PURCHASE AGREEMENT
Taco Cabana, 000 Xxxx Xxxxxx, Xxx Xxxxxx, Xxxxx
This AGREEMENT, entered into effective as of the 21st of May
2003.
l. PARTIES. "Seller" is AEI Real Estate Fund XVII Limited
Partnership a Minnesota limited partner ship with offices at 1300
Xxxxx Fargo Place, St. Xxxx, MN and which owns an undivided 100%
interest in the fee title to that certain real property
referenced above and legally described in the attached Exhibit
"A" (the "Property"). "Buyer" is Texas Taco Cabana, LP, a Texas
limited partnership with offices at 0000 Xxxxxx Xxxxx, Xxxxx 000,
Xxx Xxxxxxx, Xxxxx 00000. Seller wishes to sell and Buyer wishes
to buy the Property.
2. PROPERTY. The Property to be sold to Buyer in this transaction
consists of an undivided 100% interest the Property and including
all rights, privileges and easements appurtenant to the Property,
including, without limitation, all minerals, oil, gas and other
hydrocarbon substances on the Real Property, as well as all
development rights, air rights, water and water rights relating
to the Property, utility agreements and any easements,
rights-of-way, or other appurtenances used in connection with the
beneficial use and enjoyment of the Property, and all
improvements and fixtures on the Property, as well as any
buildings and structures on the Real Property (collectively the
"Improvements"). Seller owns no interest in any personalty in
connection with the Property.
3. PURCHASE PRICE. The purchase price for this Property is
$1,335,000 all cash.
4. TERMS. The purchase price for the Property will be paid by
Buyer as follows:
a. When this agreement is executed, Buyer will pay $5,000.00 to
the "Escrow Holder" (as defines below) (which shall be deposited
into escrow according to the terms hereof) (the "First Payment").
The First Payment will be credited against the purchase price
when and if escrow closes and the sale is completed. If the sale
of the Property as contemplated hereunder is consummated, the
Deposit plus accrued interest shall be credited against the
Purchase Price. If the sale of the Property is not consummated
because of the failure of any condition or any other reason
except a default under this Agreement solely on the part of
Buyer, the Deposit plus accrued interest shall immediately be
returned to Buyer less the Option Consideration sum of one
hundred and 00/100 Dollars ($100.00) (as defined below). If the
sale is not consummated solely because of default under this
Agreement on the part of Buyer, Seller shall retain the Deposit
and accrued interest as Seller's sole and exclusive right to
damages or any other remedy. The parties have agreed that
Seller's actual damages, upon default by Buyer, would be
extremely difficult or impracticable to determine. Accordingly,
Buyer and Seller agree that the Deposit represents a fair and
equitable payment for liquidated damages. One Hundred Dollars of
the First Payment shall be considered non-refundable Option
Consideration and will be deemed earned by and paid to Seller
upon payment to the Escrow Holder and regardless of whether this
transaction does not close as provided below.
b. Buyer will deposit the balance of the purchase price,
$1,330,000 (the Second Payment") at "Closing" (as defined below)
into escrow in sufficient time to allow escrow to close on the
"Closing Date" as defined below).
5. CLOSING DATE. Escrow shall close on or before five (5)
business days after the "Due Diligence Period" (as defined below)
(the "Closing Date"). .
6. DUE DILIGENCE PERIOD. Buyer shall have a period of sixty (60)
days commencing on the "Agreement Date" (as defined below)(the
"Due Diligence Period") to:
a. examine all of the environmental and soil conditions
of the Property and surrounding lands, and all zoning, land
use, environmental, building and construction laws and
regulations restricting or regulating or otherwise affecting
the use, occupancy or enjoyment of the Property, including
by way of illustration and not limitation, conducting any
licensing, permitting, engineering, geotechnical, market and
economic feasibility studies for the Property and any
physical inspections of the Property all of which Buyer, in
its sole discretion, deems necessary. Anything to the
contrary herein notwithstanding, in the event this
transaction is cancelled by either party, any renewal rights
under the "Lease" (as defined below) shall be extended by
the number of days from and including the Agreement to and
including the date of termination.
