ASSIGNMENT
OF
CONSTRUCTION LOAN COMMITMENT
AND
SALE AND LEASEBACK FINANCING COMMITMENT
THIS ASSIGNMENT made and entered into this 8th day of
August, 1996, by and between AEI FUND MANAGEMENT, INC., a
Minnesota corporation, ("Assignor") and AEI REAL ESTATE FUND
XVI LIMITED PARTNERSHIP, a Minnesota limited partnership
("Assignee");
WITNESSETH, that:
WHEREAS, on the 21st day of July, 1996, Assignor
entered into a Construction Loan Commitment and a Sale and
Leaseback Financing Commitment (collectively, "the
Commitments") for that certain property located at 0000
Xxxxxxx Xxxxx Xxxx xx Xxxxxxx, XX (the "Property") with
Caribou Coffee Company, Inc., as Seller/Lessee; and
WHEREAS, Assignor desires to assign all of its rights,
title and interest in, to and under the Commitments 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 Commitments 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
Commitments to be performed by the Assignor thereunder,
and agrees to be bound for all of the obligations of
Assignor under the Commitments.
All other terms and conditions of the Commitments shall
remain unchanged and continue in full force and effect.
AEI FUND MANAGEMENT, INC.
("Assignor")
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, its President
AEI REAL ESTATE FUND XVI
LIMITED PARTNERSHIP ("Assignee")
BY: AEI FUND MANAGEMENT XVI, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, its President
CONSTRUCTION LOAN COMMITMENT
FOR
CARIBOU COFFEE COMPANY, INC.
0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxx, XX
Effective as of July 21, 1996
With reference to the above-captioned matter, and
pursuant to your request for a loan to develop a building
and improvements in Atlanta, Georgia, AEI Fund Management,
Inc., a Minnesota corporation, or its assigns ("AEI"),
hereby agrees and commits to make Caribou Coffee Company,
Inc., a Minnesota corporation ("Borrower"), a construction
loan ("Loan") secured by a first mortgage and security
agreement ("Mortgage") on the real estate described below in
accordance with the following terms and conditions, to-wit:
1. DESCRIPTION OF SECURITY. The Loan will be
secured by a Mortgage (or Deed of Trust) on a
parcel of real estate located at 1275 Xxxxxxx
Ferry Road, in Atlanta, Georgia, containing
approximately 0.69 acres of land and legally
described on Exhibit "A" attached hereto (legal
description to be approved and confirmed by
survey) (the "Parcel"). The Parcel shall be
improved by the construction of a building and
improvements ("Improvements") containing
approximately 4,254 square feet of net rentable
area. Construction of the Improvements shall be in
compliance with all applicable municipal, state
and federal laws, ordinances, and regulations.
2. IDENTITY OF BORROWER. Title to the Parcel
shall be vested in the Borrower. In this
connection, AEI is to be furnished with certified
copies of the Articles of Incorporation and Bylaws
of Borrower and evidence that said corporation has
complied with and is in good standing with all
laws, statutes and ordinances prerequisite to
doing business in the State of Georgia. In
addition, AEI shall be furnished with all
appropriate documentation evidencing the
Borrower's authority to enter into the Loan
transaction.
3. AMOUNT. The Loan shall be in the principal
amount of $1,230,958.00 (the "Loan Amount"). AEI
shall fund up to the amount budgeted for the
purchase of the land and related
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xxxx,
Xxxxxxx, XX, Caribou Coffee)
July 18, 1996/3:45 PM
construction costs as described on Exhibit
"B" attached hereto (the "Construction Loan
Budget"), not to exceed actual project costs.
4. LOAN PURPOSE. The aggregate Loan proceeds
will be used to acquire the Parcel and finance the
construction of the Improvements. AEI commits to
make this Loan to the Borrower based upon
Borrower's willingness to perform under the terms
of the Sale and Leaseback Financing Commitment for
this Parcel of even date herewith between AEI and
Borrower.
5. INTEREST RATE. The Loan shall bear interest
at a rate of seven percent (7.0%) and shall be
payable monthly, in arrears, on the principal
amount of the Loan proceeds disbursed and shall be
computed and assessed for the term of the Loan.
Interest may be automatically deducted from the
budgeted interest reserve of the Loan from time to
time, at the discretion of AEI. Interest will not
be charged on interest deducted unless unpaid when
due. Interest shall be calculated on the
outstanding loan balances from day-to-day on a
three hundred sixty-five (365) day basis. If
accrued interest on the outstanding principal
balance shall exceed the budgeted amount, Borrower
shall promptly pay, monthly upon invoice, all
accrued interest in excess of the budgeted amount.
See Articles 5 and 7 hereof.
6. TERM. The Loan shall have a maturity date of
one hundred sixty (160) days from the date of the
first disbursement of the Loan proceeds on this
Parcel (the "Maturity Date"). At the expiration
of the Loan term, the Improvements and
appurtenances thereto shall be completed in
accordance with the approved plans and
specifications unless prevented by Force Majeure.
As used in this Commitment, "Force Majeure"
includes: acts of God, action of the elements,
warlike action, insurrection, revolution, or civil
strife, piracy, civil war or hostile action,
strikes, acts of public enemies, federal or state
laws, rules and regulations of any governmental
authorities having jurisdiction over the Parcel,
or any other events beyond the control of Borrower
or the general contractor constructing the
Improvements. Force Majeure shall not include a
delay, damage, or failure to perform, the cure of
which may be effected by the expenditure of funds
at then current market prices. Delays (in no
event to exceed 120 days) due to Force Majeure
shall not be deemed to be a breach or failure to
perform under the Loan Documents or this
Commitment.
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xx.
Xxxxxxx, XX, Caribou Coffee)
Prior to the Maturity Date, a Certificate of
Occupancy shall have been issued by the
appropriate authorities indicating that the
Property is in compliance with building, zoning
and subdivision, environmental and energy laws and
regulations, and a Certificate of Completion
executed by the project architect, general
contractor, and Borrower (with respect to
Borrower, certification shall be limited to
Borrower's actual knowledge based upon
commercially reasonable due inquiry) under the
Sale and Leaseback Financing Commitment of even
date herewith between Borrower and AEI, 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 regulations and the
Americans with Disabilities Act and Borrower shall
satisfy all other terms and conditions of the Sale
and Leaseback Financing Commitment of even date
herewith with AEI.
In the event Borrower has not satisfied the
terms of the Sale and Leaseback Financing
Commitment to close on the sale of the Parcel to
AEI within 45 days after the issuance of the
Certificate of Occupancy or if the accrued
interest on the outstanding principal balance
shall exceed the budgeted amount (the "Payment
Modification Date"), Borrower shall begin paying
accrued interest (whether at the initial or, if
applicable, default rate of interest as set forth
in the Promissory Note evidencing the Loan)
directly to AEI. All interest accruing subsequent
to the Payment Modification Date shall be excluded
from the Total Project Cost and be paid out-of-
pocket by the Borrower. The first out-of-pocket
interest payment, covering accrued interest from
the Payment Modification Date through the end of
the month, shall be due and payable to AEI on the
first day of the month following the Payment
Modification Date. Subsequent payments shall
continue on a monthly basis and cover accrued
interest for the previous month, or through the
date of closing, in the event AEI acquires the
Parcel prior to the last day of the month.
7. DEFAULT RATE OF INTEREST. The Loan documents
will provide that in the event of a default by
Borrower, the interest rate on disbursed funds as
set forth in Article 4 above will be increased
from seven percent (7.0%) to eighteen percent
(18%).
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xx.
Xxxxxxx, XX, Caribou Coffee)
8. DISBURSEMENT OF LOAN PROCEEDS. Disbursements
of the Loan proceeds shall be limited to two
draws, the initial draw at the time of closing on
the Loan and one subsequent draw at the completion
of construction of the Improvements, however, AEI
may make additional advances of Loan proceeds
pursuant to the terms of the Loan Documents
described in Article 10 hereof. All disbursements
will be made in accordance with the provisions of
AEI's standard form of Construction Loan Agreement
and Construction Loan Disbursement Agreement
(amended to conform with the provisions hereof)
not more often than once a month through AEI and
the construction escrow department of a title
company satisfactory to AEI during the term of the
Loan, and each disbursement shall be subject to
retainage as may be required under applicable
mechanic's lien law, but at a minimum so that each
disbursement shall be in an amount equal to ninety
percent (90%) of the value of the labor and
material in place. In this connection, AEI and
its designees are to be furnished, on the occasion
of each monthly draw, with a current Sworn
Contractor's Statement of the general contractor,
together with good and sufficient waivers of lien
from each contractor, subcontractor and
materialmen furnishing labor and material in the
construction of the aforesaid Improvements. All
such waivers shall be in form and substance
acceptable to AEI's counsel and the title company
issuing the mortgagee's title insurance policy and
shall comply in all respects with the mechanic's
lien law of the State of Georgia to insure the
priority of AEI's first lien on the Parcel.
AEI shall fund only for those line items, and
up to the amounts, as reflected in the
Construction Loan Budget described on Exhibit "B"
attached hereto, and those items permitted by the
Construction Loan Agreement. Any reallocation
among line items shall be done only with AEI's
prior written approval, such approval not to be
unreasonably withheld or delayed.
9. LOAN BALANCE. Borrower will provide AEI with
the Construction Loan Budget, which shall be
approved by AEI. Any deficiency between the Loan
amount and the final cost of completing the
project shall be paid by Borrower. During the
entire construction loan period and prior to each
and every construction loan disbursement, the
amount of unadvanced proceeds of the Loan shall be
sufficient in the
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xx.
Xxxxxxx, XX, Caribou Coffee)
opinion of AEI to complete the Improvements
provided for herein free of any liens. To the
extent the total of the unadvanced proceeds of the
Loan shall be insufficient, in AEI's opinion at
any time, to complete the Improvements and to
maintain necessary reserves for interest and other
costs provided for herein, Borrower shall
immediately deposit with AEI an amount equal to
such deficiency which shall be disbursed by AEI
prior to the disbursement of any further advances
under the Loan.
10. LOAN DOCUMENTATION. AEI will require, and
Borrower agrees to execute, a Promissory Note,
Mortgage and Security Agreement (or Deed of
Trust), Construction Loan Agreement, Construction
Loan Disbursement Agreement, Affidavit of
Borrower, Assignment of Architect's Contract,
Assignment of Construction Contracts, Uniform
Commercial Code Financing Statements, as well as
the Nondisturbance, Subordination and Attornment
Agreement (the "NDSA") between Lender and
Borrower's intended subtenant, and such other
documents as AEI's counsel may reasonably require
to structure the subject transaction in accordance
with the provisions of this Commitment
(hereinafter sometimes referred to as the "Loan
Documents"). Notwithstanding the foregoing, if
Borrower elects not to require the NDSA, then
agreement on the form of the NDSA shall not be a
condition to either parties obligations hereunder.
