SALE AND LEASEBACK FINANCING COMMITMENT
("COMMITMENT")
TGI FRIDAY'S RESTAURANT
GREENSBURG, PENNSYLVANIA
5/13, 1997
In reliance upon representations made by you in documents
you furnished to us, AEI Fund Management, Inc., or its assigns,
("AEI"), agrees to purchase and you agree to sell and lease from
AEI a TGI Friday's restaurant to be located in Greensburg, PA and
to be developed by the Seller/Lessee (the "Parcel"), which Parcel
will be subject to the provisions and conditions herein
contained.
A. SELLER
Name: Ohio Valley Bistros, Inc., an Ohio Corporation
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
B. LESSEE
Name: Ohio Valley Bistros, Inc., an Ohio Corporation
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
C. PREMISES
1. Type of Improvements: A TGI Friday's restaurant (the
"Improvements").
2. Location: Greensburg, PA, ▇▇▇▇▇▇▇▇▇▇▇▇ County
3. Land: ______ s.f.
D. FEES AND COSTS
1. A Commitment Fee equal to one percent (1.0%) of
the total Purchase Price, as defined in Article E.1
hereof, (the "Commitment Fee") will be payable to AEI
upon execution of this Commitment and shall be
considered earned upon Seller/LesseeOs execution and
delivery of this Commitment. At Seller/▇▇▇▇▇▇▇▇
election the Commitment Fee may included as a project
cost funded by ▇▇▇ and reimbursed to ▇▇▇▇▇▇.
2. All outstanding real estate taxes, and levied and
pending special assessments, due and payable prior to
the Closing Date, shall be paid by Seller or Lessee in
full at or prior to the Closing Date.
Seller/Lessee Initial:
Commitment For: TGI Friday's Restaurant, /s/ JC
May 6, 1997
3. 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. AEI's out-of-pocket costs such as attorney
fees, state registration and reporting fees and credit
and background report fees, which are exclusive of
Seller's and Lessee's soft costs, shall not exceed
$7,500.00, plus, if any, such additional fees or costs
not reasonably anticipated or evident from the
information available to AEI as of the date hereof, as
long as Seller and/or Lessee is not in default
hereunder. Such costs may be included, at ▇▇▇▇▇▇'s
option, in total costs funded by AEI, if and when the
transaction contemplated hereunder shall close.
E. PURCHASE TERMS
1. Purchase Price: Not to exceed $1,650,000.00 (may
include all verifiable project costs approved by AEI,
including those costs shown on Exhibit "A" attached
hereto, (the "Total Project Cost"), but not to exceed
AEI approved MAI appraised value (the "Purchase
Price").
2. Closing Date: If Seller has not performed under
this agreement by December 31, 1997, (the "Closing
Date"), this Commitment shall be null and void at the
option of AEI. In the event of a delay in closing
caused by a Force Majeure Event, this Commitment shall
be extended upon written notice by Seller of such
event, in any event not more than by sixty (60) days,
provided Seller immediately commences a cause of action
designated to fulfill is obligations hereunder. An
extension for reason other than a Force Majeure Event
must be submitted in writing by Seller and must be
approved by AEI, in its sole discretion. A written
addendum to this Commitment shall be required for all
extensions. For purposes of the foregoing, a Force
Majeure Event 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, beyond the control
of Seller or Lessee. A Force Majeure Event shall not
include a delay, damage or failure for which the cure
may be effected by the expenditure of funds at then
current market prices.
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 of AEI.
Notwithstanding any such assignment, AEI and its
assignee shall both be liable for AEI's obligations
hereunder.
4. Parcel Inspection: As a condition precedent to
AEI's obligation hereunder, the Parcel shall be
inspected and approved by AEI prior to or after issuing
a Sale/Leaseback commitment. Within five (5) business
days of receipt of an invoice from AEI, Seller/Lessee
shall reimburse AEI for its actual out-of-pocket costs
of performing such site inspection, not to exceed
$1,000.00. At Lessee's election this fee may be
included as a project cost and reimbursed to ▇▇▇▇▇▇ at
closing.
Seller/Lessee Initial:
Commitment For: TGI Friday's Restaurant, /s/ JC
May 6, 1997
5. Management Review and Interview: AEI has reviewed and
approved the management of Seller. As a condition
precedent to AEI's obligations hereunder, there shall
be no material changes in the management of Seller
prior to closing.