b. Buyer shall advise the Seller within twenty (20) days
after actual receipt of the "Survey" and "Commitment" (as
those terms are hereinafter defined) what exceptions to
title will be accepted by Buyer. Seller shall have thirty
(30) days after receipt of Buyer's objections to remove any
objectionable exceptions from title and to provide Buyer
with evidence satisfactory to Buyer of such removal or to
provide Buyer with evidence satisfactory to Buyer that said
exceptions will be removed on or before the Closing.
c. Buyer shall, within four (4) business days after the
"Agreement Date" (as defined below) order at its own expense
such title (the "Commitment"), survey (the Survey"), and any
other due diligence information as Buyer shall deem
necessary in its sole discretion.
d. Seller's Documents: Within five (5) days after the
Agreement Date, Seller shall deliver to Buyer:
(i) Copies of all existing and proposed easements,
covenants, restrictions, agreements or other documents
which affect the Property and which are not disclosed by
the Commitment, or, if no such documents exist, a
certification of Seller to that effect;
(ii) Copies of any existing surveys of the Property; and
(iii) A copy of any existing geotechnical reports,
environmental audits or reports and soil boring results regarding
the Property.
7. ESCROW. Escrow shall be opened by Seller and the First Payment
deposited in escrow with Xxxx Xxxxxxxx, as closing agent for
Chicago Title Insurance Corporation, San Antonio, Texas, (the
"Escrow Holder") upon acceptance of this Agreement by both
parties. A copy of this Agreement will be delivered to the Escrow
Holder and will serve as escrow instructions together with the
Escrow Holder's standard instructions and any additional
instructions required by the Escrow Holder to clarify its rights
and duties. If there is any conflict between these other
instructions and this Agreement, this Agreement will control.
8. CLOSING COSTS. Seller shall pay no closing costs in connection
with the transaction contemplated herein, except its own legal
fees. Each party will pay its own attorney's fees and costs to
document this transaction.
9. REAL ESTATE TAXES, SPECIAL ASSESSMENTS AND PRORATIONS.
(a) Because the Property is subject to a triple net lease (as
further set forth in paragraph 10(a)(i)), the parties acknowledge
that there shall be no need for a real estate tax proration or
operating expenses proration.
(b) All rental amounts due under a certain Lease Agreement dated
November 14, 1988 between Seller as Landlord and Buyer as Tenant
and covering the Property (the "Lease") shall be prorated between
the parties and adjusted by them as of the date of Closing.
10. SELLER'S REPRESENTATION, WARRANTIES, AND AGREEMENTS.
(a) Seller represents and warrants as of this date that:
(i) In addition to the acts and deeds recited herein and
contemplated to be performed, executed, and delivered
by Seller, Seller shall perform, execute and deliver or
cause to be performed, executed, and delivered at the
Closing or after the Closing, any and all further acts,
deeds and assurances as Buyer or the Escrow Holder may
require and be reasonable in order to consummate the
transactions contemplated herein.
(ii) Except for the Lease Agreement in existence between Seller
(as Lessor) and Buyer (as Tenant), (the "Lease"), Seller is not
aware of any leases of the Property.
(iii) It is not aware of any pending litigation or
condemnation proceedings against the Property or Seller's
interest in the Property.
(iv) Except as previously disclosed to Buyer and as permitted in
paragraph (b) below, Seller is not aware of any contracts Seller
has executed that would be binding on Buyer after the closing
date.
(v) Seller has all requisite power and authority to consummate
the transaction contemplated by this Agreement and has by proper
proceedings duly authorized the execution and delivery of this
Agreement and the consummation of the transaction contemplated
hereby.
