PURCHASE AGREEMENT
This Purchase Agreement (the "Agreement") entered into
and effective as of the 18 day of April, 2002, by and
between Texas Roadhouse Holdings LLC., 0000 Xxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxxxx, XX 00000 (the "Seller") and, AEI
Income & Growth Fund 24 LLC, a Delaware limited liability
company or its assigns (the "Buyer")
1. PROPERTY. Seller holds an undivided 100% interest in
the fee title to that certain real property legally
described in the attached Exhibit "A" (the "Parcel").
Seller wishes to sell and Buyer wishes to purchase the
Parcel and all improvements thereon after Seller has
developed a Texas Roadhouse restaurant (the "Improvements")
on the Parcel (the Parcel and the Improvements collectively,
the "Property").
2. LEASE. The Property is being sold subject to executing
a Lease on the Property by and between Buyer, as lessor, and
Seller as lessee (the "Lessee"), to be dated effective as of
the Closing Date of the purchase contemplated herein (the
"Lease"). Said Lease form shall be as attached hereto and
incorporated herein by reference as Exhibit " B".
3. CLOSING DATE. The closing date on the Buyer's purchase
of the Property shall be April 10, 2002, or earlier by
mutual agreement of the parties (the "Closing Date").
4. PURCHASE PRICE. The purchase price for the Property
shall not exceed $1,960,000 (the "Purchase Price"), which as
a contingency to Buyer's obligations hereunder must be
supported by an MAI appraisal of the Property to be provided
by Seller to Buyer as described in Article 8.03 hereof, and
evidence of the actual costs of the land and improvements
paid by Seller as described in Article 8.01 hereof, in
connection with the development of the Property. If all
conditions precedent to Buyer's obligations to purchase have
been satisfied, Buyer shall deposit the Purchase Price with
a title company acceptable to Buyer as described in Article
6 hereof (the "Closing Agent") on or before the Closing
Date.
5. ESCROW. Escrow shall be opened by Seller with the
Closing Agent upon execution of this Agreement. A copy of
this Agreement will be delivered to the Closing Agent by
Seller and will serve as escrow instructions together with
any additional instructions required by Seller and/or Buyer
or their respective counsels. Seller and Buyer agree to
cooperate with the Closing Agent and sign any additional
instructions reasonably required by the Closing Agent to
close escrow. If there is any conflict between any other
instructions and this Agreement, this Agreement shall
control.
6. TITLE. Seller shall deliver to Buyer a commitment for
an ALTA Owner's Policy of Title Insurance (ALTA owner-most
recent edition) issued by Republic Title of Texas, Inc. 0000
Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, XX 00000, as insured
closing agent for a nationally recognized title insurance
company (the "Title Company"), insuring marketable title in
the Property, subject only to such matters as Buyer may
approve and contain such endorsements as Buyer may require,
including extended coverage and owner's comprehensive
coverage (the "Title Commitment"). The Title Commitment
shall show Seller as the present fee owner of the Property
and show Buyer as the fee owner to be insured. The Title
Commitment shall also include an itemization of all
outstanding and pending special assessments and an
itemization of taxes affecting the Property and the tax year
to which they relate, shall state whether taxes are current
and if not, show the amounts unpaid, the tax parcel
identification numbers and whether the tax parcel includes
property other than the Property to be purchased. All
easements, restrictions, documents and other items affecting
title shall be listed in Schedule "B" of the Title
Commitment. Copies of all instruments creating such
exceptions must be attached to the Title Commitment.
Buyer shall be allowed ten (10) business days after
receipt of the Title Commitment and copies of all underlying
documents or until the end of the First Contingency Period,
whichever is later to be consistent with Article 8.01
hereof, for examination and the making of any objections
thereto, said objections to be made in writing or deemed
waived. If any objections are so made, the Seller shall be
allowed thirty (30) days to cure such objections or in the
alternative to obtain a commitment for insurable title
insuring over Buyer's objections. If Seller shall decide to
make no efforts to cure Buyer's objections, or is unable to
obtain insurable title within said thirty (30) day period,
this Agreement shall be null and void and have no further
force and effect.
