SALE AND LEASEBACK FINANCING COMMITMENT
("COMMITMENT")
FUDDRUCKER'S RESTAURANT
THORNTON, COLORADO
June 30, 1997
In reliance upon representations made by you in documents
you furnished to us as described on Exhibit "A" hereto, AEI Fund
Management, Inc., or its assigns, ("AEI"), agrees to purchase and
you agree to sell and lease from AEI a Fuddrucker's restaurant to
be located in Thornton, Colorado, by the Seller (the "Parcel"),
which Parcel will be subject to the provisions and conditions
herein contained.
A. SELLER
Name: Fuddrucker's, Inc.
Address: One Corporate Plaza
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Phone: (▇▇▇) ▇▇▇-▇▇▇▇
B. LESSEE
Name: Fuddrucker's, Inc.
Address: One Corporate Plaza
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Phone: (▇▇▇) ▇▇▇-▇▇▇▇
C. PREMISES
1. Type of Improvements: A Fuddrucker's restaurant (the
"Improvements").
2. Location: Thornton, Colorado
3. Land: __________ s.f.
4. Building: 4,800 S.f.
Seller/Lessee Initial: /s/ cr
Commitment For: Fuddrucker's Restaurant/Thornton, Co
June 30,1997
D. FEES AND COSTS
1. An application and commitment fee equal to one
percent (1.0%) of the total Purchase Price, as defined
in Article E.1, of the Parcel (the "Commitment Fee")
will be payable to AEI upon Seller's and ▇▇▇▇▇▇'s
execution and return of this Commitment to AEI. The
Commitment Fee shall be considered earned upon AEI's
execution and delivery of this Commitment. At the
Seller's election, the Commitment Fee may be reimbursed
to Seller as a project cost funded by AEI.
2. All outstanding real estate taxes, and levied and
pending special assessments, due and payable prior to
the Closing Date, as defined in Art. E.2 hereof, shall
be paid by Seller or Lessee in full at or prior to the
Closing Date.
3. Seller or 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 attorney's fees necessary
to complete this transaction. Such costs may be
included, at ▇▇▇▇▇▇'s option, as a project cost, to be
included in the Total Project Cost, as defined in
Article E.1, funded by AEI.
E. PURCHASE TERMS
1. Purchase Price: Not to exceed $ 1,428,445.00 (may
include all verifiable project costs, including those
costs shown on Exhibit "B" attached hereto, (the "Total
Project Cost"), but not to exceed approved MAI
appraised value (the "Purchase Price").
2. Closing Date: If Seller or Lessee has not
performed under this agreement by August 1, 1997 (the
"Closing Date"), this Commitment shall be null and void
at the option of AEI unless extended as agreed to
between the parties. In the event Seller or Lessee
requests an extension and said extension is approved by
AEI in its sole discretion, a written addendum to this
Commitment shall be required.
3. This Commitment shall not be assignable by Seller
or 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 affilitates of
AEI, provided such assignment does not relieve AEI of
its obligations to perform under this Commitment.
4. Parcel Inspection: As a condition precedent to
AEI's obligation hereunder, the Parcel shall be
inspected and approved by AEI. Costs of said inspection
would be paid by ▇▇▇▇▇▇ as reimbursement to AEI for its
actual costs of said inspection, to be paid at closing.
Said costs shall not exceed one thousand dollars
($1,000).
5. Management Review and Interview: AEI has conducted a
management review of ▇▇▇▇▇▇ and has approved such
management. As a condition precedent to AEI's
obligations hereunder, there shall be no material
change in the management of ▇▇▇▇▇▇ as of the Closing
Date.
6. Seller shall deliver to AEI, for its approval,
documents to support AEI's standard credit underwriting
requirements and financial documentation as required on
Exhibit "D" attached hereto:
Seller/Lessee Initial: /s/ cr
Commitment For: Fuddrucker's Restaurant/Thornton, Co
June 30,1997
7. Supporting Documents: As soon as possible, and 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 insuring marketable title in the
Parcel. The policy shall be issued by a company
acceptable to AEI and shall contain such
endorsements as AEI may require including extended
coverage, owners comprehensive coverage, and
absent independent verification thereof
satisfactory to AEI, a zoning compliance
endorsement. Seller must provide, at its expense,
an original and a copy of an ALTA owner's
preliminary commitment for title insurance (ALTA
owner - 1970 Form B) insuring marketability and
subject only to such matters as AEI may approve.
