SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 6th day of
November, 1996, by and between Texas Taco Cabana LP ("Tenant"),
whose address is 0000 Xxxxxx Xxxxx Xxxxx 000, Xxx Xxxxxxx, Xxxxx,
AEI Net Lease Income & Growth Fund XIX Limited Partnership
("Mortgagee"), whose address is 1300 Minnesota World Trade
Center, Saint Xxxx Minnesota, and Xxxx Xxxxxxx and Xxx
Xxxxxxxxxxx ("Mortgagor"), whose addresses are 00000 Xxxxxx
Xxxxx, Xxxxxx Xxxxxx, Xx. 00000 and 16418 Silver Xxxxxx Xxxxx,
Xxxxx, Xx. 00000, respectively.
PRELIMINARY STATEMENT OF FACTS:
A. Mortgagee has agreed to make a mortgage loan in the
amount of $660,000 to Mortgagor for purchase money financing,
repayment of which is to be secured by a Deed of Trust and
Security Agreement and Fixture Financing Statement ("Deed of
Trust") on real estate (the "Premises") all as more fully
described in Exhibit "A" attached hereto.
B. The Deed of Trust is to be recorded in the County where
the Premises are situate.
C. The Tenant is the present lessee under a lease dated
August 13, 1992, made by Tenant's predecessor in interest, Taco
Cabana, Inc. and Mortgagee, as landlord, demising all or a
portion of the Premises, (said lease and all amendments thereto
being referred to as the "Lease").
D. As a condition precedent to Mortgagee's disbursement of
loan proceeds, Mortgagee has required that Tenant subordinate the
lease and its interest in the Premises in all respects to the
lien of the Deed of Trust, but subject to the terms hereof
respecting all Tenant's rights under the Lease so long as Tenant
is not in default thereunder after the expiration of any
applicable cure period.
E. In return the Mortgagee is agreeable to not disturbing
the Tenant's possession of the Premises.
F. The Mortgagee is disbursing the loan proceeds in
reliance upon the agreements contained in this instrument which
but for it would not disburse the loan.
NOW, THEREFORE, in consideration of the sum of $1.00 and
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each party
hereto, it is hereby agreed as follows:
1. SUBORDINATION. The Lease, and the rights of Tenant in,
to or under the Lease and the Premises (except as further set
forth herein), are hereby subjected and subordinated and shall
remain in all respects and for all purposes subject, subordinate
and junior to the lien of the Deed of Trust, and to the rights
and interest of the from time to time holder of the Deed of
Trust, as fully and with the same effect as if the Deed of Trust
had been duly executed, acknowledged and recorded, and the
indebtedness secured thereby had been fully disbursed prior to
the execution of the Lease or possession of the Premises by
Tenant, or its predecessors in interest.
2. TENANT NOT TO BE DISTURBED. So long as Tenant is not
in default (beyond any period given Tenant to cure such default)
in the payment of rent or additional rent or in the performance
of any of the terms, covenants or conditions of the Lease on
Tenant's part to be performed, Tenant's possession of the
Premises and any extensions or renewals thereof which may be
effected in accordance with any renewal rights therefor in the
Lease, or any other rights of Tenant set forth in the Lease
(including but not limited to Tenant's Option to Purchase the
Premises as set forth in Article 34 of the Lease), shall not be
diminished or interfered with by Mortgagee, and Tenant's
occupancy of the Premises shall not be disturbed by Mortgagee for
any reason whatsoever during the term of the Lease or any such
extensions or renewals thereof. Without limiting the generality
of the foregoing, the lien created by the Deed of Trust or any
other document executed in connection with the Deed of Trust
shall not be deemed to be a lien, encumbrance, or any matter
encumbering title to the Premises that Lessee has created,
suffered, or permitted as described in Article 34(C).
3. TENANT NOT TO BE JOINED IN FORECLOSURE. So long as
Tenant is not in default (beyond any period given Tenant to cure
such default) in the payment of rent or additional rent or in the
performance of any of the terms, covenants or conditions of the
Lease on Tenant's part to be performed, Mortgagee will not join
Tenant as a party defendant in any action or proceeding
foreclosing the Deed of Trust unless such joinder is necessary to
foreclose the Deed of Trust and then only for such purpose and
not for the purpose of terminating the Lease.
4. TENANT TO ATTORN TO MORTGAGEE. Pursuant to the
assignment of rents set forth in the Deed of Trust, or if the
interests of Landlord shall be transferred to and owned by
Mortgagee by reason of foreclosure or other proceedings brought
by it in lieu of or pursuant to a foreclosure, or by any other
manner, and Mortgagee succeeds to the interest of the Landlord
under the Lease, Tenant shall be bound to Mortgagee under all of
the terms, covenants and conditions of the Lease for the balance
of the term thereof remaining and any extensions or renewals
thereof which may be effected in accordance with any option
therefor in the Lease, with the same force and effect as if
Mortgagee were the landlord under the Lease, and Tenant does
hereby attorn to Mortgagee as its landlord, said attornment to be
effective and self-operative immediately until release of the
Deed of Trust or upon Mortgagee otherwise succeeding to the
interest of the Landlord under the Lease, without the execution
of any further instruments on the part of any of the parties
hereto; provided, however, that Tenant shall pay rent to
Mortgagee until Tenant receives written notice from Mortgagee
that it has either been paid in full by Mortgagor, or has
transferred its interest in the Deed of Trust, which assignee has
succeeded to the interest of the Mortgagee. The respective
rights and obligations of Tenant and Mortgagee upon such
attornment, to the extent of the then remaining balance of the
term of the Lease and any such extensions and renewals, shall be
and are the same as now set forth therein; it being the intention
of the parties hereto for this purpose to incorporate the Lease
in this Agreement by reference with the same force and effect as
if set forth at length herein.