All such documents are to be prepared or approved
by AEI's counsel. Borrower shall also execute and
deliver all documents required by the title
insurance company for the issuance of its
endorsements to the mortgagee's title insurance
policy required from time to time during the
period of construction.
In the event AEI and Borrower do not reach mutual
agreement on the documents contemplated to be
executed by either party hereunder within sixty
(60) days from the date hereof, this Commitment
may be terminated at the option of either party.
In such event of termination of this Commitment,
AEI shall refund any Commitment Fee paid by
Borrower to AEI, as specified in Article 12
hereof, to Borrower, less AEI's out-of-pocket
expenses incurred hereunder up to $13,000,
including, but not limited to, reasonable
attorney's fees, notwithstanding the provisions of
11(b) hereof.
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xx.
Xxxxxxx, XX, Caribou Coffee)
11. GENERAL CONDITIONS OF THE CONSTRUCTION LOAN.
(a) Consulting Architect. At
Borrower's expense, in the event of a default
under the Loan Documents or in the event AEI
believes in good faith that the construction
of the Improvements is not proceeding
according to Borrower's estimated
construction schedule or may not be
proceeding according to plans and
specifications, AEI may retain an independent
consulting architect or engineer, in addition
to the project architect, to review and
approve all plans and specifications and cost
estimates, to make inspections of the project
not more than once each month during the
period of construction and approve the same
through periodic detailed reports
satisfactory to AEI as a condition precedent
to each construction disbursement.
(b) Fees and Expenses. As a condition
hereof, Borrower agrees to pay the fees of
AEI's attorney (of $7,500 in connection with
this transaction and the sale/leaseback
transaction between AEI and Borrower, and, in
addition, any reasonable local Georgia
attorney's fees incurred by AEI in
conjunction with those transactions, except
as to fees reimbursable to AEI under Article
26 hereof or as provided below) plus all
costs and expenses incurred by AEI, as well
as all title and escrow charges, the cost of
issuance of interim title policy
endorsements, recording and release fees and
all other costs incurred in connection with
the Loan committed hereunder.
Each party agrees to pay and discharge all
reasonable costs, and reasonable (not
withstanding any other specific limitations
thereto contained elsewhere herein)
attorneys' fees and expenses that shall be
incurred by the prevailing party in enforcing
the covenants, conditions and terms of this
Commitment or in successfully defending
against an alleged breach thereof.
Conditions of First Disbursement. Items (c)
- (r) set forth below are conditions to the first
disbursement of Loan proceeds. Borrower shall
provide AEI with whatever information may be in
Borrower's possession respecting the items set
forth below.
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xx.
Xxxxxxx, XX, Caribou Coffee)
(c) Financial Statements and
Preliminary Documents. The Borrower shall
submit to AEI the Preliminary Documents set
forth on Exhibit "C" hereto as well as
current financial statements. All of such
financial statements shall be subject to
AEI's approval and consistent with the
Financial Documentation Requirements set
forth on Exhibit "D" attached hereto.
Additionally, a current financial statement
of the General Contractor shall be submitted
to AEI.
(d) Zoning and Utilities. Borrower is
to furnish AEI with evidence reasonably
satisfactory to AEI that the Improvements to
be constructed will comply with the building
codes and zoning ordinances applicable to the
Parcel and that said Improvements, if
constructed in accordance with the plans and
specifications, and uses thereof will comply
with state, federal, and local environmental
laws and regulations. In addition, AEI is to
be furnished with satisfactory evidence that
all utilities, sewage and related services
are available to the Parcel without necessity
of special use permit or condition. In this
connection, AEI should be furnished with
written advice from the proper municipal
authorities and public utility companies.
(With Borrower's authorization, AEI will
attempt to obtain the above described
documentation in a form satisfactory to AEI.)
(e) Opinion of Counsel. AEI is to
receive a reasonably satisfactory opinion of
the Borrower's counsel, including but not
limited to provisions to the effect that the
documents evidencing and securing the Loan
(including this Commitment) are enforceable
in accordance with their terms and create a
valid, existing and binding obligation upon
the Borrower, and such other matters as AEI
or its counsel may reasonably require.
(f) Loan in Balance. Borrower is to
furnish AEI with an acceptable cost breakdown
delineating the total cost of construction of
the subject Improvements in accordance with
the approved plans and specifications; and as
a further condition to the first
disbursement, and any subsequent
disbursements, the Loan must be in balance so
as to assure the availability of sufficient
proceeds to complete the construction of the
project free and clear of mechanics' lien
claims in accordance
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xx.
Xxxxxxx, XX, Caribou Coffee)
with the terms hereof. In this
connection, the Borrower will deposit or
cause to be deposited with AEI, or its
designee, such funds or provide other
security reasonably acceptable to AEI as may
be necessary to place the Loan account in
balance during the entire term of the Loan.
(g) Survey. AEI is to be furnished
with at least three (3) copies of a survey
for the Parcel prepared by a surveyor,
reasonably satisfactory to AEI, said survey
conforming to ALTA survey standards, which
will include the legal description and area
of the property, show and certify to the
perimeter lot lines, dimensions and vectors,
and the location of all Improvements,
easements, including an identified table of
easements respecting each easement location
on the survey, rights of way, curb lines and
encroachments, all in accordance with the
instructions set forth on Exhibit "E"
attached hereto and incorporated herein by
reference. Said survey shall be prepared for
AEI's benefit and shall be updated to show
the location of all Improvements constructed
thereon prior to the final disbursement under
the Loan.
(h) Title Binder. AEI is to receive
and approve a title insurance commitment from
a nationally recognized title insurance
company, satisfactory to AEI, insuring the
Mortgage as a valid first lien (SAID
COMMITMENT MUST INCLUDE COPIES OF ALL
INSTRUMENTS CREATING EXCEPTIONS TO TITLE);
with commitment to issue a Comprehensive
(Form 100), and such other endorsements as
AEI may reasonably require, subject only to:
(i) Customary ALTA Exceptions
but excluding exceptions for mechanics'
liens, survey, and parties in possession
(except Borrower);
(ii) Taxes not yet a lien;
(iii) Such other exceptions as may be reasonably
acceptable to AEI.
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xx.
Xxxxxxx, XX, Caribou Coffee)
Upon recording of the Mortgage, AEI
is to be furnished with an ALTA Mortgagee's
Title Insurance Policy subject only to those
exceptions as are reasonably acceptable to
AEI. During construction of the
Improvements, AEI is to be furnished with
continuing affirmative mechanic's lien
coverage and/or pending disbursement coverage
pursuant to acceptable endorsements covering
the aggregate of all disbursements made to
the date thereof by AEI and insuring the
priority of the lien of the Mortgage to the
extent thereof.
(i) Construction Contracts. AEI is to
receive and approve copies of all architect's
and construction contracts. All such
contracts and the plans and specifications
shall be assigned to AEI with consents from
the architect, general contractor, and sub-
contractors in form satisfactory to AEI.
(j) Insurance. AEI is to be furnished
with a policy of builder's risk insurance, as
well as public liability coverage, hazard
insurance, and workmans' compensation
coverage, all in such amounts and placed with
such companies rated "A" or better by Best's
Key Rating Guide (the most current edition)
or similar quality under a successor guide if
Best's Key Rating shall cease to be
published, in accordance with the
Instructions to Insurance Agent set forth on
Exhibit "F" attached hereto. All such
insurance shall carry a standard form of
mortgagee's loss payable clause naming AEI as
the mortgagee, and shall reflect a non-
cancellation endorsement, except upon thirty
(30) days' prior notice to AEI. In addition,
AEI shall be furnished with satisfactory
flood and earthquake insurance, unless
satisfactory evidence is given that the
Parcel is not located within a federally
designated flood plain area or is above the
applicable 100 year flood plain level, and
not in a federally designated earthquake
prone area or is not in an ISO High Risk
Earthquake Zone respectively.
(k) Building Permit. AEI is to receive
and approve a copy of the building permit for
construction of the Improvements on the
Parcel.
(l) Plans and Specifications. AEI is
to be furnished with two (2) copies of all
final plans, work drawings, specifications
and plot plans necessary to construct the
Improvements.
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xx.
Xxxxxxx, XX, Caribou Coffee)
(m) Soil Borings/Environmental Report.
AEI shall also be supplied with satisfactory
soil test borings reports respecting
foundation suitability, or other evidence
reasonably satisfactory to AEI that the
foundation of the existing structure is
suitable under the soil conditions existent
on the Parcel to support the Improvements
contemplated hereunder, and Phase I
Environmental Reports certified to AEI, and
such other reports as AEI deems necessary
after review of the Phase I Environmental
Reports prepared by an engineer acceptable to
AEI.
(n) Reciprocal Easement Agreement and
Access. AEI shall have received and
approved, such approval not to be
unreasonably withheld, reciprocal easement
agreements, maintenance agreements, and other
easements as it may require for parking,
railroad and access purposes.
(o) Purchase Agreement, Deed and Other
Documents. Borrower shall have submitted and
AEI shall have approved the purchase
agreement evidencing Borrower's acquisition
of the Parcel as evidence of the value and
ownership of the Parcel.
(p) Hazardous Substance. AEI shall receive:
Agreement from Borrower to defend, indemnify,
and hold AEI harmless from any and all
actions, claims, demands, or causes of
action, public or private, of any sort,
relating to any liability, except that
liability caused by AEI or its successors and
assigns or any third party purchaser, under
any state or federal law governing hazardous
substances, including petroleum products,
with respect to the Parcel. The foregoing
agreement shall survive any passage of title
to AEI, and any subsequent disposition by AEI
of all, or any part of, the Parcel to any
third party, but shall expire two (2) years
after the maturity date of the Loan.
Provided, however, that the foregoing shall
not apply to any cause or action commenced or
claim made prior to the end of said two year
period.
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (1275 Xxxxxxx Ferry Rd.
Atlanta, GA,Caribou Coffee)
The title insurance policy must not
make any exception for any prior lien arising
pursuant to any hazardous waste,
environmental protection, spill,
compensation, clean air and water, or similar
law.
(q) Appraisal. This Commitment is
contingent upon receipt and approval by AEI
of an MAI appraisal, prepared by Xxxx X.
Xxxxxx of Xxxx X. Xxxxxx & Associates,
indicating that the value of the Parcel and
proposed Improvements is equal to or exceeds
the Loan Amount.
