the Limited Partners and 1% to the General Partners. The Limited Partners received distributions of $1,215,006 and $1,215,009 and the General Partners received distributions of $12,272 and $12,273 for the periods, respectively. In December 2003, the Partnership declared a bonus distribution of $545,455 of net sale proceeds, which resulted in a higher distribution payable at December 31, 2003. During the first nine months of 2004 and 2003, the Partnership distributed $225,776 and $140,284 of net sale proceeds to the Limited and General Partners as part of their quarterly distributions, which represented a return of capital of $9.76 and $6.04 per Limited Partnership Unit, respectively. The Partnership anticipates the remaining net sale proceeds will either be reinvested in additional property or distributed to the Partners in the future. The Partnership may acquire Units from Limited Partners who have tendered their Units to the Partnership. Such Units may be acquired at a discount. The Partnership will not be obligated to purchase in any year any number of Units that, when aggregated with all other transfers of Units that have occurred since the beginning of the same calendar year (excluding Permitted Transfers as defined in the Partnership Agreement), would exceed 5% of the total number of Units outstanding on January 1 of such year. In no event shall the Partnership be obligated to purchase Units if, in the sole discretion of the Managing General Partner, such purchase would impair the capital or operation of the Partnership. On October 1, 2004, seven Limited Partners redeemed a total of 96.24 Partnership Units for $59,064 in accordance with the Partnership Agreement. On October 1, 2003, eight Limited Partners redeemed a total of 117.84 Partnership Units for $81,076. The Partnership acquired these Units using Net Cash Flow from operations. In prior years, a total of 41 Limited Partners redeemed 974.67 Partnership Units for $804,867. The redemptions increase the remaining Limited Partners' ownership interest in the Partnership. As a result of these redemption payments and pursuant to the Partnership Agreement, the General Partners received distributions of $597 and $819 in 2004 and 2003, respectively. The continuing rent payments from the properties, together with cash generated from property sales, should be adequate to fund continuing distributions and meet other Partnership obligations on both a short-term and long-term basis. ITEM 3. CONTROLS AND PROCEDURES. (a) Evaluation of disclosure controls and procedures Under the supervision and with the participation of management, including its President and Chief Financial Officer, the Managing General Partner of the Partnership evaluated the effectiveness of the design and operation of its disclosure controls and procedures (as defined in Rule 13a-14(c) under the Exchange Act). Based upon that evaluation, the President and Chief Financial Officer of the Managing General Partner concluded that, as of the end of the period covered by this report, the disclosure controls and procedures of the Partnership are adequately designed to ensure that information required to be disclosed by us in the reports we file or submit under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in applicable rules and forms. (b) Changes in internal controls There were no significant changes made in the Partnership's internal controls during the most recent period covered by this report that have materially affected, or are reasonably likely to materially affect, the Partnership's internal control over financial reporting. PART II - OTHER INFORMATION ITEM 1.LEGAL PROCEEDINGS There are no material pending legal proceedings to which the Partnership is a party or of which the Partnership's property is subject. ITEM 2.UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS (a) During the period covered by this report, the Partnership did not sell any equity securities that are not registered under the Securities Act of 1933. (b) Not applicable. (c) Pursuant to Section 7.7 of the Partnership Agreement, each Limited Partner has the right to present Units to the Partnership for purchase by submitting notice to the Managing General Partner during September of each year. The purchase price of the Units is based on a formula specified in the Partnership Agreement. Units tendered to the Partnership are redeemed on October 1st of each year subject to the following limitations. The Partnership will not be obligated to purchase in any year any number of Units that, when aggregated with all other transfers of Units that have occurred since the beginning of the same calendar year (excluding Permitted Transfers as defined in the Partnership Agreement), would exceed 5% of the total number of Units outstanding on January 1 of such year. In no event shall the Partnership be obligated to purchase Units if, in the sole discretion of the Managing General Partner, such purchase would impair the capital or operation of the Partnership. During the period covered by this report, the Partnership did not purchase any Units. ITEM 3.DEFAULTS UPON SENIOR SECURITIES None. PART II - OTHER INFORMATION (Continued) ITEM 4.SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS None ITEM 5.OTHER INFORMATION None. ITEM 6.EXHIBITS 10.1 Assignment of Purchase Agreement dated August 16, 2004 between the Partnership, AEI Accredited Investor Fund 2002 Limited Partnership and AEI Fund Management, Inc. relating to the Property at 121 Herkimer Road, Utica, New York. 10.2 Assignment and Assumption of Lease dated September 20, 2004 between the Partnership, AEI Accredited Investor Fund 2002 Limited Partnership and Herkimer Rd. & Euclid Rd. Development, LLC relating to the Property at 121 Herkimer Road, Utica, New York. 31.1 Certification of Chief Executive Officer of General Partner pursuant to Rule 15d-14(a)(17 CFR 240.15d-14(a)) and Section 302 of the Sarbanes-Oxley Act of 2002. 31.2 Certification of Chief Financial Officer of General Partner pursuant to Rule 15d-14(a)(17 CFR 240.15d-14(a)) and Section 302 of the Sarbanes-Oxley Act of 2002. 32 Certification of Chief Executive Officer and Chief Financial Officer of General Partner pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. SIGNATURES In accordance with the requirements of the Exchange Act, the registrant caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. Dated: November 10, 2004 AEI Income & Growth Fund XXI Limited Partnership By: AEI Fund Management XXI, Inc. Its: Managing General Partner By: /s/ Robert P Johnson Robert P. Johnson President (Principal Executive Officer) By: /s/ Patrick W Keene Patrick W. Keene Chief Financial Officer (Principal Accounting Officer) EX-10.1 3 asgpauta.txt 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 121 Herkimer Road, Utica, New York, 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/ Robert P Johnson Robert P. Johnson, 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/ Robert P Johnson Robert P. Johnson, 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/ Robert P Johnson Robert P. Johnson, 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 Daniel F. and Mariam S. Colino 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 northerly street line of Herkimer Road; 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 Daniel F. and Mariam S. Colino as described in Liber 2062 of Deeds at Page 13 on the West and the lands now or formerly of Michael J. Ritter 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 Colino (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 Colino (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 earnest 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 Herkimer Road and Euclid Road, City of Utica, County 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. EARNEST 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 "Earnest 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 Earnest 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 Earnest 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 Earnest 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 Earnest 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 Earnest 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 "EARNEST 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 Earnest 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 Earnest 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 Earnest 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 Earnest 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 Earnest 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 Earnest 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: Mr. Joseph P. Kane Herkimer Rd. & Euclid Rd. Development, LLC C/O Westlake Development, LLC Skyline Building, Suite B-1 753James Street Syracuse, NY 13203 Phone No.: (315) 471-5462 Fax No.: (315) 471-6436 With a copy to: Stephen G. Etoll, Esq. Shulman, Curtin, Grundner & Regan, PC 250 S. Clinton Street, Suite 502 Syracuse, NY 13202 Phone No.: (315) 424-8944 Fax No.: (315) 424-8205 If to Buyer, to: AEI Fund Management, Inc. 30 East 7th Street, Suite 1300 St. Paul, Minnesota 55101 Attention: Jennifer Schreiner Phone No.: (651) 227-7333 Fax No.: (651) 227-7705 With a copy to: Thomas M. Hart Winthrop & Weinstine, P.A. Suite 3500, 225 South Sixth Street Minneapolis, MN 55402-4629 Phone No.: 612-604-6624 Fax: 612-604-6800 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 Earnest 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/ Joseph P Kane Name: Joseph P. Kane Title: President Date: March 18, 2004 BUYER: AEI FUND MANAGEMENT, INC., a Minnesota corporation By: /s/ Robert P Johnson Name: Robert P. Johnson 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 DANIEL F. & MARIAM S. COLINO 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 DANIEL F. & MARIAM S. COLINO AS DESCRIBED IN LIBER 2062 OF DEEDS AT PAGE 13 ON THE WEST AND THE LANDS NOW OR FORMERLY OF MICHAEL J. RITTER 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 COLINO (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. EX-10.2 4 asglsut.txt ASSIGNMENT AND ASSUMPTION OF LEASE THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this "Assignment") is made and entered into as of the 20th day of September, 2004, by and BETWEEN HERKIMER RD. & EUCLID RD. DEVELOPMENT, LLC, a New York limited liability company ("Assignor"), and AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP, a Minnesota limited partnership, whose corporate general partner is AEI Fund Management XXI, Inc., a Minnesota corporation, and AEI ACCREDITED INVESTOR FUND 2002 LIMITED PARTNERSHIP, whose corporate general partner is AEI Fund Management XVIII, Inc., a Minnesota corporation ("Assignee"). RECITALS: A. Assignor and Assignee are parties to that certain Purchase and Sale Agreement dated March 18, 2004, (the "Agreement"), pursuant to which Assignee is acquiring from Assignor the real property, and improvements located on such property, more particularly described on EXHIBIT A attached hereto and incorporated herein by this reference (the "Premises"). B. Pursuant to the terms of the Agreement, Assignor desires to sell, assign, convey, transfer and set over to Assignee and Assignee desires to assume all of Assignor's interest in that certain Lease dated January 27, 2004 (the "Lease") by and between Assignor and Eckerd Corporation (the "Tenant"), including all rents prepaid for any period subsequent to the date of this Assignment, subject to the terms and conditions set forth below. C. Assignor is the Landlord under the Lease with full right and title to assign sthe Lease and the "Rent" (as defined below) to Assignee as provided herein. The Lease is in full force and effect and has not been modified or amended. So far as is known to Assignor, there is no default by Tenant under the Lease and no Rent has been waived, anticipated, discounted, compromised or released. NOW, THEREFORE, in consideration of the Recitals, which are hereby made a part hereof, for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, Assignor and Assignee hereby agree as follows: 1. Assignor hereby irrevocably and unconditionally sells, assigns, conveys, transfers and sets over unto Assignee, its heirs, successors and assigns as of the date hereof (the "Effective Date"), all of Assignor's right, title and interest in, to and under: (i) the Lease and (ii) any and all rents prepaid as of the Effective Date, held by Assignor in connection with the Lease (the "Rent"). 