EXHIBIT 10.1
EQUIPMENT LEASE COMMITMENT
THIS EQUIPMENT LEASE COMMITMENT
(“Agreement”) is made and entered into this 6th day of
December, 2007, by and between DHW Leasing, L.L.C., a South Dakota
limited liability company, 230 S. Phillips Avenue, Suite 202, Sioux
Falls, SD 57104 (“DHW”) and Granite City Food &
Brewery, Ltd., a Minnesota corporation, 5402 Parkdale, Suite 101,
St. Louis Park, MN 55416 (“GCFB”).
In
consideration of the mutual promises herein contained, and for
other valuable consideration, the parties agree as
follows:
1.
Equipment Finance
Lease . On the
terms and conditions set forth in this Agreement, DHW agrees to
provide GCFB equipment leases of equipment costing up to Sixteen
Million Dollars ($16,000,000). Subject to the total cost limitation
of up to Sixteen Million Dollars ($16,000,000), the term stated in
Section 4 and the per restaurant minimum and maximum cost
limitations set forth below, DHW shall acquire and lease to GCFB
all furniture, fixtures and equipment, as specified by GCFB (the
“Equipment”) including without limitation computer
office equipment, point of sale, hardware, software, smallwares and
brewery equipment reasonably necessary for the operation of up to
sixteen (16) new, previously constructed, or under construction,
GCFB restaurants. DHW and GCFB will enter into a master lease in
the form attached hereto as Exhibit A (“Master Lease”),
which sets forth the general terms and conditions upon which each
restaurant equipment lease will be governed. Any capitalized terms
not otherwise defined in this Agreement shall have the meaning set
forth in the Master Lease. A separate Schedule A will be completed
and executed by the parties with respect to each restaurant for
which Equipment will be purchased under this Agreement. Each
Schedule A (each referred to as a “Lease”) will be for
Equipment which costs a minimum of $800,000 per restaurant and a
maximum of $1,250,000 per restaurant. Such amount shall include the
sales and/or use tax on such Equipment. Notwithstanding, DHW shall
have the right to reject any request for financing for any
restaurant that is not being developed and constructed by Dunham
Capital Management, L.L.C.
2.
Steve Wagenheim
Participation .
DHW shall not pay Steve Wagenheim (“Wagenheim”) any
fee, guaranty fee, dividend, charge or distribution of any kind
arising out of Wagenheim’s ownership interest of DHW or
Wagenheim’s guaranty of any loan to DHW made to fund the
acquisition of equipment leased by DHW to GCFB. Notwithstanding the
previous remittance, DHW may reimburse Wagenheim the amount of any
payment or reasonable expense, including reasonable attorney fees,
incurred by Wagenheim as a result of enforcement of any guaranty by
Wagenheim of a DHW loan. Notwithstanding the above, Wagenheim will
continue to be obligated to personally guarantee 20% (or such
greater percentage as any lender may require) of DHW’s
financing described in Section 4 below.
3.
Rates, Payments and
Fees . The
payments due under any Schedule A shall be based on an amortization
of the purchase price of the Equipment under such Schedule,
calculated at an interest rate equal to the rate resulting from the
following formula:
Bank Base Rate plus (6.00% X
80%) = Lease Rate
For example if the
Bank Base Rate equals 8.5%, the Lease Rate equals:
8.50% + (6.00% X 80%)
=
8.5% + 4.8% =
13.3%
“Bank Base
Rate” shall be the actual interest rate charged by
DHW’s lender with respect to the term loan financing used to
purchase the Equipment subject to any particular Lease.
GCFB shall pay DHW
an origination fee equal to 0.25% of the principal amount financed
under each Lease at the time each such Lease is executed by DHW and
GCFB. GCFB shall be responsible for all other commitment fees, loan
fees, filing and recording fees connected with origination of each
loan underlying a Lease and imposed on DWH pursuant to the loan
commitments referenced in paragraph 4 herein.
4.
DHW
Financing . DHW
shall enter into loan commitments substantially the same as the (i)
two million dollar ($2,000,000.00) loan commitment with Dacotah
Bank dated December 6, 2007, as attached hereto (“Dacotah
Bank Commitment”); (ii) a four million dollar
($4,000,000.00) loan commitment with CorTrust Bank dated
Dec