(vi) To Seller's knowledge, neither the execution and delivery of
this Agreement nor the consummation of the transaction
contemplated hereby will violate or be in conflict with (a) any
applicable provisions of law, (b) any order of any court or other
agency of government having jurisdiction hereof, or (c) any
agreement or instrument to which Seller is a party or by which
Seller is bound.
(b) Provided that Buyer performs its obligations when
required, Seller agrees that it will not enter into any new
contracts that would affect the Property and be binding on
Buyer after the Closing Date without Buyer's prior consent.
(c) All the documents executed by Seller which are to be
delivered to Buyer at the Closing are, and at the time of Closing
will be, duly authorized, executed, and delivered by Seller, are,
and at the time of Closing will be, legal, valid, and binding
obligations of Seller, are, and at Closing will be, sufficient to
convey title (if they purport to do so), and do not, and at
Closing will not, violate any provisions of any agreement to
which Seller is a party or to which it or any of its assets are
subject.
(d) Seller is not a "foreign person" within the meaning of
Sections 1445(a)(1) and 1445(f)(3), of the Internal Revenue Code
of 1986, as amended, nor is the sale of the Property subject to
any withholding requirement imposed by the Internal Revenue
Service, including but not limited to Section 1445 thereof.
(e) Seller represents and warrants that Seller is the fee title
owner of the Real Property.
11. DISCLOSURES.
(a) Seller has not received any notice of any material,
physical, or mechanical defects of the Property, including
without limitation, the plumbing, heating, air conditioning,
ventilating, and electrical systems. To the best of Seller's
knowledge without inquiry, all such items are in good
operating condition and repair and in compliance with all
applicable governmental, zoning, and land use laws,
ordinances, regulations and requirements. If Seller shall
receive any notice to the contrary prior to Closing, Seller
will inform Buyer prior to Closing.
(b) Seller has not received any notice that the use and
operation of the Property is not in full compliance with
applicable building codes, safety, fire, zoning, and land
use laws, and other applicable local, state and federal
laws, ordinances, regulations and requirements. If Seller
shall receive any notice to the contrary prior to Closing,
Seller will inform Buyer prior to Closing.
(c) Seller knows of no facts nor has Seller failed to
disclose to Buyer any fact known to Seller which would
prevent the Tenant from using and operating the Property
after the Closing in the manner in which the Property has
been used and operated prior to the date of this Agreement.
If Seller shall receive any notice to the contrary prior to
Closing, Seller will inform Buyer prior to Closing.
(d) Seller has not received any notice that the Property is
in violation of any federal, state or local law, ordinance,
or regulations relating to industrial hygiene or the
environmental conditions on, under, or about the Property,
including, but not limited to, soil, and groundwater
conditions. To the best of Seller's knowledge, there is no
proceeding or inquiry by any governmental authority with
respect to the presence of Hazardous Materials on the
Property or the migration of Hazardous Materials from or to
other property. Buyer agrees that Seller will have no
liability of any type to Buyer or Buyer's successors,
assigns, or affiliates in connection with any Hazardous
Materials on or in connection with the Property either
before or after the Closing Date, except such Hazardous
Materials on or in connection with the Property arising out
of Seller's actions, negligence, or intentional misconduct.
If Seller shall receive any notice to the contrary prior to
Closing, Seller will inform Buyer prior to Closing.
(e) With the exception of title warranties contained in the
"Deed"(as defined below) and after expiration of the Due
Diligence Period without termination of this Agreement by
Buyer, Buyer agrees that it shall be purchasing the Property
in its then present condition, as is, where is, and Seller
has no obligations to construct or repair any improvements
thereon or to perform any other act regarding the Property,
except as expressly provided herein.
