ASSIGNMENT AND ASSUMPTION OF LEASE
THIS
ASSIGNMENT AND
ASSUMPTION OF LEASE AGREEMENT (this
"Assignment") is made
and entered into as of the 19 day of
January, 2007,
by and between by and
between CDK
Associates
LLC, having
an address 117 South
Main Avenue, Sioux
Falls,
South Dakota
("Assignor"), and AEI Income & Growth Fund XXII
Limited Partnership, a Minnesota limited partnership, as to an
undivided fifty
(50.0%) percent interest as a tenant in
common, and
AEI Income & Growth Fund
24 LLC, a Delaware
limited liability
company, an undivided fifty (50.0%) percent
interest as
a tenant in common,
(together, collectively the
"Assignee"), both having an address of 1300 Wells Fargo Place,
30 East Seventh Street, St. Paul, Minnesota.
RECITALS:
A.
Assignor
and Assignee are parties to that certain
Purchase and
Sale Agreement dated December
4, 2006, (the
"Agreement"), pursuant
to which Assignee is
acquiring from
Assignor the real property and improvements, located at 4460
32nd Avenue
South, Grand Forks, Grand Forks
County, North
Dakota 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 December 29, 2004 (the "Lease"),
by and between Assignor and Tractor Supply Company (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, pledged, 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.
IN
WITNESS WHEREOF, Assignor and Assignee have executed
this Assignment and Assumption of Lease effective as of the
day and year first above written.
ASSIGNOR: CDK ASSOCIATES LLC,
a South Dakota limited liability company
By: /s/ Lester A Kinstad
Print Name: Lester A. Kinstad
Its: Managing
Member
STATE OF SOUTH DAKOTA )
) ss.
COUNTY OF MINNEHAHA )
On
this 15 day of January, 2007, before me, the
undersigned, a Notary Public in and for said State, personally
appeared Lester A.
Kinstad, in his capacity as the Managing
Member of CDK Associates LLC, a South Dakota limited liability
company, who
acknowledged
the execution
of the foregoing
instrument to be the voluntary act and deed of said company by
authority of its board of directors on behalf of the company..
/s/ Bonnie Noteboom
Notary Public
[notary seal]
ASSIGNEE: AEI Income & Growth Fund XXII
Limited Partnership,
a Minnesota limited partnership
By: AEI Fund
Management XXI, Inc.,
a Minnesota corporation,
its General Partner
By: /s/ Robert P Johnson
Name: Robert P.
Johnson
Its:
President
STATE OF MINNESOTA
)
) ss.
COUNTY OF RAMSEY )
On this ____ day of January, 2007, 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 general partner of AEI
Income &
Growth Fund XXII
Limited Partnership, a
Minnesota
limited partnership, on behalf of said corporation.
/s/ Jennifer L Dingman
Notary Public
[notary seal]
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
Its:
President
STATE OF MINNESOTA
)
) ss.
COUNTY OF RAMSEY )
On this ____ day of January, 2007, 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 corporation.
/s/ Jennifer L Dingman
Notary Public
[notary seal]
EXHIBIT A TO ASSIGNMENT AND ASSUMPTION OF LEASE
Legal Description
Lot One (1), in Block One (1), Plat of Johnson's West First
Addition to the City of Grand Forks, North Dakota, according
to the Plat thereof on file in the Office of the County
Recorder within and for Grand Forks County, N.D., and recorded
as Doc. No. 637930.
GRAND FORKS, ND
LEASE
THIS
LEASE made as of the
29th day of December ,
2004, by
and between
CDK Associates, LLC (the "Landlord") and TRACTOR
SUPPLY COMPANY, a Delaware corporation (the "Tenant").
Capitalized
terms shall have the
meanings ascribed to such terms in the body
of this Lease.
1.
Premises.
