SURRENDER AND TERMINATION OF LEASE AGREEMENT (#8228)
THIS AGREEMENT made this 22nd day of November, 1996, by and
between AEI NET LEASE INCOME AND GROWTH FUND XIX LIMITED
PARTNERSHIP, a Minnesota limited partnership, AEI NET LEASE
INCOME AND & GROWTH FUND XX LIMITED PARTNERSHIP, a Minnesota
limited partnership, and AEI INCOME & GROWTH FUND XXI
LIMITED PARTNERSHIP, a Minnesota limited partnership, each
having its principal place of business at 1300 Minnesota
World Trade Center, 00 Xxxx 0xx Xxxxxx, Xx. Xxxx, XX 00000
(hereinafter collectively called "Landlord") and the
Musicland Group, Inc., a Delaware corporation and Media
Play, Inc., a Delaware corporation, each having an office
00000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000
(hereinafter collectively called "Tenant").
WITNESSETH:
WHEREAS, Landlord and The Musicland Group, Inc. entered
into that certain written Lease Agreement dated December 21,
1995 (hereinafter referred to as the "Lease") demising
certain premises containing approximately 48,944 square feet
located in the City of Apple Valley and State of Minnesota
(hereinafter referred to as the "Premises") and more
particularly described in said Lease; and
WHEREAS, The Musicland Group, Inc. assigned its
interest in the Lease to Media Play, Inc. pursuant to that
certain Assignment and Assumption of Lease Agreement dated
December 21, 1995; and
WHEREAS, Landlord and Tenant hereby mutually desire and
intend to terminate, cancel, and surrender said Lease and
any and all Agreements with respect to the Premises,
conditioned upon the faithful observation of the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the above premises
which by this reference are incorporated herein, the mutual
covenants and conditions contained herein and other good and
valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Landlord and Tenant hereby agree as
follows:
1. (a) The Lease shall be terminated on January 31,
1997 (the "Termination Date"). Tenant shall cease doing
business in the Premises and vacate the Premises on or
before the Termination Date and as of the Termination Date,
Tenant shall surrender the possession of the Premises to
Landlord and relinquish any claim of a right of possession
of said Premises as if the Termination Date were originally
set forth in the Lease as the termination of the term
therein and the parties hereto agree that the Lease shall be
terminated and canceled as of the Termination Date. Tenant,
as of the Termination Date, relinquishes and waives any
right of redemption, statutory or otherwise, including but
not limited to such rights of redemption as set forth in MSA
Sec. 504.02. All rental obligations pursuant to the Lease
(including but not limited to accrued but unpaid year end
adjustments to additional rent charges) shall cease as of
the Termination Date. Within five (5) business days after
Tenant receives a fully-executed copy of this Agreement, to
make the foregoing binding upon the Landlord, Tenant shall
deliver to Landlord's offices (by messenger, overnight mail
or wire transfer) good funds in the amount of Eight Hundred
Thousand and No/100 Dollars ($800,000.00) as a Termination
Fee which shall thereafter release Tenant from all
liabilities arising under the Lease, subject to Tenant's
obligations hereunder.
(b) Tenant shall make all payments of rent and
other charges due under the Lease for the months of December
1996 and January 1997 on December 1, 1996 and January 1,
1997 respectively.
(c) Tenant represents and warrants to Landlord
that all real estate taxes due and owing for the calendar
year 1996 have been paid in full. Together with the January
1, 1997 rent payment, Tenant shall pay an amount equal to
$16,130.00 as a good faith estimate of its prorate share of
real estate taxes for 1997. There shall be no adjustments
in the event that the actual real estate taxes for 1997 are
different than currently anticipated.
2. Tenant agrees to vacate the Premises no later than
the Termination Date. Tenant shall leave the Premises in
broom clean condition and in the same condition as the
Premises were accepted in at commencement of the Lease,
subject to ordinary wear and tear. Landlord may conduct an
inspection of the Premises on January 31, 1997 and may, by
written notice to Tenant delivered no later than 5:00 P.M.
on February 7, 1997, reserve any claim that Landlord may
have for Tenant's violation of the foregoing sentence.
Failure of Landlord to deliver said reservation of claim in
writing to Tenant by said date shall be deemed conclusive
evidence that no such claims have been reserved. Subject to
the foregoing, on the Termination Date. Landlord shall
accept delivery and surrender of the Premises in "as-is"
condition and agrees that Tenant's obligations under said
Lease are thereafter terminated.
3. Subject to Paragraph 11 below, said Lease is
hereby terminated and canceled as of the Termination Date
and Landlord and Tenant shall be mutually released from any
and all further and past liability and obligations
thereunder. Further, Landlord and Tenant covenant that all
obligations of the part of the other party, including but
not limited to past and/or future rent, all other sums due
or accrued under the Lease have been satisfied as of the
date of this Agreement neither party has any further
liability to the other party as a result of said Lease
Agreement except pursuant to the terms of this Surrender and
Termination Agreement.
4. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, their respective
successors and assigns.
5. Subject to Paragraph 11 below, Landlord and Tenant
do hereby mutually release and discharge each of the other
and its employees, officers and directors (both past and
present), agents, heirs, successors, assigns, and personal
representatives from all claims, demands, and causes of
action of every kind, nature and character whatsoever,
whether known or unknown, suspected or unsuspected, which
each of them may have now or hereafter have, or claim to
have against the other, by reason of any act, thing or
matter up to the date of this Agreement.