6. Supporting Documents: As soon as possible, and as
a condition precedent to closing on the Parcel, the
supporting documentation listed 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 "B"
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.
c. Insurance policies issued by companies
acceptable to AEI, with loss clauses in favor of
AEI, complying with the guidelines set forth on
Exhibit "D" attached hereto.
d.As-Built survey acceptable to AEI prepared
by a licensed surveyor acceptable to AEI,
complying with the guidelines set forth on Exhibit
"E" attached hereto.
▇.▇▇▇▇▇ plans and specifications for the
Improvements prepared by an architect or engineer
acceptable to AEI.
f.A soil report prepared by an engineer
acceptable to AEI.
g.Appraisal of the Parcel by an independent
M.A.I. or other appraiser 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.
Seller/Lessee Initial:
Commitment For: TGI Friday's Restaurant, /s/ JC
May 6, 1997
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 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 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 the 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 the
utility letters in form satisfactory to 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 objective standards of 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 Franchise Agreement for use
of the Parcel as an TGI Friday's Restaurant.
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, or partnership agreement,
and Good Standing Certificate for the
Seller/Lessee, together with all other documents
AEI deems necessary to support the authority of
the persons executing any documents on behalf of
the corporation, or partnership, including
applicable encumbrancy certificates and
corporate/partnership resolutions of the directors
and shareholders.
Seller/Lessee Initial:
Commitment For: TGI Friday's Restaurant, /s/ JC
May 6, 1997
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.
q.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 fails to deliver any
additional reports AEI may deem necessary to
complete and approve its environmental
investigation of this Parcel, AEI may terminate
this Commitment and retain that portion of the
Commitment Fee to cover any and all of its costs
incurred hereunder.
r.Execution of: Lease; Opinion of Seller and
▇▇▇▇▇▇'s Counsel; Hazardous Substance Indemnity
Agreement of Seller and ▇▇▇▇▇▇, Seller's and
▇▇▇▇▇▇▇▇ Affidavit; all in form and substance
satisfactory to AEI, consistent with the terms
hereof.
▇.▇▇▇▇▇▇▇▇▇ statements as listed and
referenced on Exhibit "C" attached hereto.
F. LEASE TERMS
The lease, in the form agreed upon between the parties
hereto prior to the Closing Date will be executed and
delivered by AEI and Seller/Lessee at closing, to include
the following terms:
1. Base Rent:
a.Initial Annual Rental Rate as Percentage of
Purchase Price: 10.25% for the first and all those
subsequent Parcel.
Rent shall be payable in advance of the first
day of each month in equal monthly installments.
b.Beginning in the second (2nd) lease year
and continuing every lease year thereafter,
including renewal terms, such annual rent would
increase by an amount equal to one and thirteen
one hundredths percent (1.13%) of the prior
periodOs annual rent.
2. Initial Lease Term: 15 years.
3. Renewal Terms: Two (2) terms of five (5)
years each .
4. Type of Use:Casual Dining Restaurant.
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.
Seller/Lessee Initial:
Commitment For: TGI Friday's Restaurant, /s/ JC
May 6, 1997
G. 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 (subject to Article L. hereof)
Seller and its Counsel:
1. Net Lease Agreement.
2. Attorney's Opinion Letter to be given by ▇▇▇▇▇▇'s
and ▇▇▇▇▇▇'s outside counsel necessarily familiar with
the conduct of ▇▇▇▇▇▇'s and ▇▇▇▇▇▇'s business 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 and due authority
of signatories.
3. Lessee Estoppel Letter.
4. Affidavit of Seller and ▇▇▇▇▇▇.
5. Hazardous Substances Indemnification Agreement of
Seller and Lessee.
6. Foreign Investment in Real Property Tax Act
(FIRPTA) Affidavit of Seller.
7. Tri-Party Agreement with Provident Bank in
substantially the same form as agreed to between AEI,
Ristorante Karlo, Inc. and Provident Bank on December
29, 1995, except that in the event of any future
assignment, the release of Provident Bank shall be
subject to the provisions and restrictions of
assignment and subletting as set forth in the Lease.
Seller shall furnish a proposed Warranty Deed to AEI's
counsel for its review and approval.