The Buyer shall also have ten (10) business days to
review and approve any easement, lien, hypothecation or
other encumbrance placed of record affecting the Property
after the date of the Title Commitment. If necessary, the
Closing Date shall be extended by the number of days
necessary for the Buyer to have ten (10) business days to
review any such items. Such ten (10) business day review
period shall commence on the date the Buyer is provided with
a legible copy of the instrument creating such exception to
title. The Seller agrees to inform the Buyer of any item
executed by the Seller placed of record affecting the
Property after the date of the Title Commitment. If any
objections are so made, the Seller shall be allowed thirty
(30) days to cure such objections or in the alternative to
obtain a commitment for insurable title insuring over
Buyer's objections. If Seller shall decide to make no
efforts to cure Buyer's objections, or is unable to obtain
insurable title within said thirty (30) day period, this
Agreement shall be null and void and have no further force
and effect.
7. SITE INSPECTION. As a condition precedent to Buyer's
obligations hereunder, the Property shall be inspected and
approved by Buyer. Buyer acknowledges Seller has paid the
site inspection fee of $2,500 and that Buyer has approved
the Property.
8. DUE DILIGENCE AND CONTINGENCY PERIODS.
8.01 FIRST DUE DILIGENCE DOCUMENTS AND FIRST CONTINGENCY
PERIOD. Buyer shall have until the later of 1) the end of
the business day on March 29, 2002 or 2) the end of the
fifth (5th) business day after the delivery of all of the
First Due Diligence Documents, as described below, to be
delivered by Seller at Seller's expense and such documents
to be of current or recent date and certified to Buyer, (the
"First Contingency Period") to conduct all of its
inspections, due diligence and review to satisfy itself
regarding each item, the Property and this transaction:
(a) The Title Commitment and back-up documentation;
(b) Preliminary ALTA boundary survey of the Property
as described on Exhibit "C" attached hereto.
(c) Phase I environmental assessment report and
Reliance Letter prepared by a company satisfactory
to Buyer containing evidence that the Property
complies with all federal, state and local
environmental regulations;
(d) Copies of the certificates of insurance policies
for Lessee as required by the Lease;
(e) Final plans and specifications for the
Improvements;
(f) Zoning compliance letter from the municipality or
county exercising land use control over the
Property in form and substance satisfactory to
Buyer, to be obtained by Seller;
(j) Financial statements of the Lessee as required by
the Lease.
(k) Site plan and map(s) showing site and location of
competition;
(l) Demographic report showing data on trade area and
the neighborhood, if available;
(m) Copies of the Articles of Incorporation, the By-
Laws or Operating Agreement and a current
Certificate of Good Standing for the Lessee,
together with all other documents Buyer or Title
Company deem necessary to support the authority of
the persons executing any documents on behalf of
the Seller;
(n) Soils report;
(o) Project Cost/Budget;
(p) Utility contacts;
(q) Certificate of Completion executed by the General
Contractor, and;
(r) Certificate of Occupancy
(All of the above described documents (a) through (r)
are hereinafter collectively the "First Due Diligence
Documents").
After receipt and review of the First Due Diligence
Documents of the Property, Buyer may cancel this Agreement
for any reason in its sole discretion by delivering a
cancellation notice, return receipt requested, to Seller and
Closing Agent prior to the end of the First Contingency
Period and neither party shall have any further duties or
obligations to the other hereunder. Such notice shall be
deemed effective upon receipt by Seller.
