GUARANTEE OF LEASE
Effective as of March 15, 1997
FOR VALUE RECEIVED, and in order to induce AEI REAL ESTATE
FUND XVI LIMITED PARTNERSHIP, a Minnesota limited partnership,
whose corporate general partner is AEI Fund Management XVI, Inc.,
a Minnesota corporation and AEI REAL ESTATE FUND XVII LIMITED
PARTNERSHIP, a Minnesota limited partnership, whose corporate
general partner is AEI Fund Management XVII, Inc., a Minnesota
corporation ("Lessor"), to enter into, execute and deliver that
certain Lease Agreement dated effective of even effective date
herewith ("Lease") between Lessor, and Texas Sports City Cafe,
Ltd. ("Lessee"), the undersigned ("Guarantor", whether one or
more) hereby absolutely and unconditionally guarantees to said
Lessor, its successors and assigns, the due and prompt
performance and observance of all of the obligations of said
Lease to be met by Xxxxxx, including but not limited to the
payment of rent and other payments to be made under the Lease.
The undersigned agrees that no act or thing, except for payment
in full or written release of this Guarantee by Xxxxxx, which but
for this provision might or could in law or equity act as a
release of the liability of the undersigned hereunder, shall in
any way affect or impair the absolute and unconditional
obligation of the undersigned. This Guarantee shall be a
continuing, absolute and unconditional Guarantee and shall be in
full force and effect until all amounts due and owing under the
Lease are paid in full, or until this Guarantee has been released
in writing by Lessor, whichever occurs first, notwithstanding
expiration or sooner termination of the Lease. The undersigned
hereby waives all notices and protests, as well as all defenses
and offsets which could or may in any way be asserted against
said Lessor, either on the part of Lessee or by the Guarantor
itself. This Guarantee shall inure to the benefit of the
successors and assigns of said Xxxxxx, including any subsequent
holder of Xxxxxx's interest in the Lease.
The undersigned hereby waives notice of the execution of the
Lease; waives notice of the date of commencement of said Xxxxx
and of any assignment or transfer of Xxxxxx's interest in the
Lease and agrees to be bound by the terms of this Agreement to
any subsequent transferee or assignee of Lessor without further
notice or acceptance by such transferee or assignee.
Additionally, the undersigned Xxxxxxxxx agrees to reimburse
Lessor for any and all costs or expenses, including legal fees,
incurred by Lessor in enforcing the terms and conditions of the
Lease or this Guaranty.
The undersigned hereby agrees that the Lessor may from time
to time without notice to or consent of the undersigned and upon
such terms and conditions as the Lessor may deem advisable
without affecting this Guarantee (a) release any maker, surety or
other person liable for payment of all or any part of the
obligations under the Lease; (b) make any agreement extending or
otherwise altering the time for or the terms of payment of rent
and/or fulfillment of the obligations of Lessee under the Lease;
(c) modify, waive, compromise, release, subordinate, resort to,
exercise or refrain from exercising any right the Lessor may have
hereunder, under the Lease or any other security given for
payment of rent and/or fulfillment of other obligations of Lessee
under the Lease; (d) accept additional security or guarantees of
any kind; (e) transfer or assign the Lease to any other party;
(f) accept from Lessee or any other party partial payment or
payments on account of the Lease; (g) release, settle or
compromise any claim of the Lessor against the Lessee, or against
any other person, firm or corporation whose obligation is held by
the Lessor as security for the payment of rent and/or the
fulfillment of other obligations of Lessee under the Lease.
The undersigned hereby unconditionally and absolutely waives
(a) any obligation on the part of the Lessor to protect, secure
or insure any of the Leased Premises; (b) the invalidity or
unenforceability of the Lease; (c) notice of acceptance of this
Guarantee by the Lessor; (d) notice of presentment, demand for
payment, notice of non-performance, protest, notices of protest
and notices of dishonor, notice of non-payment or partial
payment; (e) notice of any defaults under the Lease or in the
performance of any of the covenants and agreements contained
therein or in any instrument given as security for the Lease; (f)
any defense, offset or claim the Lessee or the undersigned may
have against the Lessor; (g) any limitation or exculpation of
liability on the part of the Lessee whether contained in the
Lease or otherwise; (h) any transfer by the Lessee; (i) any
failure, neglect or omission on the part of Lessor to realize or
protect the Leased Premises or any security given therefor; (j)
any right to insist that the Lessor proceed against the Lessee or
against any other Guarantor or surety prior to enforcing this
Guarantee; provided, however, at its sole discretion the Lessor
may either in a separate action or an action pursuant to this
Guarantee pursue its remedies against the Lessee or any other
Guarantor or surety, without affecting its rights under this
Guarantee; or (k) any order, method or manner of application of
any payments on the Lease.