The title commitment should list Seller as the
present fee owner and should show AEI as the fee
owner to be insured. The title commitment should
also include an itemization of all outstanding and
pending special assessments or should state that
there are none, if such is the case. It should
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 commitment should 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, should 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 also be listed in Schedule "B" of the
title commitment. COPIES OF ALL INSTRUMENTS
CREATING SUCH EXCEPTIONS MUST BE ATTACHED TO THE
TITLE COMMITMENT.
▇.▇▇▇▇▇▇▇▇▇ policies issued by companies
acceptable to AEI for the following 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 acceptable to AEI prepared
by a licensed surveyor reasonably acceptable to
AEI, complying with the guidelines set forth on
Exhibit "F" attached hereto.
▇.▇▇▇▇▇ plans and specifications for the
Improvements prepared by an architect or engineer
reasonably acceptable to AEI.
f.A soil report prepared by an engineer
reasonably acceptable to AEI.
g.Appraisal of the Parcel by an independent
M.A.I. or other appraiser reasonably acceptable to
AEI, which report shall include a land value
estimate, application of the three approaches to
value (sales comparison, income capitalization,
and cost), and a reconciliation of value.
h.Certificate of Occupancy, or its equiv
alent, 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
Seller/Lessee Initial: /s/ cr
Commitment For: Fuddrucker's Restaurant/Thornton, Co
June 30,1997
letter from the appropriate officer of the
municipality or county exercising land use control
over the Parcel 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 it 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. (Zoning compliance letter to be
ordered by 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.
(To be ordered by AEI).
▇.▇▇▇▇▇▇▇▇▇▇▇ of Completion executed by the
project architect, general contractor and owner
certifying that the Improvements have been
completed in accordance with the plans and
specifications and comply with all applicable
building, zoning, energy, environmental laws and
regulations, and the Americans with Disabilities
Act.
k.Copies of any and all certificates, pe
rmits, 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.
l.Certified cost statement showing the cost
of the land and of the Improvements constructed on
the Parcel, signed by the owner and general
contractor, and an item by item list of the
components comprising the Improvements.
▇.▇▇▇▇▇ executed License Agreement(s) for
development of the Parcel as a Fuddruckers
Restaurant in the State of Colorado.
n.Photographs of all sides of the exterior
and interior of the completed Improvements.
o.Certified copies of the Articles of In
corporation, By-Laws and Good Standing Certificate
for the Seller and ▇▇▇▇▇▇, together with all other
documents AEI deems necessary to support the
authority of the persons executing any documents
on behalf of the corporation, including
encumbrancy certificates and corporate resolutions
of the directors and shareholders.
p.UCC searches on Seller and Lessee from the
offices of Secretary of State and the County
Recorder for the state and county in which the
Parcel is located.
Seller/Lessee Initial: /s/ cr
Commitment For: Fuddrucker's Restaurant/Thornton, Co
June 30,1997
q.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.
r.Execution of: Lease; Opinion of Seller's,
▇▇▇▇▇▇'s and Guarantor's Counsel; Hazardous
Substance Indemnity Agreement of Seller, Lessee
and Guarantor; Seller's, ▇▇▇▇▇▇'s and Guarantor's
Affidavit; all in form and substance satisfactory
to AEI, consistent with the terms hereof.
F. LEASE TERMS
1. Base Rent:
a.Initial Annual Rental Rate as Percentage of
Purchase Price: 10.75%
Rent shall be payable in advance of the first
day of each month in equal monthly installments.
b.Beginning in the fourth (4th) lease year
and every third (3rd) lease year thereafter, in
the 7th, 10th, 13th, 16th and 19th lease years,
and including any renewal terms, such annual rent
will increase by an amount equal to the sum of the
increase in the prior three years' consumer price
index ("CPI"), such rental rate increase not to
exceed seven and thirty five one-hundredths
percent (7.35%). "CPI" referred to herein is
defined as the Consumers Price Index value for all
Urban Consumers published by the Bureau of Labor
Statistics of the United States Department of
Labor for U.S. City Average, All Items (1982-
1984=100)."
2. Initial Lease Term: 20 years.
3. Renewal Terms: Three (3) terms of five (5)
years each.
