SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
Quarterly Report Under Section 13 or 15(d)
of The Securities Exchange Act of 1934
For the Quarter Ended: June 30, 1997
Commission file number: 0-29274
AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
(Exact Name of Small Business Issuer as Specified in its Charter)
State of Minnesota 41-1789725
(State or other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1300 Minnesota World Trade Center, St. Paul, Minnesota 55101
(Address of Principal Executive Offices)
(612) 227-7333
(Issuer's telephone number)
Not Applicable
(Former name, former address and former fiscal year, if changed
since last report)
Check whether the issuer (1) filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period
that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90
days.
Yes [X] No
Transitional Small Business Disclosure Format:
Yes No [X]
AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
INDEX
PART I. Financial Information
Item 1. Balance Sheet as of June 30, 1997 and December 31, 1996
Statements for the Periods ended June 30, 1997 and 1996:
Income
Cash Flows
Changes in Partners' Capital
Notes to Financial Statements
Item 2. Management's Discussion and Analysis
PART II. Other Information
Item 1. Legal Proceedings
Item 2. Changes in Securities
Item 3. Defaults Upon Senior Securities
Item 4. Submission of Matters to a Vote of Security Holders
Item 5. Other Information
Item 6. Exhibits and Reports on Form 8-K
<PAGE>
AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
BALANCE SHEET
JUNE 30, 1997 AND DECEMBER 31, 1996
(Unaudited)
ASSETS
1997 1996
CURRENT ASSETS:
Cash and Cash Equivalents $ 7,852,111 $10,729,033
Receivables 95,464 41,672
----------- -----------
Total Current Assets 7,947,575 10,770,705
----------- -----------
INVESTMENTS IN REAL ESTATE:
Land 4,972,461 2,541,511
Buildings and Equipment 5,836,699 5,079,924
Construction in Progress 481,881 0
Construction Advances 643,688 1,621,870
Property Acquisition Costs 322,919 245,726
Accumulated Depreciation (278,482) (162,645)
----------- -----------
Net Investments in Real Estate 11,979,166 9,326,386
----------- -----------
Total Assets $19,926,741 $20,097,091
=========== ===========
LIABILITIES AND PARTNERS' CAPITAL
CURRENT LIABILITIES:
Payable to AEI Fund Management, Inc. $ 34,284 $ 132,900
Distributions Payable 481,275 429,668
Unearned Rent 31,998 0
----------- -----------
Total Current Liabilities 547,557 562,568
----------- -----------
PARTNERS' CAPITAL (DEFICIT):
General Partners (15,095) (9,754)
Limited Partners, $1,000 Unit Value;
24,000 Units authorized; 24,000 and 23,563
Units issued and outstanding in 1997 and
1996, respectively 19,394,279 19,544,277
----------- -----------
Total Partners' Capital 19,379,184 19,534,523
----------- -----------
Total Liabilities and Partners' Capital $19,926,741 $20,097,091
=========== ===========
The accompanying Notes to Financial Statements are an integral
part of this statement.
</PAGE>
<PAGE>
AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
STATEMENT OF OPERATIONS
FOR THE PERIODS ENDED JUNE 30
(Unaudited)
Three Months Ended Six Months Ended
6/30/97 6/30/96 6/30/97 6/30/96
INCOME:
Rent $ 232,114 $ 150,441 $ 416,273 $ 208,919
Investment Income 133,677 104,079 299,128 221,936
---------- ---------- ---------- ----------
Total Income 365,791 254,520 715,401 430,855
---------- ---------- ---------- ----------
EXPENSES:
Partnership Administration -
Affiliates 62,568 48,553 114,273 106,795
Partnership Administration
and Property Management -
Unrelated Parties 30,041 9,153 52,656 16,987
Depreciation 61,507 38,944 115,837 53,710
---------- ---------- ---------- ----------
Total Expenses 154,116 96,650 282,766 177,492
---------- ---------- ---------- ----------
NET INCOME $ 211,675 $ 157,870 $ 432,635 $ 253,363
========== ========== ========== ==========
NET INCOME ALLOCATED:
General Partners $ 2,116 $ 1,579 $ 4,326 $ 2,534
Limited Partners 209,559 156,291 428,309 250,829
---------- ---------- ---------- ----------
$ 211,675 $ 157,870 $ 432,635 $ 253,363
========== ========== ========== ==========
NET INCOME PER
LIMITED PARTNERSHIP UNIT
(24,000, 16,124, 23,928 and
14,676 weighted average
Units outstanding for the
periods, respectively) $ 8.73 $ 9.69 $ 17.90 $ 17.09
========== ========== ========== ==========
The accompanying Notes to Financial Statements are an integral
part of this statement.
</PAGE>
<PAGE>
AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
STATEMENT OF CASH FLOWS
FOR THE PERIODS ENDED JUNE 30
(Unaudited)
1997 1996
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Income $ 432,635 $ 253,363
Adjustments to Reconcile Net Income to Net Cash
Provided by Operating Activities:
Depreciation 115,837 53,710
(Increase) Decrease in Receivables (53,792) 3,716
Increase (Decrease) in Payable to
AEI Fund Management, Inc. (98,616) 36,356
Increase in Unearned Rent 31,998 31,998
----------- -----------
Total Adjustments (4,573) 125,780
----------- -----------
Net Cash Provided By
Operating Activities 428,062 379,143
----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Investments in Real Estate (2,768,617) (3,645,367)
----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Capital Contributions from Limited Partners 436,651 5,585,526
Organization and Syndication Costs (57,869) (772,076)
Increase in Distributions Payable 51,607 122,205
Distributions to Partners (966,756) (590,818)
----------- ----------
Net Cash Provided By (Used For)
Financing Activities (536,367) 4,344,837
----------- -----------
NET INCREASE (DECREASE) IN CASH
AND CASH EQUIVALENTS (2,876,922) 1,078,613
CASH AND CASH EQUIVALENTS, beginning of period 10,729,033 8,367,460
----------- ----------
CASH AND CASH EQUIVALENTS, end of period $ 7,852,111 $ 9,446,073
=========== ==========
The accompanying Notes to Financial Statements are an integral
part of this statement.
</PAGE>
<PAGE>
AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
STATEMENT OF CHANGES IN PARTNERS' CAPITAL
FOR THE PERIODS ENDED JUNE 30
(Unaudited)
Limited
Partnership
General Limited Units
Partners Partners Total Outstanding
BALANCE, December 31, 1995 $ (4,832) $10,291,351 $10,286,519 12,289.81
Capital Contributions 0 5,585,526 5,585,526 5,585.52
Organization and
Syndication Costs 0 (772,076) (772,076)
Distributions (5,908) (584,910) (590,818)
Net Income 2,534 250,829 253,363
--------- ----------- ----------- -----------
BALANCE, June 30, 1996 $ (8,206) $14,770,720 $14,762,514 17,875.33
========= =========== =========== ===========
BALANCE, December 31, 1996 $ (9,754) $19,544,277 $19,534,523 23,563.35
Capital Contributions 0 436,651 436,651 436.65
Organization and
Syndication Costs 0 (57,869) (57,869)
Distributions (9,667) (957,089) (966,756)
Net Income 4,326 428,309 432,635
--------- ----------- ----------- ----------
BALANCE, June 30, 1997 $ (15,095) $19,394,279 $19,379,184 24,000.00
========= =========== =========== ==========
The accompanying Notes to Financial Statements are an integral
part of this statement.
</PAGE>
AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
JUNE 30, 1997
(Unaudited)
(1) The condensed statements included herein have been prepared
by the Partnership, without audit, pursuant to the rules and
regulations of the Securities and Exchange Commission, and
reflect all adjustments which are, in the opinion of
management, necessary to a fair statement of the results of
operations for the interim period, on a basis consistent with
the annual audited statements. The adjustments made to these
condensed statements consist only of normal recurring
adjustments. Certain information, accounting policies, and
footnote disclosures normally included in financial
statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted pursuant
to such rules and regulations, although the Partnership
believes that the disclosures are adequate to make the
information presented not misleading. It is suggested that
these condensed financial statements be read in conjunction
with the financial statements and the summary of significant
accounting policies and notes thereto included in the
Partnership's latest annual report on Form 10-KSB.
(2) Organization -
AEI Income & Growth Fund XXI Limited Partnership
(Partnership) was formed to acquire and lease commercial
properties to operating tenants. The Partnership's
operations are managed by AEI Fund Management XXI, Inc.
(AFM), the Managing General Partner of the Partnership.
Robert P. Johnson, the President and sole shareholder of
AFM, serves as the Individual General Partner of the
Partnership. An affiliate of AFM, AEI Fund Management,
Inc., performs the administrative and operating functions
for the Partnership.
The terms of the Partnership offering call for a
subscription price of $1,000 per Limited Partnership Unit,
payable on acceptance of the offer. The Partnership
commenced operations on April 14, 1995 when minimum
subscriptions of 1,500 Limited Partnership Units
($1,500,000) were accepted. On January 31, 1997, the
Partnership offering terminated when the maximum
subscription limit of 24,000 Limited Partnership Units
($24,000,000) was reached.
Under the terms of the Limited Partnership Agreement, the
Limited Partners and General Partners contributed funds of
$24,000,000 and $1,000, respectively. During the operation
of the Partnership, any Net Cash Flow, as defined, which the
General Partners determine to distribute will be distributed
90% to the Limited Partners and 10% to the General Partners;
provided, however, that such distributions to the General
Partners will be subordinated to the Limited Partners first
receiving an annual, noncumulative distribution of Net Cash
Flow equal to 10% of their Adjusted Capital Contribution, as
defined, and, provided further, that in no event will the
General Partners receive less than 1% of such Net Cash Flow
per annum. Distributions to Limited Partners will be made
pro rata by Units.
AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
(Continued)
(2) Organization - (Continued)
Any Net Proceeds of Sale, as defined, from the sale or
financing of the Partnership's properties which the General
Partners determine to distribute will, after provisions for
debts and reserves, be paid in the following manner: (i)
first, 99% to the Limited Partners and 1% to the General
Partners until the Limited Partners receive an amount equal
to: (a) their Adjusted Capital Contribution plus (b) an
amount equal to 10% of their Adjusted Capital Contribution
per annum, cumulative but not compounded, to the extent not
previously distributed from Net Cash Flow; (ii) any
remaining balance will be distributed 90% to the Limited
Partners and 10% to the General Partners. Distributions to
the Limited Partners will be made pro rata by Units.
For tax purposes, profits from operations, other than
profits attributable to the sale, exchange, financing,
refinancing or other disposition of the Partnership's
property, will be allocated first in the same ratio in
which, and to the extent, Net Cash Flow is distributed to
the Partners for such year. Any additional profits will be
allocated in the same ratio as the last dollar of Net Cash
Flow is distributed. Net losses from operations will be
allocated 99% to the Limited Partners and 1% to the General
Partners.
For tax purposes, profits arising from the sale, financing,
or other disposition of the Partnership's property will be
allocated in accordance with the Partnership Agreement as
follows: (i) first, to those partners with deficit balances
in their capital accounts in an amount equal to the sum of
such deficit balances; (ii) second, 99% to the Limited
Partners and 1% to the General Partners until the aggregate
balance in the Limited Partners' capital accounts equals the
sum of the Limited Partners' Adjusted Capital Contributions
plus an amount equal to 10% of their Adjusted Capital
Contributions per annum, cumulative but not compounded, to
the extent not previously allocated; (iii) third, the
balance of any remaining gain will then be allocated 90% to
the Limited Partners and 10% to the General Partners.
Losses will be allocated 98% to the Limited Partners and 2%
to the General Partners.
The General Partners are not required to currently fund a
deficit capital balance. Upon liquidation of the
Partnership or withdrawal by a General Partner, the General
Partners will contribute to the Partnership an amount equal
to the lesser of the deficit balances in their capital
accounts or 1% of total Limited Partners' and General
Partners' capital contributions.
AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
(Continued)
(3) Investments in Real Estate -
The Partnership leases its properties to various tenants
through non-cancelable triple net leases, which are
classified as operating leases. Under a triple net lease,
the lessee is responsible for all real estate taxes,
insurance, maintenance, repairs and operating expenses of
the property. The initial Lease terms are 20 years. The
Leases contain renewal options which may extend the Lease
term an additional 10 years for the Arby's restaurant, an
additional 15 years for the Champps Americana and Denny's
restaurants, and an additional 25 years for the Garden Ridge
store. The Leases contain rent clauses which entitle the
Partnership to receive additional rent in future years based
on stated rent increases. Certain lessees have been granted
options to purchase the property. Depending on the lease,
the purchase price is either determined by a formula, or is
the greater of the fair market value of the property or the
amount determined by a formula. In all cases, if the option
were to be exercised by the lessee, the purchase price would
be greater than the original cost of the property.
The Partnership's properties are all commercial, single-
tenant buildings. The cost of the property and related
accumulated depreciation at June 30, 1997 are as follows:
Buildings and Accumulated
Property Land Equipment Total Depreciation
Arby's
Montgomery, AL $ 328,310 $ 425,794 $ 754,104 $ 35,483
Media Play
Apple Valley, MN 422,776 991,284 1,414,060 64,804
Garden Ridge
Pineville, NC 1,181,253 2,463,138 3,644,391 123,157
Champps Americana
Columbus, OH 609,172 1,199,708 1,808,880 44,992
Denny's
Covington, LA 522,264 756,775 1,279,039 10,046
Champps Americana
San Antonio, TX 1,032,299 0 1,032,299 0
Champps Americana
Schaumburg, Illinois 876,387 0 876,387 0
----------- ----------- ----------- -----------
$ 4,972,461 $5,836,699 $10,809,160 $ 278,482
=========== =========== =========== ===========
AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
(Continued)
(3) Investments in Real Estate - (Continued)
On December 21, 1995, the Partnership purchased a 34.0%
interest in a Media Play retail store in Apple Valley,
Minnesota for $1,414,060. The property was leased to The
Musicland Group, Inc. under a Lease Agreement with a primary
term of 18 years and annual rental payments of $139,587.
The remaining interest in the property was purchased by AEI
Net Lease Income & Growth Fund XIX Limited Partnership and
AEI Net Lease Income & Growth Fund XX Limited Partnership,
affiliates of the Partnership.
In December, 1996, the Partnership and MGI reached an
agreement in which MGI would buy out and terminate the Lease
Agreement by making a payment of $800,000, which is equal to
approximately two years' rent. The Partnership's share of
such payment was $272,000. Under the Agreement, MGI
remained in possession of the property and performed all of
its obligations under the net lease agreement through
January 31, 1997 at which time it vacated the property and
made it available for re-let to another tenant. MGI was
responsible for all maintenance and management costs of the
property through January31, 1997 after which date the
Partnership became responsible for its share of expenses
associated with the property until it is re-let or sold. A
specialist in commercial property leasing has been retained
to locate a new tenant for the property.
On March 28, 1996, the Partnership purchased a 40.75%
interest in a Garden Ridge store in Pineville, North
Carolina for $3,644,391. The property is leased to Garden
Ridge, L.P. under a Lease Agreement with a primary term of
20 years and annual rental payments of $383,973. The
remaining interest in the property was purchased by AEI Net
Lease Income & Growth Fund XIX Limited Partnership and AEI
Net Lease Income & Growth Fund XX Limited Partnership,
affiliates of the Partnership.
On August 29, 1996, the Partnership purchased a 67.8%
interest in a Champps Americana restaurant in Columbus, Ohio
for $1,808,880. The property is leased to Americana Dining
Corporation under a Lease Agreement with a primary term of
20 years and annual rental payments of $191,259. The
remaining interest in the property was purchased by AEI Real
Estate Fund XVIII Limited Partnership, an affiliate of the
Partnership.
On March 14, 1997, the Partnership purchased a parcel of
land in San Antonio, Texas for $1,032,299. The land is
leased to Champps Americana, Inc. (Champps) under a Lease
Agreement with a primary term of 20 years and annual rental
payments of $83,451. The Partnership also entered into a
Development Financing Agreement under which the Partnership
will advance funds to Champps for the construction of a
Champps Americana restaurant on the site. Through June 30,
1997, the Partnership had advanced $242,612 for the
construction of the property and was charging interest on
the advances at a rate of 7.0%. The total purchase price,
including the cost of the land, will be approximately
$2,804,000. After the contruction is complete, the Lease
Agreement will be amended to require annual rental payments
of approximately $300,000.
On March 19, 1997, the Partnership purchased a Denny's
restaurant in Covington, Louisiana for $1,279,039. The
property is leased to Huntington Restaurants Group, Inc.
under a Lease Agreement with a primary term of 20 years and
annual rental payments of $141,243.
AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
NOTES TO FINANCIAL STATEMENTS
(Continued)
(3) Investments in Real Estate - (Continued)
On April 21, 1997, the Partnership purchased a 49.6%
interest in a parcel of land in Schaumburg, Illinois for
$876,387. The land is leased to Champps under a Lease
Agreement with a primary term of 20 years and annual rental
payments of $66,906. The Partnership also entered into a
Development Financing Agreement under which the Partnership
will advance funds to Champps for the construction of a
Champps Americana restaurant on the site. The Partnership
is charging interest on the advances at a rate of 7.0%. The
total purchase price, including the cost of the land, will
be approximately $2,128,000. After the construction is
complete, the Lease Agreement will be amended to require
annual rental payments of approximately $229,000. The
remaining interests in the property are owned by AEI Income
& Growth Fund XXI Limited Partnership and Net Lease Income &
Growth Fund 84-A Limited Partnership, affiliates of the
Partnership.
On July 8, 1997, the Partnership purchased a parcel of land
in Livonia, Michigan for approximately $1,074,000. The land
is leased to Champps under a Lease Agreement with a primary
term of 20 years and annual rental payments of approximately
$75,000. The Partnership also entered into a Development
Financing Agreement under which the Partnership will advance
funds to Champps for the construction of a Champps Americana
restaurant on the site. The Partnership is charging
interest on the advances at a rate of 7.0%. The total
purchase price, including the cost of the land, will be
approximately $3,970,000. After the contruction is
complete, the Lease Agreement will be amended to require
annual rental payments of approximately $427,000.
On July 31, 1997, the Partnership purchased a 93.1% interest
in a Caribou Coffee store in Charlotte, North Carolina for
approximately $1,273,000. The property is leased to Caribou
Coffee Company, Inc. under a Lease Agreement with a primary
term of 18 years and annual rental payments of approximately
$146,000. Through June 30, 1997, the Partnership had
advanced $643,688 for the construction of the property and
was charging interest on the Note at the rate of 7.0%.
Effective March 7, 1997, the Partnership began charging
interest on the Note at the rate of 11.5%. The remaining
interest in the property is owned by AEI Institutional Net
Lease Fund '93, an affiliate of the Partnership.
The Partnership has incurred net costs of $483,074 relating
to the review of potential property acquisitions. Of these
costs, $160,155 have been capitalized and allocated to land,
building and equipment. The remaining costs of $322,919
have been capitalized and will be allocated to property
acquisitions in future periods.
(4) Payable to AEI Fund Management, Inc. -
AEI Fund Management, Inc. performs the administrative and
operating functions for the Partnership. The payable to AEI
Fund Management represents the balance due for those
services. This balance is non-interest bearing and
unsecured and is to be paid in the normal course of
business.
ITEM 2.MANAGEMENT'S DISCUSSION AND ANALYSIS
Results of Operations
For the six months ended June 30, 1997 and 1996, the
Partnership recognized rental income of $416,273 and $208,919,
respectively. During the same periods, the Partnership earned
$299,128 and $221,936, respectively, in investment income from
subscriptions proceeds which were invested in short-term money
market accounts, commercial paper and federal agency notes. This
investment income constituted 42% and 52%, respectively, of total
income for the periods. The percentage of total income
represented by investment income declines as subscription
proceeds are invested in properties.
Musicland Group, Inc. (MGI), the lessee of the Media Play
retail store in Apple Valley, Minnesota has recently experienced
financial difficulties and has aggressively been restructuring
its organization. As part of the restructuring, the Partnership
and MGI reached an agreement in December, 1996 in which MGI would
buy out and terminate the Lease Agreement by making a payment of
$800,000, which is equal to approximately two years' rent. The
Partnership's share of such payment was $272,000. Under the
Agreement, MGI remained in possession of the property and
performed all of its obligations under the net lease agreement
through January 31, 1997 at which time it vacated the property
and made it available for re-let to another tenant. MGI was
responsible for all maintenance and management costs of the
property through January 31, 1997 after which date the
Partnership became responsible for its share of expenses
associated with the property until it is re-let or sold. A
specialist in commercial property leasing has been retained to
locate a new tenant for the property.
During the six months ended June 30, 1997 and 1996, the
Partnership paid Partnership administration expenses to
affiliated parties of $114,273 and $106,795, respectively. These
administration expenses include initial start-up costs and
expenses associated with processing distributions, reporting
requirements and correspondence to the Limited Partners. The
administrative expenses decrease after completion of the offering
and acquisition phases of the Partnership's operations. During
the same periods, the Partnership incurred Partnership
administration and property management expenses from unrelated
parties of $52,656 and $16,987, respectively. These expenses
represent direct payments to third parties for legal and filing
fees, direct administrative costs, outside audit and accounting
costs, insurance and other property costs. The increase in
these expenses in 1997, when compared to 1996, is the result of
expenses incurred in 1997 related to the Media Play situation
discussed above.
The Partnership distributes all of its net income during
the offering and acquisition phases, and if net income after
deductions for depreciation is not sufficient to fund the
distributions, the Partnership may distribute other available
cash that constitutes capital for accounting purposes.
As of June 30, 1997, the Partnership's cash distribution
rate was 8.0% on an annualized basis. Distributions of Net Cash
Flow to the General Partners are subordinated to the Limited
Partners as required in the Partnership Agreement. As a result,
99% of distributions were allocated to Limited Partners and 1% to
the General Partners.
Since the Partnership has only recently purchased its real
estate, inflation has had a minimal effect on income from
operations. The Leases contain cost of living increases to rent
which will result in an increase in rental income over the term
of the Leases. Inflation also may cause the Partnership's real
estate to appreciate in value. However, inflation and changing
prices may also have an adverse impact on the operating margins
of the properties' tenants which could impair their ability to
pay rent and subsequently reduce the Partnership's Net Cash Flow
available for distributions.
ITEM 2.MANAGEMENT'S DISCUSSION AND ANALYSIS (Continued)
Liquidity and Capital Resources
The Partnership's primary sources of cash will be proceeds
from the sale of Units, investment income, rental income and
proceeds from the sale of property. Its primary uses of cash
will be investment in real properties, payment of expenses
involved in the sale of units, the organization of the
Partnership, the management of properties, the administration of
the Partnership, and the payment of distributions.
The Partnership Agreement requires that no more than 15%
of the proceeds from the sale of Units be applied to expenses
involved in the sale of Units (including Commissions) and that
such expenses, together with acquisition expenses, not exceed 20%
of the proceeds from the sale of Units. As set forth under the
caption "Estimated Use of Proceeds" of the Prospectus, the
General Partners anticipate that 14% of such proceeds will be
applied to cover organization and offering expenses if the
maximum proceeds are obtained. To the extent organization and
offering expenses actually incurred exceed 15% of proceeds, they
are borne by the General Partners.
During the offering of Units, the Partnership's primary
source of cash flow will be from the sale of Limited Partnership
Units. The Partnership offered for sale up to $24,000,000 of
limited partnership interests (the "Units") (24,000 Units at
$1,000 per Unit) pursuant to a registration statement effective
February 1, 1995. From February1, 1995 to April 14, 1995, the
minimum number of Limited Partnership Units (1,500) needed to
form the Partnership were sold and on April 14, 1995, a total of
2,937.444 Units ($2,937,444) were transferred into the
Partnership. On January 31, 1997, the Partnership offering
terminated when the maximum subscription limit of 24,000 Limited
Partnership Units ($24,000,000) was reached. From subscription
proceeds, the Partnership paid organization and syndication costs
(which constitute a reduction of capital) of $3,306,859.
Before the acquisition of properties, cash flow from
operating activities is not significant. Net income, after
adjustment for depreciation, is lower during the first few years
of operations as administrative expenses remain high and a large
amount of the Partnership's assets remain invested on a short-
term basis in lower-yielding cash equivalents. Net income will
become the largest component of cash flow from operating
activities and the largest component of cash flow after the
completion of the acquisition phase.
The Partnership Agreement requires that all proceeds from
the sale of Units be invested or committed to investment in
properties by the later of two years after the date of the
Prospectus or six months after termination of the offer and sale
of Units. While the Partnership is purchasing properties, cash
flow from investing activities (investment in real property) will
remain negative and will constitute the principal use of the
Partnership's available cash flow.
On March 28, 1996, the Partnership purchased a 40.75%
interest in a Garden Ridge store in Pineville, North Carolina for
$3,644,391. The property is leased to Garden Ridge, L.P. under a
Lease Agreement with a primary term of 20 years and annual rental
payments of $383,973. The remaining interest in the property was
purchased by AEI Net Lease Income & Growth Fund XIX Limited
Partnership and AEI Net Lease Income & Growth Fund XX Limited
Partnership, affiliates of the Partnership.
On August 29, 1996, the Partnership purchased a 67.8%
interest in a Champps Americana restaurant in Columbus, Ohio for
$1,808,880. The property is leased to Americana Dining
Corporation under a Lease Agreement with a primary term of 20
years and annual rental payments of $191,259. The remaining
interest in the property was purchased by AEI Real Estate Fund
XVIII Limited Partnership, an affiliate of the Partnership.
ITEM 2.MANAGEMENT'S DISCUSSION AND ANALYSIS (Continued)
On March 14, 1997, the Partnership purchased a parcel of
land in San Antonio, Texas for $1,032,299. The land is leased to
Champps Americana, Inc. (Champps) under a Lease Agreement with a
primary term of 20 years and annual rental payments of $83,451.
The Partnership also entered into a Development Financing
Agreement under which the Partnership will advance funds to
Champps for the construction of a Champps Americana restaurant on
the site. Through June 30, 1997, the Partnership had advanced
$242,612 for the construction of the property and was charging
interest on the advances at a rate of 7.0%. The total purchase
price, including the cost of the land, will be approximately
$2,804,000. After the contruction is complete, the Lease
Agreement will be amended to require annual rental payments of
approximately $300,000.
On March 19, 1997, the Partnership purchased a Denny's
restaurant in Covington, Louisiana for $1,279,039. The property
is leased to Huntington Restaurants Group, Inc. under a Lease
Agreement with a primary term of 20 years and annual rental
payments of $141,243.
On April 21, 1997, the Partnership purchased a 49.6%
interest in a parcel of land in Schaumburg, Illinois for
$876,387. The land is leased to Champps under a Lease Agreement
with a primary term of 20 years and annual rental payments of
$66,906. The Partnership also entered into a Development
Financing Agreement under which the Partnership will advance
funds to Champps for the construction of a Champps Americana
restaurant on the site. The Partnership is charging interest on
the advances at a rate of 7.0%. The total purchase price,
including the cost of the land, will be approximately $2,128,000.
After the construction is complete, the Lease Agreement will be
amended to require annual rental payments of approximately
$229,000. The remaining interests in the property are owned by
AEI Income & Growth Fund XXI Limited Partnership and Net Lease
Income & Growth Fund 84-A Limited Partnership, affiliates of the
Partnership.
On July 8, 1997, the Partnership purchased a parcel of
land in Livonia, Michigan for approximately $1,074,000. The land
is leased to Champps under a Lease Agreement with a primary term
of 20 years and annual rental payments of approximately $75,000.
The Partnership also entered into a Development Financing
Agreement under which the Partnership will advance funds to
Champps for the construction of a Champps Americana restaurant on
the site. The Partnership is charging interest on the advances
at a rate of 7.0%. The total purchase price, including the cost
of the land, will be approximately $3,970,000. After the
contruction is complete, the Lease Agreement will be amended to
require annual rental payments of approximately $427,000.
On July 31, 1997, the Partnership purchased a 93.1%
interest in a Caribou Coffee store in Charlotte, North Carolina
for approximately $1,273,000. The property is leased to Caribou
Coffee Company, Inc. under a Lease Agreement with a primary term
of 18 years and annual rental payments of approximately $146,000.
Through June 30, 1997, the Partnership had advanced $643,688 for
the construction of the property and was charging interest on the
Note at the rate of 7.0%. Effective March 7, 1997, the
Partnership began charging interest on the Note at the rate of
11.5%. The remaining interest in the property is owned by AEI
Institutional Net Lease Fund '93, an affiliate of the
Partnership.
After completion of the acquisition phase, the
Partnership's primary use of cash flow is distribution and
redemption payments to Partners. The Partnership declares its
regular quarterly distributions before the end of each quarter
and pays the distribution in the first week after the end of each
quarter. The Partnership attempts to maintain a stable
distribution rate from quarter to quarter.
ITEM 2.MANAGEMENT'S DISCUSSION AND ANALYSIS (Continued)
The Partnership may acquire Units from Limited Partners
who have tendered their Units to the Partnership. Such Units may
be acquired at a discount. The Partnership is not obligated to
purchase in any year more than 5% of the number of Units
outstanding at the beginning of the year. In no event shall the
Partnership be obligated to purchase Units if, in the sole
discretion of the Managing General Partner, such purchase would
impair the capital or operation of the Partnership. As of June
30, 1997, the Partnership has not acquired any Units from Limited
Partners.
Until capital is invested in properties, the Partnership
will remain extremely liquid. At June 30, 1997, $7,910,385 or
40% of the Partnership's assets were in cash or cash equivalents
(including accrued interest receivable). After completion of
property acquisitions, the Partnership will attempt to maintain a
cash reserve of only approximately 1% of subscription proceeds.
Because properties are purchased for cash and leased under triple-
net leases, this is considered adequate to satisfy most
contingencies.
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
There are no material pending legal proceedings to which
the Partnership is a party or of which the Partnership's
property is subject.
ITEM 2. CHANGES IN SECURITIES
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
ITEM 5. OTHER INFORMATION
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a. Exhibits -
Description
10.1 Development Financing Agreement
dated July 8, 1997 between the
Partnership and Champps Americana, Inc.
relating to the property at 19470
Haggerty Road, Livonia, Michigan.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K (Continued)
a. Exhibits -
Description
10.2 Net Lease Agreement dated July8,
1997 between the Partnership and Champps
Americana, Inc. relating to the property
at 19470 Haggerty Road, Livonia,
Michigan.
10.3 Net Lease Agreement dated July 31,
1997 between the Partnership and Caribou
Coffee Company, Inc. relating to the
property at East Boulevard and Garden
Terrace, Charlotte, North Carolina.
27 Financial Data Schedule for period
ended June 30, 1997.
b. Reports filed on Form 8-K -None.
SIGNATURES
In accordance with the requirements of the Exchange Act, the
Registrant has caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
Dated: August 5, 1997 AEI Income & Growth Fund XXI
Limited Partnership
By: AEI Fund Management XXI, Inc.
Its: Managing General Partner
By: /s/ Robert P Johnson
Robert P. Johnson
President
(Principal Executive Officer)
By: /s/ Mark E Larson
Mark E. Larson
Chief Financial Officer
(Principal Accounting Officer)
DEVELOPMENT FINANCING AGREEMENT
THIS AGREEMENT, made and entered into effective as of this 8
day of June, 1997, by and between Champps Americana, Inc.
("Lessee"), whose address is 55 Ferncroft Road, Danvers,
Massachusetts 01923-4001, and AEI Income & Growth Fund XXI
Limited Partnership ("Lessor"), whose address is Suite 1300,
World Trade Center, Saint Paul, Minnesota 55102.
W I T N E S S E T H, that:
WHEREAS, Lessee is contemplating building on the premises
described in Exhibit "A" attached hereto the following
Improvements :
Construction of an approximately 8,600 square foot building
and improvements to be used as a Champps Restaurant.
WHEREAS, Lessee has made application to Lessor for development
financing to defray the costs of constructing such Improvements;
WHEREAS, Lessor's Assignor has issued to Lessee its
Development Financing and Leasing Commitment to advance funds in
the amount hereinafter specified, subject to compliance with the
terms and conditions of this Development Financing Agreement and
the Net Lease Agreement (the "Lease") of even date herewith;
NOW, THEREFORE, in consideration of entering into the Lease
and other good and valuable consideration, the receipt of which
is hereby acknowledged by the parties hereto, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms shall have
the following meanings:
1. "Application" shall mean Lessee's application to the
Lessor for the Development Financing the terms and conditions
of which are incorporated herein by reference.
2. "Architect's Contract" shall mean Lessee's contract with
the Project Architect.
3. "Commitment" shall mean Lessor's Commitment to Lessee
agreeing to provide the Development Financing. (The
"Development Financing and Leasing Commitment" dated June 8,
1997.)
4. "Completion Date" shall mean midnight, May 1, 1998,
subject to Force Majeure, as defined herein.
5. "Construction Costs" shall mean land costs, all costs
paid to construct and complete the Improvements, as specified
on Exhibit "B" attached hereto and made a part hereof.
6. "Construction Contracts" shall mean the contracts between
Lessee and Contractors for the furnishing of labor, services
or materials to the Leased Premises in connection with the
construction of the Improvements.
7. "Contractors" shall mean those firms directly engaged by
Lessee to construct the Improvements, whether one or more.
