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Title: |
Assignment and Assumption of Lease |
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2006 |
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$37 |
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#2408738 |
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ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT (this
"Assignment") is made and entered into as of the 31st day of May,
2006, by and between BLUE BELL PARTNERS, LLC, an Ohio limited
liability company, ("Assignor") and AEI INCOME & GROWTH FUND 24
LLC, a Delaware limited liability company, as to an undivided
forty-five percent (45%) interest as a tenant in common, and AEI
INCOME & GROWTH FUND 26 LLC, a Delaware limited liability
company, as to an undivided fifty-five percent (55%) interest as
a tenant in common, both having a mailing address at 1300 Wells
Fargo Place, 30 East Seventh Street, Saint Paul, Minnesota 55101
(together, collectively referred to as "Assignee").
RECITALS:
A. Assignor and Assignee (successor-in-interest to AEI
Fund Management, Inc.) are parties to that certain Purchase and
Sale Agreement dated March 9, 2006, as it may have been amended
(the "Agreement"), pursuant to which Assignee is acquiring from
Assignor the real property and improvements, located at 65 North
University Blvd., Middletown, Ohio, as more particularly
described on EXHIBIT A attached hereto and incorporated herein by
this reference (the "Property").
B. Pursuant to the terms of the Agreement, Assignor desires
to sell, assign, convey, transfer and set over to Assignee and
Assignee desires to assume all of Assignor's interest in that
certain Lease Agreement dated July 22, 2004 (the "Lease"), by and
between Assignor and Advance Stores Company, Incorporated, a
Virginia corporation (the "Tenant"), including all rents prepaid
for any period subsequent to the date of this Assignment, subject
to the terms and conditions set forth below.
C. Assignor is the Landlord under the Lease with full right
and title to assign the Lease and the Rent to Assignee as provided
herein. The Lease is valid, in full force and effect and has not
been modified or amended. So far as is known to Assignor, there
is no default by Tenant under the Lease and no Rent has been
waived, anticipated, discounted, compromised or released.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the
parties, Assignor and Assignee hereby agree as follows:
1 Assignor hereby irrevocably and unconditionally sells,
assigns, conveys, transfers and sets over unto Assignee, its
heirs, successors and assigns as of the date hereof (the
"Effective Date"), all of Assignor's right, title and interest
in, to and under: (i) the Lease, together with any and all
guaranties thereof, if any, and (ii) any and all rents prepaid as
of the Effective Date, held by Assignor in connection with the
Lease (the "Rent").
2. Assignee hereby assumes and shall be liable for any and
all liabilities, claims, obligations, losses and expenses,
including reasonable attorneys' fees arising in connection with
the Lease which are actually incurred, and which arise by virtue
of acts or omissions occurring thereunder, on or after the
Effective Date. Assignor shall indemnify and hold Assignee
harmless from any and all liabilities, claims, obligations,
losses and expenses, including reasonable attorneys' fees arising
in connection with the Lease or as a result of Assignor's failure
to fulfill the landlord's duties and obligations accruing under
the Lease prior to the Effective Date. Assignee shall indemnify
and hold Assignor harmless from any and all liabilities, claims,
obligations, loss and expenses, including reasonable attorneys'
fees, arising in connection with the Lease or as a result of
Assignee's failure to fulfill the landlord's duties and
obligations accruing under the Lease on or after the Effective
Date. Assignee shall be entitled to receive all income arising
from the Lease from and after said Effective Date. Assignor shall
be entitled to receive all income accruing from the Lease prior
to the Effective Date.
3. Assignor shall direct the tenant and any successor
tenant under the Lease to pay to Assignee the Rent and all other
monetary obligations due or to become due under the Lease for the
period beginning on the Effective Date.
4. This Assignment shall be governed by and construed in
accordance with the laws of the state in which the Property is
located.
5. All rights and obligations of Assignee and Assignor
hereunder shall be binding upon and inure to the benefit of
Assignor, Assignee and the heirs, successors and assigns of each
such party.
6. This Assignment may be executed in any number of
counterparts, each of which shall be effective only upon delivery
and thereafter shall be deemed an original, and all of which
shall be taken to be one and the same instrument, for the same
effect as if all parties hereto had signed the same signature
page. Any signature page of this Assignment may be detached from
any counterpart of this Assignment without impairing the legal
effect of any signatures thereon and may be attached to another
counterpart of this Agreement identical in form hereto but having
attached to it one or more additional signature pages.
