ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT, made effective as of the 6th day of
November, 1996, by AEI Net Lease Income & Growth Fund XIX Limited
Partnership, whose address is 0000 Xxxxxxxxx Xxxxx Xxxxx Xxxxxx,
Xx. Xxxx, Xxxxxxxxx 00000 (herein called "Assignor") to Xxx
Xxxxxxxxxxx, whose address is 16418 Silver Xxxxxx Xxxxx, Xxxxx,
Xx. 00000 and Xxxx Xxxxxx, whose address is 00000 Xxxxxx Xxxxx,
Xxxxxx Xxxxxx, Xx. 00000 (herein called "Assignee"),
WITNESSETH:
FOR VALUE RECEIVED, Subject to the vendor's lien and the
lien of the Deed of Trust securing the purchase money financing
extended to Assignee by Assignor, Assignor hereby grants,
transfers and assigns to Assignee all of the right, title and
interest of Assignor in and to that certain lease by and between
Assignor and Taco Cabana, Inc., dated August 13, 1992, which
lease was assigned to Texas Taco Cabana, LP pursuant to the
General Assignment and Assumption of Leases between Taco Cabana,
Inc. and TC Lease Holding III, V, and VI, Inc. and pursuant to
the General Assignment and Assumption of Leases between TC Lease
Holding III, V, and VI, Inc. and Texas Taco Cabana, LP dated
October 31, 1993, (Texas Taco Cabana, LP hereinafter referred to
as "Tenant"), and in and to that certain Assignment of Alcohol
Sales Lease dated June 30, 1994 by and among Tenant, Cabana
Beverages, Inc. (Lessee under said Alcohol Sales Lease), and
Assignor herein (said lease and assignment of Alcohol Sales Lease
hereinafter being referred to as the "Lease"), which Lease
demises all of the real estate ("Premises") described in Exhibit
A attached hereto, together with any and all extensions and
renewals thereof, together with the immediate and continuing
right to collect and receive all rents, income, payments and
profits arising out of said Lease or out of the Premises or any
part thereof ("Rents"), together with the right to all proceeds
payable to Assignor pursuant to any purchase options on the part
of Tenant under the Lease, together with all payments derived
therefrom, if any, including but not limited to future claims for
the recovery of damages done to the Premises or for the abatement
of any nuisance existing thereon, future claims for damages
resulting from default under said Lease whether resulting from
acts of insolvency or acts of bankruptcy or otherwise, guarantees
thereof, and lump sum payments for the cancellation of said lease
or the waiver of any obligation or term thereof prior to the
expiration date and the return of any insurance premiums or ad
valorem tax payments made in advance and subsequently refunded,
AND ASSIGNOR FURTHER AGREES, ASSIGNS AND COVENANTS:
1. Representations. Assignor represents and warrants that
it is now the absolute owner of said Lease with full right and
title to assign the same and the Rents; that said Lease is valid,
in full force and effect and has not been modified or amended
except as disclosed to Assignee; that there are no outstanding
assignments or pledges thereof; that there are no existing
defaults under the provisions thereof on the part of any party to
the Lease; that no Rents have been waived, anticipated,
discounted, compromised or released; and that Tenant has no
defenses, setoffs, or counterclaims against Assignor.
2. Assumption; Present Assignment. This Assignment shall
constitute a perfected, absolute and present assignment.
Assignee hereby assumes and agrees to perform all of the
obligations, duties, and liabilities of the Lessor under the
Lease from and after the date hereof.
3. No Liability For Assignee. The Assignee shall not be
obligated to perform or discharge, nor does it hereby undertake
to perform or discharge any obligation, duty or liability under
said Lease incurred prior to the date hereof nor shall this
Assignment operate to place responsibility for the control, care,
management or repair of the Premises prior to the date hereof
upon the Assignee nor for the carrying out of any of the terms
and conditions of said Lease; nor shall it operate to make the
Assignee responsible or liable for any waste committed on the
Premises, or for any dangerous or defective condition of the
Premises, or for any negligence in the management, upkeep, repair
or control of said Premises, prior to the date hereof resulting
in loss or injury or death to any tenant, licensee, employee or
stranger nor liable for laches or failure to collect the rents
and Assignee shall be required to account only for such moneys as
are actually received by it.
4. Assignor Hold Assignee Harmless. The Assignor shall
and does hereby agree to indemnify and to hold Assignee harmless
of and from any and all liability, loss or damage which it may or
might incur under said Lease or under or by reason of this
Assignment, of and from any and all claims and demands whatsoever
which may be asserted against it by reason of any alleged
obligations or undertakings on Assignee's part to perform or
discharge any of the terms, covenants or agreements contained in
said Lease prior to the date hereof. Should the Assignee incur
any such liability, or in the defense of any such claims or
demands, the amount thereof, including costs, expenses, and
reasonable attorney's fees, Assignor shall reimburse the
Assignee therefor immediately upon demand,
5. Assignee Hold Assignor Harmless. The Assignee shall
and does hereby agree to indemnify and to hold Assignor harmless
of and from any and all liability, loss or damage which it may or
might incur under said Lease or under or by reason of this
Assignment and of and from any and all claims and demands
whatsoever which may be asserted against it by reason of any
alleged obligations or undertakings on Assignor's part to perform
or discharge any of the terms, covenants or agreements contained
in said Lease on or after the date hereof. Should the Assignor
incur any such liability, or in the defense of any such claims or
demands, the amount thereof, including costs, expenses, and
reasonable attorney's fees, Assignee shall reimburse the
Assignor therefor immediately upon demand.
6. Security Deposits. The Assignor represents that there
are no security deposits held by Assignor under the terms of the
Lease(s).
7. Authorization To Tenant. The Tenant under the Lease is
hereby irrevocably authorized and directed to recognize the
claims of Assignee hereunder, but Tenant shall continue to remit
all rent payments to Assignor until the purchase money financing
extended to Assignee by Assignor, as evidenced by the Promissory
Note and Deed of Trust ("Loan Documents") of even date herewith,
shall be paid in full. After satisfaction of the Assignee's
obligations under the Loan Documents, Assignor shall thereby
irrevocably direct and authorize the Tenant to pay to Assignee
all sums due under the Lease.
8. Successors And Assigns. This Assignment and each and
every covenant, agreement and provision hereof shall be binding
upon the Assignor and its successors and assigns including
without limitation each and every from time to time record owner
of the Premises or any other person having an interest therein
and shall inure to the benefit of the Assignee and its successors
and assigns. As used herein the words "successors and assigns"
shall also be deemed to mean the heirs, executors,
representatives and administrators of any natural person who is a
party to this Assignment.
9. Governing Law. This Assignment is intended to be
governed by the laws of the State of Texas.
10. 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 Assignor has caused this Assignment
of Lease to be executed as of the date first above written.
XXX XXXXXXXXXXX
/s/ Xxx Xxxxxxxxxxx
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]
XXXX XXXXXXX Xxxx Xxxxx /s/ JS [changed to conform
to the facts]
/s/ Xxxx Xxxxx
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 November, 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]
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.