8. "Contract Documents" shall mean the Project Architect's
Contract, Plans and Specifications and the contract with the
Contractor.
9. "Development Financing" shall mean the funds to be made
available pursuant to the Commitment and not to exceed the
lesser of the Construction Costs or the maximum loan amount
of Three Million Nine Hundred Seventy Thousand Dollars
($3,970,000) as specified in the Commitment.
10. "Development Financing and Carrying Charges" shall mean
all fees, taxes and charges incurred under the Development
Financing and in the construction of the Improvements
including, but not limited to, non-refundable commitment
fees; interest charges, service and inspection fees,
attorney's fees, title insurance fees and charges, recording
fees and insurance premiums.
11. "Development Financing Documents" shall mean this
Agreement, the Lease, Assignment of Architects and
Construction Contracts, Guarantees, and such other documents
given to the Lessor as security for the Development
Financing.
12. "LTIC-CDD" shall mean Lawyers Title Insurance
Corporation, Construction Disbursement Department, the
nationally recognized title insurer, or Lessor's in-house
designee, to be LTIC-CDD under the Development Financing
Disbursement Agreement executed by and between the parties of
even date herewith.
13. "Final Disbursement Date" shall mean the date of the
final disbursement of the Development Financing provided
hereunder.
14. "Improvements" shall mean the structures and other
improvements to be constructed on the Leased Premises in
accordance with the Plans and Specifications.
15. "Initial Disbursed Funds" shall mean those funds
disbursed on the Closing Date for land acquisition and
related soft costs upon Lessor's acquisition of the Leased
Premises.
16. "Inspecting Architect" shall mean the architect, if any,
hired by Lessor to perform inspections of the premises. An
Inspecting Architect may only be engaged by Lessor in the
event of a default relating to construction of the
Improvements under the Development Financing Documents.
17. "Leased Premises" shall mean the real property described
in the Exhibit "A" attached to this Agreement, together with
all Improvements, equipment and fixtures thereon.
18. "Lessee Equity" shall mean the final Construction Costs
less the amount of the Development Financing.
19. "Plans and Specifications" shall mean the plans and
specifications prepared by the Project Architect who shall be
licensed in the jurisdiction of the Leased Premises and
selected by Lessee.
20. "Project" shall mean the construction of the Improvements
on the Leased Premises.
21. "Project Architect" shall mean the architect retained by
Lessee to design and supervise construction of the
Improvements.
22. "Rental Modification Date" shall mean a date one hundred
and eighty days (180) from the date hereof.
23. "Sub-Contractors" shall mean those persons furnishing
labor or materials for the Project pursuant to the Sub-
Contracts.
24. "Sub-Contracts" shall mean the contracts between the
Contractor and its materialmen and mechanics in the
furnishing of labor or materials for the Project.
25. "Title" shall mean Lawyers Title Insurance Corporation
issuing the Lessor's fee owner's title insurance policy.
ARTICLE II
THE DEVELOPMENT FINANCING
Subject to compliance with the provisions of this Agreement,
Lessor agrees to advance to Lessee, and Lessee agrees to request
from Lessor, the Development Financing. The Development
Financing shall be advanced in stages by Lessor to LTIC-CDD and
disbursed by LTIC-CDD pursuant to the provisions of Article VIII
hereof. The Development Financing, or so much thereof as has
been advanced hereunder, shall bear interest at the rate and
shall be repaid in accordance with the terms hereof and the
Lease. The proceeds of the Development Financing shall be used
exclusively for the purposes of defraying Construction Costs.
ARTICLE III
N/A
ARTICLE IV
CONSTRUCTION OF IMPROVEMENTS
Lessee agrees to commence construction of the Improvements
within thirty (30) days from the date of this Agreement. After
commencement of construction of any Improvements, Lessee agrees
to diligently pursue said construction to completion, and to
supply such moneys and to perform such duties as may be necessary
to complete the construction of said Improvements pursuant to the
Plans and Specifications and in full compliance with all terms
and conditions of this Agreement and the Development Financing
Documents, all of which shall be accomplished on or before the
Completion Date, subject to Force Majeure and without liens,
claims or assessments (actual or contingent) asserted against the
Leased Premises for any material, labor or other items furnished
in connection therewith, subject to Lessee's right to contest
such liens, claims, or assessments provided the same are removed
as a lien upon the Leased Premises prior to foreclosure of such
lien, and all in full compliance with all construction, use,
building, zoning and other similar requirements of any pertinent
governmental jurisdiction. Lessee will provide to Lessor, upon
request, evidence of satisfactory compliance with all the above
requirements.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE LESSEE
Lessee hereby represents and warrants to the Lessor, which
representations and warranties shall be deemed to be restated by
Lessee each time Lessor makes an advance of the Development
Financing, that:
1. VALIDITY OF DEVELOPMENT FINANCING DOCUMENTS - The Development
Financing Documents are in all respects legal, valid and binding
according to their terms.
2. NO PRIOR LIEN ON FIXTURES - No mortgage, bill of sale,
security agreement, financing statement, or other title retention
agreement (except those executed in favor of Lessor) has been, or
will be, executed with respect to any fixture (except Lessee's
trade fixtures not financed with this Development Financing) used
in conjunction with the construction, operation or maintenance of
the improvements.
3. CONFLICTING TRANSACTION OF LESSEE - The consummation of the
transactions hereby contemplated and the performance of the
obligations of Lessee under and by virtue of the Development
Financing Documents will not result in any breach of, or
constitute a default under, any mortgage, lease, bank loan or
credit agreement, corporate charter, by-laws, partnership
agreement, or other instrument to which Lessee is a party or by
which it may be bound or affected, the breach of which would
materially affect Lessee's ability to perform its obligations
hereunder.
4. PENDING LITIGATION - There are no actions, suits or
proceedings pending, or to the knowledge of Lessee threatened,
against or affecting it or the Leased Premises, or involving the
validity or enforceability of any of the Development Financing
Documents, at law or in equity, or before or by any governmental
authority, except actions, suits and proceedings that are fully
covered by insurance or which, if adversely determined would not
substantially impair the ability of Lessee to perform each and
every one of its obligations under and by virtue of the
Development Financing Documents; and to the Lessee's knowledge it
is not in default with respect to any order, writ, injunction,
decree or demand of any court or any governmental authority.
5. VIOLATIONS OF GOVERNMENTAL LAW, ORDINANCES OR REGULATIONS -
To the best knowledge of Lessee, there are no violations or
notices of violations of any federal or state law or municipal
ordinance or order or requirement of the State in which the
Leased Premises are located or any municipal department or other
governmental authority having jurisdiction affecting the Leased
Premises, which violations in any way have a material adverse
affect on the Leased Premises and which remain uncured after
notice by such governmental authority or department (if notice is
required) and the expiration of the time within which Lessee may
cure such violation, or if no time limitation is specified,
within a reasonable time after notice to cure such violation .
6. COMPLIANCE WITH ZONING ORDINANCES AND SIMILAR LAWS - To the
best knowledge of Lessee, the Plans and Specifications and
construction pursuant thereto and the use of the Leased Premises
contemplated thereby comply and will comply with all present
governmental laws and regulations and requirements, zoning
ordinances, standards, and regulations of all governmental bodies
exercising jurisdiction over the Leased Premises. Lessee agrees
to provide the Project Architect's certification to such effect
prior to the funding of the first disbursement under the
Development Financing.
7. LESSEE'S STATUS AND AUTHORITY - If the Lessee be a
corporation, limited liability company, trust or a partnership,
Lessee warrants and represents that (i) it is duly organized,
existing and in good standing under the laws of the state in
which it is incorporated or created; (ii) it is duly qualified to
do business and is in good standing in the state in which the
Leased Premises are located; (iii) it has the corporate or other
power, authority and legal right to carry on the business now
being conducted by it and to engage in the transactions
contemplated by this Agreement and the Development Financing
Documents; and (iv) the execution and delivery of this Agreement
and the Development Financing Documents and the performance and
observance of the provisions hereof and thereof have been (or
future acts will be) duly authorized by all necessary trust,
partnership, or corporate actions of Lessee. Lessee will furnish
such resolutions, affidavits and opinions of counsel to such
effect as Lessor may reasonably require.
8. AVAILABILITY OF UTILITIES - All utility services necessary for
the construction of the Improvements will be available prior to
the commencement of construction, and all utility services
necessary for the proper operation of the Improvements for their
intended purposes are available at the Leased Premises or will be
available at the Leased Premises prior to the Final Disbursement
Date, at commercially comparable utility rates and hook-up
charges for the vicinity, including water supply, storm and
sanitary sewer facilities, gas, electricity and telephone
facilities. Lessee shall furnish evidence of such availability
of utilities from time to time at Lessor's request.
9. BUILDING PERMITS - All building permits required for the
construction of the Improvements have been obtained prior to the
commencement of the construction of the Improvements and copies
of same will be delivered to Lessor.
10. CONDITION OF LEASED PREMISES - The Leased Premises are
not now damaged or injured as a result of any fire, explosion,
accident, flood or other casualty, nor to the best of Lessee's
knowledge, subject to any action in eminent domain.
11. APPROVAL OF PLANS AND SPECIFICATIONS - To the best
knowledge of Lessee in reliance upon the Project Architect's
certification to such effect, the Plans and Specifications
conform to the requirements and conditions set out by applicable
law or any effective restrictive covenant, to all governmental
authorities which exercise jurisdiction over the Leased Premises
or the construction thereon, and no construction will be
commenced upon the Leased Premises until said Plans and
Specifications shall have been approved by Lessor, which consent
shall not be unreasonably withheld or delayed and shall be given
or withheld within ten business days after written request
therefor. Subject to Article VI, paragraph 14, no material
changes are to be made in the Plans and Specifications as
approved without Lessor's prior consent, which consent shall not
be unreasonably withheld or delayed and shall be given or
withheld within ten business days after written request therefor;
except, after prior written notice to Lessor, provided the
Development Financing shall remain in balance as set forth in
Article VII, paragraph 3 herein, Lessor shall consent to
reallocation among line items or use of the Construction
Contingency in the aggregate of not more than the amount budgeted
as set forth on Exhibit B for Construction Contingency, unless
Lessee shall deposit Owner Equity with LTIC-CDD in the amount of
such excess over the budgeted amount.
12. CONSTRUCTION CONTRACTS - Lessee has entered into
contracts with the Contractors or separate contracts with
materialmen and laborers providing for the construction of the
Improvements. Lessee will cause the Contractors to promptly
furnish Lessor with the complete list of all Sub-contractors or
entities as and when under contract, which Contractors propose to
engage to furnish labor and/or materials in constructing the
Improvements (such list containing the names, addresses, and
amounts of such sub-contracts as written in excess individually
of $5,000, and prior to disbursement of funds to or for the
benefit of such Subcontractors, affidavits of authorized
signatory and other documents commercially reasonably required by
Title to insure that the Leased Premises remain lien free) and
will from time to time furnish Lessor or Title with true copies
of all Contracts entered into by Lessee and with the terms of all
verbal agreements therefor, if any, and as to subcontractors,
letters signed by sub-contractors whose contracts are in excess
of $5,000 setting forth the present amount of their contract and
the amounts remaining to be paid under that contract, if the same
information is not stated on a lien waiver reflecting the most
currently requested payment to such subcontractor.
13. BROKERAGE COMMISSIONS - No brokerage commissions are due
in connection with the transaction contemplated hereby or if
there are commissions due or payable the same will be paid by
Lessee. Lessee agrees to and shall indemnify Lessor from any
liability, claims or losses arising by reason of any such
brokerage commissions. This provision shall survive the
repayment of the Development Financing and shall continue in full
force and effect so long as the possibility of such liability,
claims or losses exists.
14. NO PRIOR WORK - Except as may have been permitted by
Lessor, no work or construction has been commenced or will be
commenced by or on behalf of Lessee on the Leased Premises, nor
has Lessee entered into any contracts or agreements for such work
or construction which could result in the imposition of a
mechanic's or materialmen's lien on the Leased Premises or the
Improvements prior to or on parity with the interest of Lessor.
15. ENVIRONMENTAL IMPACT STATEMENT - All required
environmental impact statements as required by any governmental
authority having jurisdiction over the Leased Premises or the
construction of the Improvements have been duly filed and
approved.
16. ACCESS - The Leased Premises front on a publicly
maintained road or street or have access to such a road or street
under an easement or private way, which is not subject to a
reversion in favor of any party.
17. FINANCIAL INFORMATION - Any financial statements
heretofore delivered to Lessor are true and correct in all
respects, have been prepared in accordance with generally
accepted accounting practice, and fairly present the respective
financial conditions of the subject thereof as of the respective
dates thereof and no materially adverse change has occurred in
the financial conditions reflected therein since the respective
dates thereof.
ARTICLE VI
COVENANTS OF LESSEE
Lessee hereby covenants and agrees with Lessor as follows:
1. SURVEYS - Prior to execution of any Development Financing
Documents and prior to the initial request for a Disbursement (as
defined in Article VIII hereof), Lessee has furnished to Lessor
three copies of a current perimeter land survey, in form and
substance satisfactory to Lessor, certified to Lessor, giving a
description of the Leased Premises and showing all encroachments
onto or from the Leased Premises, currently certified by a
registered surveyor and bearing his registry number and showing
access rights, easements, or utilities, rights of way, all
setback requirements upon the Leased Premises, improvements,
matters affecting title and such other items as Lessor may
reasonably request.
2. TITLE INSURANCE - Prior to the initial request for
Disbursement the Lessee has furnished Lessor with an ALTA policy
of title insurance, and prior to any subsequent request for
Disbursement such ALTA policy of title insurance shall be brought
down to the date of Disbursement by endorsement, all in form and
substance satisfactory to Lessor issued at the Lessee's expense
and written by Title insuring the Leased Premises to be
marketable, free from exceptions for mechanic's and materialmen's
liens and free from other exceptions not previously approved by
the Lessor, naming Lessor as fee owner insured to the extent of
advances made hereunder subject only to such exceptions as may be
reasonably approved by Lessor.
3. RESTRICTIONS ON CONVEYANCE OR SECONDARY FINANCING - Lessee
will not transfer, sell, convey or encumber the Leased Premises
or subject the Leased Premises to any secondary financing in any
way without the written consent of the Lessor, except as
permitted in Article V, paragraph 2 relating to trade fixture
financing sources or suppliers.
4. INSURANCE - To obtain or cause Contractor to obtain and
maintain such insurance or evidence of insurance as Lessor may
reasonably require, including but not limited to the following:
(a) BUILDER'S RISK INSURANCE - Builder's Risk Insurance
written on the so-called "Builder's Risk-Completed Value
Basis" in an amount equal to the full replacement cost of the
Improvements at the date of completion with coverage
available on the so-called multiple peril form of policy,
including coverage against collapse and water damage, naming
Lessor as additional named insured, such insurance to be in
such amounts and form and written by such companies as shall
be reasonably approved by Lessor, and the originals of such
policies (together with appropriate endorsement thereto,
evidence of payment of premiums thereon and written
agreements by the insurer or insurers therein to give Lessor
ten (10) days' prior written notice of any intention to
cancel) shall be promptly delivered to Lessor, said insurance
coverage to be kept in full force and effect at all times
until the completion of construction of the Improvements.
(b) HAZARD INSURANCE - Fire and Extended Coverage Insurance,
and such other hazard insurance as Lessor may require and as
called for in the Lease in an amount equal to the full
replacement cost of the Improvements naming Lessor as an
additional named insured, such insurance to be in such
amounts and form and written by such companies as shall be
reasonably approved by Lessor, and the originals of such
policies (together with appropriate endorsements thereto,
evidence of payment of premiums thereon and written agreement
by the insurer or insurers therein to give Lessor ten (10)
days' prior written notice of any intention to cancel) shall
be promptly obtained and delivered to Lessor immediately upon
completion of the construction of the Improvements and before
any portion is occupied by Lessee or any tenant of Lessee
with such insurance to be kept in full force and effect at
all times thereafter.
(c) PUBLIC LIABILITY - Comprehensive public liability
insurance (including operations, contingent liability
operations, operations of sub- contractors, completed
operations and contractual liability insurance) in limits of
coverage as set forth in the Lease.
(d) WORKMEN'S COMPENSATION INSURANCE - Evidence of compliance
with the required coverage under statutory workmen's
compensation requirements.
5. COLLECTION OF INSURANCE PROCEEDS - To cooperate with Lessor in
obtaining for Lessor the benefits of any insurance or other
proceeds lawfully or equitably payable to it in connection with
the transaction contemplated hereby and the collection of any
indebtedness or obligation of the Lessee to Lessor incurred
hereunder (including the payment by Lessee of the expense of an
independent appraisal on behalf of Lessor in case of a fire or
other casualty affecting the Leased Premises).
6. APPLICATION OF DEVELOPMENT FINANCING PROCEEDS - To use the
proceeds of the Development Financing solely for the purpose of
paying for Construction Costs and such incidental costs relative
to the construction as may be reasonably approved from time to
time in writing by Lessor, and in no event to use any of the
Development Financing proceeds for personal, corporate or other
purposes.
7. EXPENSES - To pay all costs of closing the Development
Financing and all expenses of Lessor with respect thereto,
including, but not limited to, legal fees by Lessor's counsel and
all other reasonable attorney's fees (limited as set forth in the
Commitment), costs of title insurance, transfer taxes, license
and permit fees, recording expenses, surveys, intangible taxes,
appraisal fees, Inspecting Architect fees, expenses of retaking
possession upon default by Lessee hereunder or other costs of
enforcement (including reasonable attorney's fees) and similar
items.
8. LAWS, ORDINANCES AND ETC. - To comply promptly with any law,
ordinance, order, rule or regulation of all authorities
exercising jurisdiction over the Leased Premises or the
construction thereon, including appropriate supervising boards of
fire underwriters and similar agencies and the requirements of
any insurer issuing coverage on the Project.
9. RIGHT OF LESSOR TO INSPECT LEASED PREMISES - Upon 48 hours
notice, except in cases which Lessor reasonably deems to be an
emergency, in which event upon reasonable notice under the
circumstances, to permit Lessor and Title and their
representatives and agents to enter upon the Leased Premises and
to inspect the Improvements and all materials to be used in
construction thereof and to cooperate and cause Contractor to
cooperate with Lessor or Title and their representatives and
agents during such inspections, provided that such is
accomplished without interrupting the construction process.
Provided, further, however, that this provision shall not be
deemed to impose upon Lessor or Title any duty or obligation
whatsoever to undertake such inspections, to correct any defects
in the Improvements or to notify any person with respect thereto.
10. BOOKS AND RECORDS - To set up and maintain accurate and
complete books, accounts and records pertaining to the Project
including the working drawings in a manner reasonably acceptable
to Lessor. The Lessor, Title and Inspecting Architect shall have
the right at all reasonable times and upon reasonable prior
notice to inspect, examine and copy all books and records of
Lessee relating to the Project, and to enter and have free access
to the Leased Premises and Improvements and to inspect all work
done, labor performed and material furnished in or about the
Project, provided that such is accomplished without interrupting
the construction process. Notwithstanding the foregoing, Lessee
shall be responsible for making inspections as to the
Improvements during the course of construction and shall
determine to its own satisfaction that the work done or materials
supplied by the Contractors and all Subcontractors has been
properly supplied or done in accordance with the applicable
contracts. Lessee will hold Lessor and Title harmless from and
Lessor and Title shall have and have no liability or obligation
of any kind to Lessee or creditors of Lessee in connection with
any defective, improper or inadequate workmanship or materials
brought in or related to the Improvements or the Leased Premises,
or any mechanic's liens arising as a result of such workmanship
or materials. Upon Lessor's request, Lessee shall replace or
cause to be replaced any such work or material found to be
materially deficient by the Project Architect or Independent
Architect. Lessor shall cooperate with Lessee in obtaining any
rights under any applicable warranties to accomplish such work.
Any inspections made by Inspecting Architect, Title or Lessor are
for the sole benefit of Lessor and neither Lessee nor any
creditor, tenant or vendee of Lessee shall be entitled to rely on
such inspection. Lessee shall obtain for Lessor coincident
rights to rely upon any warranties obtain by Lessee from its
Contractors or subcontractors.
11. CORRECTION OF DEFECTS - To promptly correct any
structural defects in the Improvements or any material departure
from the Plans and Specifications not previously approved by
Lessor. The advance of any Development Financing proceeds shall
not constitute a waiver of Lessor's right to require compliance
with this covenant.
12. SIGN REGARDING DEVELOPMENT FINANCING - To allow Lessor to
erect and maintain at a suitable site on the Leased Premises, at
a location to be chosen by Lessee in its reasonable discretion, a
sign indicating that Development Financing is being provided by
Lessor, to the extent permitted by law or private covenant,
condition, or agreement affecting the Project.
13. ADDITIONAL DOCUMENTS - To furnish to Lessor all
instruments, documents, initial surveys, footing or foundation
surveys, if conducted, certificates, plans and specifications,
appraisals, financial statements, title and other insurance
reports and agreements and each and every other document and
instrument required to be furnished by the terms hereof, all at
Lessee's expense; to assign and deliver to Lessor such documents,
instruments, assignments and other writings, and to do such other
acts necessary or desirable to preserve and protect the Leased
Premises, as Lessor may require; and to do and execute all and
such further lawful and reasonable acts, conveyances and
assurances for the carrying out of the intents and purposes of
this Agreement, the Lease, or the Commitment, as Lessor shall
reasonably require from time to time.
14. ARCHITECTS AND CONSTRUCTION CONTRACTS - To commit no
default nor knowingly permit a default under the terms of the
Architects or Construction Contracts; To waive none nor knowingly
permit a waiver of the obligations of the parties thereunder; To
do no act which would relieve such parties from their obligations
thereunder; To make no amendments to such contracts, without the
prior written consent of Lessor; To enter into no change orders
or extras that cause a reallocation among budgeted line items, or
that in the aggregate or singularly result in a net increase in
excess of 10% of the original contract amount without Lessor's
prior written consent, which consent shall not be unreasonably
withheld or delayed; provided, however, Lessor shall be given
written notice and copies of all change orders; provided,
further, however, with written notice to Lessor prior to any
request for funds subsequent to any such change order or
reallocation, the Lessee shall be allowed to enter into any
change order or extra which is accounted for by use of any
reallocation among line items or any remaining budgeted
Contingency line item, or if the same has been exhausted, Lessee
shall be allowed increases in the original contract amount
without Lessor's consent if Lessee has, upon the execution of
said change order, deposited with Lessor the amount by which such
change order increases the total Construction Cost; To allow all
such contracts to be subject to the approval of Lessor for its
loan purposes; To allow Lessor to take advantage of all the
rights and benefits of the contracts upon any default by Lessee;
and to submit evidence to Lessor that both the Architect and the
Contractors will permit Lessor to acquire Lessee's interest under
their respective contracts and the Contract Documents without
additional charge or fee should an event of default occur
hereunder, which default is not cured within applicable notice
and cure periods.
15. ENFORCE PERFORMANCE OF SUB-CONTRACTS - To enforce, or
cause to be enforced, the prompt performance of the Sub-Contracts
in accordance with their terms and not to approve any changes in
the same that in the aggregate or singularly result in a net
increase in excess of 10% of the original General Contractor's
contract amount without Lessor's prior written consent, which
consent shall not be unreasonably withheld or delayed, provided
Lessee's right to enter into any such change order shall be on
the same terms set forth in Section 14 above.
16. COMPLIANCE WITH RULES - To comply with, and to require
the Contractors to comply with, all rules, regulations,
ordinances and laws bearing on the conduct of the work on the
Improvements, including the requirements of any insurer issuing
coverage on the Project and the requirements of any applicable
supervising boards of fire underwriters.
17. OPINIONS OF COUNSEL - To furnish such opinions of counsel
as may be reasonably requested of the Lessee in connection with
the matters contemplated by this Agreement.
18. SOIL TESTS - To provide the Lessor with a soil report
prepared by an acceptable engineer certifying as to the status of
the soil conditions on the Leased Premises, the need or lack of
need for special pilings and foundations and that either any
pilings and foundation necessary to support the Improvements have
been placed in a manner and quantity sufficient to provide the
required support or that no such pilings and foundations are
necessary for the support and construction of the Improvements.
19. MARKETABLE TITLE - To execute and deliver or cause to be
executed and delivered such instruments as may be required by the
Lessor and Title to provide Lessor with a marketable, valid title
to the Leased Premises subject only to such exceptions to title
as may be reasonably approved by Lessor.
20. VIOLATIONS OF GOVERNMENTAL LAW, ORDINANCES OR REGULATIONS
- - Lessee will permit no violations nor commit the same, of any
federal or state law or municipal ordinance or order or
requirement of the State in which the Leased Premises are located
or any municipal department or other governmental authority
having jurisdiction affecting the Leased Premises, which
violations in any way have a material adverse affect on the
Leased Premises and which remain uncured after notice by such
governmental authority or department (if notice is required) and
the expiration of the time within which Lessee may cure such
violation, or if no time limitation is specified, within a
reasonable time after notice to cure such violation .
21. COMPLIANCE WITH ZONING ORDINANCES AND SIMILAR LAWS - The
Plans and Specifications and construction pursuant thereto and
the use of the Leased Premises contemplated thereby will comply
with all governmental laws and regulations and requirements,
zoning ordinances, standards, and regulations of all governmental
bodies exercising jurisdiction over the Leased Premises,
including environmental protection and equal employment
regulations, and appropriate supervising boards of fire
underwriters and similar agencies.
22. APPROVAL OF PLANS AND SPECIFICATIONS - The Plans and
Specifications will conform to the requirements and conditions
set out by applicable law or any effective restrictive covenant,
and to all governmental authorities which exercise jurisdiction
over the Leased Premises or the construction thereon.
23. NOTICE OF COMMENCMENT\FURNISHING - To provide Lessor prior to
the initial request for a Disbursement, with a copy of the Notice
of Commencement and any amendments thereto prepared in accordance
with Michigan Statute and to be recorded with the County
Recorder's Office where the Leased Premises are situate
immediately following the recording of the Memorandum of Lease
between the parties hereto. Lessee represents and warrants that
a Notice of Commencement has not been and will not be recorded
prior to the recording of the Memorandum of Lease. Lessee shall
post and keep posted the Notice of Commencement and all
amendments thereto in a conspicuous place on the Leased Premises
during the course of construction of the Project. Lessee further
represents and warrants to timely comply with all provisions of
Michigan Statute respecting keeping the Leased Premises free of
mechanic's liens and failure to do so shall be deemed an Event of
Default as defined under the Net Lease Agreement and this
Agreement. Lessee shall provide Lessor with a copy of each
Notice of Furnishing (as defined in Michigan Statute) received by
Lessee during the course of construction of any Improvements on
the Leased Premises.
ARTICLE VII
CONDITIONS PRECEDENT TO A DISBURSEMENT
It shall be a condition precedent to each Disbursement under this
Development Financing Agreement that:
1. DEVELOPMENT FINANCING DOCUMENTS - The Development Financing
Documents shall have been duly executed and delivered to Lessor
and shall be in full force and effect.
2. LESSEE EQUITY - Lessee shall have paid all of the Lessee
Equity funds into the Project before the first Disbursement (or
any subsequent Disbursement if additional Lessee Equity should be
required) and Lessee shall deliver evidence of such payment
reasonably satisfactory to Lessor.
3. DEVELOPMENT FINANCING BALANCE - As of the date immediately
prior to any Disbursement, the total amount of unadvanced
proceeds of the Development Financing shall be sufficient, in the
commercially reasonable opinion of Lessor (the opinion of Lessor
being based upon affidavit of the General Contractor, the Project
Architect, the Inspecting Architect, or other reliable licensed
third party contractor) to complete the Improvements free of
liens. To the extent the total of the unadvanced proceeds of the
Development Financing shall be insufficient, at any time, in
Lessor's reasonable opinion, (based upon the affidavit as set
forth above) to complete the Improvements, or be less than the
total Construction Costs not yet paid for or not yet incurred
(including interest accruing for the remainder of the term or
extensions thereof, if any), the Lessee shall immediately deposit
with the Lessor or with Title, as additional Lessee Equity funds,
an amount equal to such deficiency and such additional Lessee
Equity funds shall be disbursed by LTIC-CDD prior to the
Disbursement of any further advance or advances under this
Agreement.
4. NO DEFAULT - No event of default, which remains uncured after
the expiration of applicable cure periods, shall exist under this
Agreement or the Development Financing Documents.
5. REPRESENTATIONS AND WARRANTIES - The representations and
warranties in Article V hereof shall be true and correct on and
as of the date of each Disbursement.
6. COVENANTS - Lessee shall have complied with all of the
covenants made by it in Article VI hereof.
7. SWORN CONSTRUCTION STATEMENT - Prior to the initial
disbursement hereunder, the Lessee shall have submitted to Lessor
and Title a Construction Cost Statement or the Construction
Contract (if such information is contained therein) sworn to by
Lessee and Contractors reflecting all major Sub-Contractors or
materialmen who shall then be engaged in furnishing labor,
materials or supplies for the Improvements. The list should show
the name of each and every Contractor, Sub-Contractor and
materialman (or at least such entities or individuals whose
contract is in excess of $5,000), its address and an estimate of
the dollar value of the work, labor and materials to be done or
supplied and a general statement of the nature of the work to be
done or materials to be supplied by each Contractor. Thereafter,
if such list should change or new subcontractors shall execute
contracts not reflected on the above list, the Lessee shall
furnish to the Lessor any amendments or additions to the original
statement as so submitted.
8. APPLICATION FOR PAYMENT - Lessor shall have received an
Application for Payment pursuant to Article VIII hereof.
9. TITLE - Title shall issue its endorsement to the title policy
insuring the Lessor as fee owner under the policy in the
aggregate amounts of all prior Disbursements and the requested
Disbursement.
10. WORK IN PLACE - All work or materials for which a
Disbursement is requested shall be in place and incorporated into
the Improvements.
11. AMENDED NOTICE OF COMMENCEMENT - Lessee shall provide Lessor
with any amended Notice of Commencement filed in accordance with
Michigan Statue, and any Notice of Furnishing (as defined in
Michigan Statute) received by Lessee during the course of
construction of any Improvements on the Leased Premises.
ARTICLE VIII
METHODS OF DISBURSEMENTS OF DEVELOPMENT FINANCING PROCEEDS
The Development Financing shall be disbursed (a "Disbursement")
as follows:
1. PROCEDURE - Not more often than monthly, Lessee may submit an
Application for Payment in the form attached hereto as Exhibit
"C" requesting the Disbursement of proceeds under the Development
Financing, which request shall be submitted to Lessor and to LTIC-
CDD at least five (5) business days prior to the date on which a
Disbursement is requested. Provided the conditions of this
Development Financing Agreement are met on the date requested for
such advance, Lessor shall advance to LTIC-CDD amounts certified
to be currently payable by Lessee (excluding the retainage
hereinafter specified) for the then incurred portion of Total
Construction Costs pursuant to the Application for Payment. All
costs shall have been approved in writing by the Project
Architect, Lessee, Contractor, and if required by Lessor, by the
Inspecting Architect. All interest accruing need not be
disbursed to LTIC-CDD, but may be immediately and automatically
credited by Lessor to the Development Financing account. LTIC-
CDD shall disburse all funds advanced to it by Lessor in
accordance with the terms and provisions of this Agreement and
any special escrow requirements imposed by LTIC-CDD as a
condition to its acting as the disbursing agent hereunder. The
disbursed proceeds of the Development Financing shall bear
interest from and including the date of disbursement to LTIC-CDD
or the date of credit by Lessor provided that in the event LTIC-
CDD shall fail to disburse any advances within five (5) business
days after the date set for an advance, LTIC-CDD shall return
said advance to Lessor and interest on such advance shall abate
from and after the date of such return. Any amounts disbursed to
LTIC-CDD and returned by LTIC-CDD to the Lessor shall not be
deemed to be advanced under the Development Financing Documents.
Each Application for Payment shall clearly set forth the amounts
due to Lessee and to each Contractor out of the requested
Development Financing and shall be accompanied by the following:
a. A Draw Request Certificate in the form attached hereto as
Exhibit "D" certifying that each contractor or materialman
for which payment is requested in the relevant Application
for Payment has satisfactorily completed the work or
furnished the materials for which payment is requested in
accordance with the applicable contract; that all work for
which an Application for Payment is made substantially
conforms to the Contract Documents and any approved changes,
and is in place; and that sufficient funds remain of the
undisbursed Development Financing proceeds to complete the
Project and that all funds previously disbursed have been
applied as per the previous Application for Payment.
b. Waivers of Mechanics' Liens and Materialmen's Liens
executed by all Contractors for all work done and all
materials furnished to the Leased Premises and included in
such current Application for Payment, or evidence reasonably
required by Title to insure over the same by special specific
endorsement, or such other releases or lien pursuant to
bonding or otherwise to prevent such liens from attaching to
the Leased Premises.
c. Waivers of Mechanics' Liens and Materialmen's Liens
executed by all Sub-Contractors and workmen and materialmen
for all work done and all materials furnished to the Leased
Premises and included in the immediately preceding
Application for Payment, or evidence reasonably required by
Title to insure over the same by special specific
endorsement, or such other releases or lien pursuant to
bonding or otherwise to prevent such liens from attaching to
the Leased Premises.
d. Such other supporting evidence, including invoices and
receipts as may be requested by Lessor or LTIC-CDD to
substantiate all payments which are to be made out of the
Disbursement or to substantiate all payments then made in
respect to the Project.
