LEASE TERMINATION AGREEMENT
THIS LEASE TERMINATION AGREEMENT ("Agreement") is made
and entered into as of this 3rd day of December, 2001 by and
between AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP, a
Minnesota limited partnership, whose address is 1300 Minnesota
World Trade Center, 00 Xxxx Xxxxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx
00000 ("Landlord") and HUNTINGTON RESTAURANTS GROUP, INC., a
Texas corporation, whose address is 0000 X. Xxxxxxxxxx Xxxx,
Xxxxx X000, Xxxxxxxxxx, Xxxxxxx 00000 ("Tenant").
RECITALS:
A. Tenant entered into a certain Net Lease Agreement
with Landlord on March 18, 1997 (the "Lease"), with respect to a
certain parcel of real property and the building and improvements
thereon (collectively, the " Premises") located at X-00 xxx X.X.
Xxxxxxx 00, Xxxxxxxxx, Xxxxxxxxx, as legally described in Exhibit
A to the Lease;
B. Landlord and Tenant desire to terminate the Lease
prior to its stated expiration date, subject to the conditions
set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing and
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant
agree as follows:
1. SURRENDER. Tenant agrees to vacate and surrender
the Premises not later than December 10, 2001 (the "Termination
Date"). If Tenant vacates the Premises prior to the Termination
Date, Tenant shall give Landlord three (3) business days notice
prior to vacation.
2. TERMINATION. Until the Termination Date, the Lease
will remain in full force and effect in accordance with all of
its terms. Except as provided otherwise in this Agreement, the
Lease and any options contained in the Lease, including without
limitation the option to renew, the right of first refusal and
the option to purchase the Premises, will be deemed terminated
effective on the Termination Date, with the same effect as if
such date were the stated expiration date of the Lease; and
thereafter neither party will have any claim against the other
except any arising out of this Agreement.
3. CONDITION. Tenant shall vacate and surrender to
Landlord the Premises in the condition required by Articles 8 and
20 of the Lease, on or before the Termination Date.
4. ACCESS. Tenant agrees, effective as of the date
hereof, to give Landlord and prospective tenants or purchasers
and their architects, consultants, contractors and other agents
access to inspect the Premises during regular business hours,
upon reasonable prior notice. If Tenant vacates and surrenders
the Premises prior to the Termination Date, Landlord will be
given possession of the Premises and access thereto upon such
vacancy.
5. UTILITIES. All meters for gas, electricity, water
and other utilities which are provided by utility companies will
be read as of the Termination Date, and Tenant will be
responsible for the payment of the final bills with respect to
all such utilities. Subsequent to the Termination Date, all
utility meters will be transferred to the name of Landlord or as
it directs.
6. NOTICES AND CONSENTS. Tenant represents and
warrants that the execution and delivery of this Agreement will
not violate or contravene any agreement, contract, mortgage, deed
of trust, or security agreement, including without limitation
that certain Franchise Agreement between Tenant, as Franchisee,
and Denny's, Inc., as Franchisor (the "Franchise Agreement"), to
which Tenant or the Premises are bound. Tenant represents and
warrants that it has provided requisite notice of this Agreement
to Franchisor and otherwise fully complied with the requirements
of the Franchise Agreement, and that no further notices or
consents are required under the Franchise Agreement or any other
agreement, contract, mortgage, deed of trust, or security
agreement to which Tenant or the Premises are bound. Tenant has
provided Landlord with documentation that Franchisor has waived
its rights to assume the Lease upon its termination and to enter
the Premises after the Termination Date to remove property or
otherwise, pursuant to the terms of the Franchise Agreement and
Article 36 of the Lease.
7. FINAL ADJUSTMENT. Tenant agrees: (i) to pay to
Landlord Ten Thousand Dollars ($10,000.00) in cash and (ii) to
deliver to Landlord a note in the form attached hereto as Exhibit
A in the principal amount of Fifteen Thousand Dollars
($15,000.00) (collectively, the "Consideration"). The
Consideration shall be deemed to be payment in full for all
amounts of rent, additional rent, real estate taxes, personal
property taxes and any other costs and expenses due through the
Termination Date (exclusive of payments for utilities pursuant to
Section 5 hereof).
8. PERSONAL PROPERTY. Tenant shall remise, release,
quit claim, and surrender to Landlord, its successors and
assigns, forever, all its rights and interests and title, if any,
in and to any and all improvements, furniture, personal property,
equipment and fixtures contained on the Premises. Tenant agrees
that all personal property or other items which may be considered
personal property shall remain on the Premises and belong to the
Landlord, and this Agreement shall constitute a xxxx of sale
therefor to Landlord. Tenant shall indemnify and protect
Landlord from any liability, damage, loss, cost or expense
arising out of any encumbrance or financing affecting any of the
improvements, furniture, personal property, equipment and
fixtures contained on the Premises.
9. DEFAULT. If Tenant defaults in the performance of
any of its obligations under this Agreement, this Agreement shall
remain in full force and effect, except that Tenant shall pay to
Landlord, on demand, as liquidated damages and not as a penalty,
the sum of $150.00 for every day that Tenant remains in default.
Landlord may also pursue all other remedies at law or in equity,
including specific performance.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement on the day and year first above written.
LANDLORD:
AEI INCOME & GROWTH FUND XXI
LIMITED PARTNERSHIP
By:AEI FUND MANAGEMENT XXI, INC.,
its general partner
By: /s/ Xxxx X Xxxxxx
Its: CFO
TENANT:
HUNTINGTON RESTAURANTS GROUP,
INC.
By: /s/ Xxxx Xxxxxx
Its: President