(a) LEASED PREMISES. Landlord, for and
in consideration of the
covenants contained in this Lease and made on the part of
Tenant,
does hereby lease unto
Tenant and Tenant does hereby lease from
Landlord the real property described in Exhibit A attached
hereto,
and the improvements now or hereafter located thereon (the
"Premises"), situated in Grand Forks, North Dakota, to have and
to
hold the same, for the term and on the conditions
hereinafter
provided. The
Premises shall include an approximately 21,679
square
foot building
(the
"Building"),
parking
areas,
approximately square foot fenced outdoor display area (the
"Outdoor Display
Area"), the trailer
display, sidewalk
display,
and other display areas, and other related improvements, as
reflected in the Site
Plan attached hereto as part of Exhibit A
(the "Site Plan").
(b) CONSTRUCTION OF IMPROVEMENTS.
Prior to commencement of the
Term of this Lease, as described in Section 2
below, Landlord
agrees to complete the design, engineering and construction of
the
Building and other improvements on the Premises in accordance
with
the construction
requirements described
in Exhibit
E attached
hereto (the "Landlord's Work").
(c) APPROVALS. Landlord shall be
responsible for obtaining, at
Landlord's expense,
all zoning, land use and other governmental
approvals necessary
for operation of the Premises by Tenant for
the Intended
Use, including, without limitation, the Outdoor
Display Area, and the sidewalk and trailer display areas,
all as
reflected on
the Site Plan (the "Required
Approvals").
Tenant
shall be responsible for obtaining, at Tenant's expense, any
approvals necessary
in connection with Tenant's signage (the
"Tenant Approvals"). Notwithstanding the foregoing, if all of
the
Required Approvals and the Tenant Approvals have not been
obtained
(and copies
provided to Tenant) by
April 1, 2005 (the
"Approval
Date"), Tenant
may either (i) waive the requirement for such
approval, or
(ii) terminate this Lease upon written
notice to
Landlord, such
notice to be delivered
within thirty
(30) days
following the
date Landlord notifies
Tenant that such
approvals
are not available.
(d) APPROVAL OF LEASE EXHIBITS.
Landlord and Tenant acknowledge
and agree that the
Site Plan attached hereto as Exhibit A is a
preliminary site
plan for development
of the Premises and
sets
forth the general requirements and
expectations of the
parties
with respect to development of the Premises (the "Preliminary
Site
Plan"). Landlord
agrees that Landlord
will not materially
alter
the layout of the Premises as contemplated by the Preliminary
Site
Plan, including,
without limitation, the size or location of any
of the improvements, the site access, parking areas, outdoor
display areas or signage, without Tenant's prior written
approval.
Landlord further
agrees that, within ten (10) business days from
the date of this Lease, Landlord shall provide
to Tenant,
for
Tenant's approval,
a final site plan for the
Premises. Tenant
agrees that Tenant's approval of the final site plan shall not
be
unreasonably withheld
so long as the final
site plan does not
materially alter the layout of the Premises as contemplated by
the
Preliminary Site Plan, including without limitation, the
size or
location of
any of the improvements, the site
access, parking
areas, outdoor display areas or signage. Upon approval of a
final
site plan by Tenant (the "Final Site Plan"),
the Landlord
and
Tenant shall
enter into an
Amendment to the Lease
in the form
attached hereto
as Schedule 1(d) which shall delete the
Preliminary Site
Plan and substitute the Final Site Plan as
Exhibit A to the Lease.
2.
Term.
(a) LEASE COMMENCEMENT. This Lease
shall be effective as of the
date of this Lease. Tenant shall have and hold the Premises for
an
initial term of
fifteen (15) years commencing on the earlier of
(i) sixty (60) days following substantial completion of the
Building and
improvements, in accordance with Exhibit E attached
hereto, or (ii) the date on which the Tenant's store is opened
for
business to
the general public (the "Commencement
Date") and
ending on the last day of the month which is
one hundred eighty
(180) full
months after the
Commencement Date. The "Term" shall
mean the original term of this Lease, plus any extensions
pursuant
to the terms of this Lease. Upon
substantial completion
of the
Building and
improvements,
Landlord shall send to Tenant a
Commencement Notice in the form attached hereto as Schedule
2(a),
and upon Tenant's
execution of the Notice, the Commencement Date
set forth on the Notice shall be deemed to be
the Commencement
Date of the Lease. A "Lease Year" shall mean
each twelve
(12)
month period of the
Term commencing on the Commencement Date and
every anniversary
thereof, provided, however, if the Commencement
Date is on a date
other than the first (1st) day of a month, the
first Lease Year shall
be extended to include the number of days
from the Commencement Date to the first day of the next
succeeding
month.