2. INTEREST ADVANCE - If interest has accrued on the Development
Financing and is unpaid or fees are payable to the Lessor
hereunder, Lessor shall be, and hereby is, authorized at any time
to advance to itself from the proceeds of the Development
Financing the total amount of such accrued interest and fees,
whether or not an Application for Payment has been submitted by
the Lessee and the same shall be deemed to be an advance of the
proceeds of the Development Financing under this Agreement in the
same manner and with the same effect as if advanced under the
provisions above. It is understood Lessor may establish an
automatic interest reserve whereby Lessor may withdraw from the
Development Financing account on a regular basis the accrued
interest on the Development Financing and credit the Development
Financing balance with the same.
3. ASSESSMENT AND TAX ADVANCE - As taxes and assessments become
due on the Leased Premises, Lessor shall be, and hereby is,
authorized to advance to itself automatically from the proceeds
of the Development Financing, the total amount of such taxes and
assessments and the same shall be deemed to be an advance of the
proceeds of the Development Financing under this Agreement in the
same manner and with the same effect as if advances under the
provisions above, if not previously paid before due pursuant to
Lessee's obligations under the Lease.
4. DISBURSE UNDER DEVELOPMENT FINANCING DOCUMENT - All sums
advanced and disbursed hereunder shall be disbursed under and
shall be secured by the Development Financing Documents.
5. PAYMENTS TO SUBCONTRACTORS - In its reasonable discretion LTIC-
CDD may make payments directly to any subcontractor or
materialman.
6. RETAINAGE - Each Disbursement shall be limited to an amount
equal to ninety percent (90%) of the value, exclusive of
Contractor's profit and overhead, of the materials and labor
furnished to the Leased Premises and the balance (herein called
the Retainage) shall be retained by Lessor, provided that thirty
(30) days after completion by each subcontractor or materialman
of his subcontract Lessor will disburse to such party, or to the
Contractor on behalf of such party the Retainage withheld from
said party, provided that as a condition to such disbursement the
Lessee and Project Architect and the Inspecting Architect shall
certify to Lessor the date that such Party's subcontract has been
fully and satisfactorily completed and the subcontractor or
materialmen shall have supplied Title with satisfactory final
lien waivers, including final lien waivers for any of its
submaterialmen or sub- contractors and the requirements of any
bonding company issuing the Bonds shall have been fulfilled. Any
Retainage due the Contractor for work performed or materials
furnished by the Contractor and the final balance of Contractor's
profit and overhead shall be disbursed on the Final Disbursement
Date pursuant to Article IX hereof. Contractor's profit and
overhead shall be disbursed based upon and in proportion to the
percentage of completion of the Project, or amounts payable under
the Construction Contract for work actually performed, whichever
is less, as certified by the Project Architect.
ARTICLE IX
FINAL DEVELOPMENT FINANCING BALANCE
Unless and until Lessor and Lessee have entered into a mutually
satisfactory escrow holdback and undertaking agreement to, inter
alia, complete the Improvements and otherwise satisfy the
requirements of this Article IX, at no time and in no event shall
Lessor be obligated to disburse the balance of the proceeds of
the Development Financing, including any Retainage until the date
the following have been satisfied (the "Final Disbursement
Date"):
1. Lessor shall have received reasonably satisfactory evidence of
the final completion of the Improvements in substantial
accordance with the Contract Documents and the Certificate of
Final Completion from the Project Architect accepted by the
Contractor and Lessee.
2. Lessor shall have received satisfactory as-built surveys
reflecting the final location of the Improvements as fully
completed on the Leased Premises in accordance with the Contract
Documents, said survey to be prepared by a registered or licensed
surveyor bearing his registry number, certifying to Lessor as to
the legal description of the Leased Premises and showing all
Improvements located on the Leased Premises and indicating the
street address of the Improvements, absence of any encroachments
on the Leased Premises or from the Leased Premises onto adjacent
land, showing all access points, and showing conformance to all
set back requirements and delineating all utility easements that
are specifically legally described, rights of way and other
matters affecting the Leased Premises, and certifying as to the
total acreage of the land, the exterior dimensions of the
Improvements, and the number of parking spaces, if any, and such
other matters as Lessor may reasonably request.
3. Lessor shall have received a requisite affidavit of the
Lessee, Contractor and Project Architect, and approved by the
Inspecting Architect certifying as to the final cost of the
Improvements.
4. Title shall have been furnished with such final lien waivers
sufficient in the opinion of Title to dissolve any possible
Mechanic's and Materialman's Liens affecting title to the Leased
Premises or Lessee shall have provided a bond or other security
sufficient to remove the lien as an encumbrance upon title to the
Leased Premises and Title shall have issued its endorsements to
the title policy increasing the insured coverage to the full
amount of all sums disbursed under this Development Financing
Agreement.
5. Lessor shall have received evidence that all of the terms,
provisions and conditions on the part of the Lessee to be
performed or caused to be performed hereunder and under the
Lease, including but not limited to obtaining casualty insurance
for the full insurable value of the Improvements, have been
fulfilled to the satisfaction of Lessor.
6. Lessor shall have received a Final Certificate of Occupancy
issued by the appropriate governmental authority covering the
Improvements and a Certificate of Substantial Completion from the
Project Architect indicating that the Improvements as built
comply with all building codes and zoning ordinances, including
any plat requirements or requirements of recorded operating
covenants or agreements affecting the Leased Premises.
7. All remaining uncompleted "punch list" items shall have been
satisfactorily completed.
8. The requirements of all bonding companies, if any, with
respect to release of retainage shall have been met.
9. An amendment to the Lease shall be executed by Lessee and
Lessor setting forth the date the first Lease Year shall end and
the Rent for the balance of the first Lease Year, and evidencing
the satisfaction and termination of this Agreement.
ARTICLE X
EVENTS OF DEFAULT
An "event of default" shall be deemed to have occurred hereunder
and under the Lease, if:
1. DEFAULT UNDER DEVELOPMENT FINANCING DOCUMENTS - Any default or
event of default occurs (which remains uncured after the
expiration of any applicable cure period as may be set forth in
any Development Financing Document) under any of the Development
Financing Documents as defined therein; or
2. FAILURE TO COMPLETE CONSTRUCTION - Lessee shall fail for any
reason, except Lessor's wrongful refusal to fund the Development
Financing pursuant to the terms hereof, to substantially complete
the construction of the Improvements by the Completion Date; or
3. BREACH OF AGREEMENT - Lessee breaches or fails to perform,
observe or meet any covenant or condition of this Agreement,
provided, however, with respect to non-monetary defaults
hereunder, Lessee shall have twenty days after notice from Lessor
to cure such non-monetary default, or if such default (but for
the payment of monies) cannot be cured within twenty days, such
longer time as may be reasonably necessary to effect a cure if
Lessee is diligently pursuing a course of conduct reasonably
designed to cure the default.; or
4. BREACH OF WARRANTY - Any warranties made or agreed to be made
in any of the Development Financing Documents or this Agreement
shall be breached by Lessee or shall prove to be false or
misleading, and the same shall not be cured or made to be true
and correct within the applicable cure periods; or
5. FILING OF LIENS AGAINST THE LEASED PREMISES - Any lien for
labor, material, taxes or otherwise shall be filed against the
Leased Premises and such lien shall not be promptly paid,
released, contested in an appropriate forum, or bonded over to
Lessor's reasonable satisfaction before the lien shall materially
adversely affect Lessor's interest in the Premises; or
6. LITIGATION AGAINST LESSEE - Any suit shall be filed against
Lessee, and is not resolved within 120 days and, which if
adversely determined, could substantially impair the ability of
Lessee to perform each and every one of its obligations under and
by virtue of the Development Financing Documents; or
7. LEVY UPON THE LEASED PREMISES - A levy be made under any
process on the Leased Premises and such levy shall not be
promptly Bonded over prior to the execution of such levy; or
8. TRANSFER OF LEASED PREMISES - Lessee shall without the prior
written consent of Lessor, voluntarily or by operation of law,
sell, transfer, convey or encumber all or any part of its
interest in the Leased Premises or in any of the personalty
located thereon, or used or intended to be used in connection
therewith; or
9. ABANDONMENT - Lessee abandons the project or delays or ceases
work thereon for a period of fifteen consecutive (l5) days, or
delays construction or suffers construction to be delayed for any
period of time for any reason whatsoever so that completion of
Improvements cannot be accomplished in the judgment of Lessor on
or before the Completion Date, subject to force majeure; or
10. BANKRUPTCY - Lessee shall make an assignment for the
benefit of its creditors or shall admit in writing its inability
to pay its debts as they become due or shall file a petition in
bankruptcy or shall be adjudicated a bankrupt or insolvent or
shall file a petition seeking any reorganization, dissolution,
liquidation, arrangement, composition, readjustment, or similar
relief under any present or future bankruptcy or insolvency
statute, law or regulation, or shall file an answer admitting to
or not contesting the material allegations of a petition filed
against it in any such proceedings, or shall not have the same
dismissed or vacated, or shall seek or consent or acquiesce in
the appointment of any trustee, receiver or liquidator of a
material part of its properties, or shall not after the
appointment without the consent or acquiescence of it of a
trustee, receiver, or liquidator of any material part of its
properties have such receiver, liquidator or appointment vacated;
or
11. EXECUTION LEVY - Execution shall have been levied against
the Leased Premises or any lien creditors commence suit to
enforce a judgment lien against the Leased Premises or such
action or suit shall have been brought and shall not be
immediately bonded over and shall continue unstayed and in effect
for a period of more than 120 consecutive days; or
12. ATTACHMENT - Any part of the Lessor's commitment to make
the advances hereunder shall at any time be subject or liable to
attachment or levy at the suit of any creditor of the Lessee or
at the suit of any subcontractor or creditor of the Contractor
and shall remain unstayed prior to the time Lessor shall be
obligated to comply with the same; or
ARTICLE XI
REMEDIES OF LESSOR
Lessee hereby agrees that the occurrence of any one or more of
the events of default set out in Article X hereof, shall also
constitute an event of default under each of the Development
Financing documents, thereby entitling Lessor, after the
expiration of any applicable cure period, at its option, to
proceed to exercise any or all of the following remedies:
1. EXERCISE OF REMEDIES - To exercise any of the various remedies
provided in any of the Development Financing Documents, including
the acceleration of the Put described in Articles XIV hereof;
2. CUMULATIVE RIGHTS - Cumulatively to exercise all other rights,
options and privileges provided by law;
3. CEASE MAKING ADVANCES - To refrain from making any advances
under this Agreement but Lessor may make advances after the
happening of any such event without thereby waiving the right to
refrain from making other further advances or to exercise any of
the other rights Lessor may have.
4. RIGHTS TO ENTER - To require Lessee to vacate the Leased
Premises and permit Lessor (whether prior to the exercise of the
Put or during any period prior to the closing of the sale
pursuant to the Put;
(a) To enter into possession;
(b) To perform or cause to be performed any and all work and
labor necessary to complete the Improvements in accordance
with the Plans and Specifications;
(c) To employ security watchmen to protect the Leased
Premises; and
(d) To disburse that portion of the Development Financing
Proceeds not previously disbursed (including any Retainage)
to the extent necessary to complete the construction of the
Improvements in accordance with the Contract Documents and if
the completion requires a larger sum than the remaining
undisbursed portion of the Development Financing, to disburse
such additional funds, all of which funds so disbursed by
Lessor shall be deemed to have been disbursed to Lessee. For
this purpose, Lessee hereby consents upon an uncured default
by Lessee after the expiration of any applicable notice and
cure period, to the Lessor taking the following actions, or
not, in Lessor's reasonable discretion: to complete the
construction of the Improvements in the name of the Lessee,
and hereby empowers Lessor to take all actions necessary in
connection therewith including but not limited to using any
funds of Lessee including any balance which may be held in
escrow and any funds which may remain unadvanced hereunder
for the purpose of completing the said portion of the
Improvements in the manner called for by the Contract
Documents; to make such additions and changes and corrections
in the Contract Documents which shall be necessary or
desirable to complete the said portion of the Improvements in
substantially the manner contemplated by the Contract
Documents; to employ such contractors, subcontractors,
agents, architects, and inspectors as shall be required for
said purposes; to pay, settle or compromise all existing or
future bills and claims which are or may be liens against
said Leased Premises, or may be necessary or desirable for
the completion of the said portion of the Improvements or the
clearance of title to the Leased Premises; to execute all
applications and certificates in the name of Lessee which may
be required by any construction contract and to do any and
every act with respect to the construction of the said
portion of the Improvements which Lessee may do in its own
behalf. Lessor shall also have power to prosecute and defend
all actions and proceedings in connection with the
construction of the said portion of the Improvements and to
take such action and require such performance as it deems
necessary. In accordance therewith, Lessee hereby assigns
and quitclaims unto Lessor all sums to be advanced hereunder
including Retainage. Any funds so disbursed or fees or
charges so incurred shall be included in any amount necessary
for the Lessee to pay pursuant to the Put.
(e) To discontinue making advances hereunder to the Lessee
and to terminate Lessor's obligations under this Agreement.
5. RIGHTS NON CUMULATIVE - No right or remedy by this Agreement
or by any Development Financing Document or instrument delivered
by the Lessee pursuant hereto, conferred upon or reserved to the
Lessor shall be or is intended to be exclusive of any other right
or remedy and each and every right and remedy shall be cumulative
and in addition to any other right or remedy or now or hereafter
arising at a law or in equity or by statute. Except as Lessor
may hereafter otherwise agree in writing, no waiver by Lessor or
any breach by or default of Lessee of any of its obligations,
agreements, or covenants under this Agreement shall be deemed to
be a waiver of any subsequent breach of the same or any other
obligation, agreement or covenant, nor shall any forbearance by
Lessor to seek a remedy for such breach be deemed a waiver of its
rights and remedies with respect to such a breach, nor shall
Lessor be deemed to have waived any of its rights and remedies
unless it be in writing and executed with the same formality as
this Agreement.
6. EXPENSES - The Development Financing and this Agreement and
the performance by the Lessor or Lessee of their obligations
hereunder shall be without cost and expense to the Lessor, all of
which costs and expenses the Lessee agrees to pay and hold Lessor
harmless of and payment of which shall be secured by the
Development Financing Documents. Specifically, Lessee agrees to
pay all title charges, surveyor's fees, appraisals, loan fees and
attorney's fees and costs and the like incurred in connection
with this Agreement.
ARTICLE XII
GENERAL CONDITIONS AND MISCELLANEOUS
The following conditions shall be applicable throughout the term
of this Agreement:
1. RIGHTS OF THIRD PARTIES - All conditions of the obligations of
Lessor hereunder, including the obligation to make disbursements
are imposed solely and exclusively for the benefit of Lessee, and
no other person shall have standing to require satisfaction of
such conditions in accordance with their terms or be entitled to
assume that Lessor will refuse to make advances in the absence of
strict compliance with any or all thereof, and no other person
shall, under any circumstances, be deemed to be a beneficiary of
such conditions, any and all of which may be freely waived in
whole or in part by Lessor at any time if in its sole discretion
it deems it desirable to do so. In particular, Lessor makes no
representations and assumes no duties or obligations as to third
parties concerning the quality of the construction of the
Improvements or the absence therefrom of defects. In this
connection, Lessee agrees to and shall indemnify Lessor from any
liability, claims or losses resulting from the disbursement of
the Development Financing proceeds or from the condition of the
Leased Premises whether related to the quality of construction or
otherwise and whether arising during or after the term of the
Development Financing made by Lessor to Lessee in connection
therewith, except for Lessor's gross negligence or willful
misconduct. This provision shall survive the termination of this
Agreement and shall continue in full force and effect so long as
the possibility of any such liability, claims or losses exists.
2. EVIDENCE OF SATISFACTION OF CONDITIONS - Any condition of this
Agreement which requires the submission of evidence of the
existence or non- existence of a specified fact or facts implies
as a condition the existence or non- existence, as the case may
be, of such fact or facts, and Lessor shall, at all times, be
free independently to establish to its reasonable satisfaction
such existence or non-existence.
3. ASSIGNMENT - Lessee may not assign this Development Financing
Agreement or any of its rights or obligations hereunder without
the prior written consent of Lessor.
4. SUCCESSORS AND ASSIGNS - Whenever in this Agreement one of the
parties hereto is named or referred to, the heirs, legal
representatives, successors and assigns of such parties shall be
included and all covenants and agreements contained in this
Agreement by or on behalf of the Lessee or by or on behalf of the
Lessor shall bind and inure to the benefit of their respective
heirs, legal representatives, successors and assigns, whether so
expressed or not.
5. HEADINGS - The headings of the sections, paragraphs and
subdivisions of this Agreement are for the convenience of
reference only, and are not to be considered a part hereof and
shall not limit or otherwise affect any of the terms hereof.
6. INVALID PROVISIONS TO AFFECT NO OTHERS - If fulfillment of any
provision hereof, or any transaction related thereto at the time
performance of any such provision shall be due, shall involve
transcending the limit of validity prescribed by law, then, ipso
facto, the obligation to be fulfilled shall be reduced to the
limit of such validity; and such clause or provision shall be
deemed invalid as though not herein contained, and the remainder
of this Agreement shall remain operative in full force and
effect.
7. NUMBER AND GENDER - Whenever the singular or plural number,
masculine or feminine or neuter gender is used herein, it shall
equally include the other.
8. AMENDMENTS - Neither this Agreement 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.
9. NOTICES - Any notice which any party hereto may desire or may
be required to give to any of the parties shall be in writing and
the mailing thereof by certified mail, or equivalent, to the
respective parties' addresses set forth hereinabove or to such
other place such party may by notice in writing designate as its
address shall constitute service of notice hereunder.
10. GOVERNING LAW - This Development Financing Agreement is
made and executed pursuant to and is intended to be governed by
the laws of the State where the Leased Premises are located.
11. FORCE MAJEURE - Anything in this Agreement to the contrary
notwithstanding, Lessee shall not be deemed in default with
respect to the performance of any of the terms, provisions,
covenants, and conditions of this Agreement (except for the
payment of all other monetary sums payable hereunder, to which
the provisions of this Section shall not apply), if the same
shall be due to any strike, lockout, civil commotion, warlike
operations, invasion, rebellion, hostilities, sabotage,
governmental regulations or controls, impracticability of
obtaining any materials or labor (except due to the payment of
monies), shortage or unavailability of a source of energy or
utility service, Act of God, casualty, adverse weather
conditions, or any cause beyond the reasonable control of Lessee
(except due to the payment of monies). Provided, however, in
order to invoke the extension of the Completion Date afforded by
this section, Lessee shall notify Lessor in writing within five
days of the occurrence of such force majeure, and in any event
the Completion Date shall be extended as a result of such
occurrence no more than reasonably necessary and in no event no
more than 90 days.
ARTICLE XIII
DAMAGE, DESTRUCTION, CONDEMNATION, USE OF INSURANCE PROCEEDS
1. DAMAGE OR DESTRUCTION OF THE LEASED PREMISES. Lessee will
give the Lessor prompt notice of any damage to or destruction of
the Leased Premises and in case of loss covered by policies of
insurance the Lessor (whether before or after the exercise of the
Put if Lessee be in default hereof) is hereby authorized at its
option to settle and adjust any claim arising out of such
policies and collect and receipt for the proceeds payable
therefrom, provided, that the Lessee may itself adjust and
collect for any losses arising out of a single occurrence
aggregating not in excess of $50,000.00. Any expense incurred by
the Lessor in the adjustment and collection of insurance proceeds
(including the cost of any independent appraisal of the loss or
damage on behalf of Lessor) shall be reimbursed to the Lessor
first out of any proceeds. The proceeds or any part thereof
shall be applied to reduction of the Put Price, which Put may
then be exercised by Lessor, without the application of any
prepayment premium, or to the restoration or repair of the Leased
Premises, the choice of application to be solely at the
discretion of Lessor.
2. CONDEMNATION. Lessee will give the Lessor prompt notice
of any action, actual or threatened, in condemnation or eminent
domain affecting the Leased Premises and hereby assigns,
transfers, and sets over to the Lessor the entire proceeds of any
award or claim for damages for all or any part of the Leased
Premises taken or damaged under the power of eminent domain or
condemnation, the Lessor being hereby authorized to intervene in
any such action and to collect and receive from the condemning
authorities and give proper receipts and acquittances for such
proceeds. Lessee will not enter into any agreements with the
condemning authority permitting or consenting to the taking of
the Leased Premises unless prior written consent of Lessor is
obtained. Any expenses incurred by the Lessor in intervening in
such action or collecting such proceeds shall be reimbursed to
the Lessor first out of the proceeds. The proceeds or any part
thereof shall be applied to reduction of the Put Price, which Put
may then be exercised by Lessor, without the application of any
prepayment premium, or to the restoration or repair of the Leased
Premises, the choice of application to be solely at the
discretion of Lessor.
3. DISBURSEMENT OF INSURANCE AND CONDEMNATION PROCEEDS. Any
restoration or repair shall be done under the supervision of an
architect acceptable to Lessor and pursuant to plans and
specifications approved by the Lessor. Subject to paragraph 4
below, in any case where Lessor may elect to apply the proceeds
to repair or restoration or permit the Lessee to so apply the
proceeds they shall be held by Lessor for such purposes and will
from time to time be disbursed by Lessor to defray the costs of
such restoration or repair under such safeguards and controls as
Lessor may reasonably require to assure completion in accordance
with the approved plans and specifications and free of liens or
claims. Lessee shall on demand deposit with Lessor any sums
necessary to make up any deficits between the actual cost of the
work and the proceeds and provide such lien waivers and
completion bonds as Lessor may reasonably require. Any surplus
which may remain after payment of all costs of restoration or
repair shall be applied against the rent then most remotely to be
paid, whether due or not, without application of any prepayment
premium or credit.
4. LESSOR TO MAKE PROCEEDS AVAILABLE. In the event of
insured damage to the improvements or in the event of a taking by
condemnation of only a portion of the improvements or land area
of the Leased Premises, and provided, the portion remaining can
with restoration or repair continue to be operated for the
purposes utilized immediately prior to such damage or taking, and
if the appraised value of the Leased Premises after such
restoration or repair shall not have been reduced, and provided
further, no event of default exists under this Agreement after
the expiration of any applicable cure periods and Lessee is
diligently pursuing a course of conduct reasonably designed to
cure such default, and the Lessee certified to Lessor their
intention to remain in possession of the Leased Premises without
any abatement or adjustment of rental payments, the Lessor agrees
to make the proceeds available to the restoration or repair of
the improvements on the Leased Premises in accordance with the
provisions of paragraph 3 hereof.
ARTICLE XIV
MANDATORY PUT UPON DEFAULT
Should Lessee commit an event of Default under this Agreement
or any Development Financing Document (after the expiration of
any applicable notice and cure period) ("Uncured Default"),
Lessor shall have the following rights:
Upon an Uncured Default, or damage or destruction or
condemnation of the Leased Premises not addressed by paragraph
XIII (4), if Lessor elects to exercise the following option,
Lessee shall purchase the Leased Premises from Lessor subject to
the following terms and conditions:
A. The purchase price at which Lessor
shall sell the Leased Premises to Lessee, shall be the
total amount of Initial Disbursed Funds disbursed by
Lessor to acquire the Leased Premises at the Closing
Date (as defined in the Commitment), plus the total
amount of funds disbursed pursuant to this Agreement,
plus all accrued interest and incurred expenses of
Lessor fundable pursuant to this Agreement, plus all
reasonable costs of collection and enforcement of the
terms hereof.
B. At such time as Lessor shall elect
to sell the Leased Premises, Lessor shall give Lessee
written notice of its intent to exercise its option to
sell the Leased Premises to Lessee, including in such
notice Lessor's calculation of the Purchase Price
through the actual closing of the sale of the Leased
Premises to Lessee pursuant to the terms hereof (the
"Sale Date"), which shall be sixty days from such notice
by Lessor. Lessee shall on or before the Sale Date
deliver the purchase price as set forth in subparagraph
(A) of this Article to Lessor. Upon such delivery,
which shall be preceded by ten (10) days notice to
Lessor, Lessor shall deliver to Lessee a warranty deed
and appropriate affidavits evidencing that Lessor
transfers the Leased Premises to Lessee subject to
restrictions, easements or other encumbrances upon title
existing as of the date of delivery, if any, except to
the extent, if any, placed of record or caused by
Lessor. The purchase price to be paid to Lessor shall
be a net amount. All expenses in connection with the
transfer of the Leased Premises, including, but not
limited to appraisal fees, title insurance, recording
fees, documentary stamps, conveyance tax, title
evidence, and all other closing costs, shall be paid by
the Lessee. The purchase price shall be paid by Lessee
in cash to Lessor concurrently with the conveyance of
the Leased Premises by the Lessor to the Lessee. If
Lessor elects to sell the Leased Premises to Lessee
pursuant to the terms hereof, the Leased Premises shall
be conveyed by the Lessor to the Lessee "As Is".
If Lessee shall fail to pay the Purchase Price on or before
the Sale Date, Lessor may terminate the Lease, and sell the
Leased Premises to any third party purchaser. Lessor may then
send Lessee notice of the shortfall (the "Deficiency"), if any,
between the amount of the net proceeds received by Lessor in such
sale, and the total amount of Initial Disbursed Funds disbursed
by Lessor to acquire the Parcel at the Closing Date (as defined
in the Commitment), plus the total amount of funds disbursed
pursuant to this Agreement, plus all accrued interest and
incurred expenses of Lessor fundable pursuant to this Agreement,
plus all reasonable costs of collection and enforcement of the
terms hereof. Lessee shall immediately upon receipt of such
notice of Deficiency remit the amount of the Deficiency in good
funds to Lessor.
Lessor's rights under this Mandatory Put shall expire on the
Final Disbursement Date when the amendment to the Lease has been
executed by all parties as set forth in Article IX hereof.
ARTICLE XV
RENT, INTEREST, AND RENTAL MODIFICATION DATE
1. Rent shall be payable by Lessee and calculated as follows, on
the funds advanced by Lessor on the Closing Date for the purchase
of the land and related closing costs (the "Initial Disbursed
Funds"): Rent shall accrue in the amount of $6,267.24 per month
absent an uncured Default by Lessee; absent an uncured Default,
accrued rent during the period of construction of the
Improvements shall not be payable until the Final Disbursement
Date. Upon the occurrence of an uncured Default, all accrued
rent shall be immediately due and payable.
On the Rental Modification Date, if not otherwise in default
hereunder, Lessee shall begin paying Rent by the first of each
month (prorata for the balance of any partial month in which the
Rental Modification Date occurs, payable with the first such
adjusted Rent payable on the first day of the first full month
following the Rental Modification Date) in the amount of
$9,624.69 per month out of pocket. On the Final Disbursement
Date, absent an Uncured Default, Rent shall be adjusted and
documented by the lease amendment contemplated in Article IX
hereof and paid to Lessor as described in Article F. of the
Commitment.
2. Disbursed proceeds of the Development Financing shall
accrue interest at a rate of seven percent (7.0%) per annum,
which interest shall accrue unpaid unless advanced by Lessor to
itself, or Lessee shall default hereunder, which default shall
remain uncured after the expiration of any applicable notice and
cure period. However, one hundred and eighty days (180) from the
date hereof, (the "Rental Modification Date"), Lessee shall begin
making monthly payments of subsequently accruing interest at the
rate of 10.75% per annum out of pocket ("Out of Pocket Invoiced
Interest") within 5 days after invoice from Lessor.
3. Upon the occurrence of an event of default which remains
uncured after the expiration of applicable notice and cure
periods, disbursed proceeds of the Development Financing shall
accrue interest at a rate of Fifteen Percent (15.0%) per annum,
or the highest rate allowed by law, whichever is less, and the
rental rate on the Initial Disbursed funds shall increase to
Fifteen Percent (15.0%) per annum, or the highest rental rate
allowed by law, whichever is less.
ARTICLE XVI
COUNTERPART EXECUTION
Counterpart Execution. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original
and all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Lessee and Lessor have hereunto caused
these presents to be executed on the date first above written.
Champps Americana, Inc., a
Minnesota corporation
By:/s/ Charles W Redepenning Jr.
Its: Sr. VP
[Lessor's Signature appears on following page.]
AEI INCOME & GROWTH FUND XXI
LIMITED PARTNERSHIP
By: AEI FUND MANAGEMENT XXI, INC.,
a Minnesota corporation,
Its corporate general partner
By: /s/ Robert P Johnson
Robert P. Johnson, President
Exhibit A
City of Livonia, County of Wayne, State of Michigan, Unit 3,
Pentagon Centre Condominium, according to the Master Deed of
record, Wayne County Records, as amended.
EXHIBIT B
CONSTRUCTION COSTS
CHAMPPS AMERICANA, INC.
LIVONIA, MICHIGAN
PROJECT COST BUDGET
JUNE 17, 1997
Land Acuisition Cost $1,050,000
Site Improvements 323,715
Building/General Construction 1,788,410
Construction Material (owner) 254,500
Permits & Fees 32,000
Architect/Engineering 83,300
Site Investigation and Surveys 21,500
Appraisal 4,000
Prototype fee 10,000
Development Interest 50,000
Title Insurance & Closing Costs
(Construction and S/L) 10,000
Attorney's Fees-Borrower
(ConstructionSale/Leaseback) 12,000
Attorney's Fees- AEI
(Construction/Sale/Leaseback) 7,500
AEI Development Funding Fee 10,000
AEI Credit Report Fees (Promesa) 1,000
AEI Site Inspection Fee 1,000
Additional Legal 4,600
Champps Americana, Inc.Parcel Development Fee 37,450
Builders Risk Insurance 2,000
Construction Supervision and Overhead 50,000
AEI Sale/Leaseback Commitment/Funding Fee* 39,500
TOTAL PROJECT COST $3,970,000
*Total project costs prior to AEI S/L fee is $3,930,500. The S/L
fee (rounded) is calculated on the total project cost prior to
the S/L Fee and adjusted, if necessary, at the time the final
disbursment of the Development Financing.
Exhibit C
APPLICATION FOR PAYMENT
Champps Americana, Inc. ("Lessee") hereby requests a
disbursement in the amount of______________________
($____________________) pursuant to that certain Development
Financing Agreement dated effective as of _____, 1997 by
and between Lessee, AEI Income & Growth Fund XXI Limited
Partnership ("Lessor"). The amounts requested have been or will
be used to pay the items identified on Exhibit "A" attached
hereto and made a part hereof.
After payment of the amounts requested herein, the balance
of undisbursed Development Financing proceeds of
$_____________________ will be sufficient to complete
construction and pay all related project costs currently known
and approved by Lessor. In the event of cost overruns which
cannot be accounted for by re-allocation among line items, Lessee
agrees to contribute the necessary equity to complete
construction pursuant to Development Financing Agreement and
Development Financing Disbursement Agreement.
All representations and warranties made by the Lessee in the
Development Financing Documents (as defined in the Development
Financing Agreement) are true and correct as of the date hereof
and Lessee is not in default of any of the provisions thereof.
The total cost of the items for which Lessor is funding is
estimated to be $ . To date,
$______________(exclusive of this request) has been disbursed
pursuant to the Development Financing Disbursing Agreement.
Dated:______________________________
Lessee:
Champps Americana, Inc. a
Minnesota corporation
By:
Its:
Lessee
Exhibit D-1
DRAW REQUEST CERTIFICATE
This Certificate made by Champps Americana, Inc.("Lessee").
RECITALS
WHEREAS, Lessee and AEI Income & Growth Fund XXI Limited
Partnership ("Lessor") have entered into a Development Financing
Agreement dated effective as of June , 1997 (the
"Development Financing Agreement") pursuant to which Lessor
agreed to loan $3,850,000 to Lessee for the purpose of
constructing a Champps Restaurant on certain real property
described on Exhibit "A" attached to the Development Financing
Agreement ("Project"); and
WHEREAS, Lessee and Contractor have entered into a contract
dated , 1997, ("Construction Contract"); and
WHEREAS, the Development Financing Agreement requires the
submission to Escrowee and Lessor of this Certificate prior to
the advancement of any loan proceeds under the Development
Financing Agreement.
NOW, THEREFORE, Lessee does hereby certify to Escrowee and
Lessor as follows:
1. This Draw Request for the period from
____________________________, 1997 to _____________________,
1997, showing work completed to date of $
and requesting a current payment of $________________________
relates to costs incurred pursuant to the Construction Contract,
and other line items, all as shown on the Development Financing
Budget attached to the Development Financing Agreement, and are
costs only pertaining to the Project and are included in the
Development Financing Agreement.
2. As of the date of this Draw Request, the balance
remaining due for all costs under the Construction Contract,
including retainage and approved change orders, to complete the
Project after receipt of payments requested herein will be
$________________.
3. As of the date of this Draw Request, the remaining
balance due on the Development Financing Agreement as set forth
above is sufficient to complete the Project in accordance with
the Plans and Specifications (as defined in the Development
Financing Agreement) to the degree set forth by the Development
Financing Agreement.
4. That all work covered by this Draw Request has been
completed in accordance with the Construction Contract, Plans and
Specifications, and any amendments thereto approved by Lessor.
5. That all work completed to date conforms to the
Construction Contract, Plans and Specifications, and any
amendments thereto approved by Lessor.