(f) Buyer acknowledges that, having been given the
opportunity to inspect the Property and such financial
information on the Lessee and Guarantors of the Lease as
Buyer or its advisors shall request, if in Seller's
possession, Buyer is relying solely on its own investigation
of the Property and not on any information provided by
Seller or to be provided except as set forth herein. Buyer
further acknowledges that the information provided and to be
provided by Seller with respect to the Property, to the
Lessee, and to the Guarantors of Lease was obtained from a
variety of sources and Seller neither (a) has made
independent investigation or verification of such
information, or (b) makes any representations as to the
accuracy or completeness of such information except as
herein set forth. The sale of the Property as provided for
herein is made on an "AS IS" basis, and Buyer expressly
acknowledges that, in consideration of the agreements of
Seller herein, except as otherwise specified herein in
paragraph 11(a), 11(b), and 11(c) above and this paragraph
12, Seller makes no Warranty or representation, Express or
Implied, or arising by operation of law, including, but not
limited to, any warranty of condition, habitability,
tenantability, suitability for commercial purposes,
merchantability, or fitness for a particular purpose, in
respect of the Property.
The provisions (d) - (f) above shall survive Closing.
12. CLOSING.
(a) At the "Closing" (as defined below), Seller shall convey to
Buyer good and marketable and insurable fee simple title to the
Real Property and all rights, privileges and easements
appurtenant thereto by duly executed and acknowledged Special
Warranty Deed (the "Deed") substantially as shown on Exhibit "B"
attached hereto and made a part hereof, in recordable form
acceptable to Buyer, and to the Improvements by appropriate
instruments. Evidence of delivery of marketable and insurable fee
simple title includes the issuance of an standard Texas Owner's
Policy of Title Insurance in the full amount of the Purchase
Price by the Title Company, insuring fee simple title to the Real
Property, in the Buyer, subject only to such exceptions as Buyer
shall approve.
(b) Before the Closing Date, Seller will deposit into
escrow the Deed, subject only to all exceptions as may be
accepted by Buyer; a Termination of Lease Agreement and
Memorandum of Termination of Lease in form and content as set
forth on Exhibit "C" attached hereto and made a part hereof; and
a settlement or closing statement in form and content reasonably
acceptable to Buyer and Escrow Holder.
(c) On or before the Closing Date, Buyer will deposit into
escrow: the balance of the Purchase Price when required under
Section 4; any additional funds required of Buyer (pursuant to
this agreement or any other agreement executed by Buyer) to close
escrow. Both parties will deliver to the Escrow Holder any other
documents reasonably required by the Escrow Holder to close
escrow.
(c) On the closing date, if escrow is in a position to
close, and upon written authorization from Seller and Buyer,
the Escrow Holder will: record the deed in the official
records of the county where the Property is located; cause
the Escrow Holder to commit to issue the title policy;
immediately deliver to Seller the portion of the purchase
price deposited into escrow by cashier's check or wire
transfer (less debits and prorations, if any); deliver to
Seller and Buyer a signed counterpart of the Escrow Holder's
certified closing statement and take all other actions
necessary to close escrow.
13. DEFAULTS. If the sale is not consummated solely because of
default under this Agreement on the part of Buyer, Seller shall
retain the Deposit and accrued interest as Seller's sole and
exclusive right to damages or any other remedy. The parties have
agreed that Seller's actual damages, upon default by Buyer, would
be extremely difficult or impracticable to determine.
Accordingly, Buyer and Seller agree that the Deposit represents a
fair and equitable payment for liquidated damages.
Notwithstanding any other provision of this Agreement, if
the Seller fails to complete the sale of the Property on a timely
basis in compliance with the terms of this Agreement by the
Buyer, then Buyer, in its sole discretion, may elect to
specifically enforce the terms of this Agreement, on demand,
and/or seek money damages, including reasonable costs and
attorneys fees, resulting from the Seller's breach. Buyer may
select any court of competent jurisdiction sitting in the state
in which the Real Property is located. The parties to this
Agreement agree that the Property is unique, and it cannot be
readily purchased or sold on the open market. For these reasons,
among others, Buyer will be irreparably harmed if Seller fails to
complete the sale of the Property after Buyer has validly opted
to purchase. Accordingly, Buyer, at its sole election, shall be
entitled to specifically enforce the terms and conditions of this
Agreement. Such equitable remedy shall, however, be cumulative,
and not exclusive and it shall be in addition to any other remedy
which Buyer may have.