(r) Sale/Leaseback. This Commitment is
contingent upon execution and delivery by
Borrower of the Sale and Leaseback Financing
Commitment, and ancillary documents securing
the Loan as set forth in this Commitment.
12. COMMITMENT FEES. A commitment fee equal to
one percent (1.0%) of the requested amount of the
first draw on the Loan hereunder (the "Commitment
Fee") shall be paid to AEI by Borrower in
connection with the transaction contemplated
hereunder. The Commitment Fee based upon
Borrower's good faith estimate of the amount of
the first draw of the Loan will be payable to AEI
upon the signing of this Commitment by Borrower
and delivery to AEI but will not be considered
delivered to AEI until the Commitment has been
also executed by AEI.
The Commitment Fee shall be adjusted at the
closing based on the actual amount of the first
draw on the Loan. At Borrower's election, the
Commitment Fee may be included as a project cost
funded by AEI and reimbursed to Borrower at
closing on the sale/leaseback transaction on the
Parcel.
13. PROHIBITION OF SALE. So long as any balance
remains due, owing or unpaid under the Loan, it is
covenanted and agreed that Borrower may not sell
or convey the Parcel or any interest in Borrower,
other than the sale or issuance of stocks or other
securities in Borrower, without the express
written consent of AEI. In the event that AEI
shall approve any such sale, it shall have the
right to require that all proceeds of any such
sale be applied against the outstanding
indebtedness under the Loan or any other
conditions precedent to AEI's consent it may deem
necessary.
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xx.
Xxxxxxx, XX, Caribou Coffee)
14. TIME REQUIREMENTS. It is a condition hereof
that the first disbursement under the Loan must be
made within sixty (60) days from the date of this
Commitment. In the event such first disbursement
has not been made by sixty (60) days from the date
of this Commitment, due to Borrower's failure to
satisfy the conditions precedent to such
disbursement, AEI may, at its option, declare this
Commitment terminated and AEI shall be entitled to
exercise its rights and remedies as provided
herein.
15. NONASSIGNABILITY OF COMMITMENT. This
Commitment is intended to run to Borrower only and
may not be assigned.
16. EXTENSIONS. Borrower shall be entitled, at
its option, to one (1) thirty (30) day extension
of the original Loan term provided for herein for
an extension fee of Two Thousand Five Hundred
dollars ($2,500) for such extension, provided that
Borrower requests such extension in writing and
pays the respective extension fee at least ten
(10) days prior to the commencement of such
extension period, and provided, further, that the
Loan is current and free from default in all
respects and in balance, including interest
reserves. The term of the Loan or any extension
thereof shall not exceed the closing date of the
Sale and Leaseback Funding Commitment entered into
by Borrower and AEI.
17. CONTRACTOR, DEVELOPER/ BORROWER OVERHEAD AND
SUPERVISION COSTS. All budgeted costs incurred
and scheduled for the developer's and Borrower's
overhead and supervision shall be withheld by AEI
and not disbursed under the Construction Loan
Agreement until closing of the sale/leaseback
transaction with AEI.
Upon AEI's approval of an interim draw request to
pay the general contractor, a proportionate share
of the general contractor's profit and overhead
shall be disbursed to the general contractor based
upon the percentage of completion of the
Improvements.
18. PAYMENT & PERFORMANCE BOND. Subject to AEI's
review and approval of the General Contractor's
financial statements, AEI reserves the right to
require labor, material or performance bonds.
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xx.
Xxxxxxx, XX, Caribou Coffee)
19. CHATTEL MORTGAGE. The Borrower will execute a
security agreement, financing statements, and any
and all other forms that AEI may deem necessary to
provide a first lien on all personal property,
building materials, furniture, furnishings,
equipment, fixtures and appurtenances (excluding
those items subject to separate purchase money
financing), installed in and used in the operation
of the Parcel, whether attached or detached. The
Borrower shall also supply at its expense
satisfactory searches from both the offices of the
Georgia Secretary of State and county recorder to
establish the fact that there are no other
interests or liens attached to the Parcel.
20. ADVERTISING. During construction, AEI may
place a sign on the Parcel specifying that it is
participating in the financing on the Parcel.
Further, AEI may publicize the financing and may
include in publicity releases, if applicable, the
names of Borrower's corporate officers,
principals, and a general description of the
Parcel, occupancy and rentals.
21. ANNUAL OPERATING STATEMENTS. During the term
of the Loan, the Mortgage will provide for the
Borrower to furnish its audited financial
statement of the Borrower to AEI within ninety
(90) days after the end of Borrower's fiscal year.
The financial statements shall be audited, at
Borrower's expense, by KPMG Peat Marwick or a
nationally recognized independent certified public
accounting firm reasonably acceptable to AEI and
shall be prepared in conformity with general
accepted accounting principles (GAAP). Borrower
shall also provide AEI with operating statements
for the Parcel within ninety (90) days after the
end of each fiscal year during the term of the
Loan at AEI's request. The operating statements
for the Parcel do not need to be prepared by an
independent certified public accountant, but shall
be certified as true and correct by the chief
financial officer or other authorized officer of
Borrower.
22. BANKRUPTCY. The commitment shall be deemed
terminated in the event of the filing by or
against the Borrower of a petition in bankruptcy
or insolvency or for reorganization or the
appointment of a receiver or trustee or the making
by Borrower of an assignment for the benefit of
creditors or the filing of a petition for
arrangement by Borrower.
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xx.
Xxxxxxx, XX, Caribou Coffee)
23. FAIR CREDIT REPORTING ACT. Borrower warrants
that all credit information submitted is true and
correct, and authorizes AEI to make credit
investigations and obtain credit reports and other
financial information, written or oral, respecting
Borrower's credit and financial position as it may
deem necessary or expedient.
24. SECONDARY FINANCING. Borrower agrees not to
obtain secondary financing secured by the Parcel.
25. INTERPRETATION. This Commitment and the
terms of the Loan to be made in conformity
herewith shall be construed in accordance with all
applicable governmental regulations and in
accordance with the laws of the State of Georgia.
26. CERTIFICATION. Borrower hereby certifies
that:
(a) It does not have any actions or
proceedings pending or to its knowledge,
affecting it which would materially affect
the Parcel except matters fully covered by
insurance.
(b) The consummation of the transaction
contemplated hereby and the performance of
this Commitment and the delivery of the
Mortgage and other security and credit
instruments will not result in any breach of,
or constitute a default under, any indenture,
bank loan or credit agreement, or other
instruments to which the Borrower is a party
or by which it may be bound or affected.
(c) Upon the date of delivery of the
Loan contemplated by this Commitment, the
Parcel shall be in good condition,
substantially undamaged by fire and other
hazards, and the same shall not have been
made the subject of any condemnation
proceedings.
If there is any adverse material change in the
security, or if representations made by Borrower
are not correct in any material adverse respect,
or if Borrower fails to disclose adverse material
facts, agree upon or execute the Loan Documents,
or to perform any of the terms of this Commitment,
including, but not limited to, obtaining AEI's
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xx.
Xxxxxxx, XX, Caribou Coffee)
approval or acceptance of any submission required
of Borrower or to be obtained by Borrower, AEI
shall not be required to disburse any part of the
Loan proceeds, and may thereupon cancel this
Commitment, and no liability of any kind shall
accrue to AEI by reason thereof. AEI shall be
entitled to a maximum of Thirteen Thousand Dollars
($13,000) reimbursement from Borrower (or
retention of such $13,000 from Commitment Fees
paid by Borrower in connection herewith or in
connection with the Sale and Leaseback Financing
Commitment between AEI and Borrower) for AEI's
internal and out-of-pocket costs incurred in
connection herewith, including, but not limited
to, reasonable attorney's fees, unless
specifically set forth otherwise herein.
27. SALE AND LEASEBACK FINANCING COMMITMENT.
Contemporaneously herewith, AEI and Borrower have
entered into a Sale and Leaseback Financing
Commitment for sale/leaseback financing for the
Parcel and the Improvements. AEI has agreed to
make the Loan committed hereunder in reliance upon
the Borrower's agreements, representations, and
warranties set forth in said Sale and Leaseback
Financing Commitment and Borrower's willingness to
perform as set forth therein, and the truthfulness
and accuracy of any materials delivered by
Borrower during the course of the application
process.
28. DELIVERY AND ACCEPTANCE OF COMMITMENT. The
execution of the Acceptance and Approval
Endorsement appearing on this Commitment must be
accepted by you and returned to AEI, with an
original executed copy of this Commitment and one-
half of the Construction Loan Commitment Fee, no
later than July 26, 1996 as a necessary condition
to the delivery hereof; otherwise, this Commitment
shall be deemed of no further force and effect.
Sincerely,
AEI FUND MANAGEMENT, INC.
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, President
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xx.
Xxxxxxx, XX, Caribou Coffee)
STATE OF MINNESOTA)
) ss
COUNTY OF XXXXXX )
On this 25th day of July, 1996, before me, the undersigned,
a Notary Public in and for said State, personally appeared
Xxxxxx X. Xxxxxxx, personally know 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.
[notary seal]
/s/ Xxxxx X. Xxxxxxx
Notary Public
ACCEPTANCE AND APPROVAL ENDORSEMENT
The undersigned has read, approved and by this
Endorsement, and delivery of the funding fee, has
unconditionally accepted the above Commitment according to
the terms and provisions therein set forth this 21st day of
July, 1996.
CARIBOU COFFEE COMPANY, INC.
By: /s/ Xxxxxx Xxxx
Its: /s/ Vice President
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xx.
Xxxxxxx, XX, Caribou Coffee)
By:
Its:
STATE OF MINNESOTA )
) ss
COUNTY OF Hennepin )
On this 21st day of July, 1996, before me, the undersigned,
a Notary Public in and for said State, personally appeared
Xxxxxx Xxxx, personally know to me to be the person who
executed the within instrument as the Vice President, of
Caribou Coffee Company, Inc., a Minnesota corporation, on
behalf of said corporation.