2. Except as otherwise set forth in Paragraph 4 hereof, Assignee hereby assumes and shall be liable for any and all liabilities, claims, obligations, losses and expenses, including reasonable attorneys' fees arising in connection with the Lease which are actually incurred, and which arise by virtue of acts or omissions occurring thereunder on or after the Effective Date. Assignor shall indemnify and hold Assignee harmless from any and all liabilities, claims, obligations, losses and expenses, including reasonable attorneys' fees arising in connection with the Lease which are actually incurred, and which arise by virtue of acts or omissions occurring thereunder, prior to the Effective Date. Except as otherwise set forth in Paragraph 4 hereof, Assignee shall indemnify and hold Assignor harmless from any and all liabilities, claims, obligations, loss and expenses, including reasonable attorneys fees, arising in connection with the Lease or as a result of Assignee's failure to fulfill the landlord's duties and obligations accruing under the Lease on or after the Effective Date. Assignee shall be entitled to receive all income arising from the Lease from and after said Effective Date. Assignor shall be entitled to receive all income accruing from the Lease prior to the Effective Date. 3. Assignor shall direct the Tenant and any successor tenant under the Lease to pay to Assignee the Rent and all other monetary obligations due or to become due under the Lease for the period beginning on the Effective Date. 4. Notwithstanding anything contained herein or implied hereby to the contrary, Assignor shall remain liable for the performance of the obligations of the "Landlord" under the Lease with respect to (i) Landlord's obligations under Sections 9.7.5. and 9.7.11. of the Lease, and (ii) performance of 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. 5. This Assignment shall be governed by and construed in accordance with the laws of the state in which the Property is located. 6. All rights and obligations of Assignee and Assignor hereunder shall be binding upon and inure to the benefit of Assignor, Assignee and the heirs, successors and assigns of each such party. 7. This Assignment may be executed in any number of counterparts, each of which shall be effective only upon delivery and thereafter shall be deemed an original, and all of which shall be taken to be one and the same instrument, for the same effect as if all parties hereto had signed the same signature page. Any signature page of this Assignment may be detached from any counterpart of this Assignment without impairing the legal effect of any signatures thereon and may be attached to another counterpart of this Agreement identical in form hereto but having attached to it one or more additional signature pages. 8. Whenever the context so requires in this Assignment, all words used in the singular shall be construed to have been used in the plural (and vice versa), each gender shall be construed to include any other genders, and the word "person" shall be construed to include a natural person, a corporation, a firm, a partnership, a joint venture, a trust, an estate or any other entity. [ the reminder of this page is intentionally blank ] IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment effective as of the day and year first above written. ASSIGNOR: HERKIMER RD. & EUCLID RD. DEVELOPMENT, LLC, a New York limited liability company By: Westlake Holding, Inc., a New York corporation Its: Sole member By: /s/ Joseph P Kane Joseph P. Kane, President ASSIGNEE: AEI REAL ESTATE FUND XXI LIMITED PARTNERSHIP, a Minnesota limited partnership By: AEI Fund Management XXI, Inc., a Minnesota corporation Its: General Partner By: /s/ Patrick W Keene Patrick W. Keene, its Chief Financial Officer AEI ACCREDITED INVESTOR FUND 2002 LIMITED PARTNERSHIP, a Minnesota limited partnership By: AEI Fund Management XVIII, Inc., a Minnesota corporation Its: General Partner By:/s/ Patrick W Keene Patrick W. Keene, its Chief Financial Officer STATE OF NEW YORK ) ) ss. CITY/COUNTY OFONONDAGA) The forgoing instrument was acknowledged before me this 10th day of September, 2004, by Joseph P. Kane, as President of Westlake Holding, Inc., a New York corporation, sole member of HERKIMER RD. & EUCLID RD. DEVELOPMENT, LLC, a New York limited liability company, on behalf of said corporation and limited liability company. WITNESS my hand and official seal. My commission expires [Notarial Seal] /s/ Stephen G Etoll Notary Public STATE OF MINNESOTA ) ) ss. COUNTY OF RAMSEY ) The forgoing instrument was acknowledged before me this 9th day of September, 2004, by Patrick W. Keene, as Chief Financial Officer of AEI Fund Management XXI, Inc., a Minnesota corporation, General Partner of AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP, a Minnesota limited partnership, on behalf of said corporation and limited partnership. WITNESS my hand and official seal. [Notarial Seal] /s/ Jennifer L Schreiner Notary Public STATE OF MINNESOTA ) ) ss. COUNTY OF RAMSEY ) The forgoing instrument was acknowledged before me this 9th day of September, 2004, by Patrick W. Keene, as Chief Financial Officer of AEI Fund Management XVIII, Inc., a Minnesota corporation, General Partner of AEI ACCREDITED INVESTOR FUND 2002 LIMITED PARTNERSHIP, a Minnesota limited partnership, on behalf of said corporation and limited partnership. WITNESS my hand and official seal. [Notarial Seal] /s/ Jennifer L Schreiner Notary Public EXHIBIT A TO ASSIGNMENT AND ASSUMPTION OF LEASE ("Premises") 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 Daniel F. and Mariam S. Colino 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 northerly street line of Herkimer Road; 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 Daniel F. and Mariam S. Colino as described in Liber 2062 of Deeds at Page 13 on the West and the lands now or formerly of Michael J. Ritter 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 Colino (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 Colino (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. LEASE AGREEMENT ECKERD CORPORATION STORE NO. 5887R UTICA, NEW YORK LEASE AGREEMENT INDEX ECKERD CORPORATION STORE NO 5887R UTICA, NEW YORK SECTION 1. LEASED PREMISES 2. INITIAL TERM AND OPTION PERIODS 3. RENT 4. INTENTIONALLY DELETED 5. INGRESS AND EGRESS 6. EXCLUSIVE 7. LANDLORD'S REPRESENTATIONS AND WARRANTIES 8. LEASE SUBORDINATION AND NOTICES TO MORTGAGEES 9. CONSTRUCTION 10. EXTERIOR FACILITIES 11. SIGNS AND ANTENNAE 12. MECHANIC'S LIENS 13. COMPLIANCE WITH LAW AND REGULATIONS 14. ENVIRONMENTAL COMPLIANCE 15. MAINTENANCE AND REPAIES 16. REAL ESTATE TAXES 17. UTILITIES 18. LIABILITY INSURANCE AND INDEMNIFICATION 19. CASUALTY (PROPERTY) INSURANCE AND DAMAGE TO LEASED PREMISES 20. WAIVER OF SUBROGATION 21. TENANT'S RIGHT TO MAKE CHANGES TO LEASED PREMISES 22. ASSIGNMENT AND SUBLETING 23. EMINENT DOMAIN 24. TENANT'S DEFAULT LEASE AGREEMENT INDEX ECKERD CORPORATION STORE NO. 58887R Utica, New York SECTION 25. RENT UNDER TENANT'S DEFAULT 26. LANDLORD'S DEFAULT 27. FORCE MAJEURE 28. SEVERABILITY 29. OBLIGATIONS OF SUCCESORS 30. NOTICES 31. MICELLANEOUS 32. SHORT FORM LEASE 33. CONDITION PRECEDENT LEASE AGREEMENT This Lease Agreement (`Lease') is made this 27th day of January 2004, by and between HERKIMER RD & EUCLID RD. DEVELOPMENT LLC, a New York limited liability company ("Landlord") and ECKERD CORPORATION, a Delaware corporation ("Tenant"). In consideration of the mutual covenants and agreements contained in this Lease, and for other good and valuable consideration, the receipt of which is acknowledged, Landlord and Tenant agree as follows: 1.Leased Premises 1.1. Landlord leases to Tenant, and Tenant accepts from Landlord, those certain premises consisting of land and a building (with area inside walls of 13,824 square feet), as shown on the site plan on the attached Exhibit "A", upon real property located at the northern corner of Herkimer Road and Euclid Road, and situated in the City of Utica County of Oneida, State of New York, and as legally described in the attached Exhibit "B" ("Leased Premises'). 1.2. Tenant shall be permitted to use the Leased Premises for the operation of a drug store and/or for any other lawful purpose or purposes, including, but not limited to, an Express Photo and/or photo processing center, a postal substation or package mailing center, and an optical center for the practice of opticianry and optometry. Tenant may also, after obtaining all required licenses and permits, sell alcoholic beverages for off-premises consumption. Landlord warrants that the Leased Premises are property zoned (or the relevant variances or site approvals have or will be obtained by Landlord prior to the commencement of construction) which allow each of the specific uses described above and that there are no recorded restrictions which would prohibit or restrict Tenant from using the Leased Premises for any of those specific uses. Tenant has the right to discontinue all or any part of its business operations (including, but not limited to, its pharmacy operations) at the Leased Premises at any time, at Tenant's sole discretion and without Landlord's approval or consent 1.3. Notwithstanding the above, if Tenant shall discontinue its operations at the Leased Premises for a period of greater than one hundred eighty (180) consecutive days (except as may result from fire or other casualty or condemnation) Landlord may, at any time following such 180-day period, give Tenant sixty (60) days written notice of Landlord's intent to terminate the Lease, and if Tenant does not recommence operations or sublet the Leased Premises within such 60-day period, then this Lease shall terminate at the end of such 60-day period, and the parties shall be released from any and all further unaccrued liability with respect to this Lease. 2.Initial Term and Option Periods 2.1.The initial term of this Lease shall commence concurrently with the Rent Commencement Date ("Lease Commencement Date") and shall end at midnight twenty (20) years later ("Lease Termination Date"). 2.2. Because of the admittedly seasonal aspect of Tenant's business operations, it is agreed that Tenant shall not be obligated to initially open for business between November 1 and January 31. Rent shall not begin to accrue and the Lease Commencement Date shall not begin until February 1 if possession of the Leased Premises is made available to Tenant for initial store opening at any time between November 1 and January 1, unless Tenant opens for business earlier. These provisions shall have no effect upon continued payment of Rent following Tenant's initial store opening. 2.3. Landlord and Tenant agree, upon written request by either party, to execute, acknowledge and deliver instruments to each other in recordable form certifying the Lease Commencement Date and Lease Termination Date. 2.4.Tenant, if not then in default beyond any applicable cure period, has the option to renew this Lease for four (4) successive five (5) year periods on the same terms and conditions Contained in this Lease, provided Tenant gives Landlord six (6) written months notice of its election to exercise an option prior to the end of the then-current term. Should Tenant neglect to exercise an option on the applicable date, Tenant's right to exercise its option shall not expire until fifteen (15) days after written notice, by Landlord to Tenant, of Tenant's failure to exercise its option. There shall be no further option to renew following the end of the fourth (4th) option or Tenant's failure to exercise any option in the manner set forth above. 2.5. Tenant will deliver up and surrender to Landlord possession of the Leased Premises upon the expiration or termination of this Lease in good condition and repair (loss by casualty and ordinary wear and decay excepted and except for any conditions which,. under the provisions of this Lease, Landlord is required to remedy). 