14. BUYER'S REPRESENTATIONS AND WARRANTIES.
a. Buyer represents and warrants to Seller as follows:
(i) In addition to the acts and deeds recited herein and
contemplated to be performed, executed, and delivered by
Buyer, Buyer shall perform, execute and deliver or cause to
be performed, executed, and delivered at the Closing or
after the Closing, any and all further acts, deeds and
assurances as Seller or the Escrow Holder may require and be
reasonable in order to consummate the transactions
contemplated herein.
(ii) Buyer has all requisite power and authority to
consummate the transaction contemplated by this Agreement
and has by proper proceedings duly authorized the execution
and delivery of this Agreement and the consummation of the
transaction contemplated hereby.
(iii) To Buyer's knowledge, neither the execution and
delivery of this Agreement nor the consummation of the
transaction contemplated hereby will violate or be in
conflict with (a) any applicable provisions of law, (b) any
order of any court or other agency of government having
jurisdiction hereof, or (c) any agreement or instrument to
which Buyer is a party or by which Buyer is bound.
15. MISCELLANEOUS.
(a) This Agreement may be amended only by written agreement
signed by both Seller and Buyer, and all waivers must be in
writing and signed by the waiving party. Time is of the
essence. This Agreement will not be construed for or against
a party whether or not that party has drafted this
Agreement. This is an integrated agreement containing all
agreements of the parties about the Property and the other
matters described, and it supersedes any other agreements or
understandings. Exhibits attached to this Agreement are
incorporated into this Agreement.
(b) If this escrow has not closed by July 31, 2003 through no
fault of Seller, Seller may either, at its election, extend the
closing date or exercise any remedy available to it by law,
including terminating this Agreement.
(c) Funds to be deposited or paid by Buyer must be good and
clear funds in the form of cash, cashier's checks or wire
transfers.
(d) All notices from either of the parties hereto to the
other shall be in writing and shall be considered to have
been duly given or served if sent by first class certified
mail, return receipt requested, postage prepaid, or by a
nationally recognized courier service guaranteeing overnight
delivery to the party at his or its address set forth below,
or to such other address as such party may hereafter
designate by written notice to the other party.
If to Seller:
AEI Real Estate Fund XVIII Limited Partnership
1300 Minnesota World Trade Center
00 Xxxx Xxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
If to Buyer:
Texas Taco Cabana LP
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
Attn. Xxxx Xxxxx, Vice President Real Estate
With a copy to:
Carrols Corporation
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn. Real Estate/Legal Departments
(e) When accepted, this offer will be a binding agreement
for valid and sufficient consideration which will bind and
benefit Buyer, Seller and their respective successors and
assigns. Buyer is submitting this offer by signing a copy of
this offer and delivering it to Seller. Seller has five (5)
business days from receipt within which to accept this
offer. If this offer is not accepted within such five (5)
business days, it shall automatically expire and be of no
force or effect.
(f) Neither party has had any contact or dealings regarding
the Property, or any communication in connection with the subject
matter of this transaction, through any licensed real estate
broker or other person who can claim a right to a commission or
finder's fee as a procuring cause of the sale contemplated
herein. If any other broker or finder perfects a claim for a
commission or finder's fee based upon any other contact, dealings
or communication, the party through whom the broker or finder
makes his claim shall be responsible for said commission or fee
and all costs and expenses (including reasonable attorneys' fees)
incurred by the other party in defending against the same.
(g) The Agreement Date shall be the date on which the Buyer,
Seller, or Escrow Holder last signs this Agreement.
(h) Buyer reserves the right to assign this Agreement and/or to
take title to the Property in a name or assignee other than
Buyer, including but not limited to any trust or affiliated or
related party. Anything to the contrary notwithstanding, any
assignment by Buyer hereunder shall not relieve Buyer from its
duties, obligations, terms, and performance under this Agreement.