6. That all funds previously disbursed for costs incurred
pursuant to the Construction Contract under the Development
Financing Agreement have been applied as provided in all previous
Draw Request Certificates.
7. That as of the date hereof, to the best of Lessee's
knowledge after due inquiry, the Project complies with the
requirements of all zoning and building laws, ordinances,
regulations and permits; the requirements of all governmental
agencies having jurisdiction over the Project; and there is no
action or proceeding pending before any court or administrative
agency with respect to such laws, ordinances, regulations and/or
any certifications or permits issued thereunder.
Dated this ______ day of ____________________, 1997.
Lessee: Champps Americana, Inc., a
Minnesota corporation
By:______________________________
Its________________________
STATE OF )
)ss.
COUNTY OF )
I, _______________________________________________, a Notary
public of the said State and County do hereby certify that
_________________________________________ personally appeared
before me this day and he is the ____________________________ of
Champps Americana, Inc., a Minnesota corporation, and that by
authority duly given and as the act of the corporation, the
foregoing instrument was signed in its name by its
_______________________________, on behalf of said corporation.
Witness my hand and official stamp or seal, this ______ day of
_________________, 1997.
_____________________________
____________
My commission expires:________ Notary Public
CONTRACTOR AND ARCHITECT
Exhibit D-2
DRAW REQUEST CERTIFICATE
This Certificate made by
,("Contractor"), AND
("Architect").
RECITALS
WHEREAS, Champps Americana, Inc. ("Lessee") and AEI Income &
Growth Fund XXI Limited Partnership ("Lessor") have entered into
a Development Financing Agreement dated effective as of June
, 1997 (the "Development Financing Agreement") pursuant to which
Lessor agreed to loan $3,970,000 to Lessee for the purpose of
constructing a Champps Restaurant on certain real property
described on Exhibit "A" attached to the Development Financing
Agreement ("Project"); and
WHEREAS, Lessee and Contractor have entered into a contract
dated , 1997, ("Construction Contract"); and
WHEREAS, Lessee and Architect have entered into a contract
dated , 1997, ("Architect Contract"); and
WHEREAS, the Development Financing Agreement requires the
submission to Escrowee and Lessor of this Certificate prior to
the advancement of any loan proceeds under the Development
Financing Agreement.
NOW, THEREFORE, Contractor and Architect do hereby certify
to Escrowee and Lessor as follows:
1. This Draw Request for the period from
____________________________, 1997 to _____________________,
1997, showing work completed to date of $
and requesting a current payment of $________________________
relates to costs incurred pursuant to the Construction Contract,
and are costs only pertaining to the Project.
2. As of the date of this Draw Request, the balance
remaining due for all costs under the Construction Contract,
including retainage and approved change orders, to complete the
Project after receipt of payments requested herein will be
$________________.
3. As of the date of this Draw Request, the remaining
balance due on the Construction Contract as set forth above is
sufficient to complete the Project in accordance with the Plans
and Specifications (as defined in the Construction Contract) to
the degree set forth by the Construction Contract.
4. That all work covered by this Draw Request has been
completed in accordance with the Construction Contract, Plans and
Specifications, and any amendments thereto approved by Lessor.
5. That each subcontractor or materialmen for which payment
is requested in this Draw Request has satisfactorily completed
the work or furnished materials for which payment is requested in
accordance with the Construction Contract.
6. That all work completed to date conforms to the
Construction Contract, Plans and Specifications, and any
amendments thereto approved by Lessor.
7. That all funds previously disbursed for costs incurred
pursuant to the Construction Contract have been applied as
provided in all previous Draw Request Certificates.
8. That as of the date hereof, to the best of Contractor's
and Architect's knowledge after due inquiry, the Project complies
with the requirements of all zoning and building laws,
ordinances, regulations and permits; the requirements of all
governmental agencies having jurisdiction over the Project; and
there is no action or proceeding pending before any court or
administrative agency with respect to such laws, ordinances,
regulations and/or any certifications or permits issued
thereunder.
Dated this ______ day of ____________________, 1997.
CONTRACTOR:
By:
Its:
ARCHITECT:
By:
Its:
STATE OF )
)ss.
COUNTY OF )
I, _______________________________________________, a Notary
public of the said State and County do hereby certify that
_________________________________________ personally appeared
before me this day and he is the ____________________________ of
, a corporation, and that by authority duly
given and as the act of the corporation, the foregoing instrument
was signed in its name by its _______________________________, on
behalf of said corporation.
Witness my hand and official stamp or seal, this ______ day of
_________________, 1997.
_____________________________
____________
My commission expires:________ Notary Public
STATE OF )
)ss.
COUNTY OF )
I, _______________________________________________, a Notary
public of the said State and County do hereby certify that
_________________________________________ personally appeared
before me this day and he is the ____________________________ of
, a corporation, and that by authority duly
given and as the act of the corporation, the foregoing instrument
was signed in its name by its _______________________________, on
behalf of said corporation.
Witness my hand and official stamp or seal, this ______ day of
_________________, 1997.
_____________________________
____________
My commission expires:________ Notary Public
NET LEASE AGREEMENT
THIS LEASE, made and entered into effective as of the 8th
day of June, 1997, by and between AEI Income & Growth Fund XXI
Limited Partnership ("Fund XXI"), a Minnesota limited partnership
whose corporate general partner is AEI Fund Management XXI, Inc.,
a Minnesota corporation, whose principal business address is 1300
Minnesota World Trade Center, 30 East Seventh Street, St. Paul,
Minnesota 55101 ("Lessor"), and Champps Americana, Inc., a
Minnesota corporation ("Lessee"), whose principal business
address is One Corporate Place, 55 Ferncroft Road, Danvers, Ma.
01923;
WITNESSETH:
WHEREAS, Lessor is the fee owner of a certain parcel of real
property and improvements located at Unit 3, Pentagon Centre
Condominium, Wayne County, Livonia, Michigan, and legally
described in Exhibit "A", which is attached hereto and
incorporated herein by reference; and
WHEREAS, Lessee will be constructing the building and
improvements (together the "Building") on the real property
described in Exhibit "A", which Building is described in the
plans and specifications heretofore submitted to Lessor; and
WHEREAS, Lessee desires to lease said real property and
Building (said real property and Building hereinafter referred to
as the "Leased Premises"), from Lessor upon the terms and
conditions hereinafter provided;
NOW, THEREFORE, in consideration of the Rents, terms,
covenants, conditions, and agreements hereinafter described to be
paid, kept, and performed by Lessee, Lessor does hereby grant,
demise, lease, and let unto Lessee, and Lessee does hereby take
and hire from Lessor and does hereby covenant, promise, and agree
as follows:
ARTICLE 1. LEASED PREMISES
Lessor hereby leases to Lessee, and Lessee leases and takes
from Lessor, the Leased Premises subject to the conditions of
this Lease.
ARTICLE 2. TERM
(A) The term of this Lease ("Term") shall be Twenty (20)
consecutive "Lease Years", as hereinafter defined, commencing on
June 8, 1997 ("Occupancy Date").
(B) The first "Lease Year" of the Term shall be for a
period of twelve (l2) consecutive calendar months from the
Occupancy Date. If the Occupancy Date shall be other than the
first day of a calendar month, the first "Lease Year" shall be
the period from the Occupancy Date to the end of the calendar
month of the Occupancy Date, plus the following twelve (l2)
calendar months. Each Lease Year after the first Lease Year
shall be a successive period of twelve (l2) calendar months.
(C) The parties agree that once the Occupancy Date has been
established, upon the request of either party, a short form or
memorandum of this Lease will be executed for recording purposes.
That short form or memorandum of this Lease will set forth the
actual occupancy and termination dates of the Term and optional
Renewal Terms, as defined in Article 28 hereof, and the existence
of any right of first refusal, and that said right shall
terminate when the Lessee shall lose right to possession or this
Lease is terminated, whichever occurs first.
ARTICLE 3. CONSTRUCTION OF IMPROVEMENTS
(A) Lessee warrants and agrees that the Building will be
constructed on the Leased Premises, and all other improvements to
the land, including the parking lot, approaches, and service
areas, will be constructed in all material respects by Lessee
substantially in accordance with the plot, plans, and
specifications heretofore submitted to Lessor.
(B) Lessee warrants that the Building and all other
improvements to the land contemplated do comply with the laws,
ordinances, rules, and regulations of all state and local
governments.
(C) Lessee agrees to pay, if not already paid in full, for
all architectural fees and actual construction costs relating to
the Building and other related improvements on the Leased
Premises, in the past, present or future, which shall include,
but not be limited to, plans and specifications, general
construction, carpentry, electrical, plumbing, heating,
ventilating, air conditioning, decorating, equipment
installation, outside lighting, curbing, landscaping,
blacktopping, electrical sign hookup, conduit and wiring from
building, fencing, and parking curbs, builder's risk insurance
(naming Lessor, Lessee, and contractor as co-insured), and all
construction bonds for improvements made by or at the direction
of Lessee.
(D) Opening for business in the Leased Premises by Lessee
shall constitute an acceptance of the Leased Premises and an
acknowledgment by Lessee that the premises are in the condition
described under this Lease.
ARTICLE 4. RENT PAYMENTS
(A) Annual Rent Payable for the first, second, and
third Lease Years: Lessee shall pay to Lessor Fund XXI
an annual Base Rent of $75,206.88, which amount shall
be payable in advance on the first day of each month in
equal monthly installments of $6,267.24 to Lessor Fund
XXI. If the first day of the Lease Term is not the
first day of a calendar month, then the monthly Rent
payable for that partial month shall be a prorated
portion of the equal monthly installment of Base Rent.
(B) Annual Rent Payable beginning in the fourth,
seventh, tenth, thirteenth, sixteenth, nineteenth, and
if renewed according to the terms hereof, the twenty-
second, twenty-fifth, twenty-eighth, thirty-first, and
thirty-fourth Lease Year:
1. In the fourth and every third Lease Year
thereafter, the annual Base Rent due and payable
shall increase by an amount equal to the lesser
of: a) Seven and 35/100 Percent (7.35%) of the
Base Rent payable for the immediately prior Lease
Year, or b) The "CPI-U Percentage Increase" of the
Base Rent payable for the prior Lease Year.
"CPI-U" shall mean the Consumer Price
Index for All Urban Consumers, (all items),
published by the United States Department of
Labor, Bureau of Labor Statistics (BLS) (1982-84
equal 100), U.S. Cities Average, or, in the event
said index ceases to be published, by any
successor index recommended as a substitute
therefor by the United States Government or a
comparable, nonpartisan substitute reasonably
designated by Lessor. If the BLS changes the base
reference period for the Price Index from 1982-
84=100, the CPI-U Percentage Increase shall be
determined with the use of such conversion formula
or table as may be published by the BLS.
The term "CPI-U Percentage Increase"
shall mean the percentage increase in the CPI-U
determined by reference to the increase, if any,
in the latest monthly CPI-U issued prior to the
first day of the Lease Year for which Base Rent is
being increased, over the CPI-U issued for the
same month in the third year prior (e.g., the June
CPI-U for the year 2000 over the June CPI-U for
the year 1997.) Said month's CPI-U shall be used
even though that CPI-U will not be for the month
in which the renewal term commences. In no event
shall the CPI-U Percentage Increase be less than
zero.
(C) Overdue Payments.
Lessee shall pay interest on all overdue payments of Rent or
other monetary amounts due hereunder at the rate of fifteen
percent (15%) per annum or the highest rate allowed by law,
whichever is less, accruing from the date such Rent or other
monetary amounts were properly due and payable.
ARTICLE 5. INSURANCE AND INDEMNITY
(A) Lessee shall, throughout the Term or Renewal Terms, if
any, of this Lease, at its own cost and expense, procure and
maintain insurance which covers the Leased Premises and
improvements against fire, wind, and storm damage (including
flood insurance if the Leased Premises is in a federally
designated flood prone area) and such other risks (including
earthquake insurance, if the Leased Premises is located in a
federally designated earthquake zone or in an ISO high risk
earthquake zone) as may be included in the broadest form of all
risk, extended coverage insurance as may, from time to time, be
available in amounts sufficient to prevent Lessor or Lessee from
becoming a co-insurer within the terms of the applicable
policies. In any event, the insurance shall not be less than one
hundred percent (100%) of the then insurable value, with such
commercially reasonable deductibles as Lessor may reasonably
require from time to time. Additionally, replacement cost
endorsements, vandalism endorsement, malicious mischief
endorsement, waiver of subrogation endorsement, waiver of co-
insurance or agreed amount endorsement (if available), and
Building Ordinance Compliance endorsement and Rent loss
endorsements (for a period of 90 days) must be obtained.
(B) Lessee agrees to place and maintain throughout the Term
or Renewal Terms, if any, of this Lease, at Lessee's own expense,
public liability insurance with respect to Lessee's use and
occupancy of said premises, including "Dram Shop" or liquor
liability insurance, if the same shall be or become available in
the State of Michigan, with initial limits of at least $1,000,000
per occurrence/$3,000,000 general aggregate (inclusive of
umbrella coverage), or such additional amounts as Lessor shall
reasonably require from time to time.
(C) Lessee agrees to notify Lessor in writing if Lessee is
unable to procure all or some part of the aforesaid insurance.
In the event Lessee fails to provide all insurance required under
this Lease, Lessor shall have the right, but not the obligation,
to procure such insurance on Lessee's behalf, following five (5)
business days written notice to Lessee of Lessor's intent to do
so (unless insurance then in place would during such period, or
already has, lapsed, in which case no notice need be given) and
Lessee may obtain such insurance during said five day period and
not then be in default hereunder. If Lessor shall obtain such
insurance, Lessee will then, within five (5) business days from
receiving written notice, pay Lessor the amount of the premiums
due or paid, together with interest thereon at the lesser of 15%
per annum or the highest rate allowable by law, which amount
shall be considered Rent payable by Lessee in addition to the
Rent defined at Article 4 hereof.
(D) All policies of insurance provided for or contemplated
by this Article can be under Lessee's blanket insurance coverage
and shall name Lessor, Lessor's corporate general partner, and
Robert P. Johnson, as the general partner of Lessor, and Lessee
as additional insured and loss payee, as their respective
interests (as landlord and lessee, respectively) may appear, and
shall provide that the policies cannot be canceled, terminated,
changed, or modified without thirty (30) days written notice to
the parties. In addition, all of such policies shall be in place
on or before the Occupancy Date and contain endorsements by the
respective insurance companies waiving all rights of subrogation,
if any, against Lessor. All insurance companies providing
coverages must 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. Lessee
shall maintain legible copies of any and all policies and
endorsements required herein, to be made available for Lessor's
review and photocopy upon Lessor's reasonable request from time
to time. On the Occupancy Date and no less than fifteen (15)
business days prior to expiration of such policies, Lessee shall
provide Lessor with legible copies of any and all renewal
Certificates of Insurance reflecting the above terms of the
Policies (including endorsements). Lessee agrees that it will
not settle any property insurance claims affecting the Leased
Premises in excess of $25,000 without Lessor's prior written
consent, such consent not to be unreasonably withheld or delayed.
Lessor shall consent to any settlement of an insurance claim
wherein Lessee shall confirm in writing with evidence reasonably
satisfactory to Lessor that Lessee has sufficient funds available
to complete the rebuilding of the Premises.
(E) Lessee shall defend, indemnify, and hold Lessor
harmless against any and all claims, damages, and lawsuits
arising after the Occupancy Date of this Lease and any orders,
decrees or judgments which may be entered therein, brought for
damages or alleged damages resulting from any injury to person or
property or from loss of life sustained in or about the Leased
Premises, unless such damage or injury results from the
intentional misconduct or the gross negligence of Lessor and
Lessee agrees to save Lessor harmless from, and indemnify Lessor
against, any and all injury, loss, or damage, of whatever nature,
to any person or property caused by, or resulting from any act,
omission, or negligence of Lessee or any employee or agent of
Lessee. In addition, Lessee hereby releases Lessor from any and
all liability for any loss or damage caused by fire or any of the
extended coverage casualties, unless such fire or other casualty
shall be brought about by the intentional misconduct or
negligence of Lessor. In the event of any loss, damage, or
injury caused by the joint negligence or willful misconduct of
Lessor and Lessee, they shall be liable therefor in accordance
with their respective degrees of fault.
(F) Lessor hereby waives any and all rights that it may
have to recover from Lessee damages for any loss occurring to the
Leased Premises by reason of any act or omission of Lessee;
provided, however, that this waiver is limited to those losses
for which Lessor is compensated by its insurers, if the insurance
required by this Lease is maintained. Lessee hereby waives any
and all right that it may have to recover from Lessor damages for
any loss occurring to the Leased Premises by reason of any act or
omission of Lessor; provided, however, that this waiver is
limited to those losses for which Lessee is, or should be if the
insurance required herein is maintained, compensated by its
insurers.
ARTICLE 6. TAXES, ASSESSMENTS AND UTILITIES
(A) Lessee shall be liable and agrees to pay the charges
for all public utility services rendered or furnished to the
Leased Premises, including heat, water, gas, electricity, sewer,
sewage treatment facilities and the like, all personal property
taxes, real estate taxes, special assessments, and municipal or
government charges, general, ordinary and extraordinary, of every
kind and nature whatsoever, which may be levied, imposed, or
assessed against the Leased Premises, or upon any improvements
thereon, at any time after the Occupancy Date of this Lease for
the period prior to the expiration of the term hereof, or any
Renewal Term, if exercised.
(B) Lessee shall pay all real estate taxes, assessments for
public improvements or benefits, and other governmental
impositions, duties, and charges of every kind and nature
whatsoever which shall or may, during the term of this Lease, be
charged, laid, levied, assessed, or imposed upon, or become a
lien or liens upon the Leased Premises or any part thereof. Such
payments shall be considered as Rent paid by Lessee in addition
to the Rent defined at Article 4 hereof. If due to a change in
the method of taxation, a franchise tax, Rent tax, or income or
profit tax shall be levied against Lessor in substitution for or
in lieu of any tax which would otherwise constitute a real estate
tax, such tax shall be deemed a real estate tax for the purposes
herein and shall be paid by Lessee; otherwise Lessee shall not be
liable for any such tax levied against Lessor.
(C) All real estate taxes, assessments for public
improvements or benefits, water rates and charges, sewer rents,
and other governmental impositions, duties, and charges which
shall become payable for the first and last tax years of the term
hereof shall be apportioned pro rata between Lessor and Lessee in
accordance with the respective number of months during which each
party shall be in possession of the Leased Premises (or through
the expiration of the term hereof, if longer) in said respective
tax years. Lessee shall pay within 60 days of the expiration of
the term hereof Lessor's reasonable estimate of Lessee's pro-rata
share of real estate taxes for the last tax year of the term
hereof, based upon the last available tax bill. Lessor shall
give Lessee notice of such estimated pro-rata real estate taxes
no later than 75 days from the end of the term hereof. Upon
receipt of the actual statement of real estate taxes for such
prorated period, Lessor shall either refund to Lessee any over
payment of the pro-rata Lessee obligation, or shall assess and
Lessee shall pay promptly upon notice any remaining portion of
the Lessee;s pro-rata obligation for such real estate taxes.
(D) Lessee shall have the right to contest or review by
legal proceedings or in such other manner as may be legal (which,
if instituted, shall be conducted solely at Lessee's own expense)
any tax, assessment for public improvements or benefits, or other
governmental imposition aforementioned, upon condition that,
before instituting such proceeding Lessee shall pay (under
protest) such tax or assessments for public improvements or
benefits, or other governmental imposition, duties and charges
aforementioned, unless such payment would act as a bar to such
contest or interfere materially with the prosecution thereof and
in such event Lessee shall post with Lessor alternative security
reasonably satisfactory to Lessor. All such proceedings shall be
begun as soon as reasonably possible after the imposition or
assessment of any contested items and shall be prosecuted to
final adjudication with reasonable dispatch. In the event of any
reduction, cancellation, or discharge, Lessee shall pay the
amount that shall be finally levied or assessed against the
Leased Premises or adjudicated to be due and payable, and, if
there shall be any refund payable by the governmental authority
with respect thereto, if Lessee has paid the expense of Lessor in
such proceedings, Lessee shall be entitled to receive and retain
the refund, subject, however, to apportionment as provided
during the first and last years of the term of this Lease.
(E) Lessor, within sixty (60) days after notice to Lessee
if Lessee fails to commence such proceedings, may, but shall not
be obligated to, contest or review by legal proceedings, or in
such other manner as may be legal, and at Lessor's own expense,
any tax, assessments for public improvements and benefits, or
other governmental imposition aforementioned, which shall not be
contested or reviewed, as aforesaid, by Lessee, and unless Lessee
shall promptly join with Lessor in such contest or review, Lessor
shall be entitled to receive and retain any refund payable by the
governmental authority with respect thereto.
(F) Lessor shall not be required to join in any proceeding
referred to in this Article, unless in Lessee's reasonable
opinion, the provisions of any law, rule, or regulation at the
time in effect shall require that such a proceeding be brought by
and/or in the name of Lessor, in which event Lessor shall upon
written request, join in such proceedings or permit the same to
be brought in its name, all at no cost or expense to Lessor.
(G) Within thirty (30) days after Lessor notifies Lessee in
writing that Lessor has paid such amount, Lessee shall also pay
to Lessor, as additional Rent, the amount of any sales tax,
franchise tax, excise tax, on Rents imposed by the State where
the Leased Premises are located. At Lessor's option, Lessee
shall deposit with Lessor on the first day of each and every
month during the term hereof, an amount equal to one-twelfth
(1/12) of any estimated sales tax payable to the State in which
the property is situated for Rent received by Lessor hereunder
("Deposit"). From time to time out of such Deposit Lessor will
pay the sales tax to the State in which the property is situated
as required by law. In the event the Deposit on hand shall not
be sufficient to pay said tax when the same shall become due from
time to time, or the prior payments shall be less than the
current estimated monthly amounts, then Lessee shall pay to
Lessor on demand any amount necessary to make up the deficiency.
The excess of any such Deposit shall be credited to subsequent
payments to be made for such items. If a default or an event of
default shall occur under the terms of this Lease, Lessor may, at
its option, without being required so to do, apply any Deposit on
hand to cure such default, in such order and manner as Lessor may
elect.
ARTICLE 7. PROHIBITION ON ASSIGNMENTS AND SUBLETTING; TAKE-
BACK
RIGHTS
(A) Except as otherwise expressly provided in this Article,
Lessee shall not, without obtaining the prior written consent of
Lessor, in each instance:
1. assign or otherwise transfer this Lease,
or any part of Lessee's right, title or interest
therein;
2. sublet all or any part of the Leased
Premises or allow all or any part of the Leased
Premises to be used or occupied by any other
Persons (herein defined as a Party other than
Lessee, be it a corporation, a partnership, an
individual or other entity); or
3. mortgage, pledge or otherwise encumber
this Lease, or the Leased Premises.
(B) For the purposes of this Article:
1. the transfer of voting control of any
class of capital stock of any corporate Lessee or
sublessee, or the transfer voting control of the
total interest in any other person which is a
Lessee or sublessee, however accomplished, whether
in a single transaction or in a series of related
or unrelated transactions, shall be deemed an
assignment of this Lease, or of such sublease, as
the case may be;
2. an agreement by any other Person,
directly or indirectly, to assume Lessee's
obligations under this Lease shall be deemed an
assignment;
3. any Person to whom Lessee's interest
under this Lease passes by operation of law, or
otherwise, shall be bound by the provisions of
this Article;
4. each material modification, amendment or
extension or any sublease to which Lessor has
previously consented shall be deemed a new
sublease; and
5. Lessee shall present the signed consent
to such assignment and/or subletting from any
guarantors of this Lease, such consent to be in
form and substance reasonably satisfactory to
Lessor.
Lessee agrees to furnish to Lessor within five (5) business
days following demand at any time such information and assurances
as Lessor may reasonably request that neither Lessee, nor any
previously permitted sublessee or assignee, has violated the
provisions of this Article.
(C) If Lessee agrees to assign this Lease or to sublet all
or any portion of the Leased Premises, Lessee shall, prior to the
effective date thereof (the "Effective Date"), deliver to Lessor
executed counterparts of any such agreement and of all ancillary
agreements with the proposed assignee or sublessee, as
applicable. If Lessee shall fail to do so, and shall have
surrendered possession of the Leased Premises in violation of its
duty of prior notice and failed to obtain Lessor's prior consent
(if and where required herein), and, if in such event, Lessor in
its sole discretion (except as otherwise specifically limited
herein) shall not consent to a proposed sublease or assignment,
Lessor shall then have all of the following rights, any of which
Lessor may exercise by written notice to Lessee given within
thirty (30) days after Lessor receives the aforementioned
documents:
1. with respect to a proposed assignment of
this Lease, the right to terminate this Lease on
the Effective Date as if it were the Expiration
Date of this Lease;
2. with respect to a proposed subletting of
the entire Leased Premises, the right to terminate
this Lease on the Effective Date as if it were the
Expiration Date; or
3. with respect to a proposed subletting of
less than the entire Leased Premises, the right to
terminate this Lease as to the portion of the
Leased Premises affected by such subletting on the
Effective Date, as if it were the Expiration Date,
in which case Lessee shall promptly execute and
deliver to Lessor an appropriate modification of
this Lease in form satisfactory to Lessor in all
respects.
4. with respect to a proposed subletting or
proposed assignment of this Lease, impose such
conditions upon Lessor's consent as Lessor shall
determine in its sole discretion.
(D) If Lessor exercises any of its options under Article
7(C) above, (and if Lessor shall impose conditions upon its
consent and Lessee shall fail to meet any conditions Lessor may
impose upon its consent), Lessor may then lease the Leased
Premises or any portion thereof to Lessee's proposed assignee or
sublessee, as the case may be, without liability whatsoever to
Lessee.
(E) Notwithstanding anything above to the contrary, Lessor
agrees to consent to any assignment or sublease all or any
portion of the Lessee's interests herein to Unique Casual
Restaurants, Inc., DAKA International, Inc. or a franchisee or
licensee in good standing of Champps Entertainment Inc, for the
Champps restaurant concept, provided Lessor is given prior
written notice of such sublease or assignment, accompanied by a
copy of such sublease or assignment, and the consents of Lessee
and Guarantors (such consent to be in form and substance
satisfactory to Lessor) to such assignment or sublet, affirming
their continued liability hereunder (or under their guaranty,
respectively).
Lessor agrees that its consent to any other proposed
assignment or sublet shall not be unreasonably withheld or
delayed, provided Lessor is given prior written notice of such
sublease or assignment, accompanied by a copy of such sublease or
assignment, and the consents of Lessee and Guarantors (such
consent to be in form and substance satisfactory to Lessor) to
such assignment or sublet, affirming their continued liability
hereunder (or under their guaranty, respectively).
(F) Notwithstanding anything above to the contrary, the
Lessee's interest herein shall not be assignable in any manner in
accordance with the terms hereof unless and until the termination
of the Development Finanacing Agreement as set forth in Article
35 hereof.
ARTICLE 8. REPAIRS AND MAINTENANCE
(A) Lessee covenants and agrees to keep and maintain in
good order, condition and repair the interior and exterior of the
Leased Premises during the term of the Lease, or any renewal
terms, and further agrees that Lessor shall be under no
obligation to make any repairs or perform any maintenance to the
Leased Premises. Lessee covenants and agrees that it shall be
responsible for all repairs, alterations, replacements, or
maintenance of, including but without limitation to or of: The
interior and exterior portions of all doors; door checks and
operators; windows; plate glass; plumbing; water and sewage
facilities; fixtures; electrical equipment; interior walls;
ceilings; signs; roof; structure; interior building appliances
and similar equipment; heating and air conditioning equipment;
and any equipment owned by Lessor and leased to Lessee hereunder,
as itemized on Exhibit B attached hereto and incorporated herein
by reference; and further agrees to replace any of said equipment
when necessary. Lessee further agrees to be responsible for, at
its own expense, snow removal, lawn maintenance, landscaping,
maintenance of the parking lot (including parking lines, seal
coating, and blacktop surfacing), and other similar items.
(B) If Lessee refuses or neglects to commence or complete
repairs promptly and adequately, after prior written notice as
required under Article 16(B) (except in cases of emergency to
prevent waste or preserve the safety and integrity of the Leased
Premises, in which case no notice need be given), Lessor may
cause such repairs to be made, but shall not be required to do
so, and Lessee shall pay the cost thereof to Lessor within five
(5) business days following demand. It is understood that Lessee
shall pay all expenses and maintenance and repair during the term
of this Lease. If Lessee is not then in default hereunder,
Lessee shall have the right to make repairs and improvements to
the Leased Premises without the consent of Lessor if such repairs
and improvements do not exceed Fifty Thousand Dollars
($50,000.00), provided such repairs or improvements do not affect
the structural integrity of the Leased Premises. Any repairs or
improvements in excess of Fifty Thousand Dollars ($50,000.00) or
affecting the structural integrity of the Leased Premises may be
done only with the prior written consent of Lessor, such consent
not to be unreasonably withheld or delayed. All alterations and
additions to the Leased Premises shall be made in accordance with
all applicable laws and shall remain for the benefit of Lessor,
except for Lessee's moveable trade fixtures. In the event of
making such alterations as herein provided, Lessee further agrees
to indemnify and save harmless Lessor from all expense, liens,
claims or damages to either persons or property or the Leased
Premises which may arise out of or result from the undertaking or
making of said repairs, improvements, alterations or additions,
or Lessee's failure to make said repairs, improvements,
alterations or additions.
ARTICLE 9. COMPLIANCE WITH LAWS AND REGULATIONS
Lessee will comply with all statutes, ordinances, rules,
orders, regulations and requirements of all federal, state, city
and local governments, and with all rules, orders and
regulations of the applicable Board of Fire Underwriters which
affect the use of the improvements. Lessee will comply with all
easements, restrictions, and covenants of record against or
affecting the Leased Premises and any franchise or license
agreements required for operation of the Leased Premises in
accordance with Article 14 hereof.
ARTICLE 10. SIGNS
Lessee shall have the right to install and maintain a sign
or signs advertising Lessee's business, provided that the signs
conform to law, and further provided that the sign or signs
conform specifically to the written requirements of the
appropriate governmental authorities.
ARTICLE 11. SUBORDINATION
(A) Lessor reserves the right and privilege to subject and
subordinate this Lease at all times to the lien of any mortgage
or mortgages now or hereafter placed upon Lessor's interest in
the Leased Premises and on the land and buildings of which said
premises are a part, or upon any buildings hereafter placed upon
the land of which the Leased Premises are a part, provided such
mortgagee shall execute its standard form, commercially
reasonable subordination, attornment and non-disturbance
agreement. Lessor also reserves the right and privilege to
subject and subordinate this Lease at all times to any and all
advances to be made under such mortgages, and all renewals,
modifications, extensions, consolidations, and replacements
thereof, provided such mortgagee shall execute its standard form,
commercially reasonable subordination, attornment and non-
disturbance agreement.
(B) Lessee covenants and agrees to execute and deliver,
upon demand, such further instrument or instruments subordinating
this Lease on the foregoing basis to the lien of any such
mortgage or mortgages as shall be desired by Lessor and any
proposed mortgagee or proposed mortgagees, provided such
mortgagee shall execute its standard form, commercially
reasonable subordination, attornment and non-disturbance
agreement.
ARTICLE l2. CONDEMNATION OR EMINENT DOMAIN
(A) If the whole of the Leased Premises are taken by any
public authority under the power of eminent domain, or by private
purchase in lieu thereof, then this Lease shall automatically
terminate upon the date possession is surrendered, and Rent shall
be paid up to that day. If any part of the Leased Premises shall
be so taken as to render the remainder thereof materially
unusable in the opinion of a licensed third party arbitrator
reasonably approved by Lessor and Lessee, for the purposes for
which the Leased Premises were leased, then Lessor and Lessee
shall each have the right to terminate this Lease on thirty (30)
days notice to the other given within ninety (90) days after the
date of such taking. In the event that this Lease shall
terminate or be terminated, the Rent shall, if and as necessary,
be paid up to the day that possession was surrendered.
(B) If any part of the Leased Premises shall be so taken
such that it does not materially interfere with the business of
Lessee, then Lessee shall, with the use of the condemnation
proceeds to be made available by Lessor, but otherwise at
Lessee's own cost and expense, restore the remaining portion of
the Leased Premises to the extent necessary to render it
reasonably suitable for the purposes for which it was leased.
Lessee shall make all repairs to the building in which the Leased
Premises is located to the extent necessary to constitute the
building a complete architectural unit. Provided, however, that
such work shall not exceed the scope of the work required to be
done by Lessee in originally constructing such building unless
Lessee shall demonstrate to Lessor's reasonable satisfaction the
availability of funds to complete such work. Provided, further,
the cost thereof to Lessor shall not exceed the proceeds of its
condemnation award, all to be done without any adjustments in
Rent to be paid by Lessee. This lease shall be deemed amended to
reflect the taking in the legal description of the Leased
Premises.
(C) All compensation awarded or paid upon such total or
partial taking of the Leased Premises shall belong to and be the
property of Lessor without any participation by Lessee, whether
such damages shall be awarded as compensation for diminution in
value to the leasehold or to the fee of the premises herein
leased. Nothing contained herein shall be construed to preclude
Lessee from prosecuting any claim directly against the condemning
authority in such proceedings for: Loss of business; damage to
or loss of value or cost of removal of inventory, trade fixtures,
furniture, and other personal property belonging to Lessee;
provided, however, that no such claim shall diminish or otherwise
adversely affect Lessor's award or the award of any fee
mortgagee.