3. Rent 3.1. Rent payable by Tenant pursuant to this Lease ("Rent') shall commence thirty (30) days after the Leased Premises are Completed by Landlord in accordance with the provisions of this Lease and possession of the Leased Premises has been delivered to Tenant, or the date Tenant opens for business, whichever occurs earlier ("Rent Commencement Date"). If Landlord fails to have the Leased Premises completed and ready for Tenant's occupancy by the Completion Date (as defined in Section 9.3), then and in that event, Tenant shall be entitled to a credit against the Rent established in this Lease equal to one (1) day of Rent for each day of Landlord's delay in delivering the completed Leased Premises to Tenant 3.2. Tenant shall pay Landlord Rent during the initial Lease term in the amount of Three Hundred Seventy-Four Thousand One Hundred Seventy-Seven and 04/1OO Dollars ($374,177.04) per year, payable in equal monthly installments of Thirty-One Thousand One Hundred Eighty-One and 42/100 Dollars ($31,181.42). Rent during each option period shall be as follows: For the first option period $381,084.00 per year; $31,757.00 per month For the second option period $387,990.00 per year; $32,332.50 per month For the third option period $394,896.96 per year; $32,908.08 per month For the fourth option period $401,802.96 per year; $33,483.58 per month 3.3. All monthly payments of Rent shall be paid in advance on the first day of each and every calendar month during the term of this Lease, at Landlord's address set forth in this Lease without the need for prior demand and without any offset or deduction, except as otherwise provided in this Lease. If the term shall commence on a day other that the first day of a month, then Rent shall be prorated for the balance of that month on a per diem basis. 3.4. Landlord's federal tax identification number is: 81- 0636753 3.5. Tenant shall pay the sales or use tax, if any, assessed against the Rent it pays under this Lease directly to the State Taxing Authority. 3.6. If during the Lease term, Tenant fails to pay the full amount of Rent when the same is due and payable, except for any offsets or deductions allowed by this Lease, then Tenant shall pay to Landlord a late charge of Fifty and No/I 00 Dollars ($50.00) to cover the extra expense involved in handling such delinquency ("Late Charge"). 2 4. Intentionally Deleted 5. Ingress and Egress 5.1. Landlord warrants that it will initially provide and maintain for the term of this Lease and any extension of it, ingress and egress facilities to public highways in the number and the locations depicted on Exhibit "A", subject to takings pursuant to Section 23 below, unavoidable temporary closings or relocations necessitated by public authority or other circumstances beyond Landlord's control. 6.Exclusive 6.1. Landlord agrees that it will not directly or indirectly lease, rent, sell or otherwise permit any property in which it has any interest (direct or indirect) located within one thousand (1,000) feet of any exterior boundary of the Leased Premises to be used as a drug store or a business which sells or dispenses prescription drugs or for any collateral use (such as, e.g., parking, drainage or service drives) of a drug store or a business which sells or dispenses prescription drugs without the written permission at Tenant If any mortgagee of the Leased Premises becomes the Landlord under this Lease, the provisions of this Section 6 shall not apply so long as said mortgagee shall remain the Landlord. 7.Landlord's Representations and Warranties 7.1. Landlord warrants that it is, or before the Lease Commencement Date, will be, the owner in fee of the Leased Premises, that the Leased Premises will not be subject to any liens or mortgages, except for those certain mortgages, the holders of which have executed Tenant's Standard Subordination, Non-Disturbance and Attainment Agreement ("SNDA") in the form as shown on the attached Exhibit "F," and that Landlord has full right and title to execute and perform this Lease. 7.2. So long as this Lease is in force and effect, Landlord agrees that it will not permit the disturbance of, nor interference with, Tenant's quiet enjoyment of the Leased Premises in accordance with the terms of this Lease. 7.3. Promptly after execution of this Lease, Landlord shall furnish Tenant with satisfactory evidence of Landlord's title in the form of a copy of a deed or a copy of a signed purchase agreement. It on the date Landlord acquires title to the Leased Premises the Leased Premises or any part of the Leased Premises is subject to any mortgage, deed of trust or other encumbrance in the nature of a mortgage, which is prior and superior to this Lease, Landlord will deliver to Tenant in form and substance reasonably satisfactory to Tenant, an agreement duly executed by such mortgagee or trustee, obligating such mortgagee or trustee or any successor to the mortgagee or trustee to be bound by this Lease and by all of Tenant's rights under this Lease, provided Tenant is not in default beyond any applicable cure period under the terms of this Lease. 7.4. Landlord has or will obtain a title insurance policy insuring the Leased Premises and any easements benefiting the Leased Premises. Landlord represents and warrants that with respect to any exceptions to the title to the Leased Premises that (a) nothing contained in any of said exceptions prohibits or restricts Landlord from performing any or all of its obligations under this Lease during its full term, (b) none of said exceptions adversely affects or interferes with Tenant's enjoyment of the Leased Premises in accordance with the terms of this Lease, and (c) there are no easements under, above or through the building to be constructed on the leased Premises. 7.5. Landlord warrants and represents to Tenant that no brokerage commissions have been charged to, or paid by, Tenant in relation to this Lease to brokers in which Landlord has an ownership interest or who are subsidiaries or affiliates of Landlord. 3 8.Lease Subordination and Notices to Mortgagees 8.1.Tenant agrees to subordinate this Lease to the lien of any first mortgage or blanket mortgage placed on the Leased Premises and to attorn to any such mortgagee in accordance with the terms of Tenant's standard SNDA in the form as shown on the attached Exhibit "F," provided only that so long as this Lease is in full force and effect (a) Tenant's tenancy will not be disturbed, nor will this Lease be affected by any default under such mortgage; (b) the rights of Tenant under this Lease shall expressly survive and shall not be cut off; and (C) this Lease shall, in all respects, continue in full force and effect. 8.2.If Landlord is not then in default of any of the provisions of this Lease beyond any applicable cure periods, Tenant will, upon demand and without cost to Tenant, execute and deliver to Landlord Tenant's SNDA in the form as shown on the attached Exhibit "F," necessary to effectuate such subordination and non-disturbance. In the event, however, any mortgagee of Landlord requires modification of such SNDA, and such modifications do not change the current SNDA in a material way, Tenant agrees that it will consider such modifications, provided the final form of SNDA is substantially in accordance with the terms of the attached Exhibit "F". 8.3. Upon Landlord's written request, any notices required or permitted to be given to Landlord under this Lease shall also be given to any mortgagee whose name and address has been provided by Landlord to Tenant in writing. Such mortgagee shall have the right, but not the obligation, to cure any default by Landlord within the same time period as may be granted Landlord under any provision in this Lease. 9.Construction 9.1. Landlord will, at its own expense, prepare and deliver to Tenant five (5) sets of detailed plans and specifications for construction of the Leased Premises in accordance with guide plans furnished by Tenant (Edition: Prototype 2000,2001 & 2002 with an issue date of February 28, 2003, as amended by Bulletin #1 dated February 28, 2003; by Bulletin #2, dated April 3, 2003, and by Bulletin #3 dated October 30, 2003) ("Guide Plans"). Landlord acknowledges receipt of the Guide Plans from Tenant Landlord's construction plans and specifications shall be subject to approval by Tenant, initialed by the parties and considered a part of this Lease. Such approved plans are referred to in this Lease as the "Plans." If Landlord elects to proceed with construction prior to obtaining Tenant's approval of the Plans, any changes required by Tenant shall be at Landlord's sole cost and expense. 9.2. Notwithstanding any information set forth in the Guide Plans nor Tenant's approval of Landlord's Plans as described above, it is Landlord's sole obligation and responsibility under this Lease to ensure that the design and, construction of the Leased Premises complies in all respects with applicable law, including. but not limited to, the Americans with Disabilities Act ("ADA") (and all regulations promulgated under the ADA), together with any other federal, state or local statutes, codes or regulations relating to the accessibility of the Leased Premises to physically disabled persons, at the time the Leased Premises are delivered to Tenant for possession. Landlord agrees to defend, hold harmless, and indemnify Tenant for any and all losses incurred by Tenant in the event Landlord breaches this obligation. 9.3. Immediately upon execution of this Lease, Landlord shall proceed with due diligence to obtain all requisite permitting for development of the Leased Premises. Landlord shall commence construction no later man April 1, 2004, and shall complete the Leased Premises in accordance with the Plans no later than one hundred eighty (180) days from the date of the commencement of construction ("Completion Date"). Landlord shall provide Tenant at least thirty (30) days prior written notice of commencement of construction. At least sixty (60) days prior to the Completion Date, written notice shall be given by Landlord to Tenant that the Leased Premises will be completed and ready for Tenant's occupancy. Landlord shall obtain from the authority having jurisdiction the street address to be assigned to the 4 Leased Premises and provide Tenant with such information in writing no later than thiiiy (30) days after commencement of construction. If construction Is delayed for a period of six (6) months or longer and Tenant does not terminate this Lease, the Plans shall be resubmitted by Landlord for approval by Tenant prior to construction or recommencement of construction. 9.4.The Leased Premises shall be deemed to have been fully completed and ready and available for occupancy by Tenant when all of the following have been accomplished: (a) a certificate of occupancy or an equivalent use permit is issued by and obtained from the governmental authority having jurisdiction (subject to any delay caused in the issuance of a certificate of occupancy as a result of any fixturing or other work performed or to be performed by Tenant); (b) the architect who prepared the Plans has certified in writing to Tenant that the Leased Premises have been completed in accordance with the Plans approved by Landlord and Tenant as set forth in this Lease; (c) Landlord has tendered possession of the Leased Premises to Tenant with the store absolutely cleaned, including the cleaning and Waxing of floors: d) all mechanical systems servicing the Leased Premises have been completed and are in good working condition; (e) the Leased Premises are free and clear or all liens as provided in this Lease; (f) Landlord has delivered to Tenant satisfactory evidence of Landlord's title to the Leased Premises and non-disturbance agreements, if applicable, in accordance with this Lease. Landlord agrees to provide Tenant with two (2) copies of an as-built survey of the Leased Premises within thirty (30) days after the Lease Commencement Date (`As-Built Survey'). The As- Built Survey shall include, without limitation, a metes and bounds legal description, all easements, utilities, and public and private right-of-ways. In the event Landlord fails to provide Tenant with the copies of the As-Built Survey as provided above, Tenant may have an As-Built Survey prepared and offset the cost of such survey and the two (2) copies of the As-Built Survey against Rent due or becoming due under this Lease. Landlord warrants that the Leased Premises shall be free from defects in materials or workmanship for a period of one (1) year following the Lease Commencement Date (`One-Year Warranty'). Landlord further agrees to correct, at Landlord's sole cost and expense, any such defects. Upon completion of the Leased Premises as provided in this Lease, Landlord will not paint, decorate or change the architectural treatment of any part of the exterior of the Leased Premises, nor make any structural alterations, additions or changes to the Leased Premises without Tenants prior written approval. 