PURCHASE AGREEMENT
CHEDDARS, 000 XXXX XXXXXXXX XXXX, XXXX XXXXX, XXXXXXX
This AGREEMENT, entered into effective as of the 29 th of
January, 2003.
l. PARTIES. Seller is AEI Real Estate Fund 85-B Limited
Partnership that owns fee title to that certain real property
legally described in the attached Exhibit "A" (the "Property").
Buyer is Phaedra Restaurant Corp., or its designee. Seller
wishes to sell and Buyer wishes to buy the Property.
2. PROPERTY. The Property to be sold to Buyer in this transaction
consists of an undivided 100% interest the Property. Seller
owns no interest in any personalty in connection with the
Property.
3. PURCHASE PRICE. The purchase price for this Property is
$1,544,000 all cash.
4. TERMS. The purchase price for the Property will be paid by
Buyer as follows:
(a) When this agreement is executed, Buyer will pay $50,000 to
Seller (which shall be deposited into escrow according to
the terms hereof) (the "First Payment"). The First Payment
will be credited against the purchase price when and if escrow
closes and the sale is completed.
(b) Buyer will deposit the balance of the purchase price,
$1,494,000 (the Second Payment") into escrow in sufficient
time to allow escrow to close on the closing date.
5. CLOSING DATE. Escrow shall close on or before February 28,
2003. Provided, however, that Seller shall have no obligation to
close this transaction unless and until Seller and/or its
affiliates and Buyer and/or its affiliates have executed and
fulfilled the terms of a mutually satisfactory settlement of the
outstanding disputes between them respecting properties in
Xxxxxxxxx and Clive, Iowa.
6. DUE DILIGENCE. Buyer's affiliate, Phaedra Partners, Ltd. has
been in continuous possession and control of the property since
December 22, 1986, and as such, Buyer has had ample opportunity
to conduct such due diligence on the Property as it deems
appropriate.
Buyer shall order at its own expense such title, survey, and
any other due diligence information as Buyer shall deem
necessary. Buyer may only object to those matters of title or
survey encumbering the Property and caused by Seller without
Buyers knowledge and consent.
7. ESCROW. Escrow shall be opened by Seller and the First Payment
deposited in escrow with Xxxxx Xxxxxx, as closing agent for
Lawyers Title Insurance Company, Phoenix, Arizona, upon
acceptance of this Agreement by both parties. A copy of this
Agreement will be delivered to the escrow holder and will serve
as escrow instructions together with the escrow holder's standard
instructions and any additional instructions required by the
escrow holder to clarify its rights and duties. If there is any
conflict between these other instructions and this Agreement,
this Agreement will control.
8. CLOSING COSTS. Seller shall pay no closing costs in
connection with the transaction contemplated herein, except its
own legal fees. Each party will pay its own attorney's fees and
costs to document this transaction.
9. REAL ESTATE TAXES, SPECIAL ASSESSMENTS AND PRORATIONS.
(a) Because the Property is subject to a triple net lease
(as further set forth in paragraph 10(a)(i), the parties
acknowledge that there shall be no need for a real estate tax
proration.
(b) All operating expenses from the Property shall remain
the responsibility of the Buyer or the current Lessee
of the Property. Seller shall be entitled to all
income earned prior to the date of Closing, and Buyer
shall be entitled to all income earned on and after
the date of closing. Any rents prepaid by Buyer shall
be credited toward the Purchase Price on a closing
statement approved and executed by both parties. The
closing statement shall reflect a reconciliation of
any past due rents unpaid by the Lessee of the Property
as of the closing date.
10. SELLER'S REPRESENTATION AND AGREEMENTS.
(a) Seller represents and warrants as of this date that:
(i) Except for the Lease Agreement in existence between
Seller (as Lessor) and Phaedra Partners, Ltd. (as Tenant),
(the "Lease"), Seller is not aware of any leases of the
Property.
(ii) It is not aware of any pending litigation or condemnation
proceedings against the Property or Seller's interest in
the Property.
(iii) Except as previously disclosed to Buyer and as
permitted in paragraph (b) below, Seller is not aware of
any contracts Seller has executed that would be binding on
Buyer after the closing date.
(b) Provided that Buyer performs its obligations when
required, Seller agrees that it will not enter into any new
contracts that would materially affect the Property and be
binding on Buyer after the Closing Date without Buyer's
prior consent, which will not be unreasonably withheld.