ARTICLE 13. RIGHT TO INSPECT
Lessor reserves the right to enter upon, inspect and examine
the Leased Premises at any time during business hours, after
reasonable notice to Lessee, and Lessee agrees to allow Lessor
free access to the Leased Premises to show the premises. Upon
default by Lessee or at any time within ninety (90) days of the
expiration or termination of the Lease, Lessee agrees to allow
Lessor to then place "For Sale" or "For Rent" signs on the Leased
Premises. Lessor and Lessor's representatives shall at all times
while upon or about the Leased Premises observe and comply with
Lessee's reasonable health and safety rules, regulations,
policies and procedures. Lessor agrees to indemnify and hold
Lessee, its successors, assigns, agents and employees from and
against any liability, claims, demands, cause of action, suits
and other litigation or judgements of every kind and character,
including injury to or death of any person or persons, or
trespass to, or damage to, or loss or destruction of, any
property, whether real or personal, to the extent resulting from
the negligence or willful misconduct or Lessor or Lessor's
representatives while upon or about the Leased Premises.
ARTICLE 14. EXCLUSIVE USE
(A) After the Occupancy Date, Lessee expressly agrees and
warrants that the Leased Premises will be used exclusively as a
Champps Restaurant or other casual dining sit-down restaurant.
In any other such case, after obtaining Lessor's prior written
consent, such consent not to be unreasonably withheld or delayed,
Lessee may conduct any lawful business from the Leased Premises.
Lessee acknowledges and agrees that any other use without the
prior written consent of Lessor will constitute a default under
and a violation and breach of this Lease. Lessee agrees: To
open for business within a reasonable period of time after
completion of construction of the contemplated Improvements; to
operate all of the Leased Premises during the Term or Renewal
Terms during regular and customary hours for businesses similar
to the permitted exclusive use stated herein, unless prevented
from doing so by causes beyond Lessee's control or due to
remodeling; and to conduct its business in a professional and
reputable manner.
(B) If the Leased Premises are not operated as a Champps
Restaurant or other casual dining sit-down restaurant or other
permitted use hereunder, or remain closed for thirty (30)
consecutive days (unless such closure results from reasons beyond
Lessee's reasonable control) and in the event Lessee fails to pay
Rent when due or fulfill any other obligation hereunder, then
Lessee shall be in default hereunder and Lessor may, at its
option, cancel this Lease by giving written notice to Lessee or
exercise any other right or remedy that Lessor may have;
provided, however, that closings shall be reasonably permitted
for replacement of trade fixtures or during periods of repair
after destruction or due to remodeling.
ARTICLE 15. DESTRUCTION OF PREMISES
If, during the term of this Lease, the Leased Premises are
totally or partially destroyed by fire or other elements, within
a reasonable time (but in no event longer than one hundred eighty
(180) days and subject to the provisions herein below), Lessee
shall repair and restore the improvements so damaged or destroyed
as nearly as may be practical to their condition immediately
prior to such casualty. All rents payable by Lessee shall be
abated during the period of repair and restoration to the extent
that Lessor shall be compensated by the proceeds of the rent loss
insurance required to be maintained by Lessee hereunder.
Provided Lessee is not in default hereunder (and retains
according to the terms hereof the right to rebuild) with the
Lessor's prior written consent, which consent shall not be
unreasonably withheld or delayed, Lessee shall have the right to
promptly and in good faith settle and adjust any claim under such
insurance policies with the insurance company or companies on the
amounts to be paid upon the loss. The insurance proceeds shall
be used to reimburse Lessee for the cost of rebuilding or
restoration of the Leased Premises. Risk that the insurance
company shall be insolvent or shall refuse to make insurance
proceeds available shall be with Lessee. The Leased Premises
shall be so restored or rebuilt so as to be of at least equal
value and substantially the same character as prior to such
damage or destruction. If the insurance proceeds are less than
Fifty Thousand Dollars ($50,000), they shall be paid to Lessee
for such repair and restoration. If the insurance proceeds are
greater than or equal to Fifty Thousand Dollars ($50,000), they
shall be deposited by Lessee and Lessor into a customary
construction escrow at a nationally recognized title insurance
company, or at Lessee's option, with Lessor ("Escrowee") and
shall be made available from time to time to Lessee for such
repair and restoration. Such proceeds shall be disbursed in
conformity with the terms and conditions of a commercially
reasonable construction loan agreement. Lessee shall, in either
instance, deliver to Lessor or Escrowee (as the case may be)
satisfactory evidence of the estimated cost of completion
together with such architect's certificates, waivers of lien,
contractor's sworn statements and other evidence of cost and of
payments as the Lessor or Escrowee may reasonably require and
approve. If the estimated cost of the work exceeds One Hundred
Thousand Dollars ($100,000), all plans and specifications for
such rebuilding or restoration shall be subject to the reasonable
approval of Lessor.
Any insurance proceeds remaining with Escrowee after the
completion of the repair or restoration shall be paid to Lessor
to reduce the sum of monies expended by Lessor to acquire its
interest in the Lease Premises and rent hereunder shall be
reduced by 11% of such amount.
If the proceeds from the insurance are insufficient, after
review of the bids for completion of such improvements, or should
become insufficient during the course of construction, to pay for
the total cost of repair or restoration, Lessee shall, prior to
commencement of work, demonstrate to Escrowee and Lessor's
reasonable satisfaction, the availability of such funds necessary
to completion construction and Lessee shall deposit the same with
Escrowee for disbursement under the construction escrow
agreement.
Provided, further, that should the Leased Premises be
damaged or destroyed to the extent of fifty (50%) percent of its
value or such that Lessee cannot carry on business as a casual
dining restaurant without (in the opinion of a licensed third
party architect reasonably approved by Lessor and Lessee) being
closed for more than sixty (60) days (which duration of closure
may be established by Lessee by the affidavit of the approved
independent third party architect as to the estimated time of
repair) during the last two (2) years of the remaining term of
this Lease or any of the option terms of this Lease, if any
further options to renew remain, Lessee may elect within 30 days
of such damage, to then exercise at least one (1) option to renew
this Lease so that the remaining term of the Lease is not less
than five (5) years in order to be entitled to such insurance
proceeds for restoration or rebuilding. Absent such election,
this Lease shall terminate upon Lessor's receipt of the insurance
proceeds at least equal to the estimated cost of such repair or
restoration.
ARTICLE 16. ACTS OF DEFAULT
Each of the following shall be deemed a default by Lessee
and a breach of this Lease:
(A) Failure to pay the Rent or any monetary
obligation herein reserved, or any part thereof
when the same shall be due and payable. Interest
and late charges for failure to pay Rent when due
shall accrue from the first date such Rent was due
and payable; provided, however, Lessee shall have
five (5) business days after written notice from
Lessor within which to cure the failure to pay the
Rent or any monetary obligation herein reserved.
(B) Failure to do, observe, keep and perform
any of the other terms, covenants, conditions,
agreements and provisions in this Lease to be
done, observed, kept and performed by Lessee;
provided, however, that Lessee shall have Thirty
(30) days after written notice from Lessor within
which to cure such default, or such longer time as
may be reasonably necessary if such default cannot
reasonably be cured within Thirty (30) days, if
Lessee is diligently pursuing a course of conduct
that in Lessor's reasonable opinion is capable of
curing such default, but in any event such longer
time shall not exceed 120 days after written
notice from Lessor of the default hereunder.
(C) The abandonment of the premises by
Lessee, the adjudication of Lessee as a bankrupt,
the making by Lessee of a general assignment for
the benefit of creditors, the taking by Lessee of
the benefit of any insolvency act or law, the
appointment of a permanent receiver or trustee in
bankruptcy for Lessee property, or the appointment
of a temporary receiver which is not vacated or
set aside within sixty (60) days from the date of
such appointment; provided, however, that the
foregoing shall not constitute events of default
so long as Lessee continues to otherwise satisfy
its obligations (including but not limited to the
payment of Rent) hereunder.
ARTICLE 17. TERMINATION FOR DEFAULT
In the event of any uncured default by Lessee and at any
time thereafter, Lessor may serve a written notice upon Lessee
that Lessor elects to terminate this Lease. This Lease shall
then terminate on the date so specified as if that date had been
originally fixed as the expiration date of the term herein
granted, provided, however, that Lessee shall have continuing
liability for future rents for the remainder of the original term
and any exercised renewal term as set forth in Article 19,
notwithstanding any earlier termination of the Lease hereunder
(except where Lessee has exercised a right to terminate where
granted herein), preserving unto Lessor the benefit of its
bargained-for rental payments.
ARTICLE 18. LESSOR'S RIGHT OF RE-ENTRY
In the event that this Lease shall be terminated as
hereinbefore provided, or by summary proceedings or otherwise, or
in the event of an uncured default hereunder by Lessee, or in the
event that the premises or any part thereof, shall be abandoned
by Lessee and Rent shall not be paid or other obligations
(including but not limited to repair and maintenance obligations)
of Lessee hereunder shall not be met, then Lessor or its agents,
servants or representatives, may immediately or at any time
thereafter, re-enter and resume possession of the premises or any
part thereof, and remove all persons and property therefrom,
either by summary dispossess proceedings or by a suitable action
or proceeding at law, or by force or otherwise without being
liable for any damages therefor, except for damages resulting
from Lessor's negligence or willful misconduct. Notwithstanding
anything above to the contrary, if Lessee is still in possession
of the Leased Premises, Lessor agrees to use such legal
proceedings (summary or otherwise) prescribed by law to regain
possession of the Leased Premises.
ARTICLE 19. LESSEE'S CONTINUING LIABILITY
(A) Should Lessor elect to re-enter as provided in this
Lease or should it take possession pursuant to legal proceedings
or pursuant to any notice provided for by law, Lessor shall
undertake commercially reasonable efforts to mitigate Lessee's
continuing liability hereunder as such efforts may be prescribed
by law or statute (which shall include listing the Leased
Premises with a licensed commercial real estate broker and
securing the property against waste, but shall not otherwise
include the expenditure of Lessor's funds, unless the same be
required by law or statute), and in addition, Lessor may either
(i) terminate this Lease or (ii) it may from time to time,
without terminating the contractual obligation of Lessee to pay
Rent under this Lease, make such alterations and repairs as may
be necessary to relet the Leased Premises or any part thereof for
the remainder of the original Term or any exercised Renewal
Terms, at such Rent or Rents, and upon such other terms and
conditions as Lessor in its sole discretion may deem advisable.
Termination of Lessee's right to possession by Court Order shall
be sufficient evidence of the termination of Lessee's possessory
rights under this Lease, and the filing of such an Order shall be
notice of the termination of Lessee's Right of First Refusal as
set forth in any Memorandum of Lease of record.
(B) Upon each such reletting, without termination of the
contractual obligation of Lessee to pay Rent under this Lease,
all Rents received by Lessor shall be applied as follows:
1. First, to the payment of any
indebtedness other than Rent due hereunder from
Lessee to Lessor;
2. Second, to the payment of any costs and
expenses of such reletting, including brokerage
fees and attorney's fees and of costs of such
alterations and repairs;
3. Third, to the payment of Rent and other
monetary obligations due and unpaid hereunder;
4. Finally, the residue, if any, shall be
held by Lessor and applied in payment of future
Rent as the same may become due and payable
hereunder.
If such Rents received from such reletting during any month are
less than that to be paid during that month by Lessee hereunder,
Lessee shall pay any such deficiency to Lessor. Such deficiency
shall be calculated and paid monthly. No such re-entry or taking
possession of such Leased Premises by Lessor shall be construed
as an election on its part to terminate Lessee's contractual
obligations under this Lease respecting the payment of rent and
obligations for the costs of repair and maintenance unless a
written notice of such intention be given to Lessee.
(C) Notwithstanding any such reletting without termination,
Lessor may at any time thereafter elect to terminate this Lease
for any uncured breach.
(D) In addition to any other remedies Lessor may have with
this Article 19, Lessor may recover from Lessee all damages it
may incur by reason of any uncured breach, including: The cost
of recovering and reletting the Leased Premises; reasonable
attorney's fees; and, the present value (discounted at a rate of
8% per annum) of the excess of the amount of Rent and charges
equivalent to Rent reserved in this Lease for the remainder of
the Term over the then reasonable Rent value of the Leased
Premises (or the actual Rents receivable by Lessor, if relet),
(the Lessee bearing the burden of proof to demonstrate the amount
of rental loss for the same period, that through reasonable
efforts to mitigate damages, could have been avoided) for the
remainder of the Term, all of which amounts shall be immediately
due and payable from Lessee to Lessor in full. In the event that
the Rent obtained from such alternative or substitute tenant is
more than the Rent which Lessee is obligated to pay under this
Lease, then such excess shall be paid to Lessor provided that
Lessor shall credit such excess against the outstanding
obligations of Lessee due pursuant hereto, if any.
(E) It is the object and purpose of this Article 19 that
Lessor shall be kept whole and shall suffer no damage by way of
non-payment of Rent or by way of diminution in Rent. Lessee
waives and will waive all rights to trial by jury in any summary
proceedings or in any action brought to recover Rent herein which
may hereafter be instituted by Lessor against Lessee in respect
to the Leased Premises. Lessee hereby waives any rights of re-
entry it may have or any rights of redemption or rights to redeem
this Lease upon a termination of this Lease.
ARTICLE 20. PERSONALTY, FIXTURES AND EQUIPMENT
(A) All building fixtures, building machinery, and building
equipment used in connection with the operation of the Leased
Premises including, but not limited to, heating, electrical
wiring, lighting, ventilating, plumbing, walk-in
refrigerators/coolers, walk-in freezers, air conditioning
systems, and the equipment owned by Lessor and leased to Lessee
hereunder as specifically set forth on Exhibit B attached hereto
and incorporated herein by reference shall be the property of
Lessor. All other trade fixtures and all other articles of
personal property owned by Lessee shall remain the property of
Lessee.
(B) Lessee shall furnish and pay for any and all equipment,
furniture, trade fixtures, and signs, except for such items, if
any, described in Article 20(A) above, as owned by Lessor.
Lessee agrees that Lessor shall have a lien on all Lessee's
equipment, furniture, trade fixtures, furnishings, and signs as
security for the performance of and compliance with this Lease,
subject to the rights of any bona fide third party's security
interest in such property. Provided Lessee is not in default
hereunder, Lessor will agree that its interest in the personal
property of Lessee will be subordinated to financing which may
exist or which Lessee may cause to exist in the future on that
same personal property.
(C) At the end of the term of this Lease, the property
described at Article 20(B) above, after written notice to Lessor
given at least ten (10) business days prior to any proposed
removal, may be removed from the Leased Premises by Lessee
regardless of whether or not such property is attached to the
Leased Premises so as to constitute a "fixture" within the
meaning of the law; however, all damages and repairs to the
Leased Premises which may be caused by the removal of such
property shall be paid for by Lessee.
ARTICLE 21. LIENS
Lessee shall not do or cause anything to be done whereby the
Leased Premises may be encumbered by any mechanic's or other
liens. Whenever and as often as any mechanic's or other lien is
filed against said Leased Premises purporting to be for labor or
materials furnished or to be furnished to Lessee, Lessee shall
remove the lien of record by payment or by bonding with a surety
company authorized to do business in the state in which the
property is located, within forty-five (45) days from the date of
the filing of said mechanic's or other lien and delivery of
notice thereof to Lessee. Should Lessee fail to take the
foregoing steps within said forty-five (45) day period (or in any
event, prior to the expiration of the time within which Lessee
may bond over such lien to remove it as a lien upon the Leased
Premises), Lessor shall have the right, among other things, to
pay said lien without inquiring into the validity thereof, and
Lessee shall forthwith reimburse Lessor for the total expense
incurred by it in discharging said lien as additional Rent
hereunder.
ARTICLE 22. NO WAIVER BY LESSOR EXCEPT IN WRITING
No agreement to accept a surrender of the Leased Premises or
termination of this Lease shall be valid unless in writing signed
by Lessor. The delivery of keys to any employee of Lessor or
Lessor's agents shall not operate as a termination of the Lease
or a surrender of the premises. The failure of Lessor to seek
redress for violation of any rule or regulation, shall not
prevent a subsequent act, which would have originally constituted
a violation, from having all the force and effect of an original
violation. Neither payment by Lessee or receipt by Lessor of a
lesser amount than the Rent herein stipulated shall be deemed to
be other than on account of the earliest stipulated Rent. Nor
shall any endorsement or statement on any check nor any letter
accompanying any check or payment as Rent be deemed an accord and
satisfaction. Lessor may accept such check or payment without
prejudice to Lessor's right to recover the balance of such Rent
or pursue any other remedy provided in this Lease. This Lease
contains the entire agreement between the parties, and any
executory agreement hereafter made shall be ineffective to change
it, modify it or discharge it, in whole or in part, unless such
executory agreement is in writing and signed by the party against
whom enforcement of the change, modification or discharge is
sought.
ARTICLE 23. QUIET ENJOYMENT
Lessor covenants that Lessee, upon paying the Rent set forth
in Article 4 and all other sums herein reserved as Rent and upon
the due performance of all the terms, covenants, conditions and
agreements herein contained on Lessee's part to be kept and
performed, shall have, hold and enjoy the Leased Premises free
from molestation, eviction, or disturbance by Lessor, or by any
other person or persons lawfully claiming the same, and that
Lessor has good right to make this Lease for the full term
granted, including renewal periods.
ARTICLE 24. BREACH - PAYMENT OF COSTS AND ATTORNEYS' FEES
Each party agrees to pay and discharge all reasonable costs,
and actual attorneys' fees, including but not limited to
attorney's fees incurred at the trial level and in any appellate
or bankruptcy proceeding, and expenses that shall be incurred by
the prevailing party in enforcing the covenants, conditions and
terms of this Lease or defending against an alleged breach,
including the costs of reletting. Such costs, attorneys fees,
and expenses if incurred by Lessor shall be considered as Rent as
due and owing in addition to any Rent defined in Article 4
hereof.
ARTICLE 25. ESTOPPEL CERTIFICATES
Either party to this Lease will, at any time, upon not less
than ten (10) business days prior request by the other party,
execute, acknowledge and deliver to the requesting party a
statement in writing, executed by an executive officer of such
party, certifying that: (a) this Lease is unmodified (or if
modified then disclosure of such modification shall be made); (b)
this Lease is in full force and effect; (c) the date to which the
Rent and other charges have been paid; and (d) to the knowledge
of the signer of such certificate that the other party is not in
default in the performance of any covenant, agreement or
condition contained in this Lease, or if a default does exist,
specifying each such default of which the signer may have
knowledge. It is intended that any such statement delivered
pursuant to this Article may be relied upon by any prospective
purchaser or mortgagee of the Leased Premises or any assignee of
such mortgagee or a purchaser of the leasehold estate.
ARTICLE 26. FINANCIAL STATEMENTS
During the term of this Lease, Lessee will, within ninety
(90) days after the end of Lessee's fiscal year, furnish its
financial statements to Lessor. Lessee's financial statements
shall include, at a minimum, a consolidated balance sheet and
statement of operations, and do not need to be prepared by an
independent certified public accountant, but shall be prepared in
conformity with generally accepted accounting principles
(hereafter "GAAP") and be represented and warranted in writing as
true and correct by the chief financial officer or other
authorized officer of Lessee. Additionally, during the term of
the Lease, Lessee will within forty-five (45) days from the end
of each quarter of each fiscal year, furnish Lessor with Lessee's
financial statements and operating statements of the Leased
Premises for such quarter. Lessor shall have the right to
require such financial statements and operating statements on a
monthly basis after the occurrence of a default. Said quarterly
(or monthly, if requested by Lessor) statements do not need to be
prepared by an independent certified public accountant, but shall
be represented and warranted in writing as true and correct by
the chief financial officer or other authorized officer of
Lessee. The financial statements shall conform to GAAP, and
include, at a minimum, a balance sheet and statement of
operations.
ARTICLE 27. MORTGAGE
Lessee does hereby agree to make reasonable modifications of
this Lease requested by any Mortgagee of record from time to
time, provided such modifications are not substantial and do not
increase any of the Rents or obligations of Lessee under this
Lease or substantially modify any of the business elements of
this Lease.
ARTICLE 28. OPTION TO RENEW
If this Lease is not previously canceled or terminated and
if Lessee has materially complied with and performed all of the
covenants and conditions in this Lease after applicable cure
periods and is not currently in default, then Lessee shall have
the option to renew this Lease upon the same conditions and
covenants contained in this Lease for Three (3) consecutive
periods of Five (5) years each (singularly "Renewal Term"). Rent
during the Twenty-Second, Twenty-Fifth, Twenty-Eighth, Thirty-
First, and Thirty-Fourth Lease Year of the Renewal Term shall
increase by the lesser of Seven and Thirty-Five One Hundredths
Percent (7.35%) of the Rent payable for the preceding Lease Year,
or the CPI-U Percentage Increase, as defined in Article 4 hereof.
The first Renewal Term will commence on the day following
the date the original Term expires and successive Renewal Terms
would commence on the day following the last day of the then
expiring Renewal Term. Except as otherwise provided in Article
15 hereof, Lessee must give ninety (90) days written notice to
Lessor of its intent to exercise this option prior to the
expiration of the original Term of this Lease or any Renewal
Term, as the case may be.
ARTICLE 29. MISCELLANEOUS PROVISIONS
(A) All written notices shall be given to Lessor or Lessee
by certified mail or nationally recognized overnight mail.
Notices to either party shall be addressed to the person and
address given on the first page hereof. Lessor and Lessee may,
from time to time, change these addresses by notifying each other
of this change in writing. Notices of overdue Rent may be sent
to Lessee by regular, special delivery, or nationally recognized
overnight mail.
(B) The terms, conditions and covenants contained in this
Lease and any riders and plans attached hereto shall bind and
inure to the benefit of Lessor and Lessee and their respective
successors, heirs, legal representatives, and assigns.
(C) This Lease shall be governed by and construed under the
laws of the State where the Leased Premises are situate.
(D) In the event that any provision of this Lease shall be
held invalid or unenforceable, no other provisions of this Lease
shall be affected by such holding, and all of the remaining
provisions of this Lease shall continue in full force and effect
pursuant to the terms hereof.
(E) The Article captions are inserted only for convenience
and reference, and are not intended, in any way, to define,
limit, describe the scope, intent, and language of this Lease or
its provisions.
(F) In the event Lessee remains in possession of the
premises herein leased after the expiration of this Lease and
without the execution of a new lease and without Lessor's written
permission, Lessee shall be deemed to be occupying said premises
as a tenant from month-to-month, subject to all the conditions,
provisions, and obligations of this Lease insofar as the same can
be applicable to a month-to-month tenancy except that the monthly
installment of Rent shall be One Hundred Fifty percent (150%) the
amount due on the last month prior to such expiration.
(G) If any installment of Rent (whether lump sum, monthly
installments, or any other monetary amounts required by this
Lease to be paid by Lessee and deemed to constitute Rent
hereunder) shall not be paid when due, or non-monetary default
shall remain uncured after the expiration of any applicable cure
period, Lessor shall have the right to charge Lessee a late
charge of $250.00 per month for each month that any amount of
Rent installment remains unpaid or non-monetary default shall go
uncured after the first such occurrence in any 12 month period.
Said late charge shall commence after such installment is due or
non-monetary default goes uncured after the expiration of any
applicable cure period and continue until said installment,
interest and all accrued late charges are paid in full or such
non-monetary default is cured.
(H) Any part of the Leased Premises may be conveyed by
Lessor for private or public non-exclusive easement purposes at
any time, provided such easement does not interfere with the
access to the Leased Premises, visibility, or operations of the
business of Lessee. In such event Lessor shall, at its own cost
and expense, restore the remaining portion of the Leased Premises
to the extent necessary to render it reasonably suitable for the
purposes for which it was leased, all to be done without
adjustments in Rent to be paid by Lessee. All proceeds from any
conveyance of an easement shall belong solely to Lessor.
(I) For the purpose of this Lease, the term "Rent" shall be
defined as Rent under Article 4, and any other monetary amounts
required by this Lease to be paid by Lessee.
(J) Lessee agrees to cooperate with Lessor to allow Lessor
to obtain and use at Lessor's expense promotional photographs of
the Leased Premises, to the extent permitted by Lessee's
franchisor or licensor.
ARTICLE 30. REMEDIES
NON-EXCLUSIVITY. Notwithstanding anything contained herein
it is the intent of the parties that the rights and remedies
contained herein shall not be exclusive but rather shall be
cumulative along with all of the rights and remedies of the
parties which they may have at law or equity.
ARTICLE 31. HAZARDOUS MATERIALS INDEMNITY
Lessee covenants, represents and warrants to Lessor, its
successors and assigns, (i) that it has not used or permitted and
will not use or permit the Leased Premises to be used, whether
directly or through contractors, agents or tenants, and to the
best of Lessee's knowledge and except as disclosed to Lessor in
writing, the Leased Premises has not at any time been used for
the generating, transporting, treating, storage, manufacture,
emission of, or disposal of any dangerous, toxic or hazardous
pollutants, chemicals, wastes or substances as defined in the
Federal Comprehensive Environmental Response Compensation and
Liability Act of 1980 ("CERCLA"), the Federal Resource
Conservation and Recovery Act of 1976 ("RCRA"), or any other
federal, state or local environmental laws, statutes,
regulations, requirements and ordinances ("Hazardous Materials");
(ii) that there have been no investigations or reports involving
Lessee, or the Leased Premises by any governmental authority
which in any way pertain to Hazardous Materials (iii) that the
operation of the Leased Premises has not violated and is not
currently violating any federal, state or local law, regulation,
ordinance or requirement governing Hazardous Materials; (iv) that
the Leased Premises is not listed in the United States
Environmental Protection Agency's National Priorities List of
Hazardous Waste Sites nor any other list, schedule, log,
inventory or record of Hazardous Materials or hazardous waste
sites, whether maintained by the United States Government or any
state or local agency; and (v) that the Leased Premises will not
contain any formaldehyde, urea or asbestos, except as may have
been disclosed in writing to Lessor by Lessee at the time of
execution and delivery of this Lease. Lessee agrees to indemnify
and reimburse Lessor, its successors and assigns, for:
(a) any breach of these representations and warranties, and
(b) any loss, damage, expense or cost arising out of
or incurred by Lessor which is the result of a breach
of, misstatement of or misrepresentation of the above
covenants, representations and warranties, and
(c) any and all liability of any kind whatsoever which
Lessor may, for any cause and at any time, sustain or
incur by reason of Hazardous Materials discovered on
the Leased Premises during the term hereof or placed or
released on the Leased Premises by Lessee;
together with all attorneys' fees, costs and disbursements
incurred in connection with the defense of any action against
Lessor arising out of the above. These covenants,
representations and warranties shall be deemed continuing
covenants, representations and warranties for the benefit of
Lessor, and any successors and assigns of Lessor and shall
survive expiration or sooner termination of this Lease. The
amount of all such indemnified loss, damage, expense or cost,
shall bear interest thereon at the lesser of 15% or the highest
rate of interest allowed by law and shall become immediately due
and payable in full on demand of Lessor, its successors and
assigns.
ARTICLE 32. ESCROWS
Upon a default by Lessee which is uncured after the
expiration of any applicable notice and cure period, or upon the
request of Lessor's Mortgagee, if any, Lessee shall deposit with
Lessor on the first day of each and every month, an amount equal
to one-twelfth (1/12th) of the estimated annual real estate
taxes, assessments and insurance (if the insurance is to be
purchased by Lessor) ("Charges") due on the Leased Premises, or
such higher amounts reasonably determined by Lessor as necessary
to accumulate such amounts to enable Lessor to pay all charges
due and owing at least thirty (30) days prior to the date such
amounts are due and payable. From time to time out of such
deposits Lessor will, upon the presentation to Lessor by Lessee
of the bills therefor, pay the Charges or at Lessee's option,
will upon presentation of receipted bills therefor, reimburse
Lessee for such payments made by Lessee. In the event the
deposits on hand shall not be sufficient to pay all of the
estimated Charges when the same shall become due from time to
time or the prior payments shall be less than the currently
estimated monthly amounts, then Lessee shall pay to Lessor on
demand any amount necessary to make up the deficiency. The
excess of any such deposits shall be credited to subsequent
payments to be made for such items. If a default or an event of
default shall occur under the terms of this Lease, Lessor may, at
its option, without being required so to do, apply any Deposit on
hand to cure the default, in such order and manner as Lessor may
elect.
ARTICLE 33. NET LEASE
Notwithstanding anything contained herein to the contrary it
is the intent of the parties hereto that this Lease shall be a
net lease and that the Rent defined pursuant to Article 4 should
be a net Rent paid to Lessor. Any and all other expenses
including but not limited to, maintenance, repair, insurance,
taxes, and assessments, shall be paid by Lessee.
ARTICLE 34. RIGHT OF FIRST REFUSAL
Lessor, for itself, its successors and assigns, hereby gives
and grants to Lessee a right of first refusal (the "Right of
First Refusal") to purchase the Leased Premises, subject to the
following terms and conditions:
(A) Duration of Right of First Refusal. The Right of First
Refusal and all rights and privileges of Lessee hereunder shall
be in force for the term of this Lease until the expiration of
Lessee's right to possession.
(B) Manner of Exercising Right of First Refusal. If Lessor
("Selling Lessor") shall desire to sell all or any portion of its
interest in the Leased Premises (subject to the terms of this
Lease), Selling Lessor shall give Lessee written notice of
Selling Lessor's intention to sell Selling Lessor's interest
(partial or whole) in the Leased Premises. Such notice
("Lessor's Notice") shall give Selling Lessor's name and address
and state a price at which Selling Lessor intends to sell and
will sell a specified portion or all of its interest in the fee
simple to the Leased Premises. If Lessee shall fail to exercise
its Right of First Refusal as set forth herein, the terms of
Article 34(E) shall apply. For twenty (20) business days
following the giving of such notice, Lessee shall have the option
to purchase such portion of the fee interest of the Selling
Lessor as set forth in Lessor's Notice at the price in cash
stated in the Lessor's Notice. A written notice in substantially
the following form, addressed to Selling Lessor and signed by
Lessee and given, in accordance with the provisions of Article
29(A) hereof, within the period for exercising the Right of First
Refusal, submitted with a bank cashier's check or money order
payable to the order of Selling Lessor in the amount of $5,000.00
(the "Earnest Money") shall be an effective exercise of Lessee's
Right of First Refusal, to wit:
(date)
"We hereby exercise the Right of First Refusal to purchase such
portion of the fee interest of the Selling Lessor (as set forth
in Lessor's Notice) in the property commonly known as Champps,
Livonia, Michigan, pursuant to the Right of First Refusal
contained in that certain Net Lease Agreement between us
pertaining to said premises."
(C) Terms of Sale if Right of First Refusal Exercised.
Upon Lessee's exercise of the Right of First Refusal in
accordance with the provisions of subparagraph (B) hereof,
Selling Lessor shall be obligated to sell and convey by
recordable general warranty deed, good and indefeasible title to
its interest in the Leased Premises (or such portion thereof as
set forth in Lessor's Notice) subject only to the matters
affecting title which were of record at the time Selling Lessor
came into title to the Leased Premises and those matters which
Lessee created, suffered or permitted to accrue during the term
hereof, and Lessee shall be obligated to purchase such Lessor's
interest upon the following terms and conditions:
(i) Price. The price "Purchase Price" at which
Selling Lessor shall sell and Lessee shall purchase the
Leased Premises shall be the price stated in Lessor's
Notice.
(ii) Closing. Closing shall be sixty (60) days after
the expiration of the twenty days within which Lessee
may exercise its Right of First Refusal, unless the
parties mutually agree otherwise. The Purchase Price
less credit for the Earnest Money and any other credits
to which Lessee is entitled hereunder shall be tendered
in cash or other certified funds by Lessee at Closing.
(iii) Evidence of Title. Not less than ten (10)
days prior to closing, Selling Lessor shall obtain a
commitment for an ALTA owner's policy of title
insurance dated within thirty (30) days of the closing
date, issued by a nationally recognized title insurance
company selected by Selling Lessor (the "Title
Company") in the amount of the Purchase Price
determined pursuant to subparagraph (C)(i) above,
naming Lessee as the proposed insured, and covering the
fee simple title to the Leased Premises, and showing
Selling Lessor vested with good title to portion of the
Leased Premises being sold, subject only to the matters
affecting title which were of record at the time
Selling Lessor came into title to the Leased Premises
and those matters which Lessee created, suffered or
permitted to accrue during the term hereof. Such title
commitment shall be conclusive evidence of good title.
If Lessee shall make objection to the marketability of
title, Selling Lessor shall have no obligation to make
title marketable, but may withdraw Lessor's notice of
intent to market the Premises.