9.5.If Landlord shall fail to commence construction or deliver the Leased Premises to Tenant in the manner provided and within the time limits set forth in this Lease, then Tenant may, at its option, terminate this Lease by giving Landlord thirty (30) days written notice; provided, however, that Tenant's termination shall be nullified if Landlord commences construction or delivers the Lease Premises, as the case may be, in the manner required by the Lease within such thirty (30) day period. Acceptance by Tenant of delivery of the Leased Premises prior to the Completion Date shall be at the option of Tenant, such acceptance not to be unreasonably withheld. 9.6.At Tenant's sole risk, Landlord will afford Tenant reasonable access to the Leased Premises prior to the Lease Commencement Date for the purpose of inspecting, measuring, installing or arranging for the installation of fixtures, but only to the extent that such activity proceeds without interfering with Landlord's contractors, subcontractors, and their respective employees. By giving Tenant access to the Leased Premises prior to the Lease Commencement Date, Landlord assumes no responsibility whatsoever for injury to Tenants employees or contractors entering the Leased Premises, or damage to property Tenant's employees or contractors may have brought in, or upon, the Leased Premises, nor shall Landlord be entitled to any Rent by reason of such access. Tenant agrees to indemnify and hold Landlord harmless from and against any and all claims and demands arising out of such access, unless such claims or demands are due to the negligence of Landlord, its agents, employees or contractors. 9.7.The procedure for adjusting Rent based upon construction costs pursuant to this Lease shall be as follows: 9.7.1. The Rent set forth in this Lease was calculated based upon estimated total project costs of Three Million Five Hundred Sixty-Three Thousand Five Hundred Ninety-One and No/100 Dollars ($3,563,591.00) ("Estimated Total Project Costs'). The Estimated Total Project Casts are set forth 5 in the Preliminary. Site Budget document attached to this Lease as Exhibit "D" (Preliminary Site Budget"). Specifically, the annual Rent for the initial Lease term is equal to the product of the Estimated Total Project Costs multiplied by ten and one half percent (10.5%). Included in the Estimated Total Project Costs are estimated hard costs for construction of the building that is a part of the Leased Premises. The phrase "hard costs for construction of the "building" ("Building Hard Costs") shall mean: 9.7.1.1. Building Hard Costs shall include all real property building costs, including but not limited to the concrete slab under the building, building retaining walls, the sidewalks under the front canopy, building masonry, building structural steel, metal roof decks, roof insulation, building rough and finish carpentry, building insulation, the exterior insulation and finish system ("EIFS) or stucco finish system, metal roof panels, the roof membrane, sheet metal and flashing, sealants, roof hatches, steel doors and frames, automatic doors, roll down doors, storefront system, door hardware, gypsum board systems, ceramic tile, suspended acoustical ceilings, resilient flooring, interior paint miscellaneous interior finishes, fire extinguishers, restroom hardware, toilet partitions, drive-thru window and pneumatic systems, the heating, ventilating and air- conditioning system (9-IVAC'), all interior plumbing (including hookup to site plumbing), fire sprinkler systems, building electrical system (including switchgear and hookup to site electrical feeds), light fixtures, general conditions associated to the building, and profit associated with the cost of the Building Hard Costs. 9.7.1.2. Building Hard Costs shall not include land improvement costs, such as fences, dumpster enclosures, demolition of existing structures, paving, offsite striping, curb and gutters, storm water systems, site electrical (including signage), transformer, power company service, site sanitary sewer, lift station, site gas piping, site lighting, offsite utilities, water meter, back-flow preventors, water detention structures, water retention systems, clearing and grading, structural fill, topsoil and unsuitable soil removal, landscaping, irrigation, site sidewalks, concrete paving, bollards, retaining walls, applicable federal or state department of transportation ("DOT") work, off site improvements, site equipment, general conditions associated with the site, or profit associated with the cost of the sitework costs. 9.7.2. As set forth on the Preliminary Site Budget, the parties estimate Building Hard Casts in the amount of One Million One Hundred Sixty-One Thousand Two Hundred Sixteen and No/100 Dollars ($1,161,216.00) (`Estimated Building Hard Costs'). The parties agree that Rent shall be adjusted as described below based upon the Actual Building Hard Costs (as defined below). 9.7.3. Notwithstanding anything to the contrary contained in this Lease, any Increase In Rent shall be expressly conditioned upon satisfaction of the four (4) conditions set forth below. Landlord agrees and acknowledges that In the event these four (4) conditions are not satisfied, Landlord shall not be entitled to an increase in Rent pursuant to this Lease: 9.7.3.1. Condition One: The general contractor, project architect and civil engineer retained by Landlord to perform Landlord's construction obligations shall be approved in writing in advance by Tenant, at Tenant's sole discretion (Tenant hereby approves of Landlord as the general contractor, Quinlivan, Pierik & Krause as the project architect, and UR Engineering, P.C. as the civil engineer); and 9.7.3.2. Condition Two: At least thirty (30) days prior to the commencement of construction by Landlord, Landlord shall notify Tenant's regional project construction manager and regional real estate director of all construction costs as bid to the Landlord, and furnish Tenant's regional project construction manager and regional real estate director with complete copies of at least three (3) bids (or such lesser number of bids as Tenant may deem acceptable at Tenanrs sole discretion) submitted to Landlord in connection with all costs of construction. All such bids shall be submitted by Landlord to Tenant in electronic format (such as, e.g., e-mail or other 6 method approved by Tenant) on Tenant's bid form, a copy of which bid form is attached as Exhibit "E"; and 9.7.3.3. Condition Three: Tenant's regional project construction manager and regional real estate director or their designees shall have the right to verify such construction costs and negotiate directly with the contractors to reduce the construction costs and/or change the scope of construction so as to arrive at construction costs acceptable to Tenants regional project construction manager and regional real estate director; and 9.7.3.4. Condition Four: Tenant's regional project construction manager shall have approved in writing the costs of construction acceptable to Tenant's regional project construction manager and regional real estate director and furnished Landlord with a copy of such written approval of the construction costs, together with written notice to commence construction. 9.7.4. Immediately following (but not prior to) the receipt by Landlord or tenants written approval of the construction costs and written notice to commence construction, Landlord may commence construction. Any Increase In the Building Hard Costs Incurred after the commencement of construction (e.g., unknown conditions, errors in architectural plans, or government-required conditions) shall not result In an increase In Rent unless the increased costs are Incurred as a result of a written change order or orders by Tenant. Any written change order or orders by Tenant after Tenant's written approval of the Building Hard Costs will riot give Tenant the right to terminate this Lease. However, any written change order or orders by Tenant after Tenants written approval of the Building Hard Costs which results in a decrease in the Actual Building Hard Costs (as defined below) will entitle Tenant to a decrease in Rent that is otherwise available pursuant to the formula set forth below. The parties also agree that the `Contingency' fund set forth in the Preliminary Site Budget shall not be applied to Building Hard Costs. 9.7.5. Within sixty (60) days after the Leased Premises are fully completed and available for occupancy by Tenant as described in this Lease, Landlord shall deliver to Tenant's regional project construction manager a binder containing true, accurate, complete and verified copies of all documents related to the Building Hard Costs, including, without limitation, all construction bids, contracts, change orders, invoices, lien waivers (if available), notices, and permits, together with a reconciliation of the Building Hard Costs in the same format as the Preliminary Site Budget (`Documentation Binder). In addition, as part of the Documentation Binder, Landlord shall provide the certificate of occupancy, an as-built survey, and the roof warranty as specifically described in this Lease. The purpose of the Documentation Binder is to determine and verify the final actual Building Hard Costs ("Actual Building Hard Costs") in order to adjust the Rent. In the event Landlord fails to deliver the Documentation Binder to Tenant within this 60- day period, Landlord shall be in default of the Lease. In the event the default is not cured as described below, the failure of Landlord to provide the Documentation Binder within this 60-day period shall result in the termination of any right to increase the Rent pursuant to this Section of the Lease, and Tenant shall be entitled to reduce the Rent in accordance with the construction bids, as they may be modified. Notwithstanding the foregoing, in the event Landlord fails to deliver the Documentation Binder to Tenant within this 60-day period, Landlord shall have an additional thirty (30) days to cure such default upon a written notice of default from Tenant 9.7.6. Tenant shall have the right, within sixty (60) days after delivery by Landlord to Tenant of the Documentation Binder, to review the costs set forth in the Documentation Binder and to submit Tenant's written response to such costs to Landlord. In the event Tenant tails to perform the review and so respond within this 60-day period, Landlord may, by written notice to Tenant, terminate Tenant's right to review such construction costs contained in the Documentation Binder, and such costs as submitted by Landlord shall be deemed final for the purposes of amending the Lease as described below, unless Tenant performs the review and submits its written response to Landlord within thirty (30) days after Tenant's receipt of the written notice from Landlord. 7 9.7.7. Landlord and Tenant agree to act in good faith to promptly resolve any concerns or disputes Which arise as a result of Tenant's review and written response as described above and to reach an agreement as to the Actual Building Hard Costs. 9.7.8. After the parties have reached an agreement as to the Actual Building Hard Costs, the parties shall recalculate the Rent based upon the Actual Building Hard Costs. Specifically, the annual Rent for the initial term and all option periods of the Lease shall be increased or decreased, as the case may be, by the difference between the Actual Building Hard Costs and the Estimated Building Hard Costs multiplied by ten and one half percent (10.5%). The parties shall thereafter promptly enter into a Lease amendment (to be effective as of the Rent Commencement Date) setting forth the revised annual and monthly Rent throughout the term of this Lease. 9.7.9. Notwithstanding the foregoing language, in no event shall Landlord be entitled to a Rent increase for the amount of the Actual Building Hard Costs in excess of One Million Two Hundred Eighteen Thousand Three Hundred Six and 60/100 Dollars ($1,218,306.60) (i.e. five percent (5%) increase over Estimated Building Hard Costs), unless such excess costs are the result of a written change order or orders by Tenant Rather, Landlord shall be responsible for all Actual Building Hard Costs which exceed the Estimated Building Hard Costs by more than five percent (5%), unless such excess costs are the result of a written change order or orders by Tenant Furthermore (and again, notwithstanding the foregoing language), in no event shall Tenant be entitled to a Rent decrease for the amount of Actual Building Hard Costs which are below One Million Forty-Four Thousand Two Hundred Sixty-Two and 80/100 Dollars ($1,044,262.80) (i.e., a ten percent (10%) decrease below Estimated Building Hard Costs) unless such reduced costs are the result of a written change order or orders by Tenant. 