(i) All representations and warranties by the respective parties
contained herein or made in writing pursuant to this Agreement
are intended to and shall remain true and correct as of the time
of Closing, shall be deemed to be material, and shall survive the
Closing, including by way of illustration and not limitation, the
execution and delivery of this Agreement and the execution and
the delivery of the Deed and transfer of title. All statements
contained in any certificate or other instrument delivered at any
time by or on behalf of Seller in connection with the transaction
contemplated hereby shall constitute representations and
warranties hereunder. This Agreement shall be governed by and
construed in accordance with the laws of the state of Texas. This
Agreement supersedes all prior agreements and understandings
between the parties hereto relating to the subject matter hereof.
(j) If either party hereto fails to perform any of its
obligations under this Agreement or if a dispute arises
concerning the meaning or interpretation of any provision of this
Agreement, the defaulting party or the party not prevailing in
such dispute, as the case may be, shall pay any and all costs and
expenses incurred by the other party in enforcing or establishing
its rights hereunder, including, without limitation, all court
costs and all reasonable attorneys' fees, including the fees and
costs of in-house counsel, regardless of whether litigation is
commenced. For purposes of calculating the value of in-house
counsel under this Agreement, it is agreed and established that
Buyer's in-house counsel shall have a billable rate of Two
Hundred Fifty and 00/100 Dollars ($250.00) per hour or any
fraction thereof.
(k) This Agreement may be executed in any number of counterparts
with the same force and effect as if all signatures were appended
to one document, each of which shall be deemed an original.
16. INDEMNIFICATION, POSSESSION & NEW CONTRACTS. Each party
hereby agrees to indemnify the other party and hold it harmless
from and against any and all claims, demands, liabilities, costs,
expenses, penalties, damages and losses, including, without
limitation, reasonable attorneys' fees, resulting from any
misrepresentations or breach of warranty or breach of covenant
made by such party in this Agreement or in any document,
certificate, or exhibit given or delivered to the other pursuant
to or in connection with this Agreement. Possession of the
Property shall be delivered to Buyer on the Closing Date,
provided, however, that Seller shall afford authorized
representatives of Buyer reasonable access to the Property for
the purposes of satisfying Buyer regarding the representations,
warranties, and covenants of Seller contained herein and with
respect to satisfaction of any conditions precedent to the
Closing contained herein. Seller shall not, after the date of
Seller's execution of this Agreement, enter into any lease,
amendment of lease, contract or agreement pertaining to the
Property without obtaining Buyer's prior written consent, which
consent shall not be unreasonably withheld.
17. IRC SECTION 1031 EXCHANGE. Buyer is or may be acquiring the
real property described as part of an IRC Section 1031 Tax
Deferred Exchange. Seller hereunder agrees to assist and
cooperate in such exchange at no cost, expense, or liability to
Seller and Seller further agrees to execute any and all documents
(subject to the reasonable approval of Seller's legal counsel) as
are reasonably necessary in connection with such exchange. Buyer
further agrees to indemnify and hold Seller free and harmless
from any cost, expense or liability, including reasonable
attorney's fees and the reasonable costs of in-house counsel,
resulting from Seller's participation in such exchange for the
benefit of Buyer.
18. APPROVAL. This Agreement is subject to the approval of the
contemplated transaction by Buyer's Real Estate Committee and
Board of Directors, in its sole discretion, within sixty (60)
days of the Agreement Date.
IN WITNESS WHEREOF, the Seller and Buyer have executed this
Agreement effective as of the day and year above first written.
BUYER: TEXAS TACO CABANA, L.P.
By: Taco Cabana Management, Inc., its general partner
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President of Real Estate
Date: 5/14/03
SELLER: AEI REAL ESTATE FUND XVII LIMITED PARTNERSHIP, a
Minnesota limited partnership
By: AEI Fund Management XVII, INC., a Minnesota corporation
By: /s/Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, its President
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
Lot 24A, Xxxxxx X. Xxxxx First Addition to the City of San
Marcos, Xxxx County, Texas.