8.02 FORM OF CLOSING DOCUMENTS. Prior to the end of the
First Contingency Period, Seller and Buyer shall agree on
the form of the following documents to be delivered to Buyer
on the Closing Date by Seller as set forth in Article 14
hereof:
(a) General warranty deed;
(b) Seller's and Lessee's Affidavit;
(c) FIRPTA Affidavit;
(d) Hazardous Waste Indemnification;
(e) Assignment and Consents of warranties from the
party or parties constructing the Improvements on
the Property;
(f) Opinion of Counsel re: enforceability of the
Lease;
(g) Opinion of Counsel re: due authority of the
Lessee;
(h) Certificate of Completion executed by the general
contractor and Seller, certifying that the
Improvements have been completed in accordance
with the plans and specifications and the soils
report for the Property and comply with all
applicable building, zoning, energy, environmental
laws and private restrictive covenants, if any,
and the objective provisions and regulations of
the Americans with Disabilities Act;
(i) Estoppel from Lessee;
(j) Assignment of the Membership Agreement for the 50-94
Partnership and;
In the event that Seller and Buyer do not reach mutual
agreement on the form of the above described documents (a)
through (j) prior to the end of the First Contingency
Period, this Agreement may be terminated by either Seller or
Buyer and neither party shall have any further duties or
obligations to the other hereunder.
8.03 SECOND DUE DILIGENCE DOCUMENTS AND SECOND CONTINGENCY
PERIOD. As soon as available, but in any event no later
than at least ten (10) business days prior to the Closing
Date (the "Second Contingency Period"), Seller, at Seller's
expense shall deliver to Buyer the following items for
review and acceptance:
(a) MAI appraisal, stating the value of the Property
with the completed Improvements thereon;
(b) As-built survey as described on Exhibit "C"
attached hereto;
(c) Any documents or written summary of facts known to
Seller that materially change or render incomplete, invalid,
or inaccurate any of the First Due Diligence Documents;
(d) Copies of final draw documentation including but not
limited to: copies of executed contractor's final AIA
documents G 702 and G 703, copies of all change orders
executed by Lessee, contractor and architect; copies of all
lien waivers for any contractor or subcontractor contract
that exceeds $15,000; copies of all invoices for soft costs
as allowed in the project cost statement with a copy of
Lessee's check attached showing payment of the invoice and;
(e) Copies of material warranties for the Improvements on
the Property.
(All of the above-described documents (a) through (e)
are hereinafter collectively the "Second Due Diligence
Documents").
Buyer shall have five (5) business days to examine and
to accept all of the above-described Second Due Diligence
Documents. After Buyer's receipt and review of the Second
Due Diligence Documents, Buyer may cancel this Agreement if
any of the Second Due Diligence Documents are not acceptable
to Buyer, in its sole discretion, by delivering a
cancellation notice, as provided herein, to Seller and
Closing Agent prior to the end of the Second Contingency
Period. Such notice shall be deemed effective upon receipt
by Seller. If Buyer so terminates this Agreement neither
party shall have any further duties or obligations to the
other hereunder.
It shall be a condition precedent to Buyer's
obligations to close hereunder that there have been no
material changes in any of the information reflected in the
First or Second Due Diligence Documents after the date of
such document and prior to closing.
Until this Agreement is terminated or the Closing has
occurred, the Seller shall deliver to the Buyer any
documentation that comes in the Seller's possession that
modifies any of the First or Second Due Diligence Documents,
including the Lease or could render any of the First or
Second Due Diligence Documents materially inaccurate,
incomplete or invalid. The Buyer shall, in any event, have
five (5) business days before the Closing Date to review any
such document and, if necessary, the Closing Date shall be
extended by the number of days necessary for the Buyer to
have five (5) business days to review any such document or
documents.
9. CLOSING COSTS. Seller shall pay all costs of closing,
including, but not limited to, the owner's title insurance
policy, recording fees, escrow fees, the costs of obtaining
or the updating and certifying of all Due Diligence
Documents. Seller shall pay all costs of closing,
including, but not limited to, recording fees, escrow fees,
the costs of obtaining or the updating and certifying of all
Due Diligence Documents and Buyer's attorneys' fees.
10. REAL ESTATE TAXES AND ASSESSMENTS\UTILITY CHARGES AND
EXPENSES. Seller represents to Buyer that to the best of
its knowledge, all real estate taxes and installments of
special assessments due and payable on or before the Closing
Date have been or will be paid in full as of the Closing
Date. It is understood between Seller and Buyer that all
unpaid levied and pending special assessments, utility
charges, and personal property taxes are paid by the Lessee
and shall be the responsibility of the Lessee under the
Lease after the Closing Date.
