ASSIGNMENT OF PURCHASE AGREEMENT
THIS ASSIGNMENT made and entered into this 12th day of
November 2003, by and between AEI FUND MANAGEMENT, INC., a
Minnesota corporation, ("Assignor") and AEI INCOME & GROWTH
FUND XXII LIMITED PARTNERSHIP, a Minnesota limited
partnership ("Assignee");
WITNESSETH, that:
WHEREAS, as executed by Specialty Restaurant Group, LLC
and notarized on October 28, 2003 and AEI Fund Management,
Inc. and notarized on November 6, 2003, Assignor entered
into a Purchase Agreement, and as may be further amended
("the Agreement") for that certain property located at 2901
East Central Texas Expressway, Killeen, TX 76543 (the
"Property") with Specialty Restaurant Group, LLC, as Seller;
and
WHEREAS, Assignor desires to assign an undivided fifty
percent (50.0%) of its rights, title and interest in, to and
under the Agreement to Assignee 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.
AEI FUND MANAGEMENT, INC.
("Assignor")
By: /s/ Robert P Johnson
Robert P. Johnson, its President
AEI INCOME & GROWTH FUND XXII LIMITED PARTNERSHIP
("Assignee")
BY: AEI FUND MANAGEMENT XXI, INC.
By: /s/ Robert P Johnson
Robert P. Johnson, its President
PURCHASE AGREEMENT
Killeen, Texas
This Purchase Agreement (the "Agreement") entered into
and effective as of the day of October 2003, by and between
Specialty Restaurant Group, LLC (the "Seller") and AEI Fund
Management, Inc., a Minnesota corporation, 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 (the "Improvements") on
the Parcel (the Parcel and the Improvements collectively,
the "Property").
2. Closing Date. The closing date on the Buyer's purchase
of the Property (the "Closing Date"). shall be the date on
which the Seller shall have sold substantially all of its
"Tia's Tex and Mex" restaurants to Tia's Restaurant, Inc.
pursuant to the terms of that certain Asset Purchase
Agreement (the "Asset Purchase Agreement") dated as of
October 10, 2003 entered into by and among Specialty
Restaurant Group, LLC and SRG-1, LLC, as Sellers thereunder,
and Tia's Restaurant, Inc., as Buyer thereunder.
3. Purchase Price. The purchase price for the Property is
$2,070,000 (the "Purchase Price"). If all conditions
precedent to Buyer's obligations to purchase have been
satisfied, Buyer shall deposit the Purchase Price with
Lawyer's Title Insurance Company (the "Closing Agent") on or
before the Closing Date.
Within five (5) business days of full execution of this
Agreement, Buyer will deposit $ 0 (the "Earnest Money") in
an escrow account with the Closing Agent. The Earnest Money
will be credited against the Purchase Price paid by Buyer at
closing when and if the transaction contemplated herein
closes and the sale is completed.
The balance of the Purchase Price, $2,070,000, is to be
deposited by Buyer into an escrow account with the Closing
Agent on or before the Closing Date.
4. 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, agreements or indemnifications reasonably
required by the Closing Agent to open or close escrow.
5. Title. Buyer shall obtain a commitment for an TLTA
Owner's Policy of Title Insurance (TLTA owner-most recent
edition) issued by a nationally recognized title insurance
company acceptable to Buyer (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 Five (5) business days after
receipt of the Title Commitment and copies of all underlying
documents or until the end of the Contingency Period,
whichever is later to be consistent with Article 6.01
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 of no further
force and effect and the Earnest Money shall be returned in
full to Buyer immediately and neither party shall have any
further duties or obligations to the other hereunder.
The Buyer shall also have Five (5) 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 Five (5) business days to
review any such items. Such Five (5) 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 of no further force and
effect and the Earnest Money shall be returned in full to
Buyer immediately and neither party shall have any further
duties or obligations to the other hereunder.
6. Due Diligence and Contingency Period.
6.01 Due Diligence Documents and Contingency Period. Buyer
shall have until the end of the business day on October
8, 2003 (the "Contingency Period") to obtain such Due
Diligence Documents it may desire and to conduct all of
its inspections, due diligence and review to satisfy
itself regarding each item, the Property and this
transaction.
After receipt and review of the Due Diligence Documents
or after Buyer's inspection 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 Contingency Period, in which event the Earnest Money
shall be returned in full to Buyer immediately and neither
party shall have any further duties or obligations to the
other hereunder. Such notice shall be deemed effective upon
receipt by Seller.
6.02 Form of Closing Documents. Prior to the end of
the 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 this document:
(a) General warranty deed;
(b) Seller's Affidavit for the benefit of the
Title Company, in form sufficient for the
Title Company to insure title to the Property
in the form required under Article 12(a)(4)
hereof, with so called "gap" coverage;
(c) FIRPTA Affidavit; and
In the event that Seller and Buyer do not reach mutual
agreement on the form of the above described documents (a)
through (d) prior to the end of the Contingency Period, this
Agreement may be terminated by either Seller or Buyer by
such party notifying the other of such election to terminate
on or prior to the expiration of the Contingency Period, in
which event the Earnest Money shall be returned in full to
the Buyer immediately and 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
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 Due Diligence Documents or could render
any of the 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.