(iv) Prorations. Selling Lessor shall pay the cost of
the aforesaid title policy and any and all state and
municipal taxes imposed by law on the transfer of the
title to the Leased Premises, or the transaction
pursuant to which such transfer occurs. Water, sewer
and other utility charges, if any, which are not
metered, driveway permit charges, if any, general real
estate taxes, and other similar items, shall be
adjusted ratably as of the Closing, except to the
extent otherwise settled between the parties pursuant
to other provisions of this Lease. A prorated portion
of the Rent prepaid by Lessee for the month of closing
shall be credited toward the Purchase Price and Lessee
shall be given a credit for rent prepaid for any period
after the month in which the Closing occurs.
Otherwise, Lessee shall not receive a credit against
the Purchase Price for Rent paid hereunder.
(v) Escrow Closing. At the election of Selling Lessor
or Lessee upon notice to the other party not less than
five (5) days prior to the Closing, this sale shall be
closed through an escrow with the Title Company, in
accordance with the general provisions of the usual
form of Deed and Money Escrow Agreement then is use by
said company, with such special provisions inserted in
the escrow agreement as may be required to conform with
this agreement. Upon the creation of such an escrow,
anything herein to the contrary notwithstanding, paying
of the purchase price and delivery of the deed shall be
made through the escrow. The cost of the escrow shall
be divided equally between the Selling Lessor and
Lessee. If for any reason other than Lessee's default,
the transaction fails to close, the Earnest Money shall
be returned to Lessee forthwith.
(vi) Remedies on Default. If Lessee defaults under the
provisions of this subparagraph 34(C), Selling Lessor
shall have the right to annul the provisions of this
paragraph 34 by giving Lessee notice of such election,
provided that Selling Lessor has first notified Lessee
of such default and Lessee has failed to cure the same
within ten (10) days after such notice. Upon Selling
Lessor's notice of annulment in accordance herewith,
the Earnest Money shall be forfeited and paid to
Selling Lessor as liquidated damages, which shall be
Selling Lessor's sole and exclusive remedy. If Selling
Lessor defaults under the provisions of this
subparagraph 34(C) and fails to cure such default
within ten (10) days after being notified of the same
by Lessee, then in such event, (i) the Earnest Money at
Lessee's election and immediately upon its demand shall
be returned to Lessee, which return shall not, however,
in any way release or absolve Selling Lessor from its
obligations hereunder and (ii) Lessee shall be entitled
to all remedies (both legal and equitable) the law
(both statutory and decisional) of the state in which
the Leased Premises are situated provides without first
having to tender the balance of the purchase price as a
condition precedent thereof and without having to make
any election of such remedies.
(D) Effect of Right of First Refusal on Lease. If the
Right of First Refusal is exercised by Lessee and is exercisable
in Lessor's Notice as to the entire fee simple, this Lease shall
continue in full force and effect until the Closing hereinabove
specified. If the Right of First Refusal is exercised only as to
all of an undivided portion of the fee simple to the Leased
Premises, the Lease shall remain in full force and effect without
merger or termination of this Lease because of such purchase. If
for any reason such Closing fails to occur, this Lease shall
continue in full force and effect, except that if the provisions
of this paragraph 34 are annulled by Selling Lessor, in
accordance with subparagraph 34(C)(vi), by reason of a default by
Lessee, this Lease shall continue but without the provisions of
this paragraph 34 being a part hereof.
(E) If Lessee fails to exercise its Right of First Refusal,
Selling Lessor shall be free to sell all or any portion of its
interest in the Leased Premises for six months following the
expiration of the twenty days within which Lessee may exercise
its Right of First Refusal, provided that the Selling Lessor
giving such Lessor's Notice shall sell its interest (or a portion
thereof) for a price equal to or greater than the price (or the
pro-rata portion thereof if a portion of the Selling Lessor's
interest in the Leased Premises is sold) set forth in Lessor's
Notice. This Right of First Refusal shall survive any sale of
the Leased Premises and shall apply to any subsequent sale or
potential sale by Lessor or its successors and assigns.
ARTICLE 35. DEVELOPMENT FINANCING AGREEMENT
The parties hereto hereby acknowledge that the terms hereof
are subject to and shall in the event of conflicts be controlled
by that certain Development Financing Agreement of even date
herewith, until such Agreement is terminated in accordance with
its terms.
ARTICLE 36. COUNTERPART EXECUTION
This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original and all of which shall
constitute one and the same instrument.
IN WITNESS WHEREOF, Lessor and Lessee have respectively
signed and sealed this Lease as of the day and year first above
written.
LESSEE: CHAMPPS AMERICANA, INC.
By: /s/ Charles W Redepenning Jr
Its: /s/ Sr. VP
STATE OF Mass)
)SS.
COUNTY OF Essex)
The foregoing instrument was acknowledged before me this
18th day of June, 1997, by Charles W Redepenning, as Sr VP of
Champps Americana, Inc. on behalf of said corporation.
/s/ Jane Benchette
Notary Public
Lessor's signature appears on the following page
LESSOR: AEI INCOME & GROWTH FUND XXI
LIMITED PARTNERSHIP, a Minnesota limited
partnership
By: AEI FUND MANAGEMENT XXI, INC.,
a Minnesota corporation
By:/s/ Robert P Johnson
Robert P. Johnson, President
STATE OF MINNESOTA )
)SS.
COUNTY OF RAMSEY )
The foregoing instrument was acknowledged before me the 15th
day of June, 1997, by Robert P. Johnson, the President of AEI
Fund Management XXI, Inc., a Minnesota corporation, corporate
general partner of AEI Income & Growth Fund XXI Limited
Partnership, on behalf of said limited partnership.
/s/ Michael B Daugherty
Notary Public
[notary seal]
Exhibit A
City of Livonia, County of Wayne, State of Michigan, Unit 3,
Pentagon Centre Condominum, according to the Master Deed of
record, Wayne County Records, as amended.
NET LEASE AGREEMENT
THIS LEASE, made and entered into effective as of the
31st day of July, 1997, by and between AEI INCOME & GROWTH
FUND XXI LIMITED PARTNERSHIP ("Lessor"or"Lessor Fund XXI"),
a Minnesota limited partnership whose corporate general
partner is AEI Fund Management XXI, Inc., a Minnesota
corporation, AEI INSTITUTIONAL NET LEASE FUND '93 LIMITED
PARTNERSHIP ("Lessor"or "Lessor Fund 93"), a Minnesota
limited partnership, whose corporate general partner is AEI
Fund Management XVIII, Inc., both of whose principal
business address is 1300 Minnesota World Trade Center, 30
East Seventh Street, St. Paul, Minnesota 55101, and Caribou
Coffee Company, Inc., a Minnesota corporation ("Lessee"),
whose principal business address is Attention: Real Estate
Department, 615 North Third Street, Minneapolis, Minnesota,
55401;
WITNESSETH:
WHEREAS, Lessor is the fee owner of a certain parcel of
real property and improvements located at East Boulevard,
Charlotte, North Carolina, and legally described in Exhibit
"A", which is attached hereto and incorporated herein by
reference; and
WHEREAS, Lessee constructed the building and
improvements (together the "Building") on the real property
described in Exhibit "A", which Building is described in the
plans and specifications heretofore submitted to Lessor; and
WHEREAS, Lessee desires to lease said real property and
Building (said real property and Building hereinafter
referred to as the "Leased Premises"), from Lessor upon the
terms and conditions hereinafter provided;
NOW, THEREFORE, in consideration of the Rents, terms,
covenants, conditions, and agreements hereinafter described
to be paid, kept, and performed by Lessee, Lessor does
hereby grant, demise, lease, and let unto Lessee, and Lessee
does hereby take and hire from Lessor and does hereby
covenant, promise, and agree as follows:
ARTICLE 1. LEASED PREMISES
Lessor hereby leases to Lessee, and Lessee leases and
takes from Lessor, the Leased Premises subject to the
conditions of this Lease.
ARTICLE 2. TERM
(A) The term of this Lease ("Term") shall be Eighteen
(18) consecutive "Lease Years", as hereinafter defined,
commencing on July , 1997 ("Occupancy Date").
(B) The first "Lease Year" of the Term shall be for a
period of twelve (l2) consecutive calendar months from the
Occupancy Date. If the Occupancy Date shall be other than
the first day of a calendar month, the first "Lease Year"
shall be the period from the Occupancy Date to the end of
the calendar month of the Occupancy Date, plus the following
twelve (l2) calendar months. Each Lease Year after the
first Lease Year shall be a successive period of twelve
(l2) calendar months.
(C) The parties agree that once the Occupancy Date has
been established, upon the request of either party, a short
form or memorandum of this Lease will be executed for
recording purposes. That short form or memorandum of this
Lease will set forth the actual occupancy and termination
dates of the Term and optional Renewal Terms, as defined in
Article 28 hereof, and the existence of any Option to
Purchase, and that said Option shall terminate when the
Lessee shall lose right to possession or this Lease is
terminated, whichever occurs first, and that recordation of
a Court Order confirming Lessee's loss of the right of
possession shall be conclusive evidence of the removal of
this Lease from the chain of title.
ARTICLE 3. CONSTRUCTION OF IMPROVEMENTS
(A) Lessee warrants and agrees that to its actual
knowledge after commercially reasonable due inquiry (in any
context in this Lease, the term "actual knowledge" shall
mean that Lessee either actually knows or should have known
after conducting commercially reasonable due inquiry), the
Building has been constructed on the Leased Premises, and
all other improvements to the land, including the parking
lot, approaches, and service areas, have been constructed in
all material respects by Lessee substantially in accordance
with the plot, plans, and specifications heretofore
submitted to Lessor.
(B) Lessee warrants that to its actual knowledge after
commercially reasonable due inquiry, the Building and all
other improvements to the land do comply with the laws,
ordinances, rules, and regulations of all state and local
governments.
(C) Subject to Lessee's right to contest the same
under Article 21 hereof, Lessee agrees to pay, if not
already paid in full, for all architectural fees and actual
construction costs relating to the Building and other
related improvements on the Leased Premises, in the past,
present or future, which shall include, but not be limited
to, plans and specifications, general construction,
carpentry, electrical, plumbing, heating, ventilating, air
conditioning, decorating, equipment installation, outside
lighting, curbing, landscaping, blacktopping, electrical
sign hookup, conduit and wiring from building, fencing, and
parking curbs, builder's risk insurance (naming Lessor,
Lessee, and contractor as co-insured), and all construction
bonds for improvements made by or at the direction of
Lessee.
(D) Opening for business in the Leased Premises by
Lessee shall constitute an acceptance of the Leased Premises
and an acknowledgment by Lessee that the premises are in the
condition described under this Lease.
ARTICLE 4. RENT PAYMENTS
(A) Annual Base Rent Payable for the first and second
Lease Years: Lessee shall pay to Lessor an annual Base Rent
to Fund XXI of $146,438.15, which amount shall be payable in
advance on the first day of each month in equal monthly
installments of $12,203.18 and an annual Base Rent to Fund
93 of $10,853.10, which amount shall be payable in advance
on the first day of each month in equal monthly installments
of $904.42. If the first day of the Lease Term is not the
first day of a calendar month, then the monthly Rent payable
for that partial month shall be a prorated portion of the
equal monthly installment of Base Rent.
(B) Annual Base Rent Payable beginning in the third
Lease Year and every Lease Year thereafter:
1. In the third and each Lease Year thereafter,
the annual Base Rent due and payable shall increase by an
amount equal to the lesser of: a) Two and One-Half Percent
(2.5%) of the Base Rent payable for the immediately prior
Lease Year, or b) The "CPI-U Percentage Increase" of the
Base Rent payable for the prior Lease Year.
"CPI-U" shall mean the Consumer Price Index
for All Urban Consumers, (all items), published by the
United States Department of Labor, Bureau of Labor
Statistics (BLS) (1982-84 equal 100), U.S. Cities Average,
or, in the event said index ceases to be published, by any
successor index recommended as a substitute therefor by the
United States Government or a comparable, nonpartisan
substitute reasonably designated by Lessor. If the BLS
changes the base reference period for the Price Index from
198-84=100, the CPI-U Percentage Increase shall be
determined with the use of such conversion formula or table
as may be published by the BLS.
The term "CPI-U Percentage Increase" shall
mean One and One-Half of the percentage increase in the CPI-
U determined by reference to the increase, if any, in the
latest monthly CPI-U issued prior to the first day of the
Lease Year for which Base Rent is being increased, over the
CPI-U issued for the same month in the prior year. Said
month's CPI-U shall be used even though that CPI-U will not
be for the month in which the renewal term commences. In no
event shall the CPI-U Percentage Increase be less than zero.
Such increased Base Rent shall be payable in each
subsequent Lease Year until the next such increase, if any,
in advance of the first day of each month in equal monthly
installments.
(C) Interest on Overdue Payments.
Lessee shall pay interest on all overdue payments of
Rent or other monetary amounts due hereunder at the rate of
fifteen percent (15%) per annum or the highest rate allowed
by law, whichever is less, accruing from the date such Rent
or other monetary amounts were properly due
and payable, regardless of the cure period afforded Lessee
herein. Provided, however, such interest shall not be
assessed on the first such overdue payment of Rent or other
monetary amounts due hereunder in any Lease Year until
after the expiration of any applicable cure period.
ARTICLE 5. INSURANCE AND INDEMNITY
(A) Lessee shall, throughout the Term or Renewal
Terms, if any, of this Lease, at its own cost and expense,
procure and maintain insurance which covers the Leased
Premises and improvements against fire, wind, and storm
damage (including flood insurance if the Leased Premises is
in a federally designated flood prone area or an area
exposed to flood or storm surge) and such other risks
(including earthquake insurance, if the Leased Premises is
located in a federally designated earthquake zone or in an
ISO high risk earthquake zone) as may be included
in the broadest form of special form, all risk, extended
coverage insurance as may, from time to time, be available
in amounts sufficient to prevent Lessor or Lessee from
becoming a co-insurer within the terms of the applicable
policies. In any event, the insurance shall not be less
than one hundred percent (100%) of the insurable value, or
if greater, the replacement cost, with such commercially
reasonable deductibles as Lessor may reasonably require from
time to time.
Additionally, replacement cost endorsements, vandalism
endorsement, malicious mischief endorsement, waiver of
subrogation endorsement, waiver of co-insurance or agreed
amount endorsement (if available), and Building Ordinance
Compliance endorsement and Rent loss endorsements (for a
period of 12 months) must be obtained.
(B) Lessee agrees to place and maintain throughout the
Term or Renewal Terms, if any, of this Lease, at Lessee's
own expense, public liability insurance with respect to
Lessee's use and occupancy of said premises, including broad
form contractual liability and, if liquor is sold on the
Leased Premises, "Dram Shop" or liquor liability insurance,
if the same shall be or become available in the State of
North Carolina, with initial limits of at least $2,000,000
per occurrence/$5,000,000 general aggregate (inclusive of
umbrella coverage), or such additional
amounts as Lessor shall reasonably require from time to
time.
(C) Lessee agrees to notify Lessor in writing if
Lessee is unable to procure all or some part of the
aforesaid insurance. In the event Lessee fails to provide
all insurance required under this Lease, Lessor shall have
the right, but not the obligation, to procure such insurance
on Lessee's behalf, following five (5) business days written
notice to Lessee of Lessor's intent to do so (unless
insurance then in place would during such period, or already
has, lapsed, in which case no notice need be given) and
Lessee may obtain such insurance during said five day period
and not then be in default hereunder. If Lessor shall
obtain such insurance, Lessee will then, within five (5)
business days from receiving written notice, pay Lessor the
amount of the premiums due
or paid, together with interest thereon at the lesser of 15%
per annum or the highest rate allowable by law, which amount
shall be considered Rent payable by Lessee in addition to
the Rent defined
at Article 4 hereof.
(D) All policies of insurance provided for or
contemplated by this Article can be under Lessee's blanket
insurance coverage and shall name Lessor, AEI Fund
Management XXI, Inc., AEI Fund Management XVIII, Inc., and
Robert P. Johnson, as the general partners of Lessor, as
additional insured and loss payee,
as their respective interests may appear, and shall provide
that the policies cannot be canceled, terminated, changed,
or modified without thirty (30) days written notice to the
parties. In addition, all of such policies shall be in
place on or before the Occupancy Date and contain
endorsements by the respective insurance companies waiving
all rights of subrogation, if any, against Lessor. All
insurance companies providing coverages must 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. Lessee shall
provide Lessor and shall maintain legible copies of any and
all policies, endorsements, and exclusions required herein,
to be made
available for Lessor's review and photocopy upon Lessor's
reasonable request from time to time, in any event not more
often than twice per Lease Year unless such request is
occasioned by claim of loss in excess of $100,000. On the
Occupancy Date and no less than fifteen (15) business days
prior to expiration of such policies, Lessee shall provide
Lessor with legible copies of any and all renewal
Certificates of Insurance reflecting the above terms of the
Policies (including
endorsements and exclusions). Lessee agrees that it will
not settle any property insurance claims affecting the
Leased Premises in excess of $50,000 without Lessor's prior
written consent, such consent not to be unreasonably
withheld or delayed. Lessor shall consent to any settlement
of an insurance claim wherein Lessee shall confirm in
writing with evidence reasonably satisfactory to Lessor that
Lessee has sufficient funds available to complete the
rebuilding of the Premises.
(E) Lessee shall defend, indemnify, and hold Lessor
harmless against any and all claims, damages, and lawsuits
arising after the Occupancy Date of this Lease and any
orders, decrees or judgments which may be entered therein,
brought for damages or alleged damages
resulting from any injury to person or property or from loss
of life sustained in or about the Leased Premises, unless
such damage or injury results from the intentional
misconduct or the negligence of Lessor and Lessee agrees to
save Lessor harmless from, and indemnify Lessor
against, any and all injury, loss, or damage, of whatever
nature, to any person or property caused by, or resulting
from any act, omission, or negligence of Lessee or any
employee or agent of Lessee. In addition, Lessee hereby
releases Lessor from any and all liability for any loss or
damage caused by fire or any of the extended coverage
casualties, unless such fire or other casualty shall be
brought about by the intentional misconduct or negligence of
Lessor. In the event of any loss, damage, or injury not
insurable under the insurance coverage required by this
Lease, caused by the joint negligence or willful misconduct
of Lessor and Lessee, they shall be liable therefor in
accordance with their respective degrees of fault; provided,
however, that the foregoing shall not relieve any insurer of
nor is the foregoing intended to negate any waiver of
subrogation by such insurer.
(F) Lessor and Lessee and all parties claiming under
them mutually release and discharge each other from all
claims and liabilities arising from or caused by any
casualty or hazard, covered or required hereunder to be
covered in whole or in part by insurance on the Leased
Premises or in connection with property on or activities
conducted on the Leased Premises, and waive any right or
subrogation which might otherwise exist in or accrue to any
person on account thereof.
ARTICLE 6. TAXES, ASSESSMENTS AND UTILITIES
(A) Lessee shall be liable and agrees to pay the
charges for all public utility services rendered or
furnished to the Leased Premises, including heat, water,
gas, electricity, sewer, sewage treatment facilities and the
like, all personal property taxes, real estate taxes,
special assessments, and municipal or government charges,
general, ordinary and extraordinary, of every kind and
nature whatsoever, which may be levied, imposed, or assessed
against the Leased
Premises, or upon any improvements thereon, at any time
after the Occupancy Date of this Lease for the period prior
to the expiration of the term hereof, or any Renewal Term,
if exercised.
(B) Lessee shall pay all real estate taxes,
assessments for public improvements or benefits, and other
governmental impositions, duties, and charges of every kind
and nature whatsoever which shall or may, during the term of
this Lease, be charged, laid, levied, assessed,
or imposed upon, or become a lien or liens upon the Leased
Premises or any part thereof. Such payments shall be
considered as Rent paid by Lessee in addition to the Rent
defined at Article 4 hereof. If due to a change in the
method of taxation, a franchise tax, Rent tax, or income or
profit tax shall be levied against Lessor in substitution
for or in lieu of any tax which would otherwise constitute a
real estate tax, such tax shall be deemed a real estate tax
for the purposes herein and
shall be paid by Lessee; otherwise Lessee shall not be
liable for any such tax levied against Lessor.
(C) All real estate taxes, assessments for public
improvements or benefits, water rates and charges, sewer
rents, and other governmental impositions, duties, and
charges which shall become payable for the first and last
tax years of the term hereof shall be apportioned pro rata
between Lessor and Lessee in accordance with the respective
number of months during which each party shall be in
possession of the Leased Premises (or through the expiration
of the term hereof, if longer) in said respective tax years.
Lessee shall pay within 60 days of the expiration of the
term hereof Lessor's reasonable estimate of Lessee's pro-
rata share of real estate taxes for the last tax year of the
term hereof, based upon the last available tax bill. Lessor
shall give Lessee notice of such estimated pro-rata real
estate taxes no later than 75 days from the end of the term
hereof. Upon receipt of the actual statement of real estate
taxes for such prorated period, Lessor shall
either promptly refund to Lessee any over payment of the pro-
rata Lessee obligation, or shall assess and Lessee shall pay
promptly upon notice any remaining portion of the Lessee's
pro-rata obligation for such real estate taxes.
(D) Lessee shall have the right to contest or review
by legal proceedings or in such other manner as may be legal
(which, if instituted, shall be conducted solely at Lessee's
own expense) any tax, assessment for public improvements or
benefits, or other governmental
imposition aforementioned, upon condition that, before
instituting such proceeding Lessee shall pay (under protest)
such tax or assessments for public improvements or benefits,
or other governmental imposition, duties and charges
aforementioned, unless such payment would act as
a bar to such contest or interfere materially with the
prosecution thereof and in such event Lessee shall post with
Lessor alternative security reasonably satisfactory to
Lessor. All such proceedings
shall be begun as soon as reasonably possible after the
imposition or assessment of any contested items and shall
be prosecuted to final adjudication with reasonable
dispatch. In the event of any reduction, cancellation, or
discharge, Lessee shall pay the amount that shall be finally
levied or assessed against the Leased Premises or
adjudicated to be due and payable, and, if there shall be
any refund payable by the governmental authority with
respect thereto, if Lessee has paid the
expense of Lessor in such proceedings, Lessee shall be
entitled to receive and retain the refund, subject,
however, to equitable apportionment (after deduction of
Lessee's reasonable out of pocket
expenses incurred in obtaining such refund) as provided
during the first and last years of the term of this Lease.
(E) Lessor, within sixty (60) days after written
notice to Lessee if Lessee fails to commence such
proceedings, may, but shall not be obligated to, contest or
review by legal proceedings, or in such other manner as may
be legal, and at Lessor's own expense, any tax, assessments
for public improvements and benefits, or other governmental
imposition aforementioned, which shall not be contested or
reviewed, as aforesaid, by Lessee, and unless Lessee after
the aforesaid notice from Lessor shall promptly join and
share in the cost with Lessor of such contest or review,
Lessor shall be entitled to receive and retain any refund
payable by the governmental authority with respect thereto.
Provided, however, if Lessee shall join and share in the
cost of such contest or review, and there shall be any
refund payable by the governmental authority with respect
thereto, Lessee shall be entitled to an equitable
apportionment of such refund attributable (after
reimbursement to Lessee and Lessor for reasonable out of
pocket expenses incurred in obtaining such refund) to taxes
payable or paid by Lessee under the terms of this Lease.
(F) Lessor shall not be required to join in any
proceeding referred to in this Article, unless in Lessee's
reasonable opinion, the provisions of any law, rule, or
regulation at the time in effect shall require that such a
proceeding be brought by and/or in the name of Lessor, in
which event Lessor shall upon written request, join in such
proceedings or permit the same to be brought in its name,
all at no cost or expense to Lessor.
(G) Within thirty (30) days after Lessor notifies
Lessee in writing that Lessor has paid such amount, Lessee
shall also pay to Lessor, as additional Rent, the amount of
any sales tax, franchise tax, excise tax, on Rents imposed
by the State where the Leased Premises are located. At
Lessor's option, Lessee shall deposit with Lessor on the
first day of each and every month during the term hereof, an
amount equal to one-twelfth (1/12) of any estimated sales
tax payable to the State in which the property is situated
for Rent received by Lessor hereunder ("Deposit"). From
time to time out of such Deposit Lessor will pay the sales
tax on Rent to the State in which the property is situated
as required by law. In the event the Deposit on hand shall
not be sufficient to pay said tax when the same shall become
due from time to time, or the prior payments shall be less
than the current estimated monthly amounts, then Lessee
shall pay to Lessor on demand any amount necessary to make
up the deficiency. The excess of any such Deposit shall be
credited to subsequent payments to be made for such items.
If a default or an event of default shall occur under the
terms of this Lease, Lessor may, at its option, without
being required so to do, apply
any Deposit on hand to cure such default, in such order and
manner as Lessor may elect. Notwithstanding the foregoing,
nothing contained herein shall be construed to include as a
tax for which Lessee is liable which shall be the basis of
any inheritance, estate, succession, transfer, gift,
franchise, corporation, income or profit tax or capital levy
that is or may be imposed upon Lessor.
(H) Notwithstanding anything in this Lease to the
contrary, in the event that during the Term (or any
extension thereof) any governmental entity makes any
improvement and assesses any portion of the Leased Premises
therefor, Tenant shall be liable only for so much of the
assessment as shall be due and payable if paid in the
minimum allowed installments without incurring penalty or
late charge. Additionally, with respect to any special
assessments which may be levied or assessed during the Term
or any renewal thereof, Lessee shall have the right to pay
such assessments in equal installments over the longest
legally available period and shall not be liable for any
remainder existing after expiration of the Term (or any
renewal).
ARTICLE 7. PROHIBITION ON ASSIGNMENTS AND SUBLETTING;
(A) After prior written notice to Lessor, accompanied
by a copy of the form of sublease or assignment, Lessee may
sublet or assign all or a portion of the Leased Premises,
without Lessor's consent. Lessee and all guarantors, if
any, shall give notice to Lessor in the form attached hereto
as Exhibit B evidencing their consent and confirming their
continued liability under the Lease and guaranty,
respectively. Except as set forth in subparagraph (E)
below, in the event of a subletting or assignment of its
interest hereunder, Lessee shall not be released from it
obligations hereunder. Lessee shall reimburse Lessor for
its out-of-pocket reasonable expenses incurred in connection
with such subletting or assignment, including but not
limited to reasonable attorney's fees, if any, incurred by
Lessor.
(B) Any attempted subleasing or assignment of this
Lease by Lessee in violation of subparagraph (A) above shall
be unenforceable against Lessor until Lessee shall provide
Lessor with notice of such assignment or subletting. Except
as otherwise expressly provided in subparagraph (A) above,
Lessee shall not, without obtaining the prior written
consent of Lessor, in each instance:
1. otherwise transfer this Lease, or any part of
Lessee's right, title or interest therein;
2. allow all or any part of the Leased Premises
to be used or occupied by any other Persons (herein defined
as a Party other than Lessee, be it a corporation, a
partnership, an individual or other entity); or
3. mortgage, pledge or otherwise encumber this
Lease, or the Leased Premises.
(C) For the purposes of this Article:
1. an agreement by any other Person, directly or
indirectly, to assume
Lessee's obligations under this Lease shall
be deemed an assignment;
2. any Person to whom Lessee's interest under
this Lease passes by operation of law, or otherwise, shall
be bound by the provisions of this Article;
3. each material modification, amendment or
extension or any assignment or sublease to which Lessor has
previously been given notice shall be deemed a new
assignment or sublease; and
(D) Notwithstanding anything above to the contrary,
Lessor agrees to enter into a nondisturbance agreement with
proposed sublessee, if a nondisturbance agreement is
required by such sublessee, but only upon the following
conditions. Lessor has the sole discretion to approve
the form and terms of the sublease and the form and terms of
the nondisturbance agreement. Such nondisturbance agreement
shall be acceptable (if not otherwise containing terms
reasonably
objectionable to Lessor) if the sublessee shall agree to
cure all defaults of Lessee hereunder and assume full
obligations of the Lessee upon a default hereunder, if
sublessee desires not to be disturbed; otherwise, the
sublease shall expressly terminate upon an uncured default
hereunder. Furthermore, the nondisturbance agreement shall
be accompanied by the consents of Lessee and all guarantors,
if any (such consent to be in form and substance
satisfactory to Lessor) to such
nondisturbance agreement, affirming their continued
liability hereunder (or under their guaranty, respectively).
Lessor agrees to provide any sublessee whose approved
nondisturbance agreement so requires, contemporaneous
written notice of default by Lessee (if written notice is
required hereunder); provided, however, that failure of
sublessee to receive such notices shall not hinder or delay
Lessor's right to proceed with any or all remedies granted
to Lessor herein as against
Lessee. No such notice to Lessee shall be effective as
against sublessee unless a copy is so given to sublessee at
the sublessee's last address known to Lessor.
(E) Notwithstanding anything above to the contrary,
upon an assignment of the Lessee's interest herein, Lessee
and any personal guarantors shall be released from further
liability hereunder after the following conditions are met:
(a) the assignment of Lessee's interest is to an entity or
entity and persons offering their personal guaranties of
Lessee's obligations ("Assignee"), which Assignee has an
Equity Net Worth equal to the greater of Twenty Million
Dollars or the cumulative Equity Net Worth of the Lessee and
all Guarantors at the time of such assignment; (b) there has
been no decline in the Assignee's Net Sales, Cash Flow, or
Retained Earnings, during any of the three calendar years
immediately preceding the time of such assignment; and (c)
in Lessor's sole but reasonable opinion, taking into
consideration such factors as the extent of restaurant
managerial and operational experience, business reputation,
and other factors reasonably related to the ability of the
Assignee to operate the Leased Premises, such Assignee is
equivalent
to Lessee as determined either at the time this Lease was
executed, or the date of the assignment of Lessee's
interest, such date of equivalency to be determined by
Lessor in its sole discretion. Any such release of Lessee
shall be ineffective until Lessor has approved, such
approval not to be unreasonably withheld or delayed, the
form and substance of the assignment, the documents
evidencing the net worth of the Assignee and any new
Guarantors, and the new guaranties in the
form and substance reasonably satisfactory to Lessor.
For purposes of the foregoing, the following
definitions shall apply: Equity Net Worth shall equal the
difference between the proposed Assignee's total assets and
total liabilities as they appear on the Assignee's
consolidated balance sheet; Net Sales shall equal the net
revenues as reported on Assignee's consolidated statement of
operations; Cash Flow shall equal the sum total of the net
income, depreciation, and amortization accounts as reported
on Assignee;s consolidated statement of cash flows; and,
Retained Earnings shall equal the retained earnings as
reported on Assignee's consolidated statement of
shareholder's equity. Additionally, evidence of the above
amounts, individually and collectively, shall be considered
satisfactory only if provided by a
complete set of audited financial statements, prepared in
accordance with generally accepted accounting principles
(GAAP) by a nationally recognized independent certified
public accounting firm reasonably acceptable to Lessor.
(F) The parties hereto acknowledge that a portion of
the Leased Premised have been sublet to Tarheel Bagels,
Inc., pursuant to that certain Sublease dated September 10,
1996 (the "Sublease"). Lessor acknowledges and consents to
the Sublease, provided, however, the Sublease shall be
subordinate to and subject to the terms of this Lease,
except to the extent the Lessor and subtenant may have
agreed otherwise in writing.
ARTICLE 8. REPAIRS AND MAINTENANCE
(A) Lessee covenants and agrees to keep and maintain
in good order, condition and repair the interior and
exterior of the Leased Premises during the term of the
Lease, or any renewal terms. Lessee further agrees that
Lessor shall be under no obligation to make any repairs or
perform any maintenance to the Leased Premises, but Lessor
shall reimburse Lessee for such reasonable costs and
expenses incurred by Lessee in complying with Lessee's
obligations under this Article relating to repairs,
replacements and maintenance if the need for the same is
caused by the negligent acts or omissions of Lessor, its
agents, contractors or employees, but only to the extent
such costs and expenses are not covered by the insurance
maintained by Lessee or would
not be covered by the insurance required to be maintained by
Lessee under this Lease (if Lessee shall have failed to
maintain the same). Lessee covenants and agrees that during
the term of the Lease it shall be responsible for all
repairs, alterations, replacements, or maintenance of,
including but without limitation to or of: The interior and
exterior portions of all doors; door checks and operators;
windows; plate glass; plumbing; water and sewage facilities;
fixtures; electrical
equipment; interior walls; ceilings; signs; roof; structure;
interior building appliances and similar equipment; heating
and air conditioning equipment; and any equipment owned by
Lessor and leased to Lessee hereunder, as itemized on
Exhibit C attached hereto and incorporated herein by
reference; and further agrees to replace any of said
equipment when necessary. Lessee further agrees during the
term of the Lease to be responsible for, at its own expense,
snow removal, lawn maintenance, landscaping, maintenance of
the parking lot (including parking lines, seal coating, and
blacktop surfacing), and other similar items.