Without limiting the generality of the foregoing, the
undersigned will not assert against the Lessor any defense of
waiver, release, discharge in bankruptcy, statute of limitations,
res judicata, statute of frauds, anti-deficiency statute, fraud,
ultra xxxxx acts, usury, illegality or unenforceability which may
be available to the Lessee in respect of the Lease, or any setoff
available against the Lessor to the Lessee whether or not on
account of a related transaction.
The undersigned agrees this Guarantee is executed in order
to induce the Lessor to lease the Leased Premises to Lessee with
the intent that it be relied upon by the Lessor. This Guarantee
shall run with the Leased Premises and without the need for any
further assignment of this Guarantee to any subsequent owner of
the Leased Premises or the need for any notice to the undersigned
thereof. Upon assignment of the Lessor's interest in the Lease
to any subsequent party, said subsequent party may enforce this
Guarantee as if said party had been originally named as Lessor
hereunder.
No right or remedy herein conferred upon or reserved to the
Lessor is intended to be exclusive of any other available remedy
or remedies but each and every remedy shall be cumulative and
shall be in addition to every other remedy given under this
Guarantee or now or hereafter existing at law or in equity. No
waiver, amendment, release or modification of this Guarantee
shall be established by conduct, custom or course of dealing, but
only by an instrument in writing duly executed by Xxxxxx.
This Guarantee and each and every part hereof, shall be
binding upon the undersigned and upon its heirs, administrators,
representatives, executors, successors and assigns and shall
inure to the pro rata benefit of each and every future Lessor
with the Lease, including the heirs, administrators,
representatives, executors, successors and assigns of the Lessor.
The undersigned expressly agrees that the liability and
obligations under this Guarantee shall not in any way be affected
by the institution by or against the Lessee of any bankruptcy,
reorganization, arrangement, insolvency or liquidation
proceedings, or any other similar proceedings for relief under
any bankruptcy law or similar law for relief of debtors and that
upon the institution of any of the above actions, at Lessor's
sole discretion and without any notice thereof or demand
therefor, the entire unpaid rent and other payments due under the
Lease shall become immediately due and payable and enforceable
against the Guarantor.
The undersigned agrees to furnish to Lessor the
undersigned's annual financial statements, audited if available,
or certified by the undersigned's CEO or CFO as true and correct,
within 90 days after the end of each calendar year, and such
unaudited interim statements as Lessor may reasonably request
from time to time. Such financial statements shall include a
balance sheet and, if prepared and available, profit and loss
statements. Any audited or reviewed financial statements, if
available, shall be accompanied by their auditor's opinion. The
undersigned shall also provide Lessor with copies of its tax
returns when filed.
If this Guarantee be executed by more than one person or
entity, the obligations of the undersigned are understood to be
joint and several and are fully enforceable against all or any of
the undersigned and neither the legal disaffirmity, death nor
release of any individual shall affect or release the joint and
several liability of any other Guarantor.
The undersigned agrees that all indebtedness, liability or
liabilities now or at any time or times hereafter owing by Lessee
to the undersigned are hereby subordinated to the Lessee's
obligations under the Lease and any payment of indebtedness of
the Lessee to the undersigned, if the Lessor so requests, shall
be received by the undersigned as trustee for the Lessor on
account of the Lessee's obligations under the Lease. The
undersigned agrees that the payment of any amount or amounts by
the undersigned pursuant to this Guarantee shall not in any way
entitle the undersigned whether at law, in equity or otherwise to
any right to participate in any security held by the Lessor for
the payment of the Lessee's obligations under the Lease, any
right to direct the application or disposition of any such
security or any right to direct the enforcement of any such
security. Performance by the undersigned under this Guarantee
shall not entitle the undersigned to be subrogated to any of the
Lessee's obligations under the Lease or to any security therefor,
unless and until the full amount of the Lessee's obligations
under the Lease has been fully paid.
This Guarantee is executed under and intended to be
construed by the laws of the State of Minnesota. The undersigned
consents to be sued in the jurisdiction and venue of any District
Court in the State of Minnesota or in any Court in the State of
Texas, such jurisdiction and venue to be determined at the sole
option and election of Lessor.
This document may be executed in counterpart and separately
by any combination of signatories hereto, but shall constitute
one and the same document as if all signatories executed the same
counterpart.
IN WITNESS WHEREOF, the undersigned has caused this
Guarantee to be executed effective as of this 15TH day of March,
1997.
HARBORAGE I, LTD.
By: Harborage Services, Inc.
By:/s/ Xxxxx Xx Xxxxxxxx
Its:President
STATE OF )
)SS.
COUNTY OF )
The foregoing instrument was acknowledged before me this
15th day of March,1997,by Xxxxx Xx Xxxxxxxx, the President of
Harborage Services, Inc., on behalf of said corporation, as
corporate general partner of Harborage I, Ltd, a limited
partnership, on behalf of said limited partnership.
/s/ Xxxx Xxxx
Notary Public
[notary seal]