7. Closing Costs. Closing costs shall be allocated
between the parties as set forth in the Asset Purchase
Agreement.
8. Real Estate Taxes and Assessments. 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 are paid by the Seller and shall be the
responsibility of the Seller.
9. Prorations. The Buyer and the Seller, as of the
Closing Date, shall prorate the following items as set forth
in the Asset Purchase Agreement: (ii) ad valorem taxes,
personal property taxes, charges or assignments affecting
the Property (on a calendar year basis), (iii) utility
charges, including charges for water, gas, electricity, and
sewer, if any, (iv) other expenses relating to the Property
which have accrued but not paid as of the Closing Date,
based upon the most current ascertainable tax bill and other
relevant billing information, including any charges arising
under any of the encumbrances to the Property. To the
extent that information for any such proration is not
available on the Closing Date or if the actual amount of
such taxes, charges or expenses differs from the amount used
in the prorations at closing, then the parties shall make
any adjustments necessary so that the prorations at closing
are adjusted based upon the actual amount of such taxes,
charges or expenses. The parties agree to make such
reprorations as soon as possible after the actual amount of
real estate taxes, charges or expenses prorated at closing
becomes available.
10. 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 it is not aware of
any other agreements or leases with respect
to the Property, other than those matters
that are disclosed in the title commitment to
be obtained by the Buyer;
(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, or shall
obtain the same by the Closing Date;
(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 AEI 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) Seller has received no written notice that
the use and operation of the Property is not
in material compliance with applicable local,
state and federal laws, ordinances,
regulations and requirements;
(h) Seller has not received written notice that
the Property currently is 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.
Seller has not received written notice that
there is any existing 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; and
(i) These Seller's representations and warranties
shall be deemed to be true and correct as of
the Closing Date and shall survive the
closing.
11. 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; and
(c) These Buyer's representations and warranties
deemed to be true and correct as of the
Closing Date and shall survive the closing.
12. 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 (collectively, the "Closing
Documents"):
(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
Contingency Period;
(2) Affidavit of Seller, in form and
substance as provided in Article 6.02(b)
hereof;
(3) FIRPTA Affidavit, in form and substance
as agreed to between Seller and Buyer
during the Contingency Period;
(4) Assignments of all warranties, if any
(and the written consents of the
assignments thereof by the party giving
the warranty, if available), from the
party or parties constructing the
Improvements on the Property.
(5) Copy of the final unconditional
Certificate of Occupancy for the
Property authorizing use and occupancy
of the Property;
(6) 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.
(b) On or before the Closing Date, Buyer will
deposit the Purchase Price, subject to
adjustment as provided herein (the "Escrowed
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., which shall include, without
limitation, a closing statement for this
transaction (the "Closing Statement");
(d) On the Closing Date, Closing Agent will
deliver the Closing Documents to Buyer, and
Closing Agent will deliver the Escrowed
Purchase Price, less amounts to be remitted
by Closing Agent as provided in the Closing
Statement, to Seller.
13. Termination. This Agreement may be terminated prior to
closing at Buyer's option (and the Earnest Money returned to
Buyer in full immediately) in the event of any of the
following occurrences:
(a) Seller fails to materially comply with any of
the terms hereof, or this Agreement proves to
be untrue, substantially false or misleading
in any material respect as of the Closing
Date;
(b) There has been a material adverse change in
the financial condition of Seller or the
proposed tenant of the Property or there
shall be a material action, suit or
proceeding pending or threatened against
Seller, which, in either such case,
materially and adversely affects Seller's
ability to perform under this Agreement;
(c) Any bankruptcy, reorganization, insolvency,
withdrawal, or similar proceeding is
instituted by or against Seller;
(d) Seller shall be dissolved, liquidated or
wound up; and
(e) Notice given by Buyer pursuant to any right
of termination herein.
In the event of termination as described above, neither
party shall have any further duties or obligations to the
other hereunder.
14. Damages, Destruction and Eminent Domain. Seller
acknowledges that, as of the Closing Date, Buyer shall be
leasing the Property to Tia's Texas-Alamo, LLC (the
"Lessee"), pursuant to the terms of a certain Net Lease
Agreement being entered into between Buyer (or an affiliate
thereof) and Lessee (the "Lease"). 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, which destruction or damage delays commencement
of the Lease beyond the Closing Date or delays payment of
rent by Lessee under the Lease or renders the Lease invalid
(unless any such delay or invalidation of the Lease is
waived in writing by Lessee), 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
hereof have been satisfied, or waived; and (b) any period
provided for above 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, which taking delays commencement
of the Lease beyond the Closing Date or delays payment of
rent by the Lessee under the Lease or renders the Lease
invalid (unless any such delay or invalidation of the Lease
is waived in writing by Lessee), 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.