H. FAIR CREDIT REPORTING ACT
Seller/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/▇▇▇▇▇▇'s
credit and financial position, as it may deem necessary or
expedient at Seller/▇▇▇▇▇▇'s cost and expense.
I. 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
Minnesota.
J. CERTIFICATION
Seller and Lessee hereby certify that:
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
Seller/Lessee Initial:
Commitment For: TGI Friday's Restaurant, /s/ JC
May 6, 1997
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.
K. 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'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 default exists in any financial obligation of Lessee;
3) any representation made in any submission proves to be
untrue, substantially false or misleading at any time prior
to the Closing Date; 4) there has been a material adverse
change in the financial condition of a Lessee since the date
of execution of the Commitment or there shall exist a
material action, suit or proceeding pending or threatened
against Lessee; 5) any bankruptcy, reorganization,
insolvency, withdrawal, or similar proceeding is instituted
by or against Lessee
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.
If AEI shall exercise a right to terminate this Agreement
for any reason other than Seller/▇▇▇▇▇▇'s unwillingness to
close, 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, attorney's fees.
However, if Seller/▇▇▇▇▇▇ shall refuse to close though AEI
shall be ready, willing and able to close, AEI may exercise
any remedy available at law or equity, including but not
limited to retention of the entire Commitment Fee.
AEI, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ acknowledge the unique nature of the
Parcel and agree that Seller's or ▇▇▇▇▇▇'s breach of this
Commitment may result in irreparable harm to AEI not
compensable by an action for monetary damages. The parties
therefore agree that 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 as are available, without having to precede a suit in
equity with an action at law. Seller and Lessee likewise
are entitled hereby to specific performance; however, such
right of Seller and ▇▇▇▇▇▇ shall terminate automatically in
the event AEI exercises its option to terminate this
Commitment by reason of Seller's or Lessee's failure to
close pursuant to this Commitment on or before the date
earlier stated in Section E.2. hereof through no fault of
AEI. Each party agrees to pay and discharge all reasonable
costs, and actual 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.
Seller/Lessee Initial:
Commitment For: TGI Friday's Restaurant, /s/ JC
May 6, 1997
L. INCORPORATION OF SUBMITTED WRITTEN MATERIALS/AMENDMENTS
This Commitment is issued by AEI pursuant to all written
materials previously submitted to AEI by ▇▇▇▇▇▇ and ▇▇▇▇▇▇
(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.
M. EXPIRATION
This Commitment must be executed and returned by registered
or certified mail to AEI no later than May 23, 1997.
AEI Fund Management, Inc. (AEI)
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
STATE OF MINNESOTA )
) ss
COUNTY OF ▇▇▇▇▇▇ )
On this 12th day of May, 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 13 day of May, 1997.
Ohio Valley Bistros, Inc. Ohio Valley Bistros, Inc.
(Seller) (Lessee)
By: /s/ ▇▇▇▇▇ ▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇
Its: President Its: President
Seller/Lessee Initial:
Commitment For: TGI Friday's Restaurant, /s/ JC
May 6, 1997
STATE OF Ohio )
) ss
COUNTY OF ▇▇▇▇▇▇▇▇ )
On this 13th day of May, 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 Ohio Valley Bistros, Inc.,
an Ohio corporation, on behalf of said corporation.
/s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Notary Public
[notary seal]
STATE OF Ohio )
) ss
COUNTY OF ▇▇▇▇▇▇▇▇ )
On this 13th day of May, 1997, before me, the undersigned, a
Notary Public in and for said State, personally appeared /s/
▇▇▇▇▇ ▇ ▇▇▇, personally known to me to be the person who executed
the within instrument as the President of Ohio Valley Bistros,
Inc., an Ohio corporation, on behalf of said corporation.
/s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Notary Public
[notary seal]
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.
/s/ ▇▇▇▇▇ ▇▇▇ Dated: 5/13/97
Title: (Seller)
/s/ ▇▇▇▇▇ ▇▇▇ Dated: 5/13/97
Title: (Lessee)
Seller/Lessee Initial:
Commitment For: TGI Friday's Restaurant, /s/ JC
May 6, 1997
EXHIBIT "A"
(Costs which may be included in the purchase.)
01. Land Costs or Site Acquisition Costs at Lessee'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 (1.0%) 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. Any fees or costs incurred by AEI in qualifying to hold
title in the state where the Property is located.