[notary seal]
/s/ Xxxxxxxx Xxxxxxx
Notary Public
EXHIBIT `A'
LEGAL DESCRIPTION
All that tract or parcel of land lying and being in Land Xxx
000 xx xxx 00xx Xxxxxxxx, Xxxxxx Xxxxxxx, Xxxx Xxxxxx,
Xxxxxxx and being more particularly described as follows:
To find the True Point of Beginning, commence at a point at
the corner common to Land Lots 901, 902, 971 and 972 of said
District, Section and County, said point being located North
84 33' 24" West a distance of 50.00 feet from a number 4
rebar found on the southerly line of Land Xxx 000 xx xxxx
Xxxxxxxx, Xxxxxxx xxx Xxxxxx; thence, from said land lot
corner, North 01 48' 20" East a distance of 325.07 feet to a
point; thence, North 02 12' 51" East a distance of 45.46
feet to a number 4 rebar set and the TRUE POINT OF
BEGINNING, thence, North 01 53' 24" East a distance of
243.23 feet to an iron pin with plastic cap found at the
Southwesterly right-of-way of Xxxxxxx Ferry Road, said iron
pin being located North 28 40'42" West a distance of 0.83
feet from a right of way monument found; thence, along the
southwesterly right of way of Xxxxxxx Ferry Road, South 63
59' 03" East a distance of 164.20 feet to a point, said
point being located North 63 59'03" West a distance 1.79
feet from a right-of-way monument found; thence, departing
said right of way, South 02 07' 32" West a distance of
166.85 feet to a number 4 rebar found; thence, North 88 12'
50" West a distance 149.18 feet to a number 4 rebar set at
the TRUE POINT OF BEGINNING, containing 0.70 acre as shown
on Boundary Survey for Caribou Coffee, prepared by Atlanta
Engineering Services, Inc., dated December 1, 1994, last
revised February 5, 1996, certified to Caribou Coffee and
Chicago Title Insurance company by Xxxxx X. Xxxxxx, Ga.
R.L.S. No. 2374.
TOGETHER WITH all of Grantor's right, title and interest in
and to the appurtenant Easement Agreement and Release of
Existing Easement between Lorient corporation, N.V. and
Merchant's Walk Associates, L.P., dated September 28, 1993,
recorded in Deed Book 7652, Page 420, Xxxx County, Georgia
Records.
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xx.
Xxxxxxx, XX, Caribou Coffee)
EXHIBIT `B'
CONSTRUCTION LOAN BUDGET
ESTIMATED TOTAL PROJECT COSTS
0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx
Land Acquisition Costs $ 576,800.00
Site Selection Costs $ 30,000.00
Professional Real Estate Consultants $ 20,000.00
Site Planning/Shell Building Design (Architectural,
Engineering, Survey) $ 29,800.00
Municipal Development Fees & Permit Costs $ 6,500.00
Shell Building Structure Construction $ 396,058.00
Interior Tenant Finish Construction $ 60,000.00
Lessee's Legal Fees $ 15,000.00
AEI's Legal Fees $ 7,500.00
AEI's Local Legal Fees $ 1,500.00
AEI's Site Inspection Costs $ 1,500.00
Appraisal Costs $ 2,500.00
Title Fees and Closing Costs $ 10,000.00
Soils & Environmental Reports $ 2,500.00
Credit Report $ 1,000.00
Commitment Fees paid to AEI**
Constr. Loan Commitment Fee $ 6,068.00
Sale/Leaseback Commitment Fee $ 18,191.00
Construction Contingency*** $ 24,803.00
Construction Interest (@7%) $ 21,238.00
Estimated Total Project Cost $ 1,230,958.00
* Development/Construction Management Cost may not
exceed 8.2569% of the Purchase Price.
** Will be based on 1.5% of Purchase Price plus 1.0% of
first construction loan disbursement.
*** Based upon approximately 5% of the Estimated Total
Project Cost
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xx.
Xxxxxxx, XX, Caribou Coffee)
EXHIBIT "C"
PRELIMINARY DOCUMENTATION CHECKLIST
Prior to funding, the following must be received and
approved by AEI, along with those items specified more fully
in this Commitment.
1. Business and marketing plan, with an
explanation of what Lessee proposes to do, when,
and at what costs to promote the success of this
property. (Include a structure/organizational
chart of Lessee or operator, identifying
departments and key personnel.)
2. Resumes of all principals of Lessee,
including
A. educational, management and other
experience histories;
B. history of businesses owned with
the dates established/terminated; ownership
structure and number of employees.
3. Current financial statements as described on
Exhibit "D" attached hereto.
4. Site plan and maps showing site(s) and
location(s) of competition.
5. Complete city map (to be obtained by AEI).
6. Market report and feasibility study, or
report (include demographic data on trade area and
a description of the neighborhood) supporting this
Parcel.
7. Dated and captioned photographs of the Parcel.
8. MAI appraisal. (The appraisal may be ordered
by AEI at Borrower's option)
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xx.
Xxxxxxx, XX, Caribou Coffee)
9. Itemized budget of total project cost,
including land acquisition, building construction,
site development, landscaping and related soft
costs (the "Construction Loan Budget").
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xx.
Xxxxxxx, XX, Caribou Coffee)
EXHIBIT "D"
FINANCIAL DOCUMENTATION REQUIREMENTS
Prior to funding, the following must be received
and approved by AEI, along with those items
specified more fully in the Construction Loan
Commitment.
I. Financial statements for
Borrower At a minimum, reviewed financials
are required for individuals and private
corporations, and audited financials are
required for publicly traded corporations.
Said financials shall reflect and be for the
three most recent fiscal year periods as
well as the current fiscal-year-to-date
period, and include but not be limited to:
A. Balance Sheet Statements
B. Statements of Operations (on a property-by-property basis
upon request)
C. Statements of Cash Flows
D. Statements of Shareholder's Equity
E. Federal Income Tax Returns
II. Pro-forma of first year's operations for
property to be financed.
III. Itemized budget of total project cost
for property to be financed.
All corporate financial statements, and any
additional corporate financial information
requested by AEI shall be prepared in accordance
with current GAAP guidelines and signed by an
authorized officer who must certify to the
accuracy thereof. The certification language
must read as follows:
"The undersigned hereby certifies and
warrants that the information contained
in these financial statements is true and
correct, understands that AEI is relying
upon such information as an inducement
for entering into a purchase and lease
transaction with the undersigned, and
expressly represents that AEI may have
reliance upon such information."
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xx. Xxxxxxx, XX
Caribou Coffee)
EXHIBIT "E"
Survey Requirements
1. The plat or map of such survey must bear the name,
address and signature of the licensed land surveyor who
made the survey, that surveyor's official seal and
license number (if any, or both), and the date of the
survey, with the following certification:
I, , a registered land
surveyor, in and for the State of Georgia, do hereby
certify to AEI Fund Management, Inc., a Minnesota
corporation, or its assigns(PLEASE CONTACT AEI'S
CLOSING SPECIALIST AT 1 800-328-3519 FOR INFORMATION),
and (insert name of title
company), that this is a true and correct plat of a
survey of
(Insert Legal Description)
which correctly shows the location of all buildings,
structures and Improvements on said described property;
that there are no visible encroachments onto adjoining
properties, streets, alleys, easements or setback lines
by any of said buildings, structures or improvements;
that there are no recorded or visible right of ways or
easements on said described property, except as shown
on said survey; that there are no party walls or
visible encroachments on said described property by
buildings, structures or other improvements situated on
adjoining property, except as shown on said plat or
survey; and that the described property has direct
access to a publicly dedicated right-of-way at the
location shown on said plat or survey.
By:
Dated:
2. If the street address of the Parcel is available, it
should be noted on the survey.
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xx.
Xxxxxxx, XX, Caribou Coffee)
3. The survey boundary should be drawn to a convenient
scale, with that scale clearly indicated. If feasible,
a graphic scale should be indicated. When practical,
the plat or map of survey should be oriented so that
North is at the top of the drawing. Supplementary or
exaggerated scale diagrams should be presented
accurately on the plat or map and drawn to scale. No
plat or map drawing less than the minimum size of 8-
1/2" by 11" will be acceptable.
4. The plat or map of survey should meet with the minimum
Standard Detail Requirements for Land Title Surveys as
adopted by the American Title Association an American
Congress on Surveying and Mapping.
5. The character and location of all buildings upon the
Parcel must be shown and their location given with
reference to boundaries. Proper street numbers should
be shown where available. Physical evidence of
easements and/or servitudes of all kinds, including but
not limited to those created by roads, rights of way,
water courses, drains, telephone, telegraph or electric
lines, water, sewer, oil or gas pipelines, etc., on or
across the surveyed property and on adjoining
properties if they appear to affect the enjoyment of
the surveyed property should be located and noted. If
the surveyor has knowledge of any such easements and/or
servitudes, not physically evidenced at the time the
present survey is made, such physical non-evidence
should be noted. All recorded easements, rights of way
and other record matters affecting the Parcel should be
located and identified by recording date, and their
location on the survey should be reflected in a table
of easements on the survey. Surface indications, if
any, of underground easements and/or servitudes should
also be shown. If there are no buildings erected on
the property being surveyed, the plat or map of survey
should bear the statement "No Buildings". Curb cuts
and adjoining streets should be shown.
6. Joint or common driveways and alleys must be indicated.
Independent driveways along the boundary must be shown
together with the width thereof. Encroaching
driveways, strips, ribbons, aprons, etc., should be
noted. Rights of access to public highways should be
shown. The right-of-way line of any public street must
be shown in relationship to the property surveyed and
the street must be labeled "Publicly Dedicated" or
"Private Thoroughfare" as the case may be.
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (1275 Xxxxxxx Ferry Rd.
Atlanta, GA,Caribou Coffee)
7. As minimum requirement, at least two (2) copies of the
survey should be furnished to AEI and one (1) copy to
the title company.
8. The survey should certify as to the total square
footage of the area surveyed and as to the square
footage at the exterior walls of any Improvements on
the Parcel. The survey should note the absence of, or
indicate the existence of, any building restriction or
setback lines. Paved areas should be shown and the
survey should designate the area for parking and its
dimensions. If completed, the survey should indicate
the actual number of parking spaces and, if possible,
the actual parking spaces should be outlined on the
survey.
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xx.
Xxxxxxx, XX, Caribou Coffee)
EXHIBIT "F"
INSURANCE REQUIREMENTS
(CONSTRUCTION LOAN)
1. AEI shall receive Builder's Risk hazard insurance,
covering "All Risk" or "Special Form" perils, including the
perils of collapse and mudslide, in the amount of
______*_________. The coverage shall include building
materials, and shall include property in transit. The
deductible shall not exceed $1,000. The coverage shall
include a Mortgage Clause endorsement in favor of "AEI".
2. AEI shall receive Comprehensive General Liability
insurance covering the Parcel under construction, with
limits of $2,000,000 per occurrence and $5,000,000
aggregate. These limits can be accomplished either by
underlying liability policies or by the sum of the
underlying policy plus an excess or umbrella policy. The
coverage shall include Broad Form Contractual Liability
coverage. The Claims Made form of coverage is not
acceptable.