In the event that this Agreement is terminated by Buyer
as provided above, the Earnest Money shall be returned to
Buyer immediately after execution by Buyer of such documents
reasonably requested by Seller to evidence the termination
hereof. In the event of termination as described above,
neither party shall have any further duties or obligations
to the other hereunder.
15. 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:
Specialty Restaurant Group, LLC
150 West Church Avenue
Maryville, TN 37801
With copy to:
J. Christopher Kirk, Esq.
McCampbell & Young, PC
PO Box 550
Knoxville, TN 37901
If to Buyer:
AEI Fund Management, Inc.
1300 Minnesota World Trade Center
30 E. 7th Street
St. Paul, Minnesota 55101
Phone No.: (612) 227-7333
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. Copies of all
notices from Buyer or Seller to the other party shall
simultaneously be sent to Lessee at the address provided
above.
16. 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 or if the
Asset Purchase Agreement fails to close by
the Closing Date or if any of the related
real property transactions fails to close by
the Closing Date this agreement shall
terminate and the Earnest Money shall be
returned to the Buyer.
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 of affiliates of Buyer.
d. The Buyer and Seller each warrant to the
other that there is no claim for a
commission, except in as much as Seller may
be paying Houlihan, Lokey, Howard and Zukin a
fee with regard to Seller's transaction with
Maplewood Management, Inc..
Buyer is submitting this offer by signing a copy of
this Agreement and delivering it to Seller. Seller has until
November 5, 2003 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.
[Signature page follows]
IN WITNESS WHEREOF, Seller and Buyer have executed this
Agreement effective as of the day and year above first
written.
SELLER:
Specialty Restaurant Group, LLC
By:/s/ James H CarMichael
James H. CarMichael, President
STATE OF TN)
) ss.
COUNTY OFBlount)
On this 28 day of October, 2003, before me, the
undersigned, a Notary Public in and for said State,
personally appeared James H CarMichael, personally known to
me to be the person who executed the within instrument as
the President of Specialty Restaurant Group LLC, a Delaware
limited liability company, on behalf of said limited
liability company.
/s/ Tamatha S Duncan
Notary Public
BUYER:
AEI FUND MANAGEMENT, INC.
By: /s/ Robert P Johnson
Robert P. Johnson, its President
STATE OF MINNESOTA)
) ss.
COUNTY OF RAMSEY )
On this 6th day of November, 2003, before me, the
undersigned, a Notary Public in and for said State,
personally Robert P. Johnson, personally known to me to be
the person who executed the within instrument as the
President of AEI Fund Management, Inc., a Minnesota
corporation, on behalf of said corporation.
/s/ Michael B Daugherty
Notary Public
[notary seal]
EXHIBIT "A"
LEGAL DESCRIPTION
Tract I: (Fee Simple)
Being 1.446 acres of land, more or less, and being part of
Lot 1(1), Block One (1), Fox Creek commercial, Phase Three,
an addition to the City of Killeen, Bell county, Texas,
according to the Map or Plat recorded in Cabinet C, Slide
158-A, Plat Records of Bell County, Texas, being further
described by metes and bounds as follows:
Beginning at a 3/8 inch iron rod set in the north right-of-
way line of US Highway 190 (Central Texas Expressway) and in
the south line of Lot 1, Block 1, fox Creek Commercial,
Phase Three, which bears North 61 degrees 23 minutes 14
seconds West, 186.42 feet and North 64 degrees 59 minutes 47
seconds West, 168.58 feet from the southeast corner of Lot
1, Block 1, Fox Creek commercial , Phase Three, for the
southeast corner of this tract of land.
Thence with the north right-of-way line of US Highway 190
and with the south line of Lot 1, Block 1, Fox Creek
Commercial, Phase Three, North 64 degrees 59 minutes 47
seconds West 221.91 feet (plat bearing North 64 degrees 59
minutes 47 seconds West) to a 3/8 inch iron rod found, for
the southwest corner of this tract of land.
Thence North 24 degrees 57 minutes 49 seconds East, 283.72
feet to a 3/8 inch iron rod found, for the northwest corner
of this tract of land.
Thence South 65 degrees 01 minutes 57 seconds East, 222.14
feet to a 3/8 inch iron rod found, for the northeast corner
of this tract of land.
Thence South 25 degrees 00 minutes 36 seconds West, 283.86
feet to the Place of Beginning containing 1.446 acres of
63,008 square feet of land.
Tract II: (Easement Estate)
Non-exclusive easement and right to use as created in that
certain Reciprocal Easement and Operation Agreement dated
August 26, 1999, by and between TC Killeen MP, LP, a
Delaware limited partnership and Home Deport U.S.A., Inc., a
Delaware corporation, recorded in Volume 4068, Page 440,
Official Public Records of Bell County, Texas.
BEING the same property conveyed to Specialty Restaurant
Group, LLC by Special warranty Deed dated November 20, 2000
and recorded at Volume 4298, Page 386 of the Official Public
Records of Bell County, Texas.