19. Appraisal Fees paid to non-affiliates (maximum $5,000).
20. Attorneys' Fees of Seller and Lessee.
21. Attorneys' Fees of AEI.
22. Attached, Permanent Equipment, not including signage, up to
nine percent (9.0%) of Total Project Cost.
Seller/Lessee Initial:
Commitment For: TGI Friday's Restaurant, /s/ JC
May 6, 1997
EXHIBIT "B"
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. Business and marketing plan, with an explanation
of what ▇▇▇▇▇▇ proposes to do, when, and at what costs
to promote the success of this Parcel. (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 "C" attached hereto.
4. Site plan and maps showing site(s) and location(s)
of competition.
5. Complete city map.
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 view of
the Parcel and Improvements if completed.
8. MAI appraisal. (To be ordered by AEI.)
9. Itemized Budget of total project cost.
10. Franchise agreement(s), license and UFOC.
11. Other:
Seller/Lessee Initial:
Commitment For: TGI Friday's Restaurant, /s/ JC
May 6, 1997
EXHIBIT "C"
FINANCIAL DOCUMENTATION REQUIREMENTS
Lessee shall deliver to AEI, for its approval, the following
documents to support AEI's standard credit underwriting
requirements:
▇. ▇▇▇▇▇▇'s financial statements for its three most
recent fiscal years, audited by an independent
certified public accountant and prepared in
conformity with generally accepted accounting
principles. In lieu of audited financial
statements for Lessee, audited financial statements
for The Bistro Group inclusive of supporting
schedules for Lessee, in form and substance
substantially similar to those financial statements
for The Bistro Group for each of the three fiscal
years shall be acceptable. All financial statements
submitted to AEI shall include a balance sheet and
related statements of income, cash flows and
stockholder's equity, and related notes to the
financial statements. Additionally, all audited
financial statements shall be accompanied by the
auditor's opinion.
II.Lessee's internally generated consolidated
financial statements for the current and year-to-
date periods. Said financial statements shall
include at a minimum, a balance sheet and statement
of income. Cash flow statements and statements of
stockholder's equity should also be provided if
available.
III. ▇▇▇▇▇▇'s internally generated per
store financial statements for the current and year-
to-date periods. Said financial statements shall
include at a minimum, a balance sheet and statement
of income. Cash flow statements and statements of
stockholder's equity should also be provided if
available.
IV.Lessee's internally generated per store annual
financial statements for each of its prior three
fiscal year periods. Said financial statements
shall include at a minimum, a balance sheet and
statement of income. Cash flow statements and
statements of stockholder's equity should also be
provided if available.
V. Pro forma of first year's operations for the
property to be financed.
VI.Itemized budget of total project cost for the
property to be financed.
VII. Current personal financial statements for all
Guarantors and, if individuals, their spouses. All
personal financial statements must be signed, dated
and include certification language attesting to
their accuracy (see below).
Items I-VI above shall be prepared by Lessee in accordance
with current GAAP guidelines and signed by ▇▇▇▇▇▇'s Chief
Financial Officer, or other authorized individual, who must
represent and warrant the accuracy thereof. For Item VII,
each personal financial statement submitted to AEI shall be
accompanied by the certification language appearing below
and shall be personally signed by the Guarantor reflected on
the personal financial statement. The certification
language must read as follows:
"The undersigned hereby represents and warrants that
the information contained in these financial
statements 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."
Seller/Lessee Initial:
Commitment For: TGI Friday's Restaurant, /s/ JC
May 6, 1997
EXHIBIT "D"
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 $5,000.
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:
Commitment For: TGI Friday's Restaurant, /s/ JC
May 6, 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, ▇-▇▇▇-▇▇▇-▇▇▇▇.
Seller/Lessee Initial:
Commitment For: TGI Friday's Restaurant, /s/ JC
May 6, 1997
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 do hereby certify to AEI
Fund Management, Inc., a Minnesota corporation, or its
assigns (PLEASE CONTACT ACQUISITIONS CLOSING MANAGER AT 1-
▇▇▇-▇▇▇-▇▇▇▇ 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.
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 located and noted. If
the surveyor has knowledge of any such easements
Seller/Lessee Initial:
Commitment For: TGI Friday's Restaurant, /s/ JC
May 6, 1997
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:
Commitment For: TGI Friday's Restaurant, /s/ JC
May 6, 1997