7. Whenever the context so requires in this Assignment,
all words used in the singular shall be construed to have been
used in the plural (and vice versa), each gender shall be
construed to include any other genders, and the word "person"
shall be construed to include a natural person, a corporation, a
firm, a partnership, a joint venture, a trust, an estate or any
other entity.
[Signatures are on the following page]
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment and Assumption of Lease as of the day and year first
above written.
ASSIGNOR:
BLUE BELL PARTNERS, LLC
By: /s/ David A Kitzmiller
Its: Authorized Member
Date: 5-31-06
STATE OF OHIO )
) ss.
COUNTY OF HAMILTON )
On this 30th day of May, 2006, before me, the undersigned, a
Notary Public in and for said State, personally appeared David A
Kitzmiller, personally known to me to be the person who executed
the within instrument as the Authorized Member of Blue Bell
Partners, LLC, an Ohio limited liability company , on behalf of
said Company.
/s/ Ronald Glenn Smith
Notary Public
[Notary Seal]
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.
SIGNATURES TO CONTINUE ON THE FOLLOWING PAGE]
ASSIGNEE:
AEI INCOME & GROWTH FUND 24 LLC,
a Delaware limited liability company
By: AEI Fund Management XXI, Inc.,
a Minnesota corporation, its Managing Member
By: /s/ Robert P Johnson
Name: Robert P Johnson
Title: President
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
On this ____ day of ________, 2006, before me, the undersigned, a
Notary Public in and for said State, personally Robert P.
Johnson, personally known to me to be the person who executed the
within instrument as the President of AEI Fund Management XXI,
Inc., a Minnesota corporation, the managing member of AEI Income
& Growth Fund 24 LLC, a Delaware limited liability company, on
behalf of said company.
/s/ Jennifer L Schriner
Notary Public
[Notary Seal]
AEI INCOME & GROWTH FUND 26 LLC,
a Delaware limited liability company
By: AEI Fund Management XXI, Inc.,
a Minnesota corporation, its Managing Member
By: /s/ Robert P Johnson
Name: Robert P Johnson
Title: President
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
On this ____ day of ________, 2006, before me, the undersigned, a
Notary Public in and for said State, personally Robert P.
Johnson, personally known to me to be the person who executed the
within instrument as the President of AEI Fund Management XXI,
Inc., a Minnesota corporation, the managing member of AEI Income
& Growth Fund 26 LLC, a Delaware limited liability company, on
behalf of said company.
/s/ Jennifer L Schriner
Notary Public
[Notary Seal]
EXHIBIT "A"
Legal Description
DESCRIPTION FOR,: Core Resourees,Inc
LOCATION: University
Boulevard, City of
Middletown Lot 20
1.58
0.8801 Acres
Situate in Section 22, Town 2, Range 4, City of
Middletown, Third Ward, Butler County, Ohio, and
being all of Consolidated Lot No. 2,0158, consisting
of part of Lot 692 and all of Lots 693, 694, 695,
696, 697 and 698 of the Plat of the City of
Middletown, and being more particularly described as
follows:
Beginning in 5/8" iron pin existing in the northwest
corner of said Lot 20158, said iron pin being in the
intersection of the south right of way line of
Manchester Avenue and the east right of way line of
University Boulevard; thence
in said south right of way line of .Manchester
Avenue, South 76 14'46" East, 202.44 feet to a
5/8" iron pin set in the northeast corner of said
Lot 20158, said iron pin also being in the
northwest corner of Lot 20159; thence
in said west muir ci said Lot 20139 and in the cast
line of said Lot 201.58, South 14 00'12" West, 180.18
feet to a fling nail set in the southeast corner of
Lot 20138, said rung nail also being in the north
right of way line of a 16' wide alley; thence
in said north right of way line of a 16 wide alley,
North 76"00'09" West, 178.03 feet to a 5/8" iron
pill existing in i comer of a right of way take as
shown in the City of Middletown, Ohio, University
Boulevard, Grand Avenue to Miami Avenue, No. A-21-3
Right of Way Plans; thence
in the right of way lines of said Right of Way Plans, the
following five courses:
1. North 1359'51" East, 1.74-feet to a 5/8" iron pin existing.,
thence
2. North 76 00'09" West, 19:53 feet to a cross notch existing;
thence
3. along an arc deflecting to the right, having a radius of
40.00 feet, an arc distance of
26.53 feet, said arc bears North 41'08'13" West, 26.05
feet to a cross notch existing,
thence
4. along an arc deflecting to the left, having a radius of
64:00 feet, an .arc distance of 22.33 feet, said arc bears
North 18 43'24" East, 22.22 feet to a cross notch existing;
thence
5. along an arc deflecting to the right, having a radius of
292.00 feet, an arc distance of 84.37 feet, said arc bears
North 17'00'18" East, 84.0'7 feet to a cross notch existing;
thence
6. North 64 43'03" West, 1.00 feet to a cross notch existing in
the west line of aforesaid Lot 20158; thence
10172 International Boulevard Cincinnati, Ohio 45246
Tel: 513.942.9420 Fax: 513.860.8220
In the west line of said Lot 20158, North
25"16'57" East, 57.50 feet to the point of
beginning. Containing +/- 0.8801 acres, or 38,337
square feet of land.