9.7.10. Within thirty (30) days after execution of the Lease amendment described above, Tenant shall pay to Landlord, or Landlord shall pay to Tenant, as the case may be, the difference between the Rent paid pursuant to the Lease prior to the Lease amendment and the revised Rent set forth in the Lease amendment for the same period of time. 9.7.11. Within one hundred eighty (180) days after the Leased Premises are fully completed and available for occupancy by Tenant as described in this Lease, Landlord shall deliver to Tenant a second binder containing true, accurate, complete and verified copies of all documents related to all soft costs and other costs relating to the construction of the Leased Premises as set forth on the Preliminary Site Budget, other than the Building Hard Costs (`Remaining Construction Costs"). The documents in this binder shall include, without limitation, all bids, statements, contracts, change orders, invoices, lien waivers, notices; and permits, together with a reconciliation of the Remaining Construction Costs in the same format as the Preliminary Site Budget The Remaining Construction Costs shall be submitted to Tenant for information purposes, only. 10. Exterior Facilities 10.1. Prior to the Lease Commencement Date, Landlord shall construct the sidewalks, service drives, parking aisles, driveways, streets and parking area and provide adequate water drainage ("Exterior Facilities") as shown on Exhibit "A". The area provided for the parking of automobiles shall be sufficient to accommodate not less than seventy- seven (77) full-sized automobiles with spaces striped on nine foot (9') centers for each car,which includes four (4) handicapped spaces, subject to the terms of this Lease. All sidewalks shall be concrete and all service drives, parking aisles, driveways, streets and parking areas shall be graded, leveled and paved with concrete or asphalt, clearly marked with painted lines, and repainted as required prior to the Lease Commencement Date. Landlord agrees there shall be unobstructed use of sidewalks, driveways and roadways for automotive and pedestrian traffic to and from the Leased Premises and adjacent public streets and highways subject to the terms of this Lease. All of the Exterior Facilities, and any signs owned or permitted by Landlord; shall be constructed in a good and workmanlike manner by Landlord and shall be maintained by Tenant, in good condition throughout the term, at Tenant's sole cost and expense. 8 10.2. Landlord shall provide concrete or paved driveways at the rear of the Leased Premises as shown on Exhibit "A" in order to provide convenient public access to the delivery or service entrances. 11. Signs and Antennae 11.1. Landlord agrees that Tenant shall have the right at its own cost and expense to erect and maintain as many signs on the Leased Premises as are allowed by applicable laws advertising its business and the services it provides. Any signs erected by Tenant shall conform to the requirements of local ordinances and shall be signs generally used by Tenant to advertise its business from time to time, including, but not limited to, its standard capsule sign. 11.2. Tenant shall be permitted, as soon as possible after Landlord's purchase of the Leased Premises, to install sign foundations with conduits as shown in the Plans and at the locations shown an Exhibit "A" upon which Tenant may install its readerboards and sign panels. Landlord shall extend electrical service to all pylon signs as soon as practical thereafter 11.3. Landlord shall not, without Tenant's written consent, utilize or permit others to utilize the exterior of the Leased Premises, or the space above it, for sign display purposes. 11.4. Tenant may install at its own expense and cost satellite receiving transmitting equipment or antennae on the roof of the Leased Premises provided such installation does not penetrate the roof or otherwise adversely affect the integrity of the roof structure and is permitted by all applicable laws. Tenant agrees to indemnify and hold Landlord harmless from and against any and all claims and demands arising from the installation, removal or repair of such equipment, unless such claims or demands are due to the negligence of Landlord, its agents, employees or contractors. 11.5. If any variances from governmental sign codes or zoning ordinances are required in order for Tenant to install its sings as depicted on the Plans or at the locations shown on Exhibit "A," Landlord shall cooperate with Tenant in order for Tenant to obtain such variances. 12. Mechanic's Liens 12.1. When completed, Landlord will ensure that the Leased Premises are free and clear of all claims of lien by mechanics and matenalrnei1 for and on account of labor and materials furnished and about the construction by Landlord. Thereafter, if any mechanic's or other liens, or order for the payment of money arising through the fault of either party, shall be filed against the Leased Premises or additions, alterations or extensions of the Leased Premises, such party shall cause the liens to be terminated and discharged of record, by bond or otherwise, and shall also defend and pay damages and attorney's fees, if any, on behalf of the other, for any action, suit or proceeding which may be brought for the enforcement of such lien, liens or orders. Upon failure of the defaulting party to comply with the provisions of this Section, the other party may, after thirty (30) days written notice, and such defaulting party's continued failure to comply with the provisions of this Section, do so on the defaulting partys behalf, and all reasonable sums expended by the other party shall on demand be paid to it by the party in default. In the event Landlord is the defaulting party, Tenant may offset against Rent due or to become due all such sums expended by Tenant as a result of Landlord's failure to comply with this Section. 13. Compliance with Law and Regulations 13.1. Except to the extent any order, rule, regulation or requirement of any governmental body relates to any condition which existed prior to the Lease Commencement Date, Tenant agrees to comply with all orders, rules, regulations and requirements of any governmental body relating to the manner of Tenant's use and occupancy of the Leased. Premises, or alterations made by the Tenant, and Tenant will pay all costs and expenses incidental to such compliance and will indemnify and save harmless Landlord from any such costs and expenses. In the event compliance with any governmental orders, rules, regulations or requirements is not the responsibility of Tenant as provided in this Section, 9 Landlord shall comply with such orders, rules, regulations and requirements at its sole cost and expense and will indemnify and save Tenant harmless from such costs and expenses. 14. Environmental Compliance 14.1. For the purposes of this Lease, the term "Environmental Law" shall mean any federal, state, or local law, statute, ordinance or regulation pertaining to health, industrial hygiene, or the environmental conditions on, under or about the Leased Premises,including without limitation the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended from time to time ("CERCLA"), 42 U.S.C. Sections 9601, et seq., and the Resource Conservation and Recovery Act of 1978, as amended from time to time ("RCRA"), 42 U.S.C. Sections 6901, et seq. 14.2. For the purposes of this Lease, the tern, "Hazardous Substance" shall mean, without limitation: (a) those substances included within the definition of "hazardous substances", "hazardous materials", "toxic substances", or "solid waste" in CERCLA, RCRA and the Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801, et seq., and in the regulations promulgated pursuant to said laws; (b) those substances defined as "hazardous wastes" in any applicable state statute and in the regulations promulgated pursuant to any such statute; (C) those substances listed in the United States Department of Transportation Table (49 CFR 172.101, as amended) or by the United States Environmental Protection Agency (or any successor agency) as hazardous substances; (d) such other substances, materials and wastes which are or become regulated under applicable local, state, or federal law, or which are classified as hazardous or toxic under federal, state or local laws or regulations; and (e) any material, waste or substance which is (i) petroleum (ii) asbestos (iii) polychlorinatedbiphenyls (iv) designated as a "hazardous substance" pursuant to Section 311 of the Clean Air Act, 33 U.S.C. Section 1251, et seq., or listed pursuant to Section 307 of the Clean Air Act, (v) flammable explosive, or (vi) radioactive materials. 14.3. Tenant shall not use, generate, manufacture, produce, store, release, discharge or dispose of, on, under or about the Leased Premises, or transport to or from the Leased Premises, any Hazardous Substance, or allow any other person or entity to do so. Tenant shall keep and maintain the Leased Premises in compliance with, and shall not cause or permit the Leased Premises to be in violation of any Environmental Law. Notwithstanding the foregoing, Tenant may use and store in reasonable amounts and in accordance with applicable laws such cleaning products, automotive products and other products as are normally used, sold or stored in Tenant's drug stores from time to time, including, without limitation, chemicals and materials used in connection with photoprocessing. 14.4. Landlord and Tenant shall each give the other party prompt notice of any of the following of which the party in question has actual knowledge: (a) any proceeding or inquiry by any governmental authority with respect to the presence of any Hazardous Substance on the Leased Premises or the migration of such Hazardous Substance from or to other property; (b) all claims made or threatened by any third party against Tenant, Landlord or the Leased Premises relating to any loss or injury resulting from any Hazardous Substance; and (c) discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Leased Premises that could cause the Leased Premises or any part of the Leased Premises to be subject to any restrictions on the ownership, occupancy, transferability or use of the Leased Premises under any Environmental Law or any regulation adopted in accordance with any Environmental Law. 14.5. Tenant shall protect, defend, indemnify and hold harmless Landlord, its members, directors, officers, partners, employees, agents, successors and assigns from and against any and all loss, penalties, fines, judgments, forfeitures, damage, cost, expense or liability (including attorneys fees and costs) arising from or caused in whole or in part, directly or indirectly, by Tenant's failure to comply with the terms of this Section. 14.6. Landlord represents and warrants to Tenant that, to Landlord's actual knowledge and the actual knowledge of Joseph P. Kane, as President of the sole member of Landlord, other than any Hazardous Substance disclosed in that certain environmental report(s) titled Phase I Environmental Site 10 Assessment" prepared by Plumley Engineering ("PE") dated November, 2003 (PE Project No. 2003033)(the presence of any Hazardous Substance described in said report(s) is referred to as the "Condition"): (a) no Hazardous Substance is present, or was installed, exposed, released or discharged in or under the Leased Premises at any time during or prior to Landlord's ownership; (b) no prior owner or occupant of the Leased Premises has used any Hazardous Substance on the Leased Premises; and (c) the Leased Premises have been used and operated upon compliance with all applicable local, state and federal laws, ordinances, rules regulations and orders. 14.7. Landlord shall protect, indemnify, defend and hold harmless Tenant, its officers, employees, agents, successors, and assigns from and against any and all loss, penalties, fines, judgments, forfeitures, damage, cost, expense or liability (including attorney's fees and costs) arising from or caused in whole or in part, directly or indirectly (a) from the Condition; (b) from any remediation of the Condition per-formed by Landlord or a third party or any of its or their officers, employees, agents, successors and assigns, and (c) from Landlord's breach of its representations contained in this Subsection. This indemnification shall survive the expiration or earlier termination of this Lease. 