5. MORTGAGEE NOT BOUND BY CERTAIN ACTS OF LANDLORD.
Tenant shall agree not to enter into any material modification of
the Lease nor to make any payment or rent or any other monetary
obligation to Mortgagor without Mortgagee's prior written
consent. If Mortgagee shall succeed to the interest of Landlord
under the Lease, Mortgagee shall not be liable for any act or
omission of any prior landlord (including Mortgagor) if the same
constitutes a material modification of the Lease, unless
Mortgagee's prior written consent was obtained; In the event of
a default by Mortgagor under the Lease or an occurrence that
would give rise to an offset against rent or claim against
Mortgagor under the Lease, Tenant will give Mortgagee notice of
such defaults or occurrence at the address of Mortgagee as set
forth above and will give Mortgagee such time as is reasonably
required to cure such default or rectify such occurrence,
provided Mortgagee uses reasonable diligence to correct the same.
6. ASSIGNMENT OF LEASE. Mortgagor has by a separate
Assignment of Rents in the Deed of Trust or Assignment of Lease
("Assignment") assigned its interest in the rents and payments
due under the Lease to Mortgagee as security for repayment of the
loan. The Mortgagee has required that all rents and other
payments due under the Lease be paid directly to it. Mortgagor
hereby authorizes and directs Tenant and the Tenant agrees to pay
any payments due under the terms of the Lease to Mortgagee. The
Assignment does not diminish any obligations of the Mortgagor
under the Lease or impose any such obligations on the Mortgagee.
7. SUCCESSORS AND ASSIGNS. This Agreement and each and
every covenant, agreement and other provisions hereof shall be
binding upon the parties hereto and their heirs, administrators,
representatives, successors and assigns, including without
limitation each and every from time to time holder of the Lease
or any other person having an interest therein and shall inure to
the benefit of the Mortgagee and its successors and assigns.
8. CHOICE OF LAW. This Agreement is made and executed
under and in all respects is to be governed and construed by the
laws of the State where the Premises are situate.
9. CAPTIONS AND HEADINGS. The captions and headings of
the various sections of this Agreement are for convenience only
and are not to be construed as confining or limiting in any way
the scope or intent of the provisions hereof. Whenever the
context requires or permits, the singular shall include the
plural, the plural shall include the singular and the masculine,
feminine and neuter shall be freely interchangeable.
10. NOTICES. Any notice which any party hereto may desire
or may be required to give to any other party shall be in writing
and the mailing thereof by certified mail, or equivalent, to the
addresses as set forth above, or to such other places any party
hereto may by notice in writing designate shall constitute
service of notice hereunder.
11. COUNTERPARTS. This Agreement may be executed in
counterparts, and if so executed, though the signatures of the
parties may appear on separate counterparts, the same shall be
considered one and the same document as if all parties had
executed the same counterpart.
IN WITNESS WHEREOF, the parties hereto have each caused this
Agreement to be executed as of the date first above written.
XXX XXXXXXXXXXX
/s/ Xxx Xxxxxxxxxxx
XXXX XXXXXXX Xxxx Xxxxxx /s/ JS [changed to conform
/s/ Xxxx Xxxxxx to the facts]
STATE OF California)
)SS.
COUNTY OF San Diego)
The foregoing instrument was acknowledged before me the 5th
day of November, 1996, by XXX XXXXXXXXXXX.
/s/ X. Xxxxxxx
Notary Public
[notary seal]
STATE OF California)
)SS.
COUNTY OF San Diego)
The foregoing instrument was acknowledged before me the 5th
day of November, 1996, by XXXX XXXXXXX.
/s/ X. Xxxxxxx
Notary Public [notary seal]
AEI NET INCOME & GROWTH FUND XIX LIMITED PARTNERSHIP,
a Minnesota limited partnership
By: AEI Fund Management
XIX, Inc., its corporate general partner
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, Its President
STATE OF MINNESOTA )
)SS.
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me the 6th
day of October [November changed to conform to the facts], 1996,
by Xxxxxx X. Xxxxxxx, the President of AEI Fund Management XIX,
Inc., a Minnesota corporation, corporate general partner of AEI
Net Lease Income & Growth Fund XIX Limited Partnership, on behalf
of said limited partnership.
/s/ Xxxxxxx X. Xxxxxxxxx
Notary Public
[notary seal]
TEXAS TACO CABANA LP
By: TACO CABANA MANAGEMENT, INC., its General Partner
By:/s/ X. Xxxxxxxxx
Its: /s/ Executive Vice President
STATE OF TEXAS )
)SS.
COUNTY OF )
Before me, the undersigned authority, on this day personally
appeared Xxxxx Xxxxxxxxx, the Executive Vice President of Taco
Cabana Management, Inc., a Minnesota corporation, corporate
general partner of Texas Taco Cabana LP, known to be to be the
person and officer whose name is subscribed to the foregoing
instrument, and acknowledged to me that he executed the same for
the purposes and consideration therein expressed, in the capacity
therein stated, and as the act and deed of said corporation
acting as said general partner on behalf of said limited
partnership.
Given under my hand and seal of office this 5th day of
November, 1996.
By: /s/ Xxxxxxx Xxxx Xxxxxx
Printed Name: Xxxxxxx Xxxx Xxxxxx
Notary Public in and for
Bexar County, Texas
My Commission Expires:
4/16/2000 [notary seal]
Exhibit A Legal Description
Lot 2, Xxxxxxx Crossing Shopping Center, a subdivision of
Xxxxxxxxxx County, Texas, according to the map or plat of record
in Cabinet H, Slide 221, Plat Records of Xxxxxxxxxx County,
Texas.