Subject to all easements, covenants and restrictions of
record.
The above description is the result of a field
survey supervised by Patrick S. Finn of Preferred
Surveying Company, Inc., Ohio Registered Surveyor
No. 7181, dated 12-January 2004.
The above described real estate is a part of the same
premises conveyed to :Davis Holdings, Ltd, by (Iced recorded
in Official Record 6050, Page 1640, of the Butler County,
Ohio Recorder's Office.
10172 International Boulevard Cincinnati, Ohio 45246
Tel: 513.942.9420 Fax: 513.860.8220
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made as of January
16, 2004 (the "Commencement Date"), between BLUE BELL PARTNERS,
LLC, an Ohio limited liability company ("Landlord"); and ADVANCE
STORES COMPANY, INCORPORATED, a Virginia corporation ("Tenant").
In consideration of their mutual covenants and other
valuable consideration, the adequacy and sufficiency of which are
hereby acknowledged, Landlord and Tenant hereby agree as follows:
1) LEASED PREMISES. Subject to and in accordance with the terms
hereof, Landlord hereby leases to Tenant, and Tenant leases from
Landlord, the premises situated at University Boulevard, in the
City of Middletown, Butler County, Ohio consisting of part of lot
number 692, entire lots number 693, 694, 695, 696, 697, and 698
as the same are known and designated on the recorded plat of the
City of Middletown, Butler County, Ohio of which is outlined in
red on a survey dated December 10, 2003, prepared by Preferred
Surveying Company, Inc. (the "Survey"), which Survey is attached
hereto as Exhibit "A" and is incorporated herein by this
reference (together with all appurtenances, rights, interest,
easements and privileges in any way pertaining thereto, the
"Land"), together with the improvements to be constructed on the
Land by Landlord pursuant to this Lease, such improvements to
consist of a building space of approximately 7,000 square feet of
gross leasable floor area (the "Building") and the surrounding
parking, landscape and sidewalk areas (including any and all
striping of such parking areas) (collectively, the "Other
Improvements"), all as identified on the site plan attached
hereto as Sheet 2 in Exhibit "B," Attachment 1 and incorporated
herein by this reference (the "Site Plan"). The Land, the
Building and the Other Improvements, together with the "Tenant's
Improvements" (as hereinafter defined), if any, shall hereinafter
be collectively referred to as the "Leased Premises."
2) CONSTRUCTION OF LEASED PREMISES. Landlord shall, at its sole
cost and expense, perform the "Work" (as defined in the
Construction Provisions) in accordance with the construction
provisions attached hereto as Exhibit "B" (the "Construction
Provisions").
3) USE.
a) Tenant may use the Leased Premises for the display,
storage and sale of automotive parts, accessories, supplies
and/or maintenance items or for any and all other lawful
uses; provided, however, in no event shall the Leased
Premises be used for any of the following (collectively, the
"Prohibited Uses"):
i) trailer court, junk yard, waste material collection
facility, or auction house;
ii) establishments providing adult-type entertainment or
displays of a variety involving or depicting nudity or lewd acts;
iii) a massage parlor;
iv) a funeral home;
v) a facility for the sale of paraphernalia for use with
illicit drugs;
vi) a facility for the sale or display of pornographic (as
determined by community standards for the area in which the
Leased Premises is located) material;
vii) overnight parking of campers, mobile homes, boats or tractor
trailers, except for such trailers as are a part of Tenant's
business operations;
viii) any exploration, drilling or similar operation of any
kind;
ix) dance hall, bar, restaurant, off-track betting business,
billiard or pool hall, bingo or similar games of chance, game
arcade, nightclub or flea market;
x) any use which involves the raising, breeding or keeping of
any animals or poultry;
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