14.8. Tenant acknowledges the Condition, if any. Tenant shall not have the right to terminate this Lease due to either the existence of the Condition or any effect the existence of the Condition has on Tenant's use and occupancy of the Leased Premises, and the effect of any reasonable remediation of the Condition. Tenant shall have no right to compel Landlord to remediate the Condition; provided, however, that Landlord shall comply with any governmental requirement to remediate the Condition. 14.9. In the event that Landlord sells the Leased Premises to a bona fide third-party purchaser which is not an affiliate or controlled or under common control with Landlord and/or Landlord's sole member, as the case may be, such subsequent landlord shall not be liable for a breach of the warranty contained in Subsection 14.6(a). In the event Landlord is required by any governmental agency to perform remedial activities on the Leased Premises as a result of the Condition, Tenant agrees to enter into an appropriate access and remediation agreement which is reasonably acceptable to Tenant 14.10. Upon prior reasonable notice, Landlord shall have the right to inspect Tenant's operations an the Leased Premises to ascertain Tenant's compliance with the provisions of this Lease at any reasonable time. Tenant shall also provide periodic certifications to Landlord, upon request, that Tenant is in compliance with the environmental restrictions contained in this Section of the Lease. Landlord shall have the right, but not the obligation, to enter into the Leased Premises and perform any obligation of Tenant under this Lease of which Tenant is in default, including without limitation, any remediation necessary due to the environmental impact of Tenant's operations on the Leased Premises, without waiving or reducing Tenant's liability for Tenant's default of this Section of this Lease. 14.11. All of the terms and provisions of this Section of this Lease shall survive the expiration or termination of this Lease for any reason whatsoever. 15. Maintenance and Repairs 15.1. Tenant will at its sole cost and expense and throughout the entire term keep the Leased Premises and all additions and improvements thereto in good order and repair (excepting, however, all repairs made by Landlord during the One-Year Warranty period or made necessary by Landlord's negligence or default under the terms of this Lease). Following the One-Year Warranty period, Landlord agrees to assign to Tenant all then existing warranties for any labor and materials used on or in the Leased Premises. 15.2. Tenant's obligations under this Section shall include, without limitation, maintaining in good operating condition (including making all necessary repairs and replacements to accomplish the same) the interior, exterior, roof and structural members of the building on the Leased Premises, all HVAC and other mechanical equipment and systems (including replacement of the compressor and other major components), sprinkler systems (including any testing of the same) landscaping, parking areas and driveways, and any water, plumbing, sanitary sewer, storm sewer, gas, cable, telephone or electrical 11 lines or conduits in or on the Leased Premises, and making all repairs required due to fire, casualty, or the elements. 15.3. Tenant's obligation to maintain and repair the roof is conditioned upon Landlord providing Tenant, by the Lease Commencement Date, a full twenty (20) year (or longer) No Dollar Limit manufacturers warranty, to be in Tenant's name. The warranty must be in conformance with industry standards, and shall cover at least the materials provided. 15.4. Subject to Tenant's reasonable security requirements, Landlord may at reasonable times arid upon reasonable notice, inspect, alter or repair the Leased Premises when necessary for its safety or preservation. 16. Real Estate Taxes 16.1 Landlord and Tenant shall cooperate to work with the applicable taxing authority to obtain approval for all real estate tax bills to be delivered directly by the taxing authority to the Tenant In the event that such tax bills may not be delivered directly to Tenant, but instead are delivered to Landlord, Landlord shall deliver to Tenant within fifteen (15) days of receipt, all real estate tax bills for the Leased Premises. Tenant shall pay such tax bills directly to the taxing authority and send a copy of such payment to Landlord. Tenant shall have the right during the term of this Lease, at Tenant's expense, to appeal the amount of any real estate tax assessed against the Leased Premises. Landlord shall reasonably cooperate with Tenant in such appeal efforts. 16.2. Provided the real estate tax bills are delivered to Tenant by Landlord in a timely manner, Tenant agrees to pay all such taxes before delinquency and Landlord shall not be obligated to pay any penalty for delinquent payment. Any payment due pursuant to this Lease provision shall be prorated as of the Lease Commencement Date and the termination or expiration date of this Lease. 17. Utilities 17.1. Tenant shall pay directly to the respective provider with no surcharge paid to Landlord, for all sewerage and trash disposal services, water, gas, heat, electric current and other utilities consumed by it, in or upon the Leased Premises, at rates set by local public utility as approved by public authority having jurisdiction. Landlord warrants that all such utilities and services are available to the Leased Premises. Landlord agrees to furnish the Leased Premises with separate meters for measuring consumption of water and electricity. 17.2. Notwithstanding the foregoing, in the event that Tenant is able to purchase, acquire or otherwise obtain any or all utilities through direct access or otherwise, as a result of the deregulation of the utilities or as a result of the utility market providing open access and customer choice through pilot programs, legislation, or otherwise, Tenant shall have the option, at any time and from time to time during the term of this Lease,to purchase its utilities from any source and to elect the service provider, supplier, and such supplier's distributor and/or transmitter for any or all utilities servicing the Leased Premises. Tenant's election shall not abrogate Landlord's obligation to furnish, install and maintain or cause to be furnished, installed or maintained Without expense to Tenant all gas, electric, water, telephone and sanitary and storm sewer lines and equipment required to provide the Leased Premises with such utilities and service as described above provided, however, that in the event Tenant's election necessitates new or additional lines and/or equipment. Tenant shall provide the same at its sole cost and expense. Landlord agrees to grant Tenant easements, in locations reasonably acceptable by Landlord,for purposes of installing and maintaining any such lines or equipment 12 18. Liability Insurance and Indemnification 18.1. Tenant, in its name and at its own expense, shall procure and continue in force, commercial general liability insurance against damages occurring on the Leased Premises during the term or any extensions of this Lease. Such insurance shall be in an amount not less than Three Million and No/100 Dollars ($3,000,000.00) general aggregate limit for bodily injury and property damage. A certificate of such insurance shall be provided to Landlord within thirty (30) days after the Lease Commencement Date, and thereafter upon written request. Such policy shall state that it may not be canceled or modified prior to giving Landlord at least thirty (30) days prior written notice. 18.2. Should Tenant desire to carry all or part of the insurance coverage described in this Section through self-insurance and/or under a "blanket" policy or policies covering other properties of Tenant, its parent corporation, its subsidiaries, or controlling or affiliated corporations, or of any assignee of this Lease, such methods of insurance shall be deemed compliance with Tenant's obligations under this Section, as to both original coverage and renewals. 18.3. Tenant covenants to keep in good order and repair the plate glass in the Leased Premises, and to replace all broken glass with the same quality as that broken; provided, however, should damage or breakage occur due to the fault or neglect of Landlord, then Landlord shall be responsible for replacing the damaged or broken glass. 18.4. Landlord agrees to defend, indemnify and save harmless Tenant from and against any and all claims and demands whether from injury to person, loss of life, or damage to property, occurring within, on or about the Leased Premises as may result from any injury or damage caused by acts or omissions of Landlord. 18.5. Tenant agrees to defend, indemnify and save harmless Landlord from and against any and all claims and demands whether from injury to person, loss of life, or damage to property, occurring within, on or about the Leased Premises, excepting, however, such claims or demands as may result from any injury or damage caused by acts or omissions of Landlord. 19. Casual (Property) Insurance and Damage To Leased Premises 19.1. Tenant shall at all times during the term of this Lease and any Lease renewals maintain "all risk" insurance on the Leased Premises insuring against all risks of physical loss or damage to property in the amount of one hundred percent (100%) of the full replacement cost of the improvements located on the Leased Premises. A certificate of such insurance shall be provided to Landlord within thirty (30) days after the Lease Commencement Date which names Landlord and Landlord's mortgagee, if any, as loss payees, and thereafter upon written request Such policy shall state that it may not be canceled prior to giving Landlord and mortgagee, if any, at least ten (10) days prior written notice in the event of nonpayment of premium, and thirty (30) days prior written notice in all other instances. 19.2. Except as otherwise provided in this Section, in the event the Leased Premises shall be partially damaged or totally destroyed by fire or other disaster, Tenant shall promptly cause the Leased Premises to be restored, subject to such changes as Tenant may `reasonably require and Landlord reasonably approves prior to commencement of reconstruction. Due allowance shall be made for (a) reasonable time necessary (not to exceed one hundred eighty (180) days) for Tenant to adjust the loss with insurance companies, and (b) delay occasioned by strikes, lockouts, and conditions beyond the reasonable control of Tenant, provided such delay does not exceed six (6) months without Landlord's consent 19.3. Should Tenant desire to carry all or part of the insurance coverage described in this Section through self-insurance and/or under a `blanket' policy or policies covering other properties of Tenant, its parent corporation, its subsidiaries, or controlling or affiliated corporations, or of any assignee of this Lease, such methods of insurance shall be deemed compliance with Tenant's obligations under this Section, as to both original coverage and renewals. 13 19.4. Should the Leased Premises, or a portion of the Leased Premises, be rendered untenantable by fire or other disaster, Rent shall not abate. Notwithstanding anything to the contrary contained in this Lease, if such damage occurs during the last two (2) years of the term of this Lease and the cost of restoration of the Leased Premises would be more than one-third (1/3) of the replacement value of the Leased Premises, as certified by a registered architect, Landlord and Tenant shall each have the right to terminate this Lease by written notice to the other given within thirty (30) days after such occurrence. If this Lease is so terminated, all insurance proceeds attributable to the Leased Premises shall be paid to Landlord and Landlord alone shall have the right to settle any claim with the insurance carrier. If Landlord elects to terminate this Lease, such termination shall not be effective if Tenant elects (within ten (10) days after receipt of Landlord's notice of termination) to renew this Lease by exercising any remaining options for extending the term of this Lease. In the event this Lease shall be terminated as above provided, Tenant shall either pay Landlord, by way of insurance or otherwise, the amount required to restore the Leased Premises, or Tenant will restore, or have restored, the Leased Premises; then, if Tenant shall have paid any Rent in advance, Tenant shall be entitled to a proportionate refund. 