4. Type of Use: Casual Dining Restaurant.
5. The lease between AEI and Lessee, which shall
be in a substantially similar form to the lease, dated
June 10, 1996, executed between Americana Dining Corp.
and AEI for the Champps, Lyndhurst, OH property (the
"Lease"), shall be prepared by AEI and acceptable to
AEI and to Lessee subject to Article L. hereof and also
include, but not be limited to, the following clauses:
6. It is the intent of the parties that the Lease
shall be a net lease in all respects and that the Rent
shall be a net rent paid to AEI; any and all other
expenses including, but not limited to, maintenance,
repair, insurance, utilities, costs, taxes and
assessments shall be paid by Lessee.
7. The Lease will be guaranteed by the party listed
in Article G. below, in accordance with a Guarantee, in
the a substantially similar form in accordance with
that Guarantee executed between DAKA International and
AEI for the Champps, Lyndhurst, OH property (the
"Guaranty"), to be prepared by AEI and acceptable to
AEI and to Seller subject to Article L. hereof.
Seller/Lessee Initial: /s/ cr
Commitment For: Fuddrucker's Restaurant/Thornton, Co
June 30,1997
▇. ▇▇▇▇▇▇▇▇▇(S) OF LEASE
Name: Unique Casual Restaurants, Inc.
Address: One Corporate Place
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
During the term of the Lease, Guarantor(s) shall provide
audited financial statements, annually and quarterly
statements as may be reasonably required by the Guarantee.
Guarantor may be released from the Guaranty upon terms
mutually agreed upon by both parties to this Commitment as
set forth in the Guaranty.
H. 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:
1. Net Lease Agreement.
2. Attorney's Opinion Letter to be given by ▇▇▇▇▇▇'s,
▇▇▇▇▇▇'s and Guarantor's in-house counsel necessarily
familiar with the conduct of ▇▇▇▇▇▇'s, ▇▇▇▇▇▇'s and
Guarantor's business and due authority of the
signatories to render such opinion and an opinion from
an attorney in the state in which the Parcel is
situated as to, inter alia, the enforceability of the
Lease.
3. Lessee's Estoppel Letter.
4. Affidavit of Seller, ▇▇▇▇▇▇ and Guarantor.
5. Hazardous Substances Indemnification Agreement of
Seller, Lessee and Guarantor.
6. FIRPTA Affidavit of Seller.
Seller shall furnish a proposed Warranty Deed to AEI's
counsel for its review and approval.
I. FAIR CREDIT REPORTING ACT
Seller and Lessee 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 Seller
and ▇▇▇▇▇▇'s credit and financial position, as it may deem
necessary or expedient at Seller and ▇▇▇▇▇▇'s cost and
expense.
J. 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
Colorado.
K. CERTIFICATION
Seller and Lessee hereby certify that:
Seller/Lessee Initial: /s/ cr
Commitment For: Fuddrucker's Restaurant/Thornton, Co
June 30,1997
1. It does not have any actions or proceedings
pending, which would materially affect the Parcel, or
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
or Lessee is a party or by which it may be bound or
affected;
3. All of both Seller's and ▇▇▇▇▇▇'s covenants,
agreements, and representations made herein, and in any
and all documents which may be delivered pursuant
hereto, shall survive the delivery to AEI of the Lease
and other documents furnished in accordance herewith,
and the provisions hereof shall continue to inure to
AEI's benefit, and its successors and assigns;
4. Upon the date of execution of the other documents
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.
L. TERMINATION
This Commitment may be terminated prior to closing at AEI's
option (but reserving to AEI its right to pursue its
remedies at law or equity for Seller or ▇▇▇▇▇▇'s breach
hereof) in such manner as AEI may determine, if: 1) Seller
or Lessee fails to comply with any of the terms hereof,
including but not limited to, obtaining AEI's approval of
the Supporting Documents listed in Paragraph E.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 or Guarantor which would have a
material adverse effect on Seller, Lessee or Guarantor's
performance under this Commitment; 3) any representation
made in any submission proves to be untrue, substantially
false or misleading at any time prior to the Closing Date
which would have a material adverse effect on Seller, Lessee
or Guarantor's performance under this Commitment; 4) there
has been a material adverse change in the financial
condition of Seller, Lessee or Guarantor since the date of
execution of the Commitment or there shall exist a material
action, suit or proceeding pending or threatened against
Seller, Lessee or Guarantor which would have a material
adverse effect on Seller, Lessee or Guarantor's performance
under this Commitment; 5) any bankruptcy, reorganization,
insolvency, withdrawal, or similar proceeding is instituted
by or against Seller, Lessee or Guarantor.