11. Intentionally Omitted.
12. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller
represents and warrants as of this date and to the best of
Seller's knowledge after due inquiry that:
(a) Except for this Agreement and the Lease between
Seller and Buyer, it is not aware of any other
agreements or leases with respect to the Property.
(b) Seller has all requisite power and authority to
consummate the transaction contemplated by this
Agreement and has by proper proceedings duly
authorized the execution and delivery of this
Agreement and the consummation of the transaction
contemplated hereunder.
(c) It does not have any actions or proceedings
pending, which would materially affect the
Property, except matters fully covered by
insurance;
(d) 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;
e) All of Seller's covenants, agreements, and
representations made herein, and in any and all
documents which may be delivered pursuant hereto,
shall survive 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 to Buyer's benefit
and its successors and assigns;
(f) The Property is in good condition, substantially
undamaged by fire and other hazards, and has not
been made the subject of any condemnation
proceeding;
(g) The use and operation of the Property now is in
full compliance with applicable local, state and
federal laws, ordinances, regulations and
requirements;
(h) Except to the except as previously disclosed to
Buyer in writing: Seller has not caused or
permitted any, and to the best of Seller's
knowledge after due inquiry, the Property is not
in violation of any federal, state or local law,
ordinance or regulations relating to industrial
hygiene or to the environmental conditions, on,
under or about the Property, including, but not
limited to, soil and groundwater conditions.
There is no proceeding or inquiry by any
governmental authority with respect to the
presence of hazardous materials on the Property or
the migration of hazardous materials from or to
other property;
(i) These Seller's representations and warranties
deemed to be true and correct as of the Closing
Date and shall survive the closing.
13. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer
represents and warrants to Seller that:
(a) Buyer has all requisite power and authority to
consummate the transaction contemplated by this
Agreement and has by proper proceedings duly
authorized the execution and delivery of this
Agreement and the consummation of the transaction
contemplated hereunder;
(b) To Buyer's knowledge, neither the execution and
delivery of this Agreement nor the consummation of
the transaction contemplated hereunder will
violate or be in conflict with any agreement or
instrument to which Buyer is a party or by which
Buyer is bound;
(c) These Buyer's representations and warranties
deemed to be true and correct as of the Closing
Date and shall survive the closing.
14. CLOSING.
(a) Three (3) days prior to the Closing Date, with
simultaneous copy to Buyer, Seller will deposit into escrow
with the Closing Agent the following documents on or before
the Closing Date:
(1) A general warranty deed conveying insurable title
to the Property to Buyer, in form and substance as
agreed to between Seller and Buyer during the
First Contingency Period;
(2) Estoppel letter from Lessee, in form and substance
as agreed to between Seller and Buyer during the
First Contingency Period;
(2) Affidavit of Seller, in form and substance as
agreed to between Seller and Buyer during the
First Contingency Period;
(3) FIRPTA Affidavit, in form and substance as agreed
to between Seller and Buyer during the First
Contingency Period;
(4) Opinion of Counsel regarding enforceability of the
Lease and compliance with local law (from an
attorney acceptable to AEI in the state where the
Property is located) in form and substance as
agreed to between Seller an Buyer during the First
Contingency Period;
(5) Opinion of Counsel regarding due authority of
Lessee and execution and delivery of the Lease by
Lessee (from Lessee's counsel), in a form and
substance as agreed to between Seller and Buyer
during the First Contingency Period ;
(6) Assignments of all material warranties (and the
written consents of the assignments thereof by the
party giving the warranty) from the party or
parties constructing the Improvements on the
Property.