3. Flood insurance shall be required if the Parcel is
located in a designated flood area or in an area exposed to
flood or storm surge. If the Parcel is not in a designated
flood plain area or is above the applicable one hundred year
flood plain level, provide satisfactory evidence to that
effect. Satisfactory evidence to determine if coverage is
necessary shall be a Base Flood Elevation Certificate and/or
a National Geodetick Vertical Datum (NGDV)-National standard
reference datum for elevations, formerly referred to as Mean
Sea Level (MSL) of 1929. If flood insurance coverage is
required, it shall be in amounts of * with
deductibles of ________*___________ .
4. Earthquake insurance shall be required, in amounts
acceptable to AEI, unless evidence is provided that the
Parcel is not located in a federally designated earthquake
prone area or is not an ISO High Risk Earthquake Zone. The
deductible shall be ________*___________.
5. The "Additional Requirements For All Insurance
Policies" shown on Exhibit "F-1" shall be required by AEI
for each policy.
* Please call Xxxx Xxxxx in AEI's lease management
department to determine amounts, 1-800-328-3519.
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xx.
Xxxxxxx, XX, Caribou Coffee)
EXHIBIT "F-1"
INSURANCE REQUIREMENTS
(CONSTRUCTION LOAN)
1. Definition of "AEI" regarding Additional Insured and
Loss Payee Endorsements:
"AEI Limited Partnership and/or
its specific assigns and AEI , Inc., the
Corporate General Partner of said assignee, and Xxxxxx
X. Xxxxxxx, as the Individual General Partner of said
assignee, and Lessee as insured or additional insured,
as their respective interests may appear. "
2. Each policy shall be accompanied by proof of payment of
the first annual premium.
3. All hazard policies shall name "AEI" as Loss Payee and
Additional Insured.
4. All liability policies shall name "AEI" as Additional
Insured.
5. AEI shall receive a thirty (30) day written notice in the
event of cancellation, material amendment, or
expiration without renewal of the policies.
6. All hazard policies shall contain Waiver of Subrogation
Endorsements waiving all rights of subrogation, if any,
against "AEI".
7. All insurance companies shall be rated "A" or better by
Best's Key Rating Guide (the most current edition) or
similar quality under a successor guide if Best's Key
Rating shall cease to be published.
AEI Initial:
Borrower Initial: /s/ CB
Construction Commitment For: (0000 Xxxxxxx Xxxxx Xx.
Xxxxxxx, XX, Caribou Coffee)
SALE AND LEASEBACK FINANCING COMMITMENT
(the "Commitment")
CARIBOU COFFEE RESTAURANT
0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxx, XX
Effective as of July 21, 1996
In reliance upon representations made through documents
furnished to us by you, Caribou Coffee Company, Inc.
("Seller/Lessee"), AEI Fund Management, Inc., or its
assigns, ("AEI"), agrees to purchase, and you agree to sell
to and lease from AEI, certain improvements (the
"Improvements") to be located at 0000 Xxxxxxx Xxxxx Xxxx xx
Xxxxxxx, XX, legally described on Exhibit "A" attached
hereto, to be developed by Seller/Lessee (the "Parcel"),
which Parcel will be subject to the provisions and
conditions herein contained:
A. FEES AND COSTS
1. A commitment fee equal to one and one-half
percent (1.5%) of the Purchase Price defined in
Article B.1 hereof (the "Commitment Fee") shall be
paid to AEI by Seller/Lessee in connection with
the transaction contemplated hereunder. One-half
(1/2) of the Commitment Fee based upon the
Estimated Total Project Cost of the Parcel
(defined below) will be payable to AEI upon the
signing of this Commitment by Seller/Lessee and
delivery to AEI but will not be considered
delivered to AEI until the Commitment has been
also executed by AEI. Seller/Lessee's estimate of
the Total
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxx, XX, Caribou Coffee
July 18, 1996
Project Costs (defined in Article B.1 hereof)
which will be incurred to complete the
Improvements is $1,230,958.00 ("Estimated Total
Project Cost").
The balance of the Commitment Fee shall be
paid at the closing on the transaction
contemplated hereunder. Said Commitment Fee will
be adjusted at closing to reflect the final
Purchase Price, as defined in Article B.1 hereof.
At Seller/Lessee's election, the Commitment Fee
may be included as a project cost funded by AEI
and reimbursed to Seller/Lessee at closing.
The portion of the Commitment Fee paid upon
signing of this Commitment shall be refunded to
Seller/Lessee, less AEI's out-of-pocket expenses
incurred hereunder, only if AEI terminates this
Commitment pursuant to Articles B.1, B.5 or B.6
hereunder.
2. All outstanding real estate taxes, and levied
and pending special assessments, due and payable
prior to the Closing Date, as defined in Article
B.2 hereof, shall be paid by Seller/Lessee in
full at or prior to the Closing Date. If the
taxing authority permits payment of special
assessments in installments, Seller/Lessee shall
have paid the most current installment of special
assessments that is due and payable as of the
Closing Date.
3. Seller/Lessee shall pay all expenses incident
to the closing and necessary to comply with the
requirements herein, as consistent with this
Commitment, including AEI's legal costs of $7,500
for the construction loan and sale/leaseback
transactions, and also any local attorney's fees
for the State of Georgia incurred by AEI,
necessary to complete this transaction. Such
costs may be included, at Seller/Lessee's option,
as a project cost to be funded by AEI.
B. PURCHASE TERMS
1. Purchase Price: The Purchase Price for each
Parcel shall be equal to the Final Total Project
Cost (defined below and including Seller/Lessee's
development/construction management cost, such
price to be supported by an MAI appraisal (the
"Purchase Price"). The Final Total Project
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxx, XX, Caribou Coffee
Cost will include only verifiable project costs
actually incurred, which costs are both approved
by AEI and included in the project construction
budget submitted to AEI for the Parcel (the
"Estimated Total Project Cost"), and being costs
of the kind and nature described on Exhibit "A"
attached hereto.
In the event the Final Total Project Cost exceeds
the Estimated Total Project Cost or MAI appraisal,
AEI may elect one of the following options:
a) pay Seller/Lessee the Final Total Project
Cost as the Purchase Price; or
b) unless Seller/Lessee is willing to absorb
such excess cost over the Estimated Total Project
Cost or MAI appraisal, whichever is greater, (in
which case AEI shall purchase the Parcel at the
Purchase Price less the excess), reject the Parcel
and terminate its obligation under a specific
Purchase Commitment for that Parcel.
In any event, with respect to the following line
items includable in the Purchase Price payable by
AEI:
a) Seller/Lessee's development/construction
management cost shall be capped at 8.2569% of the
Purchase Price.
b) "Signage construction costs" shall not
include any costs for trade fixture signage.
2. Closing Date: The closing date for AEI's
purchase of the Parcel shall be one hundred sixty
(160) days after the date of the first
disbursement of the proceeds of the construction
loan on this Parcel between AEI and Seller/Lessee,
and after delivery and approval of all of the
items contemplated hereunder and Seller/Lessee has
taken occupancy of the Parcel ("Satisfaction of
Contingencies"), or in any event with fifteen (15)
business days after the Satisfaction of
Contingencies (the "Closing Date"). If
Seller/Lessee has not performed under this
Commitment by the Closing Date, this Commitment
shall be null and void at the option of AEI. In
the event Seller/Lessee requests an
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxx, XX, Caribou Coffee
extension of this Commitment, or
Seller/Lessee extends the maturity date of its
construction loan with AEI, and said extension is
approved by AEI, a written addendum to this
Commitment shall be required.
3. Closing Agent: The closing contemplated
hereunder shall be handled by a nationally
recognized title insurance company, satisfactory
to AEI (the "Title Company"), which shall also
issue the Owner's Policy of Title Insurance,
described in Article B.6.B. hereof, acting under
instructions from AEI's counsel.
4. This Commitment shall not be assignable by
Seller/Lessee, by law, or otherwise, but may be
assigned by AEI at its option, in whole or in
part, in such manner as AEI may determine, to an
affiliate or affiliates of AEI, as long as AEI
remains fully liable for all obligations hereunder
and the assignee is a solvent party with
sufficient assets to perform the obligations of
AEI hereunder.
5. Parcel Inspection: AEI has inspected and has
agreed to issue this Commitment based upon its
site inspection. Seller/Lessee shall reimburse
AEI up to fifteen hundred dollars ($1,500) for its
actual cost of performing such inspection. Such
cost may, at Seller/Lessee's option, be included
as a project cost funded by AEI and reimbursed to
Seller/Lessee at closing of the transaction
contemplated hereunder.
6. Supporting Documents: As a condition
precedent to closing on the Parcel, the supporting
documentation listed below must be submitted to
AEI not less than ten (10) business days prior to
the Closing Date, in form and content satisfactory
to AEI and its counsel:
a. All documentation listed on Exhibit "C"
attached hereto.
b. A Commitment for an ALTA Owner's Policy of Title Insurance
(ALTA owner - most recent edition) insuring marketable title in
the Parcel, subject only to such matters as AEI may approve (the
"Title Commitment"). The policy shall be issued by the Title
Company and shall contain such endorsements as AEI may require
including extended coverage, owners comprehensive coverage, and
absent independent verification thereof reasonably satisfactory
to AEI, a zoning compliance
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxx, XX, Caribou Coffee
endorsement. The Title Commitment shall list Seller/Lessee
as the present fee owner and should show AEI as the fee owner to
be insured. The Title Commitment shall also include an
itemization of all outstanding and pending special assessments or
should state that there are none, if such is the case. It shall
also state the manner in which any outstanding assessments are
payable, that is, whether they are payable in monthly or yearly
installments, setting forth the amount of each such installment
and its duration. The Title Commitment shall also include an
itemization of taxes affecting the Parcel and the tax year to
which they relate; should state whether taxes are current and, if
not, shall show the amounts unpaid, the tax parcel numbers, and
whether the tax parcel includes property other than the Parcel to
be purchased. All easements, restrictions, documents, and other
items affecting title should be listed in Schedule "B" of the
title commitment. COPIES OF ALL INSTRUMENTS CREATING SUCH
EXCEPTIONS MUST BE ATTACHED TO THE TITLE COMMITMENT.
c. Insurance policies issued by companies acceptable to AEI
for the types of coverage, with loss clauses in favor of AEI,
complying with the guidelines set forth on Exhibit "E" attached
hereto.
d. As-Built survey
prepared by a surveyor, reasonably acceptable
to AEI, said survey complying with the
guidelines set forth on Exhibit "F" attached
hereto.
e. Final plans and specifications for the Improvements
prepared by an architect or engineer reasonably acceptable to
AEI.
f. A soils report prepared by an engineer reasonably
acceptable to AEI or other evidence reasonably satisfactory to
AEI that the foundation of the existing structure is suitable
under the soil conditions existent on the Parcel to support the
Improvements contemplated hereunder.