(B) If Lessee refuses or neglects to commence or
complete repairs promptly and adequately, after prior
written notice and opportunity to cure as required under
Article 16(B) (except in cases of emergency to prevent waste
or preserve the safety and integrity of the Leased Premises,
in which case no notice need be given), Lessor may cause
such repairs to be made, but shall not be required to do so,
and Lessee shall pay the cost thereof to Lessor within five
(5) business days following demand. It is understood that
Lessee shall pay all expenses and
maintenance and repair during the term of this Lease. If
Lessee is not then in default hereunder beyond the
expiration of applicable cure periods, Lessee shall have the
right to make repairs and improvements to the Leased
Premises without the consent of Lessor if such repairs and
improvements do not exceed Fifty Thousand Dollars
($50,000.00), provided such repairs or improvements do not
affect the structural integrity of the Leased Premises. Any
repairs or improvements in excess of Fifty Thousand Dollars
($50,000.00) or affecting the structural integrity of the
Leased Premises may be done only with the prior written
consent of Lessor, such consent not to be unreasonably
withheld or delayed. All alterations and additions to the
Leased Premises shall be made in accordance with all
applicable laws and shall remain for the benefit of
Lessor, except for Lessee's Property (defined below). In
the event of making such alterations as herein provided,
subject to Article 21, Lessee further agrees to indemnify
and save harmless Lessor from all expense, liens, claims or
damages to either persons or property or the Leased Premises
which may arise out of or result from the undertaking or
making of said repairs, improvements, alterations or
additions, by or on behalf of Lessee, or Lessee's failure to
make said repairs, improvements, alterations or additions.
ARTICLE 9. COMPLIANCE WITH LAWS AND REGULATIONS
Lessee will comply with all statutes, ordinances,
rules, orders, regulations and requirements of all federal,
state, city and local governments, and with all rules,
orders and regulations of the applicable Board of Fire
Underwriters which affect the Lessee's or its
subtenants's or assigns's use and occupancy of the
improvements, whether or not due to a failure of the
Improvements to so comply predates this Lease. Lessee will
comply with all easements, restrictions, and covenants of
record against or affecting the Leased Premises and any
franchise or license agreements required for operation of
the Leased Premises in accordance with Article 14 hereof.
ARTICLE 10. SIGNS
Lessee shall have the right to install and maintain a
sign or signs advertising Lessee's or any other permitted
sublessee's or occupant's business, provided that the signs
conform to law, and further provided that the sign or signs
conform specifically to the written requirements of the
appropriate governmental authorities.
ARTICLE 11. SUBORDINATION
(A) Lessor reserves the right and privilege to subject
and subordinate this Lease at all times to the lien of any
mortgage or mortgages now or hereafter placed upon Lessor's
interest in the Leased Premises and on the land and
buildings of which said premises are a part, or upon any
buildings hereafter placed upon the land of which the Leased
Premises are a part, provided such mortgagee shall execute
its standard form, commercially reasonable subordination,
attornment and
non-disturbance agreement, which shall provide, without
limitation, that the mortgagee shall agree that Lessee's
peaceable possession of the Leased Premises and its rights
under this Lease will not be diminished on account thereof.
Lessor also reserves the right and privilege to subject and
subordinate this Lease at all times to any and all advances
to be made under such mortgages, and all renewals,
modifications, extensions, consolidations, and replacements
thereof, provided such
mortgagee shall execute its standard form, commercially
reasonable subordination, attornment and non-disturbance
agreement, which shall provide, without limitation, that the
mortgagee shall agree that Lessee's peaceable possession of
the Leased Premises and its rights under this Lease will not
be diminished on account thereof.
(B) Lessee covenants and agrees to execute and
deliver, upon demand, such further instrument or instruments
subordinating this Lease on the foregoing basis to the lien
of any such mortgage or mortgages as shall be desired by
Lessor and any proposed mortgagee or proposed
mortgagees, provided such mortgagee shall execute its
standard form, commercially reasonable subordination,
attornment and non-disturbance agreement, which shall
provide, without limitation, that the mortgagee shall agree
that Lessee's peaceable possession of the Leased Premises
and its rights under this Lease will not be diminished on
account thereof. Lessor agrees to reimburse Lessee for its
out-of-pocket reasonable expenses incurred in connection
with such subordination
request, including but not limited to reasonable attorney's
fees, if any, incurred by Lessee in connection therewith.
(C) Lessor represents and warrants that as of the date
of this Lease, there are no mortgages, deeds of trust, or
similar instruments executed by Lessor or anyone claiming
by, through, or under Lessor, affecting fee title to the
Leased Premises.
ARTICLE l2. CONDEMNATION OR EMINENT DOMAIN
(A) If the whole of the Leased Premises are taken by
any public authority under the power of eminent domain, or
by private purchase in lieu thereof, then this Lease shall
automatically terminate upon the date possession is
surrendered to the public authority, and Rent
shall be paid up to that day. If any part of the Leased
Premises shall be so taken as to render the remainder
thereof materially unusable in the opinion of a licensed
third party arbitrator who has significant experience in the
retail industry, reasonably approved by Lessor and Lessee,
for the purposes for which the Leased Premises were leased,
then Lessor and Lessee shall each have the right to
terminate this Lease on thirty (30) days notice to the other
given within ninety (90) days
after the date of such taking. In the event that this Lease
shall terminate or be terminated, the Rent shall, if and as
necessary, be paid up to the day that possession was
surrendered to the public authority.
(B) If any part of the Leased Premises shall be so
taken such that it does not materially interfere with the
business of Lessee, then Lessee shall, with the use of the
condemnation proceeds (which to the extent of the cost of
restoration to return the improvements to a complete
architectural unit shall be made available by Lessor, but
otherwise at Lessee's own cost and expense), restore the
remaining portion of the Leased Premises to the extent
necessary to render it reasonably suitable for the purposes
for which it was leased. Lessee shall make all repairs to
the building in which the Leased Premises is located to the
extent necessary to constitute the building a complete
architectural unit. Provided, however, that the cost of
such work to Lessor shall not exceed the replacement cost of
improvements similar in scope and quality of the work done
by Lessee in originally constructing such improvements.
Further, if the cost of such work proposed by Lessee shall
exceed the condemnation award, or be in excess of the
replacement cost of the improvements similar in scope and
quality of the work done by Lessee in originally
constructing such improvements, Lessee shall demonstrate to
Lessor's reasonable satisfaction the availability of funds
(if any in excess of the condemnation proceeds be required)
to complete such work. Provided, further, the cost thereof
to Lessor shall not exceed the proceeds of its condemnation
award, all to be done without any adjustments in Rent to be
paid by Lessee. This lease shall be deemed amended to
reflect the taking in the legal description of the Leased
Premises.
(C) All compensation awarded or paid upon such total
or partial taking of the Leased Premises shall belong to and
be the property of Lessor without any participation by
Lessee, whether such damages shall be awarded as
compensation for diminution in value to the leasehold or to
the fee of the premises herein leased. Nothing contained
herein shall be construed to preclude Lessee from
prosecuting any claim directly against the condemning
authority in such proceedings for: Loss of business; damage
to or loss of value or cost of removal, including moving or
relocation costs, of Lessee's Property; provided, however,
that no such claim shall diminish or otherwise adversely
affect Lessor's award or the award of any fee mortgagee.
ARTICLE 13. RIGHT TO INSPECT
Lessor reserves the right to enter upon, inspect and
examine the Leased Premises at any time during business
hours, after reasonable notice to Lessee, and Lessee agrees
to allow Lessor reasonably free access to the Leased
Premises to show the premises. Upon default by Lessee or at
any time within ninety (90) days of the expiration or
termination of the Lease, Lessee agrees to allow Lessor to
then place "For Sale" or "For Rent" signs on the Leased
Premises. Lessor and
Lessor's representatives shall at all times while upon or
about the Leased Premises observe and comply with Lessee's
reasonable health and safety rules, regulations, policies
and procedures. Lessor agrees to defend, indemnify and hold
Lessee, its successors, assigns, agents and employees from
and against any liability, claims, demands, cause of action,
suits and other litigation or judgements of every kind and
character, including injury to or death of any person or
persons, or
trespass to, or damage to, or loss or destruction of, any
property, whether real or personal, to the extent resulting
from the negligence or willful misconduct or Lessor or
Lessor's representatives while upon or about the Leased
Premises. Lessor will use commercially reasonable efforts
to not interfere with the business operation of Lessee or
its subtenants or other occupants during any inspection of
the Leased Premises.
ARTICLE 14. USE; LESSEE'S CONDUCT OF BUSINESS
(A) After the Occupancy Date, Lessee expressly agrees
and warrants that the Leased Premises will be used initially
as a Caribou Coffee and Brueggers restaurant. In any other
such case, after prior written notice to Lessor, Lessee may
conduct any lawful business from the Leased
Premises. Provided, however, that Lessee shall not use or
occupy, or permit the Leased Premises to be used or
occupied, nor do or permit anything to be done in or on the
Leased Premises in a manner which would (i) in any way make
void or voidable any insurance then in force on the
Premises, (ii) make it impossible to obtain insurance
required to be furnished by Lessee hereunder, (iii)
constitute a public nuisance, (iv) constitute the sales,
distribution or proliferation of sexually oriented
materials, or a massage parlor (v) constitute the sales,
storage, or distribution of hazardous materials including
but not limited to petroleum products, except as may be
incidental and only incidental to normal business
operations, and then only in accordance with applicable law,
ordinance or regulation, or (vi) violate any deed
restrictions affecting the Leased Premises or any present or
future applicable law, regulation, ordinance, or requirement
of any governmental authority. Lessee acknowledges and
agrees that any other use without the prior
written consent of Lessor will constitute a default under
and a violation and breach of this Lease.
(B) Notwithstanding anything herein to the contrary,
nothing herein shall be construed as an obligation for
Lessee to open or operate its business in the Leased
Premises. Lessee shall have the right to remove Lessee's
Property and cease operations in the Leased Premises at any
time and at Lessee's sole discretion. However, the right to
cease to operate its business shall not affect Lessee's
obligation to pay all amounts due hereunder and to perform
all covenants and obligations hereunder. Lessee agrees, at
such time it is operating its business in the Leased
Premises, to conduct its business in a first-class manner
consistent with reputable business standards and practices.
Furthermore, in no event shall Lessee be liable to Lessor
for damages
as a result of operating other stores in the area
surrounding the Leased Premises or any other area, nor shall
Lessee be limited or restricted in any way from opening or
operating other stores in the area surrounding the Leased
Premises or any other area.
(C) Notwithstanding the foregoing, if at any time,
subject to reasonable periods of closure for repair or
remodeling or force majeure, Lessee ceases operating in the
Leased Premises for more than nine (9) consecutive months,
Lessor shall have the right, exercisable within sixty (60)
days after said nine (9) month period, to terminate this
Lease upon sixty (60) days prior written notice to Lessee;
provided, however, that if Lessee (or any assignee,
subtenant or other permitted occupant) reopens in the Leased
Premises within said sixty (60) day period following
Lessor's election to terminate this Lease, said termination
shall be null and void and have no further force and effect.
Termination pursuant to this Article 14(C) shall be separate
and apart from any remedy afforded Lessor in the event of
any default by Lessee remaining uncured beyond the
expiration of any notice and applicable cure period; any
termination of Lessee's right to possession for any other
uncured default remaining uncured beyond the expiration of
any notice and applicable cure period shall not be construed
to be a termination of the Lease and Lessee's continuing
obligations hereunder.
ARTICLE 15. DESTRUCTION OF PREMISES
If, during the term of this Lease, the Leased Premises
are totally or partially destroyed by fire or other
elements, within a reasonable time (but in no event longer
than commercially reasonable and in any event no longer than
one year from the date of such damage or destruction) and
subject to the provisions herein below), Lessee shall repair
and restore the improvements so damaged or destroyed as
nearly as may be practical to their condition immediately
prior to such casualty. All rents payable by Lessee shall
be abated during the period of repair and restoration to the
extent that Lessor shall be compensated by the proceeds of
the rent loss insurance required to be maintained by Lessee
hereunder.
Provided Lessee is not in default hereunder (and
retains according to the terms hereof the right to rebuild)
with the Lessor's prior written consent, which consent shall
not be unreasonably withheld or delayed, Lessee shall have
the right to promptly and in good faith settle and adjust
any claim under such insurance policies with the insurance
company or companies on the amounts to be paid upon the
loss. The insurance proceeds shall be used to reimburse
Lessee for the cost of
rebuilding or restoration of the Leased Premises. Risk that
the insurance company shall be insolvent or shall refuse to
make insurance proceeds available shall be with Lessee. The
Leased Premises shall be so restored or rebuilt so as to be
of at least equal value and substantially the same character
as prior to such damage or destruction. If the insurance
proceeds are less than Fifty Thousand Dollars ($50,000),
they shall be paid to Lessee for such repair and
restoration.
If the insurance proceeds are greater than or equal to Fifty
Thousand Dollars ($50,000), they shall be deposited by
Lessee and Lessor into a customary construction escrow at a
nationally recognized title insurance company, or at
Lessee's option, with Lessor ("Escrowee") and shall be made
available from time to time to Lessee for such repair and
restoration. Such proceeds shall be disbursed in conformity
with the terms and conditions of a commercially reasonable
construction loan agreement. Lessee shall, in either
instance, deliver to Lessor or Escrowee (as the case may be)
satisfactory evidence of the estimated cost of completion
together with such architect's certificates, waivers of
lien, contractor's sworn statements and other evidence of
cost and of payments as the Lessor or Escrowee may
reasonably require and approve (or title insurance or other
security over any of the foregoing reasonably acceptable to
Lessor). If the estimated cost of the work exceeds One
Hundred Thousand Dollars ($100,000), all plans and
specifications for such rebuilding or restoration shall be
subject to the reasonable approval of Lessor.
Any insurance proceeds remaining with Escrowee after
the completion of the repair or
restoration shall be paid to Lessor to reduce the sum of
monies expended by Lessor to acquire its interest in the
Leased Premises and rent hereunder shall be reduced by 11.5%
of such amount.
If the proceeds from the insurance are insufficient,
after review of the bids for completion of such
improvements, or should become insufficient during the
course of construction, to pay for the total cost of repair
or restoration, Lessee shall, prior to commencement of work,
demonstrate to Escrowee and Lessor's reasonable
satisfaction, the availability of such funds necessary to
completion construction and Lessee shall deposit the same
with Escrowee for disbursement under the construction escrow
agreement.
Provided, further, that should the Leased Premises be
damaged or destroyed in the third or second to last Lease
Year to the extent of fifty (50%) percent of its value, or
in the last Lease Year to the extent of twenty-five (25%)
percent of its value, then, if any further options to renew
remain, Lessee may elect within 30 days of such damage, to
then exercise at least one (1) option to renew this Lease so
that the remaining term of the Lease is not less than five
(5) years in order to be entitled to such insurance proceeds
for restoration or rebuilding. Absent such election, this
Lease shall terminate upon Lessor's receipt of all of the
insurance proceeds to which Lessor is entitled under this
Lease, which shall be at least equal to the estimated cost
of such repair or restoration.
ARTICLE 16. ACTS OF DEFAULT
Each of the following shall be deemed a default by
Lessee and a breach of this Lease:
(A) Failure to pay the Rent or any monetary
obligation herein reserved, or any part thereof when the
same shall be due and payable, provided, however, Lessee
shall have five (5) business days after written notice from
Lessor within which to cure the failure to pay the Rent or
any monetary obligation herein reserved. Interest and late
charges for failure to pay Rent when due shall accrue on the
first failure to pay Rent when due in any Lease Year from
the first date beyond the expiration of any applicable cure
period if not cured prior thereto, and for any failure
thereafter to pay Rent within three (3) business days after
it was due and payable.
(B) Failure to do, observe, keep and perform any
of the other terms, covenants, conditions, agreements and
provisions in this Lease to be done, observed, kept and
performed by Lessee; provided, however, that Lessee shall
have Thirty (30) days after written notice from Lessor
within which to cure such default, or such longer time as
may be reasonably necessary if such default cannot
reasonably be cured within Thirty (30) days, if Lessee is
diligently pursuing a course of conduct that is commercially
reasonable and is capable of curing such default, but in any
event such longer time shall not exceed 210 days after
written notice from Lessor of the default hereunder.
(C) The abandonment of the premises by Lessee,
the adjudication of Lessee as a bankrupt, the making by
Lessee of a general assignment for the benefit of creditors,
the taking by Lessee of the benefit of any insolvency act
or law, the appointment of a permanent receiver or trustee
in bankruptcy for Lessee property, or the appointment of a
temporary receiver which is not vacated or set aside within
sixty (60) days from the date of such appointment; provided,
however, that the foregoing shall not constitute events of
default so long as Lessee continues to otherwise satisfy its
obligations (including but not limited to the payment of
Rent) hereunder.
ARTICLE 17. TERMINATION FOR DEFAULT
In the event of any uncured default by Lessee beyond
the expiration of any applicable cure period and at any time
thereafter (but prior to cure), Lessor may serve a written
notice upon Lessee that Lessor elects to terminate this
Lease. This Lease shall then terminate on the date so
specified as if that date had been originally fixed as the
expiration date of the term herein granted, provided,
however, that Lessee shall have continuing liability for
future rents for the remainder
of the original term and any exercised renewal term as set
forth in Article 19, notwithstanding any earlier termination
of the Lease hereunder (except where Lessee has exercised a
right to terminate
where granted herein), preserving unto Lessor the benefit of
its bargained-for rental payments.
ARTICLE 18. LESSOR'S RIGHT OF RE-ENTRY
In the event that this Lease shall be terminated as
hereinbefore provided, or by summary proceedings or
otherwise, or in the event of an uncured default hereunder
by Lessee beyond the expiration of the applicable cure
period, then Lessor or its agents, servants or
representatives, may immediately or at any time thereafter,
re-enter and resume possession of the premises or any part
thereof, and remove all persons and property therefrom,
either by summary dispossess proceedings or by a suitable
action or proceeding at law, or by force or otherwise
without being liable for any damages therefor, except for
damages resulting from Lessor's negligence or willful
misconduct. Notwithstanding anything above to the contrary,
if Lessee is still in possession of the Leased Premises,
Lessor agrees to use such legal proceedings (summary or
otherwise) prescribed by law to regain possession of the
Leased Premises.
ARTICLE 19. LESSEE'S CONTINUING LIABILITY
(A) Should Lessor elect to re-enter as provided in
this Lease or should it take possession pursuant to legal
proceedings or pursuant to any notice provided for by law,
Lessor shall undertake commercially reasonable efforts to
mitigate Lessee's continuing liability hereunder as such
efforts may be prescribed by law or statute (which shall be
satisfied by the listing the Leased Premises with a licensed
commercial real estate broker and securing the property
against waste, but shall not otherwise include the
expenditure of Lessor's funds, unless the same be required
by law or statute), and in addition, Lessor may either (i)
terminate this Lease or (ii) it may from time to time,
without terminating the contractual obligation of Lessee to
pay Rent under this Lease, make such alterations and repairs
as may be necessary to relet the Leased Premises or any part
thereof for the remainder of the original Term or any
exercised Renewal Terms, at such rent or rents, and upon
such other terms and conditions as Lessor in its sole
discretion may deem advisable. Termination of Lessee's
right to possession by Court Order shall be sufficient
evidence of the termination of Lessee's possessory rights
under this Lease, and the filing of such an Order shall be
notice of the termination of Lessee's Option to Purchase as
set forth in any Memorandum of Lease of record.
(B) Upon each such reletting, without termination of
the contractual obligation of Lessee to pay Rent under this
Lease, all Rents received by Lessor shall be applied as
follows:
1. First, to the payment of any indebtedness
other than Rent due hereunder from Lessee to Lessor;
2. Second, to the payment of any costs and
expenses of such reletting, including brokerage fees and
attorney's fees and of costs of such alterations and
repairs;
3. Third, to the payment of Rent and other
monetary obligations due and unpaid hereunder;
4. Finally, the residue, if any, shall be held
by Lessor and applied in payment of future Rent as the same
may become due and payable hereunder.
If such Rents received from such reletting during any month
are less than that to be paid during that month by Lessee
hereunder, Lessee shall pay any such deficiency to Lessor.
Such deficiency shall be calculated and paid monthly. No
such re-entry or taking possession of such Leased
Premises by Lessor shall be construed as an election on its
part to terminate Lessee's contractual obligations under
this Lease respecting the payment of rent and obligations
for the costs of repair and maintenance unless a written
notice of such intention be given to Lessee.
(C) Notwithstanding any such reletting without
termination, Lessor may at any time thereafter elect to
terminate this Lease for any uncured breach.
(D) In addition to any other remedies Lessor may have
with this Article 19, Lessor may recover from Lessee all
damages it may incur by reason of any uncured breach,
including: The cost of recovering and reletting the Leased
Premises; reasonable attorney's fees; and, the present value
(discounted at a rate of 8% per annum) of the excess of the
amount of Rent and charges equivalent to Rent reserved in
this Lease for the remainder of the Term over the then
reasonable Rent value of the Leased Premises (or the actual
Rents receivable by Lessor, if relet), (the Lessee bearing
the burden of proof to demonstrate the amount of rental loss
for the same period, that through reasonable efforts as
limited herein to mitigate damages, could have been avoided)
for the
remainder of the Term, all of which amounts shall be
immediately due and payable from Lessee to Lessor in full.
Upon payment in full in good funds of such accelerated Rents
and charges equivalent to Rent reserved in this Lease, this
Lease shall terminate. In the event that the Rent
obtained from such alternative or substitute tenant is more
than the Rent which Lessee is obligated to pay under this
Lease, then such excess shall be paid to Lessor provided
that Lessor shall credit such excess against the outstanding
obligations of Lessee due pursuant hereto, if any.
(E) It is the object and purpose of this Article 19
that Lessor shall be kept whole and shall suffer no damage
by way of non-payment of Rent or by way of diminution in
Rent. Lessee waives and will waive all rights to trial by
jury in any summary proceedings or in any action
brought to recover Rent herein which may hereafter be
instituted by Lessor against Lessee in respect to the Leased
Premises. Lessee hereby waives any rights of re-entry it
may have or any rights of redemption or rights to redeem
this Lease upon a termination of this Lease.
ARTICLE 20. PERSONALTY, FIXTURES AND EQUIPMENT
(A) The removable equipment owned by Lessor and leased
to Lessee hereunder as specifically set forth on Exhibit C
attached hereto and incorporated herein by reference, and
all building fixtures, building machinery, and building
equipment used in connection with the
operation of the Leased Premises including, but not limited
to, heating, electrical wiring, lighting, ventilating,
plumbing, walk-in refrigerators/coolers, walk-in freezers,
air conditioning systems, shall be the property of Lessor
(even if all or a portion of the same shall be owned by
Lessee and claimed for tax purposes during its occupancy of
the Leased Premises) . All other trade fixtures and all
other articles of personal property owned by Lessee shall
remain the property of Lessee.
Except to the extent otherwise listed on Exhibit C, any
trade fixtures, business equipment, inventory, trademarked
items, signs, decorative soffit, counters, shelving,
showcases, mirrors, and other removable personal property
installed in or on the Leased Premises by Lessee at its
expense ("Lessee's Property") shall remain the property of
Lessee. Lessor agrees that Lessee shall have the right, at
any time, or from time to remove any and all of Lessee's
Property. Lessee shall pay before delinquency all taxes,
assessments, license fees, and public charges levied,
assessed or imposed upon its business operations in the
Leased Premises, as well as upon Lessee's Property or upon
the Leased Premises. If any items of Lessee's Property are
assessed with the property of the Lessor, then such
assessment shall be equitably divided between Lessor and
Lessee to the end that either party shall pay only its
equitable portion of such assessment. Lessor shall
determine the basis of so prorating any such assessments,
and such determination shall be binding upon both Lessee and
Lessor. No tax assessments, fees or charges referred to in
this paragraph shall be considered real estate taxes under
the provisions of Article 6 hereof.
(B) Lessee shall furnish and pay for any and all
equipment, furniture, trade fixtures, and signs, except for
such items, if any, described in Article 20(A) above, as
owned by Lessor. Lessor hereby waives any contractual,
statutory, or other Lessor's lien on Lessee's Property. or
inventory. Lessor agrees to execute such reasonable
confirmation, certificate, and other documents (except
amendments to this Lease) as Lessee's lenders may reasonably
request in connection with any Lessee financing.
(C) At the end of the term of this Lease, Lessee's
Property, after written notice to Lessor given at least ten
(10) business days prior to any proposed removal, may be
removed from the Leased Premises by Lessee regardless of
whether or not such trade fixture property is attached
to the Leased Premises so as to constitute a "fixture"
within the meaning of the law; however, such removable
property shall not include any tenant improvements to the
extent the same shall constitute walls, wall coverings,
flooring, ceiling or ceiling tiles, plumbing, lighting
fixtures, or HVAC; all damages and repairs to the Leased
Premises which may be caused by the removal of Lessee's
Property shall be paid for by Lessee.
ARTICLE 21. LIENS
Lessee shall not do or cause anything to be done
whereby the Leased Premises may be encumbered by any
mechanic's or other liens. Whenever and as often as any
mechanic's or other lien is filed against said Leased
Premises purporting to be for labor or materials furnished
or to
be furnished to Lessee, Lessee shall remove the lien of
record by payment or by bonding with a surety company
authorized to do business in the state in which the property
is located, or providing other security reasonably
acceptable to Lessor, within forty-five (45) days from the
date of the filing of said mechanic's or other lien and
delivery of notice thereof to Lessee. Should Lessee fail to
take the foregoing steps within said forty-five (45) day
period (or in any event, if sooner than 45 days, prior to
the expiration of the time within which Lessee may bond over
such lien to remove it as a lien upon the Leased Premises),
Lessor shall have the right, among other things, to pay said
lien without inquiring into the validity thereof, and Lessee
shall forthwith reimburse Lessor for the total expense
incurred by it in discharging said lien as additional Rent
hereunder.
ARTICLE 22. NO WAIVER BY LESSOR EXCEPT IN WRITING
No agreement to accept a surrender of the Leased
Premises or termination of this Lease shall be valid unless
in writing signed by Lessor. The delivery of keys to any
employee of Lessor or Lessor's agents shall not operate as a
termination of the Lease or a surrender of the premises.
The failure of Lessor to seek redress for violation of any
rule or regulation, shall not prevent a subsequent act,
which would have originally constituted a violation, from
having all the force and
effect of an original violation. Neither payment by Lessee
or receipt by Lessor of a lesser amount than the Rent herein
stipulated shall be deemed to be other than on account of
the earliest stipulated Rent. Nor shall any endorsement or
statement on any check nor any letter accompanying any check
or payment as Rent be deemed an accord and satisfaction.
Lessor may accept such check or payment without prejudice to
Lessor's right to recover the balance of such Rent or pursue
any other remedy provided in this Lease. This Lease
contains the entire agreement between the parties, and any
executory agreement hereafter made shall be ineffective to
change it, modify it or discharge it, in whole or in part,
unless such executory agreement is in writing and
signed by the party against whom enforcement of the change,
modification or discharge is sought.
ARTICLE 23. QUIET ENJOYMENT
Lessor covenants that Lessee, upon paying the Rent set
forth in Article 4 and all other sums herein reserved as
Rent and upon the due performance of all the terms,
covenants, conditions and agreements herein contained on
Lessee's part to be kept and performed, shall peacefully and
quietly have, hold and enjoy the Leased Premises free from
molestation, eviction, or disturbance by Lessor, or by any
other person or persons lawfully claiming the same (and
Lessor shall defend
Lessee's right to such quiet enjoyment), and that Lessor has
good right to make this Lease for the full term granted,
including renewal periods.
ARTICLE 24. BREACH - PAYMENT OF COSTS AND ATTORNEYS' FEES
Each party agrees to pay and discharge all reasonable
costs, and actual attorneys' fees, including but not limited
to attorney's fees incurred at the trial level and in any
appellate or bankruptcy proceeding, and expenses that shall
be incurred by the prevailing party in enforcing the
covenants, conditions and terms of this Lease or defending
against an alleged breach, including the costs of reletting.
Such costs, attorneys fees, and expenses if incurred by
Lessor shall be
considered as Rent as due and owing in addition to any Rent
defined in Article 4 hereof.
ARTICLE 25. ESTOPPEL CERTIFICATES
Either party to this Lease will, at any time, upon not
less than ten (10) business days prior request by the other
party, execute, acknowledge and deliver to the requesting
party a statement in writing, executed by an executive
officer of such party, certifying that: (a) this Lease is
unmodified (or if modified then disclosure of such
modification shall be made); (b) this Lease is in full force
and effect; (c) the date to which the Rent and other charges
have been paid; and (d)
to the knowledge of the signer of such certificate that the
other party is not in default in the performance of any
covenant, agreement or condition contained in this Lease, or
if a default does exist, specifying each such default of
which the signer may have knowledge. It is intended that
any such statement delivered pursuant to this Article may be
relied upon by any prospective purchaser or mortgagee of the
Leased Premises or any assignee of such mortgagee or a
purchaser of the leasehold estate.
ARTICLE 26. FINANCIAL STATEMENTS
During the term of this Lease, Lessee will, within
ninety (90) days after the end of Lessee's fiscal year,
furnish its financial statements of the Lessee. The
financial statements shall be audited, at the Lessee's
expense, by KPMG Peat Marwick or a nationally recognized
independent certified public accounting firm reasonably
acceptable to Lessor and shall be prepared in conformity
with generally accepted accounting principles (GAAP).
Lessee shall also provide Lessor with an operating statement
for the Leased Premises within 90 days after the end of each
Lease Year. The operating statements for the Leased
Premises 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 Lessee. Additionally, during the term
of the Lease, after receipt of written request from Lessor,
Lessee will within forty-five (45) days from the end of each
quarter of each fiscal year, furnish Lessor with Lessee's
financial statements and operating statements of the Leased
Premises for such quarter. Lessor shall have the right to
require such operating statements on a monthly basis after
the occurrence of a monetary default or a second non-
monetary default in any Lease Year. Provided, however, if
Lessee shall not commit a default for twelve consecutive
months, Lessor's right to require such monthly operating
statements shall terminate until Lessee shall again commit a
monetary default or a second non-monetary default
in a given Lease Year. Said quarterly (or monthly, if
requested by Lessor) statements 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 Lessee. The financial
statements shall conform to GAAP, and include a balance
sheet and related statements of income, changes in cash
funds, changes in capital, and related notes to financial
statements, if any.
ARTICLE 27. MORTGAGE
Lessee does hereby agree to make reasonable
modifications of this Lease requested by any Mortgagee of
record from time to time, provided such modifications in
Lessee's sole but reasonable discretion are not material and
adverse and do not increase any of the Rents or obligations
of Lessee under this Lease or materially or adversely modify
any of the business elements of this Lease.
ARTICLE 28. OPTION TO RENEW
If this Lease is not previously canceled or terminated
and Lessee is not currently in monetary default, nor in non-
monetary default beyond the expiration of the applicable
cure period, then Lessee shall have the option to renew this
Lease upon the same conditions and covenants contained in
this Lease for Two (2) consecutive periods of Five (5) years
each (singularly "Renewal Term"). Rent during each Lease
Year of a renewal terms shall increase as set forth in
Article 4 hereof.
The first Renewal Term will commence on the day
following the date the original Term expires and the second
Renewal Term would commence on the day following the last
day of the expiring first Renewal Term. Except as otherwise
provided in Article 15 hereof, Lessee must give ninety (90)
days written notice to Lessor of its intent to exercise this
option prior to the expiration of the original Term of this
Lease or any Renewal Term, as the case may be.
ARTICLE 29. MISCELLANEOUS PROVISIONS
(A) Notices and demands required, or permitted, to be
sent to those listed hereunder shall be sent by certified
mail, return receipt requested, postage prepaid, by
facsimile (with courtesy hard copy to follow by any other
means listed herein), or by Federal Express or other
reputable overnight courier service and shall be deemed to
have been given upon the date the same is postmarked (if
sent by certified mail), the day transmitted (if by fax), or
the day deposited with Federal Express or such other
reputable overnight courier service, but shall not be deemed
received until the earlier of actual receipt, the day of
transmittal by fax evidenced by confirmation of successful
transmittal by the transmitting fax machine), or three (3)
days following deposit in
the United States Mail if sent by certified mail to the
address or fax number (as applicable) and party shown on the
first page hereof or at such other address requested in
writing by either party upon thirty (30) days notice to the
other party. Notice and cure periods throughout this Lease
commence the date notice is deemed to have been received.
(B) The terms, conditions and covenants contained in
this Lease and any riders and
plans attached hereto shall bind and inure to the benefit of
Lessor and Lessee and their respective
successors, heirs, legal representatives, and assigns.
(C) This Lease shall be governed by and construed
under the laws of the State where the Leased Premises are
situate.
(D) In the event that any provision of this Lease
shall be held invalid or unenforceable, no other provisions
of this Lease shall be affected by such holding, and all of
the remaining provisions of this Lease shall continue in
full force and effect pursuant to the terms hereof.
(E) The Article captions are inserted only for
convenience and reference, and are not intended, in any way,
to define, limit, describe the scope, intent, and language
of this Lease or its provisions.
(F) In the event Lessee remains in possession of the
premises herein leased after the expiration of this Lease
and without the execution of a new lease and without
Lessor's written permission, Lessee shall be deemed to be
occupying said premises as a tenant from month-to-month,
subject to all the conditions, provisions, and obligations
of this Lease insofar as the same can be applicable to a
month-to-month tenancy except that the monthly installment
of Base Rent shall be One Hundred Fifty percent (150%) the
amount due on the last month prior to
such expiration.
(G) Lessor shall have the right to charge Lessee a
late charge for Rent unpaid (whether lump sum, monthly
installment, or any other monetary amounts required by this
Lease to be paid by Lessee and deemed to constitute Rent
hereunder) as follows. Late charges, in the amount of the
greater of $100.00 or Five Percent (5%) of such unpaid
amounts of Rent, for failure to pay Rent when due shall
accrue on the first failure to pay Rent when due in any
Lease Year from the first date beyond the expiration of any
applicable cure period if not cured prior thereto, and for
any failure thereafter to pay Rent within three (3) business
days after it was due and payable.