(7) Certificates of insurance as required of the
Lessee as required by the Lease;
(8) Copy of the final unconditional Certificate of
Occupancy for the Property authorizing Lessee's
use and occupancy of the Property, or a
Certificate of Occupancy subject to such
conditions as may be reasonably approved by Buyer
and an Escrow meeting the mutual approval of
Seller and Buyer providing for the funding for
the completion of such conditional items has been
established;
(9) Certificate of Completion executed by the general
contractor and the Seller, in form and substance
as agreed to between the Seller and Buyer prior to
the end of the First Contingency Period;
(10) A down-dated title commitment for an owner's
title insurance policy, reflecting only permitted
exceptions approved by Buyer during the First
Contingency Period and including all endorsements
required by Buyer, with all Schedule C
requirements removed;
(11) Copies of any and all certificates, permits,
licenses and other authorizations of any
governmental body or authority which are necessary
to permit the use and occupancy of the
Improvements; and
(12) Certified project cost statement, signed by
Seller, itemizing the following costs: land
acquisition, building construction and site work,
and lien waivers from the General Contractor and
subcontractors of contracts over $15,000.
(b) On or before the Closing Date, Buyer will deposit the
Purchase Price with the Closing Agent;
(c) Both parties will sign and deliver to the Closing Agent
any other documents reasonably required by the Closing Agent
and/or the Title Company.
15. TERMINATION. This Agreement may be terminated prior to
closing at Buyer's option in the event of any of the
following occurrences:
(a) Seller fails to comply with any of the terms
hereof;
(b) Any representation made or contained in any
submission from Seller, or in the Due Diligence
Documents, proves to be untrue, substantially
false or misleading at any time prior to the
Closing Date;
(c) There has been a material adverse change in the
financial condition of Lessee or there shall be a
material action, suit or proceeding pending or
threatened against Seller which affects Seller's
ability to perform under this Agreement or to
perform under the Lease;
(d) Any bankruptcy, reorganization, insolvency,
withdrawal, or similar proceeding is instituted by
or against Seller or Lessee or Guarantor;
(e) Seller shall be dissolved, liquidated or wound up;
(f) Notice given by Buyer pursuant to any right of
termination herein.
16. DAMAGES, DESTRUCTION AND EMINENT DOMAIN. If, prior to
the Closing Date, the Property, or any part thereof, should
be destroyed or further damaged by fire, the elements, or
any cause, due to events occurring subsequent to the date of
this Agreement, this Agreement shall become null and void,
at Buyer's option, exercised by written notice to Seller
within ten (10) business days after Buyer has received
written notice from Seller of said destruction or damage.
Seller, however, shall have the right to adjust or settle
any insured loss until (a) all contingencies set forth in
Article 8 hereof have been satisfied, or waived; and (b) any
period provided for above in Article 8 hereof for Buyer to
elect to terminate this Agreement has expired or Buyer has,
by written notice to Seller, waived Buyer's right to
terminate this Agreement. If Buyer elects to proceed and to
consummate the purchase despite said damage or destruction,
there shall be no reduction in or abatement of the Purchase
Price, and Seller shall assign to Buyer the Seller's right,
title and interest in and to all insurance proceeds
resulting form said damage or destruction to the extent that
the same are payable with respect to damage to the Property,
subject to rights of the Lessee.
If prior to closing, the Property, or any part thereof,
is taken by eminent domain, this Agreement shall become null
and void, at Buyer's option. If Buyer elects to proceed and
to consummate the purchase despite said taking, there shall
be no reduction in, or abatement of, the Purchase Price and
Seller shall assign to Buyer all the Seller's right, title
and interest in and to any award made, or to be made, in the
condemnation proceeding, subject to the rights of the
Lessee.
17. NOTICES. All notices from either of the parties hereto
to the other shall be in writing and shall be considered to
have been duly given or served if sent by first class
certified mail, return receipt requested, postage prepaid,
or by a nationally recognized courier service guaranteeing
overnight delivery to the party at his or its address set
forth below, or to such other address as such party may
hereafter designate by written notice to the other party.
If to Seller:
Texas Roadhouse Holdings LLC.
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxx, Xx.
If to Buyer:
AEI Income & Growth Fund 24 LLC
1300 Minnesota World Trade Center
00 X. 0xx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Notice shall be deemed received 48 hours after proper
deposit in U.S. Mail, or 24 hours after proper deposit with
a nationally recognized overnight courier.