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxx, XX, Caribou Coffee
g. Appraisal of the Parcel by an independent M.A.I. appraiser
acceptable to AEI. AEI hereby approves Xxxx X. Xxxxxx of Xxxx X.
Xxxxxx & Associates as an acceptable appraiser.
h. Certificate of Occupancy, or an equivalent, issued by the
appropriate authorities indicating that the Parcel is in
compliance with building, zoning and subdivision, environmental
and energy laws and regulations. Also a letter from the
appropriate officer of the municipality or county exercising land
use control over the Parcel, or other third party source
reasonably acceptable to AEI, stating: (a) the zoning code
affecting the Parcel; (b) that the Parcel and its intended use
complies with such zoning code, city ordinances and building and
use restrictions; (c) that there are no variances, conditional
use permits or special use permits required for use of the
Improvements on the Parcel, or if such permits are required,
specifying the existence of same and their terms, and (d) that
the Parcel complies with the platting ordinances affecting them
and can be conveyed without the requirement of a plat or replat
of the Parcel. If the Parcel falls within any subdivision rules
or regulations, evidence of compliance with such subdivision
regulations, or waiver of the same by the appropriate officials,
is required. (AEI shall make the initial attempts to obtain such
zoning compliance letter in a form satisfactory to AEI).
i. Written advice from all proper public utilities and
municipal authorities, that utility services are available and
connected to the Parcel for gas, electricity, telephone, water
and sewer (AEI shall make the initial attempts to obtain such
utility letters in a form satisfactory to AEI).
j. Certificate of Completion executed by the project
architect, general contractor and Seller/Lessee certifying that
the Improvements have been completed in accordance with the plans
and specifications and the soils report for the Parcel and comply
with all applicable building, zoning, energy, environmental laws
and regulations, and the Americans with Disabilities Act
(certification from Seller/Lessee
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxx, XX, Caribou Coffee
only shall be limited to Seller/Lessee's actual knowledge
based upon commercially reasonable due inquiry) .
k. 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 on the Parcel, specifically including, but not
limited to, liquor licenses if liquor is sold on the Parcel.
l. Certified cost statement showing the cost of the land and
of the Improvements constructed on the Parcel, signed by the
Seller/Lessee and general contractor, and an item by item list
of the components comprising the Improvements.
m. Photographs of all sides of the exterior and interior of
the completed Improvements deemed reasonably necessary by AEI.
n. Certified copies of the Articles of Incorporation, By-Laws
and Good Standing Certificate for the Seller/Lessee, together
with all other documents AEI deems reasonably necessary to
support the authority of the persons executing any documents on
behalf of the corporation, including encumbancy certificates and
corporate resolutions of the directors and shareholders.
o. UCC searches on Seller/Lessee from the offices of
Secretary of State and the County Recorder for the state and
county in which the Parcel is located, if AEI purchases any
moveable trade fixtures from Seller or Lessee.
p. Phase I Environmental Assessment Report prepared by an
engineer satisfactory to AEI containing evidence satisfactory to
AEI that the Parcel complies with all federal, state and local
environmental regulations. Additional reports may be required by
AEI based upon its review of the Phase I report. If
Seller/Lessee fails to deliver any additional reports AEI may
deem necessary to complete and approve its environmental
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxx, XX, Caribou Coffee
investigation of this Parcel, AEI may terminate this
Commitment in accordance with Article H hereof.
q. Copy of any sublease for the Parcel and form of the
proposed nondisturbance agreement to be executed by sublessee
and AEI.
All of the above documentation hereinafter
collectively referred to as the "Supporting
Documents". Any of the Supporting Documents
delivered and approved to AEI in connection with
construction financing between AEI and
Seller/Lessee ("Construction Supporting
Documents") shall be deemed to be approved for the
transaction contemplated hereunder unless there
have been adverse material changes to said
Construction Supporting Documents. In such event,
AEI shall require delivery and the right to
approve any revisions or supplemental information
to the applicable Construction Supporting
Documents. Until this Commitment is terminated or
the Closing has occurred, the Seller/Lessee shall
deliver to AEI any documentation that comes in the
Seller/Lessee's possession that materially
modifies any of the Supporting Documents, or could
render any of the Due Diligence Documents
materially inaccurate, incomplete or invalid.
C. LEASE TERMS
The Lease, in the form attached hereto as Exhibit "G",
will be executed and delivered by AEI and Seller/Lessee
at closing, to include the following terms:
1. Base Rent:
a. Initial Annual Rent as a Percentage of
Purchase Price: 11.50%
Rent shall be payable in advance of the first
day of each month in equal monthly installments.
b. Beginning in the third (3rd) lease year and
every lease year thereafter, including any renewal terms, such
annual rent will increase by an amount equal to the lesser
of a) two and one-half percent (2.50%) of
the annual rent payable for the prior lease
year, or b) one hundred fifty percent (150%)
of the annual increase in
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxx, XX, Caribou Coffee
the CPI-U index (Consumer Price Index for All
Urban Consumers) corresponding to the prior
lease year's time period.
2. Initial Lease Term: Eighteen (18) years
3. Renewal Terms: Two (2) terms of five (5) years
each with rent increases as described above in Article
C. 1.b. hereof.
4. Letter of Credit: The Seller/Lessee shall provide
and have the right to buy-down the Letter of Credit
amount pursuant to the Multi-Site Agreement dated May
1, 1996 between the parties. In such case, the parties
agree to amend the Lease prior to closing to reflect
the same.
D. DOCUMENTS
The documents listed below shall be prepared by AEI's
counsel in accordance with the terms hereof and
executed at, or prior to, the Closing Date in form and
substance satisfactory to AEI and Seller/Lessee:
1. Net Lease Agreement.
2. Attorney's Opinion Letter to be given by
Seller/Lessee's outside counsel necessarily
familiar with the conduct of Seller/Lessee's
business and the jurisdiction in which the Parcel
is situated to render such opinion as to, inter
alia, the enforceability of the Lease and
compliance of the Lease with local law and due
authority of the
signatories, in a form and substance reasonably
satisfactory to AEI.
3. Seller/Lessee's Estoppel Letter.
4. Affidavit of Seller/Lessee.
5. Hazardous Substances Indemnification
Agreement of Seller/Lessee.
6. FIRPTA Affidavit of Seller/Lessee.
7. Limited Warranty Deed from Seller/Lessee to
AEI. Seller/Lessee shall furnish a copy of the
proposed warranty deed to AEI's counsel for its
review and approval prior to closing.
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxx, XX, Caribou Coffee
E. FAIR CREDIT REPORTING ACT
Seller/Lessee warrants that all credit information
submitted by Seller and Lessee, respectively, is true
and correct, and authorize AEI to make credit
investigations and obtain credit reports and other
financial information, written or oral, respecting
Seller/Lessee's credit and financial positions, as it
may deem necessary or expedient at Seller/Lessee's cost
and expense, not to exceed $1,000.00.
F. INTERPRETATION
This Commitment and the terms of the transaction
contemplated to be made in conformity herewith, shall
be construed in accordance with all applicable
governmental regulations and in accordance with the
laws of the State of Georgia.
G. CERTIFICATION
Seller and Lessee hereby certify that:
1. Neither has any actions or proceedings
pending, which would materially adversely affect
the Parcel, or Seller/Lessee, except matters fully
covered by insurance;
2. The consummation of the transactions
contemplated hereby, and the performance of this
Commitment and the delivery of the Lease and other
security and credit instruments, will not result
in any breach of, or constitute a default under,
any indenture, bank loan or credit agreement, or
other instruments to which Seller/Lessee is a
party or by which either Seller/Lessee may be
bound or affected;
3. The Parcel is in good condition,
substantially undamaged by fire and other hazards,
and has not been made the subject of any
condemnation proceeding.
H. TERMINATION
This Commitment may be terminated prior to closing at
AEI's option (but reserving to AEI its right to pursue
its remedies set forth below for Seller/Lessee's breach
hereof) in such manner as AEI may
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxx, XX, Caribou Coffee
determine, if: 1) Seller/Lessee fails to comply with
any of the terms hereof, including but not limited to,
obtaining AEI's reasonable (unless otherwise specified
herein) approval or acceptance of the Supporting
Documents listed in Article B.6. above, and does not
satisfactorily cure the same on or before the Closing
Date; 2) a material default exists in any financial
obligation of Seller/Lessee; 3) any representation made
in any submission proves to be untrue, substantially
false or substantially misleading at any time prior to
the Closing Date; 4) there has been a material adverse
change in the financial condition of Seller/Lessee or
there shall be a material action, suit or proceeding
pending or threatened against Seller/Lessee; 5) any
bankruptcy, reorganization, insolvency, withdrawal, or
similar proceeding is instituted by or against
Seller/Lessee; 6) the Improvements on the Parcel shall
be materially damaged or destroyed or any portion
thereof shall be subject to a proceeding for
condemnation or eminent domain; or 7) Seller/Lessee
shall be dissolved, liquidated or wound up.
In the event Seller/Lessee and AEI do not reach mutual
agreement on the documents contemplated to be executed
by either party hereunder within ninety (90) days from
the date hereof, this Commitment may be terminated at
the option of either party; AEI shall in such event
refund the Commitment Fee to Seller/Lessee, less AEI's
out-of-pocket expenses incurred hereunder, including,
but not limited to, reasonable attorney's fees.
AEI and Seller/Lessee acknowledge the unique nature of
the Parcel and agree that Seller/Lessee's refusal to
sell the Parcel and lease the same from AEI under the
terms hereof if AEI makes the first disbursement under
the Construction Loan (as defined below) and AEI is
unconditionally ready, willing, and able to purchase
the Parcel and lease the same to Seller/Lessee pursuant
hereto may result in irreparable harm to AEI not
compensable by an action for monetary damages. The
parties therefore agree that, pursuant to the previous
sentence, AEI shall have the right of specific
performance to enforce the sale of the Parcel, to
retain the Commitment Fee, as well as to such other
forms of equitable relief or remedy at law as are
available, without having to precede a suit in equity
with an action at law. Seller/Lessee is entitled
hereby to specific performance; however, such right of
Seller/Lessee shall terminate automatically in the
event AEI exercises its option to terminate this
Commitment by reason of Seller/Lessee's failure to
close pursuant to this Commitment on or before the date
earlier stated in Article B.2. hereof through no fault
of AEI.