In the event Seller or ▇▇▇▇▇▇ and AEI do not reach mutual
agreement on the documents contemplated to be executed by
either party hereunder, this Commitment may be terminated at
the option of either party; AEI shall in such event refund
the Commitment Fee to Seller, less AEI's out-of-pocket
expenses incurred hereunder, including but not limited to
attorney's fees.
AEI, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ acknowledge the unique nature of the
Parcel and agree that the mutual remedies of any party
hereunder shall be limited to the liquidated damages equal
to the amount of the Commitment Fee plus the outside
counsel's fees incurred by the party in connection with this
Commitment prior to the date of termination.
Seller/Lessee Initial: /s/ cr
Commitment For: Fuddrucker's Restaurant/Thornton, Co
June 30,1997
M. INCORPORATION OF SUBMITTED WRITTEN MATERIALS AND AMENDMENTS
This Commitment is issued by AEI pursuant to all written
materials previously submitted to AEI by Seller, Lessee or
Guarantor as described on Exhibit "A" hereto (the "Submitted
Written Materials") and it is a proviso hereof that the
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
contradiction, variance, or ambiguity between any of the
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 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President of AEI, or
his designee in writing signed by ▇▇. ▇▇▇▇▇▇▇ authorizing
such other party to execute a specific change, waiver,
discharge or termination instrument on behalf of AEI.
N. EXPIRATION
This Commitment must be executed and returned by registered
or certified mail to AEI no later than July 7, 1997 for the
terms herein to be effective for the Parcel.
AEI Fund Management, Inc. (AEI)
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
STATE OF MINNESOTA )
) ss
COUNTY OF ▇▇▇▇▇▇ )
On this 7th day of July, 1997, before me, the undersigned, a
Notary Public in and for said State, personally appeared ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, 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/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
Notary Public
[notary seal]
This Commitment is accepted and agreed to
this 1st day of July, 1997.
Seller/Lessee Initial: /s/ cr
Commitment For: Fuddrucker's Restaurant/Thornton, Co
June 30,1997
FUDDRUCKERS, INC. FUDDRUCKERS, INC.
(Seller) (Lessee)
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇
Its: Sr. Vice Pres Its: Sr Vice Pres
STATE OF Massachusetts )
) ss
COUNTY OF Essex )
On this 1st day of July, 1997, before me, the undersigned, a
Notary Public in and for said State, personally appeared ▇▇▇▇▇▇ ▇
▇▇▇▇▇, personally known to me to be the person who executed the
within instrument as the Sr Vice Pres of Fuddruckers, Inc a Texas
corporation, on behalf of said corporation.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Notary Public /s/ my commission expires 4-8-99
STATE OF Massachusetts )
) ss
COUNTY OF Essex )
On this 1st day of July, 1997, before me, the undersigned, a
Notary Public in and for said State, personally appeared ▇▇▇▇▇▇ ▇
▇▇▇▇▇, personally known to me to be the person who executed the
within instrument as the Sr Vice Pres of Fuddruckers Inc, a Texas
corporation, on behalf of said corporation.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Notary Public
I/We authorize the release of any information deemed
necessary by AEI to verify any and all information supplied to
AEI. I/We shall hold AEI harmless for any damages arising from
verification of said information.
Fuddruckers Inc.
BY: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Dated: July 1, 1997
Title: (Seller)Sr. Vice Pres
Fuddruckers, Inc.
BY: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Dated: July 1, 1997
Title: (Lessee)Sr Vice Pres
Seller/Lessee Initial: /s/ cr
Commitment For: Fuddrucker's Restaurant/Thornton, Co
June 30,1997
EXHIBIT `A'
DOCUMENTS PROVIDED TO AEI PRIOR TO THE COMMITMENT
1. Demographics for the site.
2. Site plan.
3. Information regarding area competition.
4. Budget
Seller/Lessee Initial: /s/ cr
Commitment For: Fuddrucker's Restaurant/Thornton, Co
June 30,1997
EXHIBIT "B"
(Costs which may be included in the purchase.)