6. The parties hereby warrant and represent to each
other that there are no other parties who have any interest
in the Lease, the rent nor any other charges payable
thereunder, nor any interest in the Premises or the building
in which the Demised Premises are located, including any
interest therein as mortgagee, which interest could
otherwise nullify the purpose and intent of this Agreement,
and all such parties with any such interest are either
parties to the Surrender and Termination Agreement, or their
consent to the Surrender and Termination Agreement is not
required under any instrument.
7. Other than the Memorandum of Lease dated March 18,
1996 and filed April 18, 1996, Tenant hereby warrants and
represents to Landlord that Tenant has not done or suffered
anything to be done nor will tenant in the future do
anything whereby the Premises or the title thereto have been
or will be encumbered in any way whatsoever, nor has Tenant
caused, permitted, or suffered any such lien or encumbrance
to accrue.
8. The parties have read this Agreement and the
mutual release contained therein, and upon the advice of
counsel, they have freely and voluntarily entered into the
Agreement. If either party commences an action against the
other party arising out of or in connection with this
Agreement, the prevailing party shall be entitled to recover
from the losing party all reasonable attorney's fees and
costs of suit.
9. This Agreement sets forth all terms, conditions,
and understandings between the parties, and there are no
terms, conditions or understandings, either oral or written,
between said parities other than as set forth herein. No
alteration, amendment, change or addition to this Agreement
shall be binding unless reduced to writing and signed by
each of the parties hereto.
10. In the event this document has not been executed
by both Landlord and Tenant (such that each party is in
receipt of at least one (1) original fully-executed
counterpart) on or before November 22, 1996, this Agreement
shall be null and void.
11. Notwithstanding anything to the contrary contained
in this Agreement Landlord expressly reserves any rights it
may have in connection with:
(i) obligations of Tenant under this Agreement,
including but not limited to the obligation to make payments
of rent due on December 1, 1996 and rent and 1/12th of the
estimated real estate taxes for 1997 on January 1, 1997 and
obligations to deliver the Premises in accordance with the
provisions of Paragraph 2 above;
(ii) obligations of Tenant regarding hazardous
materials in the Lease;
(iii) obligations of Tenant in connection with its
representations and warranties contained in Paragraphs 1(c)
and 7 hereof;
(iv) obligations of Tenant under the Lease to keep the
Premises free and clear of all liens and encumbrances;
(v) obligations of Tenant under the Lease to indemnify
and hold Landlord harmless from any and all loss, damage,
costs, or expenses arising out of claims of third parties
alleging damage to persons or property for acts occurring on
or prior to the Termination Date;
(vi) obligation of Tenant to maintain the insurance
required in the Lease through the Termination Date and
rights of Landlord to the application of insurance proceeds
and condemnation proceeds under the Lease. In this regard,
Tenant agrees that any insurance proceeds payable in the
event of damage or destruction to the Leased Premises and
Improvements owned by Landlord on or prior to the
Termination Date (even if such proceeds shall be paid after
the Termination Date) shall belong solely to Landlord, and
Tenant agrees to cooperate with Landlord to obtain such
proceeds from Tenant's insurers in the event of a claim
therefore; and
(vii) any third party warranties and the
enforcement thereof by or through Tenant respecting roof,
HVAC, electrical, and structure of the Improvements on the
Leased Premises constructed on behalf of Tenant. In this
regard, Tenant agrees to provide an assignment of any such
warranties known to Tenant, and to cooperate with Landlord
in the assertion of any claim under such warranties (all at
no cost and expense to Tenant).
(viii)obligations of Tenant under the Lease to comply
or be in compliance, at or prior to the Termination Date,
with applicable laws, rules, or regulations of governmental
authorities, which failure to so comply results in loss,
damage, cost or expense to Landlord, provided that Tenant
had actual knowledge of any such failure to comply prior to
the termination date [changed to conform to the facts /s/
GAR], and further provided that any claims of Landlord under
this subsection (viii) must be made prior to March 31, 1997.
12. Within five (5) business days after Tenant
receives a fully-executed copy of this Agreement, Tenant
shall executed and deliver to Landlord's attorney, Xxxxxxx
X. Xxxxxxxxx, at 1300 Minnesota World Trade Center, 00 Xxxx
Xxxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxx 00000, a Quit Claim
Deed in recordable form, which shall be held in escrow until
the Termination Date.
IN WITNESS WHEREOF, the parties have signed, sealed and
delivered the instrument on the date first written above.
AEI NET LEASE INCOME & GROWTH FUND XIX LIMITED PARTNERSHIP
By: AEI FUND MANAGEMENT XIX, INC.
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, President
AEI NET LEASE INCOME & GROWTH FUND XX LIMITED PARTNERSHIP
By: AEI FUND MANAGEMENT XX, INC.
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, President
AEI INCOME & GROWTH FUND XXI LIMITED PARTNERSHIP
By: AEI FUND MANAGEMENT XXI, INC.
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx, President
MEDIA PLAY, INC.
("Tenant")
By: /s/ Xxxx X. Xxxx
Xxxx X. Xxxx
President, Superstores Division
THE MUSICLAND GROUP, INC.
(Tenant")
By: /s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx
Executive Vice President
And CFO