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxx, XX, Caribou Coffee
If for any reason AEI does not make the first
disbursement under the construction loan (the
"Construction Loan") contemplated between the parties,
AEI shall refund the entire Commitment Fee to
Seller/Lessee and Seller/lessee shall not be
responsible for any costs or expenses hereunder;
provided, however, that the parties shall have the
remedies set forth in the Construction Loan Commitment
of even date herewith between the parties (including
the right of set-off as provided therein). If,
however, the first disbursement under the Construction
Loan shall occur, the following shall apply:
If there is any adverse material change in the
submissions required of Seller/Lessee or to be
obtained by Seller/Lessee, or if representations
made by Seller/Lessee are not correct in all
material respects, or if Seller/Lessee fails to
disclose adverse material facts, agree upon or
execute the Lease Documents, or to perform any of
the terms of this Commitment, including, but not
limited to, obtaining AEI's approval or acceptance
of any submission required of Seller/Lessee or to
be obtained by Seller/Lessee, AEI shall not be
required to purchase the Parcel, and may thereupon
cancel this Commitment, and no liability of any
kind shall accrue to AEI by reason thereof. In
the event of Seller/Lessee's refusal to consummate
the transaction contemplated herein, even though
AEI shall be unconditionally ready, willing and
able to otherwise purchase the Parcel, AEI shall
be entitled to all remedies available to it at law
or equity. In the event of termination of this
Commitment under any right of AEI to do so (other
than Seller/Lessee's refusal to close even though
AEI shall be unconditionally ready, willing and
able to otherwise purchase the Parcel), in
addition to repayment of the outstanding principal
balance and accrued interest under the
construction loan on the Parcel extended to
Seller/Lessee by AEI (and any other remedy as may
be set forth in the loan documents), AEI shall be
entitled to a maximum of Fifteen Thousand Dollars
($15,000) inclusive of the Construction Loan
Commitment Fee and other charges thereunder for
reimbursement from Seller/Lessee (or retention of
such $15,000 from Commitment Fees paid by
Seller/Lessee in connection herewith (or in
connection with the Construction Loan Commitment
between AEI and Seller/Lessee)), for AEI's
internal and out-of-pocket costs incurred in
connection herewith, including, but not limited to
reasonable attorney's fees, unless specifically
set forth otherwise herein.
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxx, XX, Caribou Coffee
Each party agrees to pay and discharge all reasonable
costs, and reasonable (not withstanding any other
specific limitation thereto contained elsewhere herein)
attorneys' fees and expenses that shall be incurred by
the prevailing party in enforcing the covenants,
conditions and terms of this Commitment or in
successfully defending against an alleged breach
thereof.
I. INCORPORATION OF SUBMITTED WRITTEN MATERIALS AND
AMENDMENTS
This Commitment is issued by AEI pursuant to all
written materials previously submitted by Seller/Lessee
to AEI (the "Submitted Written Materials") and it is a
proviso hereof that the content, terms and provisions
of said Submitted Written Materials are by express and
specific reference incorporated herein and made a part
hereof. Provided, however, in the case of any material
adverse contradiction, variance, or ambiguity between
any of the content, terms and provisions hereof and
those of the Submitted Written Materials, the terms
specifically delineated in this Commitment shall govern
and shall supersede the conditions of the Submitted
Written Materials. Neither this Commitment nor any
provision hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing
signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought, and
in the case of AEI, signed by Xxxxxx X. Xxxxxxx,
President of AEI, or his designee in writing signed by
Xx. Xxxxxxx authorizing such other party to execute a
specific change, waiver, discharge or termination
instrument on behalf of AEI.
J. EXPIRATION
This Commitment must be executed and returned by
registered or certified mail to AEI no later than July
26, 1996 for the terms to be effective.
AEI FUND MANAGEMENT, INC. (AEI)
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
President
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxx, XX, Caribou Coffee
STATE OF MINNESOTA )
ss)
COUNTY OF XXXXXX )
On this 25th day of July, 1996, before me, the
undersigned, a Notary Public in and for said State,
personally appeared Xxxxxx X. Xxxxxxx, 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/ Xxxxx X. Xxxxxxx
Notary Public
[notary seal]
This Commitment is accepted and agreed to
this 21st day of July, 1996.
CARIBOU COFFEE COMPANY, INC.
(Seller/Lessee)
By: /s/ Xxxxxx Xxxx
Its: /s/ Vice President
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxx, XX, Caribou Coffee
STATE OF MINNESOTA )
ss)
COUNTY OF HENNEPIN )
On this 21st day of July, 1996, before me, the
undersigned, a Notary Public in and for said State,
personally appeared Xxxxxx Xxxx, personally known to me to
be the person who executed the within instrument as the Vice
President of Caribou Coffee Company, Inc., a Minnesota
corporation, on behalf of said corporation.
/s/ Xxxxxxxx Xxxxxxx
[notary seal] Notary Public
The undersigned, on behalf of Caribou Coffee Company,
Inc., hereby authorizes the release of any information
deemed necessary by AEI to verify any and all information
supplied to AEI. We shall hold AEI harmless for any damages
arising from verification of said information.
/s/ Xxxxxx Xxxx Dated: /s/ 7/21/96
Title: (Seller/Lessee) /s/ Vice President
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxx, XX, Caribou Coffee
EXHIBIT `A'
LEGAL DESCRIPTION
All that tract or parcel of land lying and being in Land Xxx
000 xx xxx 00xx Xxxxxxxx, Xxxxxx Xxxxxxx, Xxxx Xxxxxx,
Xxxxxxx and being more particularly described as follows:
To find the True Point of Beginning, commence at a point at
the corner common to Land Lots 901, 902, 971 and 972 of said
District, Section and County, said point being located North
84 33' 24" West a distance of 50.00 feet from a number 4
rebar found on the southerly line of Land Xxx 000 xx xxxx
Xxxxxxxx, Xxxxxxx xxx Xxxxxx; thence, from said land lot
corner, North 01 48' 20" East a distance of 325.07 feet to a
point; thence, North 02 12' 51" East a distance of 45.46
feet to a number 4 rebar set and the TRUE POINT OF
BEGINNING, thence, North 01 53' 24" East a distance of
243.23 feet to an iron pin with plastic cap found at the
Southwesterly right-of-way of Xxxxxxx Ferry Road, said iron
pin being located North 28 40'42" West a distance of 0.83
feet from a right of way monument found; thence, along the
southwesterly right of way of Xxxxxxx Ferry Road, South 63
59' 03" East a distance of 164.20 feet to a point, said
point being located North 63 59'03" West a distance 1.79
feet from a right-of-way monument found; thence, departing
said right of way, South 02 07' 32" West a distance of
166.85 feet to a number 4 rebar found; thence, North 88 12'
50" West a distance 149.18 feet to a number 4 rebar set at
the TRUE POINT OF BEGINNING, containing 0.70 acre as shown
on Boundary Survey for Caribou Coffee, prepared by Atlanta
Engineering Services, Inc., dated December 1, 1994, last
revised February 5, 1996, certified to Caribou Coffee and
Chicago Title Insurance company by Xxxxx X. Xxxxxx, Ga.
R.L.S. No. 2374.
TOGETHER WITH all of Grantor's right, title and interest in
and to the appurtenant Easement Agreement and Release of
Existing Easement between Xxxxxx corporation, N.V. and
Merchant's Walk Associates, L.P., dated September 28, 1993,
recorded in Deed Book 7652, Page 420, Xxxx County, Georgia
Records.
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx. Xxxxxxx, XX, Caribou Coffee
EXHIBIT "B"
(Cost Categories which may be included in the purchase.)
1. Land Acquisition Costs at Seller/Lessee's actual cost
from unaffiliated parties.
2. Land Development Costs.
3. Architectural and Engineering Fees paid to non-
affiliates, including site planning and shell building
design costs.
4. Labor and Material Costs for Shell Building Structure
and Interior Finish Construction.
5. Site Selection Consultant Costs paid to third parties.
6. Professional Real Estate Consultant Costs paid by
Seller/Lessee to third parties, not including brokerage
fees or commissions.
7. Signage Construction Costs.
8. Soil Report and Environmental Reports Costs.
9. Surveying Costs paid to non-affiliates.
10. Municipal Development and Permit Costs and other
governmental charges.
11. Contractor Fees to non-affiliates.
12. Builders' Risk Insurance and Public Liability
Insurance Premiums during the
construction period.
13. Utility Charges during construction.
14. Interest on construction financing.
15. AEI's Commitment Fees (based on 1.5% of the Purchase
Price for the sale/leaseback financing and 1.0% of the
first construction loan disbursement for the
construction financing).
16. Title Insurance Costs and Closing Costs, including but
not limited to Recording Fees and Registration or
Conveyancing Taxes, Fees, or Charges.
17. Appraisal Fees paid to non-affiliates.
18. Seller/Lessee's Attorneys' Fees.
19. AEI's Attorneys' Fees.
20. Local Counsel Costs in the State of Georgia of AEI and
Seller/Lessee.
21. Attached, Permanent Equipment, not including signage,
up to nine percent (9.0%) of the Purchase Price.
22. Development/Construction Management Costs up to 8.2569%
of the Purchase Price.
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx. Xxxxxxx, XX, Caribou Coffee
23. Any fees or costs incurred by AEI in qualifying to hold
title in the state where the Parcel is located.
24. Costs incurred by AEI for credit reports on
Seller/Lessee up to $1,000.
25. AEI's site inspection costs, not to exceed $1,500.
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx. Xxxxxxx, XX, Caribou Coffee
EXHIBIT "C"
PRELIMINARY DOCUMENTATION CHECKLIST
Prior to closing, the following should be received and
approved by AEI, along with those items specified more fully
in the Sale and Leaseback Financing Commitment:
1. Business and marketing plan, with an
explanation of what Seller/Lessee proposes to do,
when, and at what costs to promote the success of
this Parcel. (Include a structure/organizational
chart of Seller/Lessee or operator, identifying
departments and key personnel.)
2. Resumes of all principals of Seller/Lessee,
including:
A. educational, management and other
experience histories;
B. history of businesses owned with
the dates established/terminated; ownership
structure and number of employees.
3. Current financial statements as described on
Exhibit "D" attached hereto and credit reports
deemed necessary by AEI (To be ordered by AEI).
4. Site plan and maps showing site(s) and
location(s) of competition.
5. Complete city map (to be obtained by AEI).
6. Market report and/or feasibility study, or
report (include demographic data on trade area and
a description of the neighborhood) supporting this
site.