EXHIBIT "B"
SPECIAL WARRANTY DEED
Special Warranty Deed
Date:
Grantor: AEI REAL ESTATE FUND XVII LIMITED PARTNERSHIP, a
Minnesota limited partnership
Grantor's Mailing Address:
Grantee: TEXAS TACO CABANA, L.P. a Texas limited partnership
Grantee's Mailing Address: 0000 Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
Bexar County
Consideration: TEN AND NO/100 DOLLARS ($10.00) and other valuable
consideration the receipt of which is hereby acknowledged.
Property (including any improvements):
SEE SCHEDULE "A" ATTACHED HERETO AND MADE A PART HEREOF
Reservations from Conveyance:
Exceptions to Conveyance and Warranty:
Liens described as part of the Consideration and any other
liens described in this deed as being either assumed or subject
to which title is taken; validly existing easements, rights-of-
way, and prescriptive rights, whether of record or not; all
presently recorded and validly existing instruments, other than
conveyances of the surface fee estate, that affect the Property;
and taxes for 2003, which Grantee assumes and agrees to pay, and
subsequent assessments for that and prior years due to change in
land usage, ownership, or both, the payment of which Grantee
assumes.
Grantor, for the Consideration and subject to the
Reservations from Conveyance and the Exceptions to Conveyance and
Warranty, grants, sells, and conveys to Grantee the Property,
together with all and singular the rights and appurtenances
thereto in any way belonging, to have and to hold it to Grantee
and Grantee's heirs, successors, and assigns forever. Grantor
binds Grantor and Grantor's heirs and successors to warrant and
forever defend all and singular the Property to Grantee and
Grantee's heirs, successors, and assigns against every person
whomsoever lawfully claiming or to claim the same or any part
thereof when the claim is by, through, or under Grantor but not
otherwise, except as to the Reservations from Conveyance and the
Exceptions to Conveyance and Warranty.
When the context requires, singular nouns and pronouns
include the plural.
AEI REAL ESTATE FUND XVII LIMITED PARTNERSHIP, a
Minnesota limited partnership
By: AEI Fund Management XVII, INC., a Minnesota corporation
By:_____________________________
Xxxxxx X. Xxxxxxx, its President
STATE OF )
COUNTY OF )
This instrument was acknowledged before me on
, 2003, by
___________________________________ of
______________________________, on behalf of said
_____________________________.
Notary Public, State of Texas
EXHIBIT "C"
TERMINATION OF LEASE AGREEMENT AND MEMORANDUM OF TERMINATION OF
LEASE
When recorded, return to:
Xxxxxxx X. Xxxxx, Esq.
Carrols Corporation
000 Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, Xxx Xxxx 00000-0000
TERMINATION OF LEASE
THIS TERMINATION OF LEASE AND MUTUAL RELEASE (this
"Termination Agreement") is made and entered into as of
__________ ____, 2003, by and between AEI REAL ESTATE FUND XVII
LIMITED PARTNERSHIP, a Minnesota limited partnership of
________________________________ ("Lessor"), and Texas Taco
Cabana, LP, a Texas limited partnership with offices at 0000
Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxx 00000 ("Lessee").
WITNESSETH:
WHEREAS, Lessor is the owner of that certain real estate
located in __________________, more specifically described in
Exhibit A attached hereto, together with all buildings,
structures, fixtures and improvements now located thereon
(collectively, the "Premises"); and
WHEREAS, Lessor and Lessee entered into that certain Lease of
the Premises (the "Lease") as of ____________________; and
WHEREAS, Lessor has agreed to sell the Premises to Lessee
pursuant to an Agreement of Sale dated May _______, 2003; and
WHEREAS, in connection with such sale of the Premises, Lessor
and Lessee desire to terminate the Lease and all of their rights
and obligations thereunder;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. The Lease is hereby terminated as of the date first
above written (the "Effective Date").