11. DISCLOSURES.
(a) Seller has not received any notice of any material,
physical, or mechanical defects of the Property, including
without limitation, the plumbing, heating, air conditioning,
ventilating, and electrical systems. To the best of Seller's
knowledge without inquiry, all such items are in good
operating condition and repair and in compliance with all
applicable governmental, zoning, and land use laws,
ordinances, regulations and requirements. If Seller shall
receive any notice to the contrary prior to Closing, Seller
will inform Buyer prior to Closing.
(b) Seller has not received any notice that the use and
operation of the Property is not in full compliance with
applicable building codes, safety, fire, zoning, and land
use laws, and other applicable local, state and federal
laws, ordinances, regulations and requirements. If Seller
shall receive any notice to the contrary prior to Closing,
Seller will inform Buyer prior to Closing.
(c) Seller knows of no facts nor has Seller failed to
disclose to Buyer any fact known to Seller which would
prevent the Tenant from using and operating the Property
after the Closing in the manner in which the Property has
been used and operated prior to the date of this Agreement.
If Seller shall receive any notice to the contrary prior to
Closing, Seller will inform Buyer prior to Closing.
(d) Seller has not received any notice that the Property is
in violation of any federal, state or local law, ordinance,
or regulations relating to industrial hygiene or the
environmental conditions on, under, or about the Property,
including, but not limited to, soil, and groundwater
conditions. To the best of Seller's knowledge, 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. Buyer agrees that Seller will have no
liability of any type to Buyer or Buyer's successors,
assigns, or affiliates in connection with any Hazardous
Materials on or in connection with the Property either
before or after the Closing Date, except such Hazardous
Materials on or in connection with the Property arising out
of Seller's gross negligence or intentional misconduct. If
Seller shall receive any notice to the contrary prior to
Closing, Seller will inform Buyer prior to Closing.
(e) Buyer agrees that it shall be purchasing the Property
in its then present condition, as is, where is, and Seller
has no obligations to construct or repair any improvements
thereon or to perform any other act regarding the Property,
except as expressly provided herein.
(f) Buyer acknowledges that, having been given the
opportunity to inspect the Property and such financial
information on the Lessee and Guarantors of the Lease as
Buyer or its advisors shall request, if in Seller's
possession, Buyer is relying solely on its own investigation
of the Property and not on any information provided by
Seller or to be provided except as set forth herein. Buyer
further acknowledges that the information provided and to be
provided by Seller with respect to the Property, to the
Lessee, and to the Guarantors of Lease was obtained from a
variety of sources and Seller neither (a) has made
independent investigation or verification of such
information, or (b) makes any representations as to the
accuracy or completeness of such information except as
herein set forth. The sale of the Property as provided for
herein is made on an "AS IS" basis, and Buyer expressly
acknowledges that, in consideration of the agreements of
Seller herein, except as otherwise specified herein in
paragraph 11(a) and (b) above and this paragraph 12, Seller
makes no Warranty or representation, Express or Implied, or
arising by operation of law, including, but not limited to,
any warranty of condition, habitability, tenantability,
suitability for commercial purposes, merchantability, or
fitness for a particular purpose, in respect of the
Property.
The provisions (d) - (f) above shall survive Closing.
12. CLOSING.
(a) Before the closing date, Seller will deposit into
escrow an executed special warranty deed warranting title
against lawful claims by, through, or under a conveyance from Seller,
but not further or otherwise, conveying insurable title of the
Property to Buyer, subject to all exceptions of record except
those encumbering the Property and caused by Seller without
Buyer's knowledge or consent.
(b) On or before the closing date, Buyer will deposit into
escrow: the balance of the Purchase Price when required under
Section 4; any additional funds required of Buyer (pursuant to
this agreement or any other agreement executed by Buyer) to close
escrow. Both parties will deliver to the escrow holder any other
documents reasonably required by the escrow holder to close
escrow.
(c) On the closing date, if escrow is in a position to
close, the escrow holder will: record the deed in the
official records of the county where the Property is
located; cause the title company to commit to issue the
title policy; immediately deliver to Seller the portion of
the purchase price deposited into escrow by cashier's check
or wire transfer (less debits and prorations, if any);
deliver to Seller and Buyer a signed counterpart of the
escrow holder's certified closing statement and take all
other actions necessary to close escrow.
13. DEFAULTS. If Buyer defaults, Buyer will forfeit all rights
and claims and Seller will be relieved of all obligations and
will be entitled to retain all monies heretofore paid by the
Buyer. In addition, Seller shall retain all remedies available to
Seller at law or in equity.
If Seller shall default, Buyer shall retain all remedies
available to Buyer at law or equity.