7. Dated and captioned photographs showing views
of the Parcel and Improvements, if completed.
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx. Xxxxxxx, XX, Caribou Coffee
8. MAI appraisal (At Seller/Lessee's option,
the Appraisal may be ordered by AEI but shall be
certified to Seller/Lessee and AEI)
9. Itemized Budget of Total Project Costs.
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx. Xxxxxxx, XX, Caribou Coffee
EXHIBIT "D"
FINANCIAL DOCUMENTATION REQUIREMENTS
Prior to closing, the following must be received
and approved by AEI, along with those items
specified more fully in the Sale and Leaseback
Financing Commitment:
I. Financial statements for
Seller/Lessee. At a minimum, reviewed
financials are required for individuals and
private corporations, and audited financials
are required for publicly traded
corporations. Said financials shall reflect
and be for the three most recent fiscal year
periods as well as the current fiscal-year-
to-date period, and include but not be
limited to:
A. Balance Sheet Statements
B. Statements of Operations (on a property-by-property basis
upon request)
C. Statements of Cash Flows
D. Statements of Shareholder's Equity
E. Federal Income Tax Returns
II. Pro-forma of first year's operations for
the Parcel.
III. Itemized budget of total project cost
for the Parcel.
All corporate financial statements, and any
additional corporate financial information
requested by AEI shall be prepared in accordance
with current GAAP guidelines and signed by an
authorized officer who must certify to the
accuracy thereof. The certification language must
read as follows:
"The undersigned hereby certifies and
warrants that the information contained
in these financial statements is true and
correct, understands that AEI is relying
upon such information as an inducement
for entering into a purchase and lease
transaction with the undersigned, and
expressly represents that AEI may have
reliance upon such information."
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx. Xxxxxxx, XX, Caribou Coffee
EXHIBIT "E"
INSURANCE REQUIREMENTS
(SALE AND LEASEBACK)
The following instructions should be followed with respect
to requesting insurance policies on the Parcel:
1. An original hazard insurance policy for "All Risk" or
"Special Form" coverage perils, including all exclusions and
endorsements, will be required. The policy(s) shall be
written with a coverage amount of the Replacement Cost of
the Parcel, annually updated, including Improvements. The
insured Parcel shall be described by the address of the
Parcel. In the event that it is impossible to furnish the
original policy in time for the closing on AEI's purchase of
the Parcel, an Insurance Certificate, form XXXXX 27,
detailing the policy coverage forms, with a paid receipt
shall be acceptable. The original policy shall be forwarded
to AEI without delay.
2. If the coverage referred to in Item 1. above is written
via a blanket insurance policy, a Certificate of Insurance
with a Statement of Values attached will be acceptable.
3. All hazard insurance policies shall include the
Replacement Cost Endorsement.
4. All hazard insurance policies shall include a Building
Ordinance Compliance Endorsement.
5. All hazard insurance policies shall be written with no
coinsurance or with an Agreed Value Endorsement.
6. All hazard insurance policies shall include an
Inflation Guard Endorsement in the amount of 3.0%, which can
be changed at any time at the option of AEI.
7. The maximum deductible for any hazard insurance policy
shall be $1,000.
8. Hazard insurance shall include Loss of Rents insurance
in an amount to cover at least a 12 month period with the
loss proceeds payable to "AEI".
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx. Xxxxxxx, XX, Caribou Coffee
9. Flood insurance shall be required if the Parcel is
located in a designated flood area or in an area exposed to
flood or storm surge. If the Parcel is not in a designated
flood plain area or is above the applicable one hundred year
flood plain level, provide satisfactory evidence to that
effect. Satisfactory evidence to determine if coverage is
necessary shall be a Base Flood Elevation Certificate and/or
a National Geodetick Vertical Datum (NGDV)-National standard
reference datum for elevations, formerly referred to as Mean
Sea Level (MSL) of 1929. If flood insurance coverage is
required, it shall be in amounts of * with
deductibles of ________*___________ .
10. Earthquake insurance shall be required, in amounts
acceptable to AEI, unless evidence is provided that the
Parcel is not located in a federally designated earthquake
prone area or is not in an ISO High Risk Earthquake Zone. If
earthquake coverage is required, it shall be in the amounts
of with deductibles of ________*____________ .
11. Comprehensive General Liability coverage shall be
written, with limits of $2,000,000 per occurrence and
$5,000,000 aggregate. These limits can be accomplished
either by underlying liability policies or by the sum of the
underlying policy plus an excess or umbrella policy. The
coverage shall include an endorsement in favor of "AEI"
which is ISO Form CG 20 11 11 85 Additional Insured -
Managers Or Lessors Of Premises", or an equivalent
endorsement. The coverage shall by written on an Occurrence
Form basis and shall include Broad Form Contractual
Liability coverage. The Claims Made form of coverage is not
acceptable.
12. If liquor is sold on the premises of the Parcel, Liquor
Liability coverage (also known as Dram Shop coverage) shall
be required. The coverage shall be written in the statutory
amount which is required by the State in which the Parcel is
located, if said State has a maximum recovery statute.
Otherwise, the coverage shall be written with limits of
$2,000,000 per occurrence and $5,000,000 aggregate.
13. The "Additional Requirements For All Insurance
Policies" shown on Exhibit "E-1" shall be required by AEI
for each policy.
* Please call Xxxx Xxxxx in AEI's lease management
department to determine amounts, 1-800-328-3519.
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx. Xxxxxxx, XX, Caribou Coffee
EXHIBIT "E-1"
ADDITIONAL REQUIREMENTS FOR ALL INSURANCE POLICIES
1. Definition of "AEI" regarding Additional Insured and
Loss Payee Endorsements:
"AEI Limited Partnership and/or
its specific assigns and AEI , Inc., the
Corporate General Partner of said assignee, and Xxxxxx X.
Xxxxxxx, as the Individual General Partner of said assignee,
and Lessee as insured or additional insured, as their
respective interests may appear. "
2. Each policy shall be accompanied by proof of payment of
the first annual premium.
3. All hazard policies shall name "AEI" as Loss Payee and
Additional Insured.
4. All liability policies shall name "AEI" as Additional
Insured.
5. AEI shall receive a thirty (30) day written notice in
the event of cancellation, material amendment, or expiration
without renewal of the policies.
6. All hazard policies shall contain Waiver of Subrogation
Endorsements waiving all rights of subrogation, if any,
against AEI.
7. All insurance companies shall be rated "A" or better by
Best's Key Rating Guide (the most current edition), or
similar quality under a successor guide if Best's Key Rating
shall cease to be published.
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx. Xxxxxxx, XX, Caribou Coffee
EXHIBIT "F"
Survey Requirements
1. The plat or map of such survey must bear the name,
address and signature of the licensed land surveyor who
made the survey, that surveyor's official seal and
license number (if any, or both), and the date of the
survey, with the following certification:
I, , a registered land
surveyor, in and for the State of Georgia do hereby
certify to AEI Fund Management, Inc., a Minnesota
corporation, or its assigns (PLEASE CONTACT AEI'S
CLOSING SPECIALIST AT 1-800-328-3519 FOR INFORMATION),
and (insert name of title
company), that this is a true and correct plat of a
survey of
(Insert Legal Description)
which correctly shows the location of all buildings,
structures and improvements on said described Parcel;
that there are no visible encroachments onto adjoining
properties, streets, alleys, easements or setback lines
by any of said buildings, structures or improvements;
that there are no recorded or visible right of ways or
easements on said described Parcel, except as shown on
said survey; that there are no party walls or visible
encroachments on said described Parcel by buildings,
structures or other improvements situated on adjoining
property, except as shown on said plat or survey; and
that the described Parcel has direct access to a
publicly dedicated right-of-way at the location shown
on said plat or survey.
By:
Dated:
2. If the street address of the Parcel is available, it
should be noted on the survey.
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx. Xxxxxxx, XX, Caribou Coffee
3. The survey boundary should be drawn to a convenient
scale, with that scale clearly indicated. If feasible,
a graphic scale should be indicated. When practical,
the plat or map of survey should be oriented so that
North is at the top of the drawing. Supplementary or
exaggerated scale diagrams should be presented
accurately on the plat or map and drawn to scale. No
plat or map drawing less than the minimum size of 8-
1/2" by 11" will be acceptable.
4. The plat or map of survey should meet with the minimum
Standard Detail Requirements for Land Title Surveys as
adopted by the American Land Title Association and
American Congress on Surveying and Mapping.
5. The character and location of all buildings upon the
Parcel must be shown and their location given with
reference to boundaries. Proper street numbers should
be shown where available. Physical evidence of
easements and/or servitudes of all kinds, including but
not limited to those created by roads, rights of way,
water courses, drains, telephone, telegraph or electric
lines, water, sewer, oil or gas pipelines, etc., on or
across the surveyed Parcel and on adjoining properties
if they appear to affect the enjoyment of the surveyed
Parcel should be located and noted. If the surveyor
has knowledge of any such easements and/or servitudes,
not physically evidenced at the time the present survey
is made, such physical non-evidence should be noted.
All recorded easements, rights of way and other record
matters affecting the Parcel should be located and
identified by recording date. Surface indications, if
any, of underground easements and/or servitudes should
also be shown. If there are no buildings erected on
the Parcel being surveyed, the plat or map of survey
should bear the statement "No Buildings". Curb cuts
and adjoining streets should be shown.
6. Joint or common driveways and alleys must be indicated.
Independent driveways along the boundary must be shown
together with the width thereof. Encroaching
driveways, strips, ribbons, aprons, etc., should be
noted. Rights of access to public highways should be
shown. The right-of-way line of any public street must
be shown in relationship to the Parcel surveyed and the
street must be labeled "Publicly Dedicated" or "Private
Thoroughfare" as the case may be.
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx. Xxxxxxx, XX, Caribou Coffee
7. As a minimum requirement, at least two (2) sets of
prints of the plat or map of survey should be furnished
to AEI and one (1) set to the title company.
8. The survey should certify as to the total square
footage of the area surveyed and as to the square
footage at the exterior walls of any improvements on
the Parcel. The survey should note the absence of, or
indicate the existence of, any building restriction or
setback lines. Paved areas should be shown and the
survey should designate the area for parking and its
dimensions. If completed, the survey should indicate
the actual number of parking spaces and, if possible,
the actual parking spaces should be outlined on the
survey.
AEI Initial:
Seller/Lessee Initial: /s/ CB
Commitment For: 0000 Xxxxxxx Xxxxx Xxxx. Xxxxxxx, XX, Caribou Coffee