2. Lessee does hereby surrender, relinquish and release
unto Lessor all of its right, title and interest in and to the
Lease and the Premises, and in consideration of the release of
the remainder of the term of the Lease and other good and
valuable consideration, Lessor does hereby agree that Lessee
shall be relieved and released from any liability for rents or
other charges and all other lease obligations arising out of the
Lease.
3. Lessor and Lessee agree to and do hereby release and
discharge one another, their employees, officers, directors (both
past and present), agents, heirs, successors, assigns,
subsidiaries, attorneys, affiliates and personal representatives
from all claims and demands with respect to, or arising out of,
the Lease, whether known or unknown, which either Lessor or
Lessee may have now or hereafter have, or claim to have against
each other, from and after the Effective Date.
4. This Termination Agreement sets forth all terms,
conditions and understandings between Lessor and Lessee with
respect to the termination of the Lease, and there are no terms,
conditions or understandings either oral or written between the
parties hereto with regard to the termination of the Lease other
than as set forth herein. No alteration, amendment, change or
addition to this Termination Agreement shall be binding unless
reduced to writing and signed by all of the parties hereto.
5. This Termination Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective
successors and assigns.
6. This Termination Agreement may be executed in one or
more counterparts, each of which shall be deemed an original.
IN WITNESS WHEREOF, this Termination Agreement is executed
by each party hereto as of the date first above written.
LESSOR:
LESSEE:
STATE OF )
COUNTY OF )
This instrument was acknowledged before me on
, 2003, by
___________________________________ of
______________________________, on behalf of said
_____________________________.
Notary Public, State of ______________
STATE OF )
COUNTY OF )
This instrument was acknowledged before me on
, 2003, by
___________________________________ of
______________________________, on behalf of said
_____________________________.
Notary Public, State of Texas
TERMINATION OF MEMORANDUM OF LEASE
This Termination of Memorandum of Lease ("Termination
Agreement") is made and entered into as of __________ ____, 2003,
by and between AEI REAL ESTATE FUND XVII LIMITED PARTNERSHIP, a
Minnesota limited partnership of _______________________
("Lessor"), and TEXAS TACO CABANA, LP, a Texas limited
partnership with offices at 0000 Xxxxxx Xxxxx, Xxxxx 000, Xxx
Xxxxxxx, Xxxxx 00000 ("Lessee").
WITNESSETH:
Lessor previously leased to Lessee under a commercial lease
(the "Lease") dated as of the _____ day of ______________,
______, a tract of land located at __________________, and all
improvements situate thereon, which tract of land is described on
Exhibit "A" attached hereto and made a part hereof (the
"Property"). In connection with the Lease, Lessor and Lessee
caused to be recorded a Memorandum of Lease (the "Memorandum"),
which was recorded on _______ _____, ______ in Volume _________
at Page _______, in the Office of the _______ of the County of
_____________, State of Texas.
By Termination Agreement dated _______ ___, 2003 Lessor and
Lessee terminated the Lease effective _________ ____, 2003.
Lessor and Lessee hereby consent and agree that the
Memorandum be terminated and that this instrument be recorded in
the appropriate Office of the _________________ of the County of
____________, State of Texas.
IN WITNESS WHEREOF, the parties have caused this Termination
of Memorandum of Lease to be executed as of the day and year
first above written.
Signed, Sealed and Delivered
in the Presence of: "Lessor"
____________________________ By:
______ _____________________________
Name:_______________________ Xxxxxx X. Xxxxxx, as
______ President
"Lessee"
STATE OF )
COUNTY OF )
This instrument was acknowledged before me on
, 2003, by
___________________________________ of
______________________________, on behalf of said
_____________________________.
Notary Public
STATE OF )
COUNTY OF )
This instrument was acknowledged before me on
, 2003, by
___________________________________ of
______________________________, on behalf of said
_____________________________.
Notary Public