19.5. Provided this Lease is not terminated as set forth in this Section, the term of this Lease shall be automatically extended for a period of time equal to the period of time the Leased Premises are totally untenantable due to fire or other disaster. 20.Waiver of Subrogation 20.1. Tenant agrees not to assign to any insurance company any right or cause of action for damage to the property of Tenant located in the Leased Premises which Tenant now has or may subsequently acquire against Landlord during the term of this Lease, and expressly waives all rights of recovery for such damage. 20.2. Landlord agrees not to assign to any insurance company any right or cause of action for damages to the property of Landlord located in the Leased Premises which Landlord now has or may subsequently acquire against Tenant during the term of this Lease, and expressly waives all rights of recovery from such damage. 20.3. It is specifically understood this Section shall only apply to the extent insurance proceeds are recovered. 21.Tenant's Right To Make Changes to Leased Premises 21.1. Tenant, at its own expense during the term of this Lease, may make any alterations or additions to the Leased Premises which it may deem necessary, except changes which would impair the structural integrity of the Leased Premises (unless approved in writing by Landlord). Tenant shall make all changes in a good and workmanlike manner and in accordance with applicable governmental regulations. All salvage from such work shall belong to Tenant All permanent improvements shall belong to Landlord. 21.2. All trade fixtures and equipment and other personal property owned by Tenant and installed or placed by it in the Leased Premises may be removed by Tenant at any time during the term of the Lease. Provided Tenant gives Landlord prior reasonable notice, and provided further that Tenant pays Landlord prorated Rent through the date of the removal of such trade fixtures, equipment and other personal property, such removal may also take place within fifteen (15) days after the expiration term of the Lease. Tenant agrees to repair any damage to the Leased Premises occasioned by such removal. 22. Assignment and Subletting 22.1. Tenant shall have the right to assign this Lease or sublet the entire Leased Premises at any time without Landlord's consent or approval. Tenant shall give prior written notice of any and all assignments and subleases to Landlord, together with a copy of the applicable instrument. 14 22.2. Unless agreed otherwise by the parties, the assignment of this Lease or subletting of the Leased Premises shall not relieve Tenant of its obligations under this Lease. 23. Eminent Domain 23.1. If the entire building on the Leased Premises shall be taken by reason of condemnation or under eminent domain proceedings, Landlord or Tenant may terminate this Lease as of the date when possession of the building is taken. If a portion of the building shall be taken under eminent domain or by reason of condemnation and if in the opinion of Tenant, reasonably exercised, the remainder of the building is no longer suitable for Tenant's business, this Lease, at Tenant's option, to be exercised by ten (10) days prior written notice to Landlord given within sixty (60) days of such taking, shall terminate. In such event, any unearned Rent paid or credited in advance shall be refunded to Tenant If this Lease is not so terminated, Landlord shall proceed promptly and with due diligence, to restore the building. Until so restored, Rent shall abate to the extent that Tenant shall not be able to conduct business in a reasonable manner, and Rent for the remaining portion of the term of this lease shall be proportionately reduced (based on the reduced square foot floor area of the building). 23.2.In the event (A) any part of the parking areas of the Leased Premises shall be taken by reason of condemnation or under eminent domain proceedings (unless there are at least fifty (50) regular spaces and four (4) handicapped spaces left on the Leased Premises after the condemnation), or (B) if as a result of any taking of the Leased Premises or other property subject to an easement benefiting the Leased Premises any driveway or curb cut access to the Leased Premises will be closed (other than temporary closings of less than six (6) months due to construction resulting from such taking), and if, under either event described in Section 23.2(A) or Section 23.2(B) above, in the opinion of Tenant, reasonably exercised, the Leased Premises are no longer suitable for Tenant's business, this Lease, at Tenant's option by ten (10) days prior written notice to Landlord given within sixty (60) days of such taking, shall terminate. If this Lease is not so terminated, Landlord, at Landlord's expense, shall proceed promptly and with due diligence to restore the remaining Leased Premises and parking areas to a proper and usable condition. However, Tenant shall not have the right to terminate this Lease if Landlord provides alternate parking areas which are reasonably acceptable to Tenant Until restored, Rent shall abate to the extent that Tenant shall not be able to conduct business at the Leased Premises in a reasonable manner, and Rent for the remaining portion of the term of this Lease shall be proportionally reduced (based on the effect such taking has on Tenant's business at the Leased Premises). 23.3. For purposes of this Section, the term `condemnation or under eminent domain proceedings' shall include conveyances and grants made in anticipation of or in lieu of such proceedings. 24. Tenant's Default 24.1. Each of the following shall constitute a default by Tenant and a breach of this Lease: 24.1.1. Any of the following which shall result in final adjudication against Tenant 24.1.1.1. The filing of a bankruptcy petition by or against Tenant for adjudication, reorganization or arrangement, or 24.1.1.2. Any proceedings for dissolution or liquidation of Tenant, or 24.1.1.3. Any assignment for the benefit of Tenant's creditors. 24.1.2. Failure to: 24.1.2.1. Pay Rent for a period of fifteen (15) days after receipt of written notice; or 24.1.2.2. Perform any other covenant or condition of this Lease for a period of thirty (30) days after receipt of written notice. 15 24.2. In the event of any default of Tenant, in addition to any other remedies available to Landlord by law, Landlord may serve written notice upon Tenant that Landlord elects to terminate this Lease upon a specified date not less than thirty (30) days after the date of receipt of such notice. This Lease shall expire on the date so specified as if that date had been originally fixed as the expiration date of the term granted in this Lease unless payment in full has been made within such thirty (30) day period, or, for non-monetary defaults, unless steps have, in good faith, been commenced promptly by Tenant to cure the default, and are prosecuted to completion with diligence and continuity. If the matter in question shall involve building construction, and if Tenant shall be subject to unavoidable delay by conditions beyond the control of Tenant, Tenant's time to perform shall be extended for a period commensurate with such delay, provided such delay does not exceed six (6) months without Landlord's consent 24.3. Upon termination of this Lease for Tenant's default, Landlord or its agents may immediately or at any time after the termination, re-enter and resume possession of the Leased Premises and remove all persons and property from the Leased Premises, by a suitable action or proceeding at law, without being liable for any damages subject, however, to Tenant's right to remove trade fixtures and personal property, after notice to Landlord, within fifteen (15) days after termination of the Lease. No re-entry by Landlord shall be deemed an acceptance or a surrender of this Lease. Landlord may then, in its own behalf, relet any portion of the Leased Premises for any period of the remaining term for any reasonable sum to any reasonable tenant for any reasonable use or purpose. In connection with any reletting, Landlord may make any changes to the Leased Premises and may grant any concessions of free rent as may be reasonably appropriate or helpful in effecting such lease. 25.Rent Under Tenant's Default 25.1. In no event shall Landlord be entitled to an acceleration of Rent Additionally, in the event this Lease shall be terminated for Tenant's default, Landlord's sole remedy shall be to recover from Tenant an amount equal to the amount of Rent, real estate taxes and insurance reserved under this Lease for the remainder of the initial term or the option period then in effect, as the case may be, less the net rent, real estate taxes and insurance if any, collected by Landlord on reletting the Leased Premises, which shall be due and payable, by Tenant to Landlord, on the several days on which the Rent reserved in this Lease would have become due and payable. Net rent collected on reletting by Landlord shall be computed by deducting frofl1 the gross rents collected all actual and reasonable expenses incurred by Landlord in connection with the relettiflg of the Leased Premises, including brokers commissions and the cost of repairing, renovating or remodeling the Leased Premises, but not including the cost of performing any covenant required to be performed by Landlord under this Lease. 26. Landlord's Default 26.1. Each of the following shall constitute a default by Landlord and a breach of this Lease: 26.1.1. Landlord shall neglect to pay when due any taxes or any obligations on any mortgage or encumbrance affecting title to the Leased Premises within fifteen (15) days after written notice to Landlord (to which this Lease shall be subordinate); or 26.1.2. Landlord shall fail to make any other payment which Landlord -is obligated to pay under this Lease, and such default continues uncured for fifteen (15) days after written notice to Landlord; or 26.1.3 In the event Landlord shall fail to perform any other obligation specified in this Lease, and such default continues uncured for thirty (30) days after notice to Landlord, or if such default can not reasonably be cured within such thirty (30) period, then within an additional thirty (30) period, provided Landlord is at all times diligently and in good faith prosecuting the cure of same. 26.2. In the event of Landlord's default, in addition to any other remedies available to Tenant by law, Tenant may, but shall not be required to, cure such default, and do all necessary work and make all necessary payments on behalf of and at the expense of Landlord. In such event, Landlord shall, within thirty (30) 16 days of demand, pay Tenant the amount actually paid by Tenant in curing any such default If not paid within thirty (30) days after written notice to Landlord, Tenant and Landlord agree to submit the dispute to binding arbitration pursuant to the rules of the American Arbitration Association ("AAA") for resolution as quickly as possible pursuant to the AAA procedures. The prevailing party in the arbitration proceedings shall be entitled to recover from the other party the prevailing party's reasonable attorney's fees and other costs associated with the arbitration. If the Tenant prevails in the arbitration proceeding, and if Tenant does not receive full payment of all amounts owed, including attorney's fees, within thirty (30) days of the final arbitration decision, Tenant may withhold Rent and other payments due to Landlord and apply the Rent or other payments to the payment of the indebtedness. Withholding of Rent or other payments as provided in this Section or elsewhere in this Lease shall not constitute a default by Tenant in the payment of Rent or other payments unless Tenant shall fail to pay such amount withheld within Thirty (30) days after a final adjudication that such amount withheld is owing to Landlord. 