Provided, however, that in no event shall Seller be liable for
any punitive, consequential or speculative damages arising out of
any default by Seller hereunder.
14. BUYER'S AND SELLER'S REPRESENTATIONS AND WARRANTIES.
a. Buyer represents and warrants to Seller as follows:
(i) In addition to the acts and deeds recited herein and
contemplated to be performed, executed, and delivered by
Buyer, Buyer shall perform, execute and deliver or cause to
be performed, executed, and delivered at the Closing or
after the Closing, any and all further acts, deeds and
assurances as Seller or the Title Company may require and be
reasonable in order to consummate the transactions
contemplated herein.
(ii) 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 hereby.
(iii) To Buyer's knowledge, neither the execution and
delivery of this Agreement nor the consummation of the
transaction contemplated hereby will violate or be in
conflict with (a) any applicable provisions of law, (b) any
order of any court or other agency of government having
jurisdiction hereof, or (c) any agreement or instrument to
which Buyer is a party or by which Buyer is bound.
a. Seller represents and warrants to Buyer as follows:
(i) In addition to the acts and deeds recited herein and
contemplated to be performed, executed, and delivered by
Seller, Seller shall perform, execute and deliver or cause
to be performed, executed, and delivered at the Closing or
after the Closing, any and all further acts, deeds and
assurances as Buyer or the Title Company may require and be
reasonable in order to consummate the transactions
contemplated herein.
(ii) 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 hereby.
(iii) To Seller's knowledge, neither the execution and
delivery of this Agreement nor the consummation of the
transaction contemplated hereby will violate or be in
conflict with (a) any applicable provisions of law, (b) any
order of any court or other agency of government having
jurisdiction hereof, or (c) any agreement or instrument to
which Seller is a party or by which Seller is bound.
15. 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 agreements or understandings.
Exhibits attached to this Agreement are incorporated into
this Agreement.
(b) If this escrow has not closed by February 28, 2003
through no fault of Seller, Seller may either, at its
election, extend the closing date or exercise any remedy
available to it by law, including terminating this
Agreement.
(c) Funds to be deposited or paid by Buyer must be good and
clear funds in the form of cash, cashier's checks or wire
transfers.
(d) 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:
AEI Real Estate Fund 85-B Limited Partnership
1300 Minnesota World Trade Center
00 Xxxx Xxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
If to Buyer:
Xxxxxx Xxxxxx
Phaedra Restaurant Corp.
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
This Agreement shall be governed by, and interpreted in
accordance with, the laws of the state of Indiana.
IN WITNESS WHEREOF, the Seller and Buyer have executed this
Agreement effective as of the day and year above first written.
BUYER: Phaedra Restaurant Corp., a Kentucky corporation
By: /s/ Xxxxxx Xxxxxx
Its: President
SELLER: AEI REAL ESTATE FUND 85-B LIMITED PARTNERSHIP, a
Minnesota limited partnership
By: Net Lease Management 85-B, INC., a Minnesota
corporation
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, its President
(THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK)
EXHIBIT A
To arrive at the point of beginning, commence on the West Line of
Lot 16 in said Rahdert's Subdivision at its intersection by the
South right-of-way line of U.S. Highway No. 30 (Coliseum Blvd) as
situated 65 feet South of Line "E" and established in Document
Number 72-17438; thence Easterly along a 65-foot right-of-way line
a distance of 228.8 feet to a concrete Highway monument; thence
Southeasterly on the South right-of-way line of U.S. Highway No.
30, a distance of 151.35 feet to a concrete Highway Monument as
situated 80 feet normally distance South of said Line "E" and the
point of beginning initially referred to; thence Easterly along an
80-foot right-of-way line, a distance of 223.8 feet, thence
Southerly by a deflection right of 90 degrees 00 minutes a
distance of 43.0 feet; thence Easterly by a deflection left of 90
degrees 00 minutes, a distance of 24.85 feet to the West face of a
concrete curb; thence Southwesterly along said curb line on a
curve to the right having a radius of 300 feet; more or less, an
arc distance of 171.7 feet, the subtended chord to the aforesaid
course deflects to the right 118 degrees 30 minutes, a chord
distance of 169.0 feet; thence Westerly by a deflection right of
61 degrees 24 minutes from the subtended chord produced, a
distance of 187.9 feet; thence Northerly by a deflection right of
90 degrees 06 minutes, a distance of 194.0 feet to the Southerly
right-of-way line of Coliseum Boulevard; thence Southeasterly by a
deflection right of 95 degrees 43 minutes, a distance of 20.1 feet
to the point of beginning, containing 1.028 acres.