(H) Any part of the Leased Premises may be conveyed by
Lessor for private or public non-exclusive easement purposes
at any time, provided such easement does not in Lessee's
reasonable opinion materially and adversely interfere with
the access to the Leased Premises, visibility, or operations
of the business of Lessee. In such event Lessor shall, at
its own cost and expense, restore the remaining portion of
the Leased Premises to the extent necessary to restore the
Leased Premises to substantially the same condition prior to
the conveyance, all to be done
without adjustments in Rent to be paid by Lessee. All
proceeds from any conveyance of such an easement after
payment of any costs incurred by Lessor in connection with
such easement shall be equitably divided between Lessor and
Lessee, but in no event shall Lessee's portion exceed
one-half of the net proceeds after reimbursement of Lessor's
costs associated therewith.
(I) For the purpose of this Lease, the term "Rent"
shall be defined as Rent under Article 4, and any other
monetary amounts required by this Lease to be paid by
Lessee.
(J) Lessee agrees to cooperate with Lessor to allow
Lessor to obtain and use at Lessor's expense promotional
photographs of the Leased Premises, to the extent permitted
by Lessee's franchisor or licensor, and subject to Lessee's
reasonable internal policies regarding protection of trade
secrets and conceptual design.
(K) Wherever in this Lease Lessor or Lessee is
required to give its consent or approval, unless stated
otherwise specifically to the contrary, such consent or
approval shall not be unreasonably withheld, conditioned, or
delayed.
(L) Neither Lessor nor Lessee shall be responsible to
the other party for any delay, damage, or failure caused by
or occasioned by a Force Majeure Event; provided, however,
that a Force Majeure Event shall in no event excuse the
Lessee from the payment of Rent or any other
payment of money by Lessee required under this Lease. As
used in this Lease, "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 in the Leased Premises, beyond the
control of either party. Force Majeure Event shall not
include a delay,
damage, or failure the cure of which may be effected by the
expenditure of funds at then current market prices. Delays
(in no event to exceed 210 days) due to a Force Majeure
Event shall not be deemed to be a breach or failure to
perform under this Lease. Neither Lessor nor Lessee shall
be required against its will to adjust any labor or similar
disputes except in accordance with applicable law.
(M) The term "Lessor", as used in the Lease, so far as
covenants or obligations, if any, on the part of Lessor are
concerned, shall be limited to mean and include only the
owner or owners at the time in question of the fee of the
Premises, and in the event of any transfer or
transfers of the title to such fee, or any undivided portion
thereof, (a) Lessor herein named (and in the case of any
subsequent transfer or conveyance, the then grantor) shall
be automatically freed, released, and relieved, from and
after the date of such transfer or conveyance, of all
liability as respects the performance of any covenants or
obligations on the part of Lessor contained in this Lease
thereafter to be performed to the extent assumed by the new
owner; and (b) Lessee shall attorn to the new owner,
provided the new owner shall attorn to Lessee.
Notwithstanding any other provisions hereof, in the event of
any breach or default by Lessor in any term or provision of
this Lease, Lessee agrees to look solely to the equity or
interest then
owned by the then Lessor in the Leased Premises, but in no
event shall any money judgement, deficiency, or otherwise,
be sought, obtained, or enforced against Lessor personally.
(N) This Lease having been negotiated fairly and fully
by both parties, no presumption shall be created or intended
against the drafter hereof.
ARTICLE 30. REMEDIES
NON-EXCLUSIVITY. Notwithstanding anything contained
herein it is the intent of the parties that the rights and
remedies contained herein shall not be exclusive but rather
shall be cumulative along with all of the rights and
remedies of the parties which they may have at law or
equity, unless specifically limited herein.
ARTICLE 31. HAZARDOUS MATERIALS INDEMNITY
Lessee covenants, represents and warrants to Lessor,
its successors and assigns, (i) that it has not used or
knowingly permitted and will not use or permit the Leased
Premises to be used, whether directly or through
contractors, agents or tenants, and to Lessee's actual
knowledge after commercially reasonable due inquiry and
except as disclosed to Lessor in writing, the Leased
Premises has not at any time been used (except in connection
and only incidental to permitted uses hereunder and then
only in compliance with applicable law, regulation, or
ordinance) for the generating, transporting, treating,
storage, manufacture, emission of, or disposal of any
dangerous, toxic or hazardous pollutants, chemicals, wastes
or substances as defined in the Federal Comprehensive
Environmental Response Compensation and Liability Act of
1980 ("CERCLA"), the Federal Resource Conservation and
Recovery Act of 1976 ("RCRA"), or any other federal, state
or local environmental laws, statutes, regulations,
requirements and ordinances ("Hazardous
Materials"); (ii) that to Lessee's actual knowledge, after
commercially reasonable due inquiry, there have been no
investigations or reports involving Lessee, or the Leased
Premises by any governmental authority which in any way
pertain to Hazardous Materials (iii) that the operation
of the Leased Premises to the best of Lessee's knowledge,
has not violated and is not currently violating any federal,
state or local law, regulation, ordinance or requirement
governing Hazardous Materials; (iv) that to Lessee's actual
knowledge after commercially reasonable due
inquiry, the Leased Premises is not listed in the United
States Environmental Protection Agency's National Priorities
List of Hazardous Waste Sites nor any other list, schedule,
log, inventory or record of Hazardous Materials or hazardous
waste sites, whether maintained by the United States
Government or any state or local agency; and (v) that the
Leased Premises will not contain any formaldehyde, urea or
asbestos, except as may have been disclosed in writing to
Lessor by Lessee at the time of execution and delivery of
this Lease. Except due to any matter arising out of the
acts or negligence of Lessor, its agents, employees,
lenders, contractors, or invitees, Lessee agrees to
indemnify and reimburse Lessor, its successors and assigns,
for:
(a) any breach of these representations and
warranties, and
(b) any loss, damage, expense or cost arising out of
or incurred by Lessor which is the result of a breach of,
misstatement of or misrepresentation of the above covenants,
representations and warranties, and
(c) any and all liability of any kind whatsoever which
Lessor may, for any cause and at any time, sustain or incur
by reason of Hazardous Materials discovered on the Leased
Premises during the term hereof, or placed or released on
the Leased Premises by Lessee;
together with all attorneys' fees, costs and disbursements
incurred in connection with the defense of any action
against Lessor arising out of the above. These covenants,
representations and warranties shall be deemed continuing
covenants, representations and warranties for the benefit of
Lessor, and any successors and assigns of Lessor. The
amount of all such indemnified loss, damage, expense or
cost, shall bear interest thereon at the lesser of 15% or
the highest rate of interest allowed by law and shall become
immediately due and payable in full on demand of Lessor, its
successors and assigns.
Lessee's liability and obligations under this Section
shall survive the expiration or any termination of this
Lease for a period of two years from the expiration or
termination of the Lease. 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.
ARTICLE 32. ESCROWS
Upon a default by Lessee which is uncured after the
expiration of any applicable notice and cure period, or upon
the request of Lessor's Mortgagee, if any, Lessee shall
deposit with Lessor on the first day of each and every
month, an amount equal to one-twelfth (1/12th) of the
estimated annual real estate taxes, assessments and
insurance (if the insurance is to be purchased by Lessor)
("Charges") due on the Leased Premises, or such higher
amounts reasonably determined by Lessor as necessary to
accumulate such amounts to enable Lessor to pay all charges
due and owing at least thirty (30) days prior to the date
such amounts are due and payable. From time to time out of
such deposits Lessor will, upon the presentation to Lessor
by Lessee of the bills therefor, pay the Charges or at
Lessee's option, will upon presentation of receipted bills
therefor, reimburse Lessee for such payments made by Lessee.
In the event the deposits on hand shall not be sufficient to
pay all of the estimated Charges when the same shall become
due from time to time or the prior payments shall be less
than the currently estimated monthly amounts, then Lessee
shall pay to Lessor on demand any amount necessary to make
up the deficiency. The excess of any such deposits shall be
credited to subsequent payments to be made for such items.
If a default or an event of default after the expiration of
any applicable cure period, shall occur under the terms of
this Lease, Lessor may, at its option, without being
required so to do, apply any Deposit on hand to cure the
default, in such order and manner as Lessor may elect.
ARTICLE 33. NET LEASE
Notwithstanding anything contained herein to the
contrary it is the intent of the parties hereto that this
Lease shall be a net lease and that the Rent defined
pursuant to Article 4 should be a net Rent paid to Lessor.
Any and all other expenses relating to the Leased Premises
including but not limited to, maintenance, repair,
insurance, taxes, and assessments, shall be paid by Lessee,
except those expenses for repair and maintenance caused by
Lessor and not covered by applicable insurance.
ARTICLE 34. OPTION TO PURCHASE
Lessor, for itself, its successors and assigns, hereby
gives and grants to Lessee the exclusive and irrevocable
option (the "Option") to purchase the Leased Premises,
subject to the following terms and conditions:
(A) Duration of Option. The Option and all rights and
privileges of Lessee hereunder shall be in force for the
period commencing after the end of the first full Lease Year
and continuing until the expiration of the Term or any on-
going Renewal Term.
(B) Manner of Exercising Option. A written notice in
substantially the following form, addressed to Lessor and
signed by Lessee and given, in accordance with the
provisions of Article 29(A) hereof, within the period for
exercising the Option, submitted with a bank cashier's check
or money order payable to the order of Lessor in the amount
of $15,000.00 (the "Deposit") shall be an effective exercise
of the Option, to wit:
(date)
"We hereby exercise the Option to purchase the property on
East Boulevard, Charlotte, North Carolina, pursuant to the
option to purchase contained in that certain Net Lease
Agreement between us pertaining to said premises."
(C) Terms of Sale if Option Exercised. Upon Lessee's
exercise of the Option in accordance with the provisions of
subparagraph (B) hereof, Lessor shall be obligated to sell
and convey by recordable Limited Warranty Deed, good and
marketable title to the Leased Premises subject only to the
matters affecting title of record at the time Lessor
acquired title to the Leased Premises and those matters
which Lessee (or anyone claiming by, through, or under
Lessee) has suffered, created, or negligently or knowingly
permitted to accrue during the term hereof, and
Lessee shall be obligated to purchase the Premises upon the
following terms and conditions:
(i) Price. The price "Purchase Price" at which Lessor
shall sell and Lessee shall purchase the Leased Premises, if
purchased during Lease Year Two or Three, shall be the then
current annual Base Rent capitalized at the rate of Eight
Percent (8%), e.g. (current annual Base Rent divided by
0.08), and if purchased during any Lease Year after Lease
Year Three, the Purchase Price shall be the greater of: (a)
the then current annual Base Rent capitalized at the rate of
Nine Percent (9%), e.g. (current annual Base Rent divided by
0.09), or (b) the price paid by Lessor for its respective
interest in the Leased Premises compounded at Five Percent
(5%) per Lease Year of ownership, prorated for partial Lease
Years through the date of Closing.
(ii) Closing. Closing shall be forty-five (45) days
after the Option is exercised, unless the parties mutually
agree otherwise. The Purchase Price less credit for the
Deposit shall be tendered in cash or other certified funds
by Lessee at Closing.
(iii) Evidence of Title. Not less than ten (10)
days prior to closing, Lessor shall obtain a commitment for
a ALTA Form B owner's policy of title insurance dated within
ten (10) days of the closing date, issued by a nationally
recognized title insurance company that issued Lessor's
original owner's title policy, or if said title company
shall be unavailable, such other nationally recognized title
company approved by Lessee (the "Title Company") in the
amount of the Purchase Price determined pursuant to
subparagraph (C)(i) above, naming Lessee as the proposed
insured, and covering the fee simple title to the Leased
Premises, and showing Lessor vested with good title to the
Leased Premises subject only to the matters affecting title
which were of record at the time Lessor acquired title to
the Leased Premises and those matters which Lessee (or
anyone claiming by, through, or under Lessee) has suffered,
created, or negligently or knowingly permitted to accrue
during the term hereof, and shall contain such endorsements
as were issued to Lessor upon its acquisition of the Leased
Premises. Such title commitment shall be conclusive
evidence of good title. If Lessee shall make objection to
the marketability of title (as to other matters other than
set forth above), Lessor shall have a reasonable time (not
to exceed 120 days) within which to make title marketable,
or to obtain title insurance over Lessee's objections as to
marketability.
(iv) Ancillary documents. Not less than 30 days after
notice of Lessee's exercise of its Option to Purchase
hereunder, Lessor at its cost and expense shall obtain and
deliver to Lessee an updated (dated no more than 30 days
prior to the Closing Date) ALTA survey of the Leased
Premises attached hereto certified to Lessee and any one
other party designated by Lessee. Lessor shall deliver at
closing a FIRPTA Affidavit, standard form Seller's Affidavit
reflecting facts known to Lessor, and such other documents
reasonably required by the title company or Lessee to effect
the transaction contemplated herein.
(iv) Prorations. Lessor shall pay the cost of the
aforesaid title policy and any and all state, county, and
municipal taxes imposed by law on the transfer of the title
to the Leased Premises, or the transaction pursuant to which
such transfer occurs. Water, sewer and other utility
charges, if any, which are not metered, driveway permit
charges, if any, general real estate taxes, and other
similar items, shall be adjusted ratably as of the Closing,
except to the extent otherwise settled between the parties
pursuant to other provisions of this Lease. No portion of
the Base Rent paid by Lessee shall be credited toward the
Purchase Price but Lessee shall be given a credit for rent
prepaid for any period after the Closing.
(v) Escrow Closing. At the election of Lessor or
Lessee upon notice to the other party not less than five (5)
days prior to the Closing, this sale shall be closed through
an escrow with the Title Company, in accordance with the
general provisions of the usual form of Escrow Agreement
then is use by said company, with such special provisions
inserted in the escrow agreement as may be required to
conform with this agreement. Upon the creation of such an
escrow, anything herein to the contrary notwithstanding,
paying of the purchase price and delivery of the Deed shall
be made through the escrow. The cost of the escrow shall be
divided equally between the Lessor and Lessee. If for any
reason other than Lessee's default, the transaction fails to
close, the Deposit shall be returned to Lessee forthwith.
(vi) Remedies on Default. If Lessee defaults under the
provisions of this subparagraph 34(C), provided Lessor is
not then in default under this Section, and provided that
Lessor has first notified Lessee of such default and Lessee
has failed to cure the same within ten (10) days after such
notice, the first such time Lessee shall so default,
Lessor's sole and exclusive remedy shall be the retention of
Lessee's Earnest Money of $15,000. If Lessee shall
exercise this Option a second time, and again defaults under
the provisions of this subparagraph 34(C), provided Lessor
is not then in default under this Section, the second time
Lessee shall so default, Lessor shall have the right to
annul the provisions of this paragraph 34 by giving Lessee
notice of such election, provided that Lessor has first
notified Lessee of such default and Lessee has failed to
cure the same within ten (10) days after such notice. Upon
Lessor's notice of annulment in accordance herewith, the
Deposit shall be forfeited and paid to Lessor as liquidated
damages, which shall be Lessor's sole and exclusive remedy.
If Lessor defaults under the provisions of this subparagraph
34(C) and fails to cure such default within ten (10) days
after being notified of the same by Lessee, then in such
event, (i) the Deposit at Lessee's election and immediately
upon its demand shall be returned to Lessee, which return
shall not, however, in any way release or absolve Lessor
from its obligations hereunder and (ii) Lessee shall be
entitled to all remedies (both legal and equitable) the law
(both statutory and decisional) of the state in which the
Leased Premises are situated provides without first having
to tender the balance of the purchase price as a condition
precedent thereof and without having to make any election of
such remedies.
(D) Effect of Option on Lease. If the Option is
exercised, this Lease shall continue in full force and
effect until the Closing hereinabove specified. If for any
reason such Closing fails to occur, this Lease shall
continue in full force and effect, except that if the
provisions of this paragraph 34 are annulled by Lessor, in
accordance with subparagraph 34(C)(vi), by reason of a
default by Lessee, this Lease shall continue but without the
provisions of this paragraph 34 being a part hereof.
ARTICLE 35. MANDATORY OBLIGATION TO PURCHASE
If Lessee shall discontinue business operations on the
Leased Premises anytime during the first five Lease Years,
subject to reasonable periods of closure for repair or
remodeling or force majeure, or shall fail to meet the Store
Level Net Income Test (defined below), Lessor has the option
of selling the Leased Premises to Lessee and, if Lessor
elects to exercise this option, Lessee shall purchase the
Leased Premises from Lessor subject to the following terms
and conditions:
(A) The purchase price at which Lessor shall sell the
Leased Premises to Lessee (or other third party if Lessee
shall cause a third party to effect the purchase) should it
elect to do so, shall be the price paid by Lessor.
(B) At such time as Lessor shall elect to sell the
Leased Premises, Lessor shall give Lessee written notice of
its intent to exercise its option to sell the Leased
Premises to Lessee. Provided Lessor complies with the terms
of this Article 35, Lessee shall on or before One Hundred
Eighty (180) days after the date of Lessor's notice of the
exercise of its option to sell (the "Closing Date") deliver
the purchase price in cash as set forth in subparagraph (A)
of this Article to Lessor. Upon the Closing Date, Lessor
shall deliver to Lessee a warranty deed and appropriate
FIRPTA and Seller's Affidavits evidencing that Lessor
transfers the Leased Premises to Lessee subject to
covenants, conditions, agreements, restrictions, easements
or other encumbrances upon title existing as of the date of
delivery, if any, as of the date Lessor took title to the
Leased Premises, and those matters suffered, created,
caused, or negligently or knowingly permitted to accrue by
Lessee (or anyone claiming by, through, or under Lessee).
Rent shall be prorated as of the Closing Date, and except
for pre-paid Rent, no portion of the Rent paid or payable by
Lessee shall be credited against the purchase price. The
purchase price shall be paid by Lessee in cash to Lessor
concurrently with the conveyance of the Leased Premises by
the Lessor to the Lessee. If the option is exercised, the
Leased Premises shall be conveyed by the Lessor to the
Lessee "As Is", except for matters caused by Lessor's (or
anyone claiming by, through, or under Lessor) negligence or
intentional misconduct.
(C) Lessee shall be deemed to have failed the Store
Level Net Income Test and trigger the Lessor's right to
exercise this Mandatory Obligation to Purchase if Lessee's
Store Level Net Income, after depreciation, amortization,
and occupancy expenses allocable to Lessee's interest in the
Leased Premises and Lessee Property, shall fall below three
percent (3%) of the gross annual sales by Lessee from the
Leased Premises for any of the first five Lease Years.
Lessee shall provide evidence of Store Level Net Income by
furnishing Lessor with internally prepared store level
operating statements, pursuant to Article 26 hereof,
certified as true and correct by an authorized officer of
Lessee, to evidence the Leased Premises Store Level Net
Income. Lessor shall have ten (10) business days after the
provision of store level operating statements for the fifth
Lease Year within which to exercise this Mandatory
Obligation to Purchase, if Lessee shall have failed the
Store Level Net Income Test.
(D) Evidence of Title. Not less than ten (10) days
prior to closing, Lessor shall obtain a commitment for a
ALTA Form B owner's policy of title insurance dated within
ten (10) days of the closing date, issued by a nationally
recognized title insurance company that issued Lessor's
original owner's title policy, or if said title company
shall be unavailable, such other nationally recognized title
company approved by Lessee (the "Title Company") in the
amount of the Purchase Price determined pursuant to
subparagraph (C)(i) above, naming Lessee as the proposed
insured, and covering the fee simple title to the Leased
Premises, and showing Lessor vested with good title to the
Leased Premises subject only to the matters affecting title
which were of record at the time Lessor acquired title to
the Leased Premises and those matters which Lessee (or
anyone claiming by, through, or under Lessee) has suffered,
created, or negligently or knowingly permitted to accrue
during the term hereof, and shall contain such endorsements
as were issued to Lessor upon its acquisition of the Leased
Premises. Such title commitment shall be conclusive
evidence of good title. If Lessee shall make objection to
the marketability of title (as to other matters other than
set forth above), Lessor shall have a reasonable time (not
to exceed 120 days) within which to make title marketable,
or to obtain title insurance over Lessee's objections as to
marketability.
(E) Ancillary documents. Not less than 30 days prior
to closing date, Lessor at its cost and expense shall obtain
and deliver to Lessee an updated (dated within 45 days of
the closing date) ALTA survey of the Leased Premises
certified to Lessee and any one other party designated by
Lessee. Lessor shall deliver at closing a FIRPTA Affidavit,
standard form Seller's Affidavit reflecting facts known to
Lessor, and such other documents reasonably required by the
title company or Lessee to effect the transaction
contemplated herein.
(F) Prorations. Lessor shall pay the cost of the
aforesaid title policy and any and all state, county, and
municipal taxes imposed by law on the transfer of the title
to the Leased Premises, or the transaction pursuant to which
such transfer occurs, and any escrow fees. Water, sewer and
other utility charges, if any, which are not metered,
driveway permit charges, if any, general real estate taxes,
and other similar items, shall be adjusted ratably as of the
Closing, except to the extent otherwise settled between the
parties pursuant to other provisions of this Lease. No
portion of the Base Rent paid by Lessee shall be credited
toward the Purchase Price but Lessee shall be given a credit
for rent prepaid for any period after the Closing.
ARTICLE 36. LETTER OF CREDIT
(A) Lessee shall deliver to Lessor and maintain an
irrevocable Letter of Credit in the form attached hereto as
Exhibit D running in favor of Lessor issued by a bank
reasonably approved by Lessor, in an amount equal to One and
One-Half times the then current Annual Base Rent. The
Letter of Credit shall be irrevocable for the term thereof
and shall provide that it is automatically renewable for a
period ending not earlier than sixty (60) days after the
expiration of the term thereby demised without any action
whatsoever on the part of the Lessor; provided that the
issuing bank shall have the right not to renew said Letter
of Credit on written notice to Lessor not less than sixty
(60) days prior to the expiration of the then current term
thereof (it being understood, however, that the privilege of
the issuing bank not to renew said Letter of Credit shall
not, in any event, diminish the obligation of Lessee to
maintain such irrevocable Letter of Credit with Lessor
through the date which is sixty (60) days after the
expiration of the term hereby demised.) If the issuing bank
shall give notice of its intent not to renew the Letter of
Credit, Lessee shall replace said Letter of Credit at least
30 days prior to the stated expiration of the existing
Letter of Credit. Lessee's failure to so replace the Letter
of Credit shall be an immediate event of default without
notice and opportunity to cure, occasioning the right of
Lessor or any or its successor's and assigns to draw down on
the Letter of Credit in its entirety, notwithstanding
anything in this Lease to the contrary.
(B) The form and terms of the Letter of Credit (and the
bank issuing the same) shall be substantially in the form
attached as Exhibit D hereto and be acceptable to Lessor and
shall operate vis-a-vis Lessee and Lessor, among other
things, in effect that:
(1) Lessor, or its then managing agent, shall have the
right to draw down an amount (consistent with the terms set
forth below respecting Lessor's successor's and assigns) up
to the face amount of the Letter of Credit upon the
presentation to the issuing bank of Lessor's (or Lessor's
then managing agent's) statement that such amount is due to
Lessor under the terms and conditions of this lease, it
being understood that if Lessor or its managing agent be a
corporation, partnership or other entity, then such
statement shall be signed by an officer (if a corporation),
a general partner (if a partnership), or any authorized
party (if another entity);
(2) The Letter of Credit will be honored by the issuing
bank without inquiry as to the accuracy thereof and
regardless of whether the Lessee disputes the content of
such statement;
(3) In the event of a transfer of Lessor's interest in
the Leased Premises, Lessor shall have the right to transfer
the Letter of Credit to the transferee and thereupon to the
extent assumed by transferor, the Lessor shall, without any
further agreement between the parties, be released by Lessee
from all liability therefor, and it is agreed that the
provisions hereof shall apply to every transfer or
assignment of said Letter of Credit to a new Lessor. Upon a
transfer of all or part of the Lessor's interest in the
Leased Premises, within ten (10) days of Lessor's written
request acoompanied by a copy of the written assumption,
Lessee shall cause the Letter of Credit to be appropriately
amended to reflect such transferee of Lessor's interest;
(C) Lessor may draw down upon the Letter of Credit in
whole or in part (as set forth below respecting partial
draws by Lessor's successors and assigns) upon the
occurrence of an event of default that Lessor believes in
good faith remains uncured after the expiration of any
applicable cure period. Should Lessor, due to a default
under this Lease, including but not limited to this Article,
draw down the entire Letter of Credit, Lessor shall hold the
funds without interest and apply the same to cure any
defaults of Lessee under this Lease. If after any
application of said funds Lessor shall hold any such funds
in an amount less than the face amount of the Letter of
Credit, Lessee shall be obligated to immediately either
increase the amount of funds so held by Lessor, replace the
Letter of Credit and obtain a release of the funds held by
Lessor, or be in default under this Lease. Lessor may co-
mingle any funds held by it with any other funds of Lessor.
Any cash funds held by Lessor in lieu of the Letter of
Credit shall be released to Lessee upon presentation of a
substitute Letter of Credit in the appropriate amount, upon
satisfaction of the terms of release of the Letter of Credit
otherwise set forth herein below, or, if no uncured default
exists, at the termination of this Lease. If Lessor shall
fail or refuse after written notice and five (5) business
days opportunity to cure, to release the Letter of Credit or
any funds held by Lessor and not properly applied by Lessor
to cure any defaults of Lessee, such funds shall bear
interest at the rate of 15% per annum until released to
Lessee and Lessor shall incur a late charge of 5% of the
amount improperly held. In addition, if Lessor shall fail
or refuse to return such funds in violation hereof, Lessee
shall be entitled to a right of offset against future Rent
due and owing, as well as any other remedy available at law
or equity.
(D) Lessee further covenants that it will not assign or
encumber said Letter of Credit or any part thereof and that
neither Lessor or its successor or assigns will be bound by
any such assignment, encumbrance, attempted assignment, or
attempted encumbrance.
(E) Without limiting the generality of the foregoing,
if the Letter of Credit expires earlier than thirty (30)
days after the expiration of the term of this Lease, or the
issuing Bank notifies Lessor that it shall not renew the
Letter of Credit, Lessor will accept a renewal or substitute
Letter of Credit (such renewal or substitute Letter of
Credit to be in effect no later than thirty (30) days prior
to the expiration of the expiring Letter of Credit),
irrevocable and automatically renewable and on the same
terms as set forth above. However, if (i) the Letter of
Credit is not timely renewed or a substitute Letter of
Credit is not timely received, or (ii) Lessee fails to
maintain the Letter of Credit in the amount and on the terms
set forth herein, Lessee, at least thirty days prior to the
expiration of the current Letter of Credit, or immediately
(except where provided herein to the contrary) upon its
failure to comply with each and every term of this Article,
must deposit with Lessor cash security in the amount of the
required Letter of Credit, to be held by Lessor in
accordance herewith.
(F) The Letter of Credit shall be released by Lessor
and Lessee's requirement to maintain such Letter of Credit
shall cease upon the following conditions:
After the end of the eighteenth (18th) full month from
the beginning of the first full Lease Year, the Letter of
Credit hereunder shall be released by Lessor based upon the
following conditions being satisfied concurrently:
Lessee evidencing an annual net income and equity
position corresponding to its most recent fiscal year period
then ended, greater than $1,500,000 and $25,000,000,
respectively. For purposes of the foregoing, net income
would be defined as the net income figure reported on
Lessee's annual audited financial statements, after all
applicable taxes and before all positive extraordinary
accounting items ("Net Income"). For purposes of the
foregoing, equity would be defined as the difference between
the Lessee's total assets and total liabilities as reported
on Lessee's annual audited financial statements ("Equity").
Evidence of Lessee's Net Income and Equity shall be
deemed satisfactory only if and when provided via audited
financial statements for the most recent fiscal year period
prepared by KPMG Peat Marwick or a nationally recognized
accounting firm reasonably acceptable to Lessor. Under no
condition will Lessor release the Letter of Credit if the
Leased Premises did not generate a store level net income,
after depreciation, amortization and all occupancy expenses
for such Leased Premises, of at least five percent (5.0%) of
the gross annual sales by Lessee from the Leased Premises
for the same most recent fiscal year period and/or such
Leased Premises had not been in operation for the entire
twelve calendar month period reflected in the audited
financial statements. Lessee shall furnish Lessor with
internally prepared store level financial statements,
certified as true and correct by an authorized officer of
Lessee, to evidence the Leased Premises store level net
income and length of operating history. Additionally, if
Lessee shall request the release of the Letter of Credit
more than two (2) calendar months after the end of the
fiscal year results reviewed above, Lessee shall furnish
Lessor with internally prepared financial statements for
both the Lessee and the Leased Premises, certified as true
and correct by an authorized officer of Lessee, evidencing
no material adverse change in both the Lessee's financial
condition and the Leased Premises's annualized gross sales
by Lessee and store level net income from the end of such
fiscal year.
Lessor shall have ten (10) business days to either
object to the request for release of the Letter of Credit,
citing specific failure(s) to meet the above contingencies
to release, or if Lessor shall make no objection in writing
to Lessee within said ten day period, the Letter of Credit
shall be released. Upon such release, this Lease shall be
deemed amended so as to delete this Article in its entirety.
Provided Lessee is not in default hereunder, Lessor
shall release the Letter of Credit at the expiration of the
term hereof and return the original Letter of Credit within
ten (10) days from the end of the term hereof.
(G) Notwithstanding the foregoing, if the Lessor
herein named on the first page of the Lease transfers or
conveys its entire interest (or conveys any partial interest
where original Lessor is no longer the managing agent for
the New Lessor entity) in the Leased Premises to a new
Lessor (hereinafter "New Lessor"), such New Lessor (or any
successor Lessor as to all or any part of New Lessor's
interest in the Leased Premises) shall only be entitled to
draw an amount under the Letter of Credit that New Lessor
reasonably believes necessary for purposes of curing a
Lessee default that extends beyond all applicable notice and
cure periods.
IN WITNESS WHEREOF, Lessor and Lessee have respectively
signed and sealed this Lease as of the day and year first
above written.
LESSEE: Caribou Coffee Company, Inc.
Witness: /s/ Kelly Christianson By: /s/ John Puckett
Kelly Christianson Its: CEO
Print Name
/s/ Michael Fedderon
Michael Fedderon
Print Name
STATE OF )
)SS.
COUNTY OF )
The foregoing instrument was acknowledged before me
this 31st day of July, 1997, by John Puckett, as CEO of
Caribou Coffee Company, Inc. on behalf of said corporation.
/s/ Judith A Thufteda; [notary seal]
Notary Public
LESSOR: AEI INCOME & GROWTH FUND XXI LIMITED
PARTNERSHIP, a Minnesota
limited partnership
By: AEI FUND MANAGEMENT XXI,INC., a
Minnesota corporation
Witness
/s/ Barbara J Kochevar By:/s/ Robert P Johnson
Barbara J Kochevar Robert P. Johnson,President
Print Name
STATE OF MINNESOTA )
)SS.
COUNTY OF RAMSEY )
The foregoing instrument was acknowledged before me the
31st day of July, 1997, by Robert P. Johnson, the President
of AEI Fund Management XXI, Inc., a Minnesota corporation,
corporate general partner of AEI Income & Growth Fund XXI
Limited Partnership, on behalf of said limited partnership.
/s/ Michael B Daugherty
Notary Public
LESSOR: AEI INSTITUTIONAL NET LEASE FUND '93
LIMITED PARTNERSHIP, a
Minnesota limited partnership
By: AEI FUND MANAGEMENT XVIII, INC., a
Minnesota corporation
Witness
/s/ Barbara J Kochevar By:/s/ Robert P Johnson
Barbara J Kochevar Robert P. Johnson,President
Print Name
STATE OF MINNESOTA )
)SS.
COUNTY OF RAMSEY )
The foregoing instrument was acknowledged before me the
31st day of July, 1997, by Robert P. Johnson, the President
of AEI Fund Management XVIII, Inc., a Minnesota corporation,
corporate general partner of AEI Institutional Net Lease
Fund'93 Limited Partnership, on behalf of said limited
partnership.
/s/ Michael B Daugherty
Notary Public
Exhibit A
Legal Description
Being all of Lots 1,2,and 3, Garden Terrace Subdivision, as
shown on plat recorded in Book of Maps 332, Page 339,
Mecklenburg County Registry, North Carolina.
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000931755
<NAME> AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> JUN-30-1997
<CASH> 7,852,111
<SECURITIES> 0
<RECEIVABLES> 95,464
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 7,947,575
<PP&E> 12,257,648
<DEPRECIATION> (278,482)
<TOTAL-ASSETS> 19,926,741
<CURRENT-LIABILITIES> 547,557
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> 19,379,184
<TOTAL-LIABILITY-AND-EQUITY> 19,926,741
<SALES> 0
<TOTAL-REVENUES> 715,401
<CGS> 0
<TOTAL-COSTS> 282,766
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 432,635
<INCOME-TAX> 0
<INCOME-CONTINUING> 432,635
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 432,635
<EPS-PRIMARY> 17.90
<EPS-DILUTED> 17.90
</TABLE>