27. Force Majeure 27.1. Anything in this Lease to the contrary notwithstanding, neither Landlord nor Tenant shall be in default of the performance of any provisions of this Lease to the extent such performance is delayed or prevented by strike, war, act of God, or other cause beyond the control of the party seeking to excuse such performance provided, however, no such excusable delay shall exceed ninety (90) days. 28. Severability 28.1. If any term or provision of this Lease (or the application of any term of provision of this Lease to any person or circumstances) shall to any extent be invalid or unenforceable, the remainder of this Lease (or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable) shall not be affected and each term and provision of this Lease shall be valid and enforceable to the fullest extent permitted by law. 29.Obligation of Successors 29.1. All of the provisions of this Lease shall bind and inure to the benefit of Landlord and Tenant, and their respective heirs, legal representatives, successors and assigns. All covenants, conditions and agreements contained in this Lease shall be construed as covenants running with the land. 29.2. In the event of any sale or other transfer of Landlord's interest in the Leased Premises, and provided Landlord gives Tenant written notice of such transfer along with a copy of an agreement by the new landlord/owner whereby the new landlord/owner is agreeing to recognize this Lease and assume all of Landlord's obligations under this Lease, Landlord shall be relieved of all liabilities and obligations of Landlord under this Lease accruing after the date of such transfer. 30. Notices 30.1. All notices and Rent shall be sent to Landlord as follows, until Tenant is notified by Landlord otherwise in writing: To Landlord: Herkimer Rd. & Euclid Rd. Development LLC c/o Westlake Development LLC 753 James Street, Suite B-I Syracuse, New York 13203 Attention: Joseph P. Kane with a copy to: Shulman, Curtin, Grundner & Regan, P.C. 250 South Clinton Street, Suite 502 Syracuse, NY 13202 Attention: Stephen G. Etoll, Esquire 17 30.2. All notices shall be sent to Tenant as follows, until Landlord is notified by Tenant otherwise in writing: To Tenant at Eckerd Corporation Store No. 5887R 8333 Bryan Dairy Road Largo, Florida 33777 Attention: Vice President, Real Estate with copies to: Eckerd Corporation and Eckerd Corporation Store No. 5887R Store No. 5887R 615 Alpha Drive 8333 Bryan Dairy Road Pittsburgh, Pennsylvania 15238 Largo, Florida 33777 Attn: Regional Real Estate Director Attn: Legal Department (CW3W) 30.3. Notices to each party shall be sent by certified mail, return receipt requested, or by bonded overnight courier, and shall be effective upon receipt or refusal to. accept delivery. Notices delivered to the Leased Premises shall not constitute notice to Tenant under the terms of this Lease. 31. Miscellaneous 31.1. The captions in this Lease are for convenience only. They are not a part of this Lease and do not in any way limit or amplify the terms and provisions of this Lease. 31.2. This Lease shall be construed in accordance with applicable law of the state in which the Leased Premises are located. 31.3. Intentionally Deleted. 31.4. Other than the Estoppel Certificate required by Landlord at the time of the placement of the construction financing and the permanent loan associated with this Lease, Tenant agrees from time to time but no more often than three times per Lease year, upon (a) not less than thirty (30) days' prior written request by Landlord, and (b) payment by Landlord of a $150.00 fee to cover legal and administrative costs incurred by Tenant in processing such request, to execute and deliver to Landlord in a reasonably timely manner Tenant's standard written Estoppel Certificate stating (I) whether this Lease has been modified or amended and, if so, identifying any such modification or amendment, (ii) whether Rent and other charges have been paid more than thirty (30) days in advance of the date when due and, if so, the date to which they have been paid in advance; and (iii) whether to the best of Tenant's knowledge, any uncured default exists on the part of Landlord and, if so, specifying the nature of such default. 31.5. One or more waivers of any covenant, term or condition of this Lease by either party shall not be construed as a waiver of a subsequent breach of the same or any other covenant, term or condition. Any delay or omission by either party to seek a remedy for any breach of this Lease or to exercise a right accruing to such party by reason of such breach shall not be deemed a waiver by such party of its remedies or rights with respect to such breach. The consent or approval by either party to or of any act by the other patty requiring such consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any similar act 31.6. This Lease shall become null and void without further action of the parties if Tenant has not received a fully- executed copy of this Lease Friday, March 5, 2004. 31.7. The parties acknowledge, that the parties and their counsel have reviewed and revised this Lease and that the normal 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 Lease, or any part of it, or any exhibits or amendments or agreements supplementary to this Lease. 18 31.8. Should either party institute any action or proceeding to enforce any provision hereof or for a declaration of such party's rights or obligations hereunder, the prevailing party in such action or proceeding shall be entitled to receive from the losing party such amounts as the court may adjudge to be reasonable attorneys' fees and expenses for services rendered to the party prevailing in such action or proceeding, and such fees shall be deemed to have accrued upon the announcement of such action or proceeding. 32. Short Form Lease 32.1. The parties agree that a short form version of this Lease will be executed for the purpose of recording. The short form lease shall be recorded before any mortgage placed on the Leased Premises or any part of the Leased Premises. Landlord shall pay for any and all real estate transfer fees assessed in connection with this Lease or assessed in connection with the recording of the short form version of this Lease. 33. Conditional Precedent 33.1. The commencement of the term of this Lease and Landlord's and Tenant's obligations hereunder are expressly contingent upon Landlord obtaining all necessary approvals and permits from all applicable governmental agencies and authorities in order to permit and accommodate Tenant's intended use of the Leased Premises as set forth in this Lease and to permit the construction of the Leased Premises as shown on Exhibit "A." Landlord agrees to use all commercially reasonable efforts and to work diligently to obtain such approvals and permits. Notwithstanding the foregoing, such approvals and permits shall not include licenses for the sale of alcoholic beverages for off-premises consumption as set forth in Section 1.2. of this Lease. In the event the foregoing approvals and permits are not obtained by Landlord on or before April 1, 2004, Tenant, at Tenant's sole discretion, shall have the option of extending the deadline for Landlord obtaining the foregoing approvals and permits, or of canceling this Lease by giving Landlord thirty (30) days written notice thereof~ provided however, that Tenant's cancellation shall be nullified if Landlord obtains the foregoing permits and approvals within such 30- day period. IN WITNESS WHEREOF the parties have caused this Lease to be executed by their respective duly authorized representatives as of the date set forth in the initial paragraph of this Lease. "LANDLORD" WITNESSES as to Landlord: HERKIMER RD & EUCLID RD DEVELOPMENT LLC, a New York limited liability company By:Westlake Holding, Inc., a New York corporation, its sole member /s/ Nancy J Suertin Printed Name: Nancy J Suertin By /s/ Joseph P Kane Joseph P. Kane President /s/ Karen L Balck Printed Name: Karen L Balck 19 "TENANT" WITNESSES as to Tenant ECKERD CORPORATION, a Delaware corportation /s/ Nancy J Eldridge Printed Name Nancy J Eldridge By: /s/ Robert J Malagon Robert J. Malagon, Vice President /s/ Colleen Marco Print Name: Colleen Marco 20 EXHIBIT "B" LEGAL DESCRIPTION ECKERD PARCEL 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 DANIEL F & MARIAM S COLINO AS DESCRIBED IN BLBER 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 THROUGHT THE LANDS OF SAID QUARD 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 392.32 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 22.57 FEET TO A POINT ON THE DIVISION LINE BETWEEN THE LANDS NOW OR FORMERLY DANIEL F. & MARIAM S COLINO AS DESCRIBED IN LIBER 2062 OF DEEDS AT PAGE 13 ON THE WEST AND THE LANDS NOW OR FORMERLY OF MICHAEL J RITTER 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 COLINS (2062/11 & 13; THENCE NORTH 51 DEG. 27 MIN.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. THE ABOVE DESCRIBED PARCEL BEING COMPRISED OF THE FOLLOWING FOUR PARCELS; BEING THE PARCEL CONVEYED TO NORTH UTICA SENIOR CITZENS RECREATION CENTER, INC. BY HAROLD HIRAM SHEPARD AND CATHERINE B SHEPARD BY DEED DATED AUGUST 19, 1975 AND RECORDED IN THE ONEIDA COUNTY CLERK'S OFFICE AS LIBER 2015 OF DEEDS AT PAGE 346; BEING THE PARCEL CONVYEYED TO NROTH UTICA SENIOR CITZENS RECREATION CENTER, INC. BY FLORENECE J LYNCH BY DEED DATED OTCTOBER 10, 1984 AND RECORDED IN THE ONEIDA COUNTY CLERK'S OFFICE AS LIBER 2185 OF DEEDS AT PAGE 67; BEING THE PARCEL CONVEYED TO MICHAEL J. RITTER BY KIM K LACHEVET AND KATHLEEN A LACHEVET BY DEED DATED OCTOBER 14, 1997 AND RECORDED IN THE ONEIDA COUNTY CLERK'S OFFCE AS LIBER 2797 OF DEEDS AT PAGE 28; AND BEING A PORTION OF PARCEL CONVEYED TO QUARD GROUP DEVELOPERS, BINC. BY THE BORARD OF EDUCATION OF THE CITY OF UTICA SCHOOL DISTRICT BY DEED DATED APRIL 3, 1997 AND RECORDED IN THE ONEIDA COUNTY CLERK'S OFFICE AS LIBER 2774 OF DEEDS AT PAGE 326. EX-31.1 5 e3113-04.txt Exhibit 31.1 CERTIFICATIONS I, Robert P. Johnson, certify that: 1. I have reviewed this quarterly report on Form 10-QSB of AEI Income & Growth Fund XXI Limited Partnership; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge; the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have; a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b) evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and c) disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; 5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation, of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent functions): a) all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial data and have identified for the registrant's auditors any material weaknesses in internal control over financial reporting; and b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal controls. Dated: November 10, 2004 /s/ Robert P Johnson Robert P. Johnson, President AEI Fund Management XXI, Inc. Managing General Partner EX-31.2 6 e3123-04.txt Exhibit 31.2 CERTIFICATIONS I, Patrick W. Keene, certify that: 1. I have reviewed this quarterly report on Form 10-QSB of AEI Income & Growth Fund XXI Limited Partnership; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge; the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have; a) designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b) evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and c) disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; 5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation, of internal control over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent functions): a) all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial data and have identified for the registrant's auditors any material weaknesses in internal control over financial reporting; and b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal controls. Dated: November 10, 2004 /s/ Patrick W Keene Patrick W. Keene, Chief Financial Officer AEI Fund Management XXI, Inc. Managing General Partner EX-32 7 e323-04.txt Exhibit 32 CERTIFICATION PURSUANT TO 18 U.S.C. 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Quarterly Report of AEI Income & Growth Fund XXI Limited Partnership (the "Partnership") on Form 10-QSB for the period ended September 30, 2004, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), the undersigned, Robert P. Johnson, President of AEI Fund Management XXI, Inc., the Managing General Partner of the Partnership, and Patrick W. Keene, Chief Financial Officer of AEI Fund Management XXI, Inc., each certify, pursuant to 18 U.S.C. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that: 1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and 2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Partnership. /s/ Robert P Johnson Robert P. Johnson, President AEI Fund Management XXI, Inc. Managing General Partner November 10, 2004 /s/ Patrick W Keene Patrick W. Keene, Chief Financial Officer AEI Fund Management XXI, Inc. Managing General Partner November 10, 2004 -----END PRIVACY-ENHANCED MESSAGE-----