01. Land Costs or Site Acquisition Costs at Seller's or ▇▇▇▇▇▇'s
actual cost from unaffiliated parties.
02. Demolition Costs and Site Preparation Costs.
03. Architectural and Engineering Fees paid to non-affiliates.
04. Outside Labor Costs.
05. Material Costs.
06. Soil Tests Costs.
07. Surveying Costs paid to non-affiliates.
08. Building permits, use permits and other governmental
charges.
09. Contractor Fees to non-affiliates.
10. Builders' Risk Insurance and Public Liability Insurance
Premiums during the
construction period.
11. Utility Charges during construction.
12. Construction Interest.
13. AEI's one percent (1%) Commitment Fee.
14. Title Insurance Fees and Charges.
15. Recording Fees and Registration or Conveyancing Taxes, Fees,
or Charges.
16. Real Estate Taxes due and payable, or actually paid by
Seller as of the date of
closing.
17. Special Assessments levied and pending and actually paid by
▇▇▇▇▇▇ as of the date of
closing.
18. Appraisal Fees paid to non-affiliates (maximum $5,000).
19. Attorneys' Fees of Seller and Lessee.
20. Attorneys' Fees of AEI: As long as Seller and/or Lessee is
not in default hereunder, a fixed flat fee of $5,500 to
close the transaction, unless additional fees or costs are
incurred for extraordinary matters not reasonably
anticipated or evident from the information available to AEI
as of the date hereof.
21. Attached, Permanent Equipment, not including signage, not to
exceed nine percent (9.0%) of the Purchase Price.
Seller/Lessee Initial: /s/ cr
Commitment For: Fuddrucker's Restaurant/Thornton, Co
June 30,1997
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 the Sale and
Leaseback Financing Commitment.
1. Current financial statements as described on
Exhibit "D" attached hereto.
2. Site plan.
3. Itemized Budget of total project cost.
4. Site demographics.
5. Area competition.
Seller/Lessee Initial: /s/ cr
Commitment For: Fuddrucker's Restaurant/Thornton, Co
June 30,1997
EXHIBIT "D"
FINANCIAL DOCUMENTATION REQUIREMENTS
Lessee shall deliver to AEI, for its approval, the following
documents to support AEI's standard credit underwriting
requirements:
▇. ▇▇▇▇▇▇'s consolidated financial statements, to
include at a minimum a balance sheet and operating
statement, for Lessee's most recent reporting
period, year-to-date period and prior three fiscal
year periods. Said financial statements must be
represented and warranted by ▇▇▇▇▇▇'s Chief
Financial Officer, or other authorized individual,
using the certification language appearing below.
▇▇.▇▇▇▇▇▇▇▇▇ statements of the Parcel to be
purchased, to include at a minimum a balance sheet
and operating statement for the Parcel's most
recent reporting period and year-to-date period.
Said financial statements must be represented and
warranted by ▇▇▇▇▇▇'s Chief Financial Officer, or
other authorized individual, using the
certification language appearing below.
III. Guarantor's, or its predecessor's,
Form 10-K reports as filed with the Securities and
Exchange Commission (hereafter "SEC") for each of
its past three fiscal years.
IV.Guarantor's, or its predecessor's, current
fiscal year Form 10-Q reports as filed with the
Securities and Exchange Commission.
V. Guarantor's, or its predecessor's, Annual
Shareholder reports for its past three fiscal
years, if available.
VI.Guarantor's, or its predecessor's, Quarterly
Shareholder reports for its current fiscal year, if
available.
VII. If available, Seller's consolidated
financial statements, to include at a minimum a
balance sheet and operating statement, for Seller's
most recent reporting period, year-to-date period
and prior fiscal year period. Said financial
statements should be certified by ▇▇▇▇▇▇'s Chief
Financial Officer, or other authorized individual,
as being true and correct.
VIII. Pro forma of first year's operations for the
property to be purchased.
IX.Itemized budget of total project cost for the
property to be purchased.