18. MISCELLANEOUS.
a. This Agreement may be amended only by written agreement
signed by both Seller and Buyer, and all waivers must be in
writing and signed by the waiving party. Time is of the
essence. This Agreement will not be construed for or
against a party whether or not that party has drafted this
Agreement. If there is any action or proceeding between the
parties relating to this Agreement, the prevailing party
will be entitled to recover attorney's fees and costs. This
is an integrated agreement containing all agreements of the
parties about the Property and the other matters described,
and it supersedes any other agreement or understandings.
Exhibits attached to this Agreement are incorporated into
this Agreement.
b. If the transaction contemplated hereunder does not
close by the Closing Date, through no fault of Buyer, Buyer
may either, at it election, extend the Closing Date,
exercise any remedy available to it by law, or terminate
this Agreement.
c. This Agreement shall be assignable by Buyer, at its
option, in whole or in part, in such manner as Buyer may
determine, to an affiliate or affiliates of Buyer.
19. COMMITMENT FEE.
Seller shall pay to Buyer an application and commitment
fee equal to one percent (1.0%) of the Purchase Price (the
"Commitment Fee") at the time of Seller's execution of this
Agreement.
Buyer is submitting this offer by signing a copy of
this Agreement and delivering it to Seller. Seller has three
(3) business days within which time to accept this offer by
signing and returning this Agreement to Buyer. When
executed by both parties, this Agreement will be a binding
agreement for valid and sufficient consideration which will
bind and benefit Seller, Buyer and their respective
successors and assigns.
IN WITNESS WHEREOF, Seller and Buyer have executed
this Agreement effective as of the day and year above first
written.
SELLER:
Texas Roadhouse Holdings LLC
By: WKT Restaurant Corp., its Manager
By: /s/ Xxxxxxx X Xxx
Its: Chief Financial Officer
BUYER:
AEI INCOME & GROWTH FUND 24 LLC
By: AEI FUND MANAGEMENT XXI, INC.
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, its President
EXHIBIT "A"
LEGAL DESCRIPTION
PARCEL I: A tract of Land being all of Lot 15 and the
northwesterly 64.00 feet of Xxx 00 xx 00/00 XXXXXX XXXXXX
XXXX, recorded as document no. 1085556, being part of the
southwest 1/4 of section 6, town 1 north, range 22 east, in
the City of Kenosha, County of Kenosha and State of
Wisconsin, bounded and described as follows:
Commence at the northwest corner of said Lot 15; thence
north 89 degrees 03 minutes 57 seconds east for a distance
of 225.15 feet along the north line of said Lot, to point;
thence south 00 degrees 56 minutes 03 seconds east for a
distance of 158.25 feet, along the east line of said Lot, to
a point; thence along a curve to the left with an arc
distance of 90.53 and a radius of 110.00 feet, being
subtended by a chord, of south 24 degrees 17 minutes 57.5
seconds east for a distance of 88.04 feet, along the east
line of said lot, to a pont being the southeast corner of
said Lot 15; thence south 47 degrees 39 minutes 52 seconds
east for a distance of 64.00 feet, along the northeast line
of Lot 16, to a po9int; thence south 42 degrees 11 minutes
58 seconds west for a distance of 277.92 feet, parallel to
the common lot line of Lots 15 and 16, to a point; thence
north 47 degrees 48 minutes 02 seconds west for a distance
of 34.68 feet, along the southwesterly lot line of Lot 16 to
a point; thence along a curve to the right with an arc
distance of 198.19 feet and a radius of 250.00 feet, being
subtended by a chord of north 25 degrees 05 minutes 22
seconds west for a distance of 193.04 feet, along the
southwesterly lot line of Lots 15 and 16; thence north 02
degrees 22 minutes 42 seconds west for a distance of 198.27
feet, along the west line of Lot 15, to a point; thence
north 89 degrees 02 minutes 26 seconds west for a distance
of 5.00 feet, al,ong the west line of Lot 15, to a po9int;
thence north 02 degrees 22 minutes 42 seconds west for
distance of 87.59 feet, along the west line of Lot 15, to
the point of commencement.
PARCEL II: Rights contained in Declaration of covenants,
Restriction and Easements for the 50/94 Center recorded May
29, 1998 as document number 1098893.