▇▇▇▇▇▇'s and Guarantor's financial statements shall be
prepared in accordance with current GAAP guidelines and, if
not audited or submitted to the SEC as either Form 10-K's or
Form 10-Q's, signed by ▇▇▇▇▇▇'s and Guarantor's Chief
Financial Officers, or other authorized individuals, who
must represent and warrant the accuracy thereof. The
certification language must read as follows:
"The undersigned hereby represents and warrants that
the information contained in these unaudited
financial statements
Seller/Lessee Initial: /s/ cr
Commitment For: Fuddrucker's Restaurant/Thornton, Co
June 30,1997
is true and correct in all material respects,
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."
Please direct all questions regarding the foregoing to the
property acquisitions department. The toll-free number is 1
▇▇▇-▇▇▇-▇▇▇▇.
Seller/Lessee Initial: /s/ cr
Commitment For: Fuddrucker's Restaurant/Thornton, Co
June 30,1997
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 property 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 at full 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 ▇▇▇▇▇ 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 property insurance policies shall include a Building
Ordinance Compliance Endorsement.
4. All property insurance policies shall be written with no
coinsurance.
5. The maximum deductible for any property insurance policy
shall be $1,000.
6. Property 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.
7. Flood insurance shall be required, in amounts acceptable to
AEI, unless evidence is provided that the Parcel is not located
in a designated Federal flood or storm surge area. 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 ____________ .
8. 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 ______________ .
9. 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. The maximum deductible for any liability insurance
policy shall be _____________.
10. 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,
Seller/Lessee Initial: /s/ cr
Commitment For: Fuddrucker's Restaurant/Thornton, Co
June 30,1997
the coverage shall be written with limits of $2,000,000 per
occurrence and $5,000,000 aggregate.
11. At any time, at the discretion of AEI, Pollution Liability
coverage may be required.
12. The "Additional Requirements For All Insurance Policies" are
as follows:
a. Definition of "AEI" regarding Additional Insured and Loss
Payee Endorsements:
"AEI _______________________ Limited Partnership, AEI
______________, Inc., the Corporate General Partner,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as the Individual General Partner
and its successors and assigns as their respective
interests may appear. "
b. Each policy shall be accompanied a proof of payment of
the first annual premium.
c. All property policies shall name AEI as Loss Payee and
Additional Insured.
d. All liability policies shall name AEI as Additional
Insured.
e. All property and liability insurance policies shall
contain Waiver of Subrogation Endorsements waiving all
rights of subrogation, if any, against AEI.
f. AEI shall receive a thirty (30) day written notice in the
event of cancellation, material amendment, or expiration
without renewal of the policies. The certificate of
insurance must not contain the following language: "will
endeavor to mail" and "but failure to mail such notice shall
impose no obligation or liability of any kind upon the
company, its agents or representatives".
g. All insurance companies shall be approved in writing by
AEI.
h. All property and liability insurance policies will be
analyzed at least quarterly regarding their coverages and
adjusted at any time at the option of AEI.
13. At the discretion of AEI, key man insurance can be required
as called for in Lessee's Sale and Leaseback Financing Commitment
with AEI as owner of the policy or sole and irrevocable
beneficiary.
* Please call in AEI's Insurance Analyst in the Lease Management
Department to determine amounts, ▇-▇▇▇-▇▇▇-▇▇▇▇.
6/97
Seller/Lessee Initial: /s/ cr
Commitment For: Fuddrucker's Restaurant/Thornton, Co
June 30,1997
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 Colorado, do hereby certify to (AEI
Fund to be specified), ____________________________ a
Minnesota limited partnership, or their assigns Lawyers
Title Insurance Corporation and Fuddrucker's Inc. (PLEASE
CONTACT ACQUISITIONS CLOSING MANAGER AT ▇-▇▇▇-▇▇▇-▇▇▇▇ FOR
INFORMATION), and ▇▇▇▇▇▇'s Title Insurance Corporation, 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.
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 and American
Congress on Surveying and Mapping.
5. The character and location of all buildings upon the plot or
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
Seller/Lessee Initial: /s/ cr
Commitment For: Fuddrucker's Restaurant/Thornton, Co
June 30,1997
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 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.
7. As minimum requirement, at least two (2) sets of prints of
the plat or map of survey should be furnished to AEI, 1300
Minnesota World Trade Center, ▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
▇▇▇▇, ▇▇ ▇▇▇▇▇, attention: Acquisitions Closing Manager,
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.
Seller/Lessee Initial: /s/ cr
Commitment For: Fuddrucker's Restaurant/Thornton, Co
June 30,1997