(b) EARLY OCCUPANCY. Notwithstanding
the foregoing, Tenant may
occupy the Premises prior to the Commencement Date for purposes
of
completing fixturing and other work to be completed by Tenant in
readying the store for opening.
3.
OPTION TO EXTEND TERM.
Tenant shall have the
right to
extend the Term for three (3) successive periods of five (5)
years
each on the terms and conditions contained in
this Lease, upon
written notice in
writing to Landlord given at least ninety (90)
days prior to the
expiration of the initial Term or any extended
Term.
4.
ANNUAL
RENT/FIXED.
(a) RENT COMMENCEMENT.
Tenant's liability for rent shall
commence on
the Commencement Date, subject
to the terms and
conditions of
this Lease. Tenant, in consideration of the
covenants made
by Landlord, covenants and agrees to pay to
Landlord as
rent for the Premises during the Term, and any
extension thereof, the
annual basic rent as set forth on Exhibit
C, attached
hereto and made a part hereof (collectively, the
"Annual Rent"),
payable in advance in equal monthly installments
on the first (1s1) day of every calendar month (each, a
"Due Date"), as set
forth on Exhibit C. If the Commencement Date
is a day other than the first day of a
calendar month, the first
rental payment and the
last rental payment shall be the pro-rata
portion of such rent for days contained in such fractional
month.
Rent shall be paid to Landlord at the address set forth on
Exhibit
C, or at such other address as Landlord
may designate by written
notice to Tenant.
(b) MONTHLY
INSTALLMENTS. All
monthly installments
of
Annual Rent
shall be paid on or
before the Due Date
in United
States Dollars,
without prior demand or offset except as
specifically permitted
under this Lease. Any monthly installment
of Annual Rent made more than fifteen (15) days after the Due
Date
shall bear interest at the rate of one and one-half percent
(1.5%)
per annum until paid.
5.
NET LEASE. In addition to the Annual Rent, Tenant shall be
responsible for
payment of real estate taxes, insurance premiums
and utilities related
to the Premises in order to make the Annual
Rent payable
to Landlord, net of all customary expenses of
operating the Premises, as follows:
(a) REAL ESTATE TAXES. From and after
the Commencement Date and
during the
Term of this Lease and any renewals
thereof, Tenant
shall also
be responsible for the payment of
all real estate
property taxes
("Property Taxes") assessed against the land and
the Building and improvements to be constructed which comprise
the
Premises. Landlord
shall furnish Tenant with a copy of each paid
tax bill, and within
thirty (30) days after the receipt of same,
Tenant shall
pay to Landlord the full amount of
such Property
Taxes as shown on such statement for payment by Landlord.
Landlord
shall provide Tenant
with an estimate of Property Taxes for the
first Lease Year as soon as available.
(b) INSURANCE. From and after the
Commencement Date and during
the Term of this Lease, Tenant shall
procure and keep in
effect
during the
Term public liability and property
damage insurance
with a combined single limit coverage of
$2,000,000.00 for
each
occurrence. Tenant
shall also procure and keep in effect during
the Term fire and
extended coverage for the Building, written on
an All-Risk
Endorsement and
Replacement Cost
basis. Each
such
policy referred
to above shall name Landlord and Landlord's
mortgagee as
additional insureds, as their interest may appear.
All such policies shall be issued by
entities with an A.M.
Best
Rating of A-VII or higher. Tenant shall
deliver certificates
of
insurance evidencing
such coverage within ten (10) days of the
Commencement Date, or the date of any renewal of this Lease, and
not less than three
(3) days prior to the expiration of any such
policy.
(c) ASSESSMENTS. From and after the
Commencement Date and during
the Term of this
Lease, Tenant shall pay, as they become due and
payable, all
assessments
and other charges or governmental
impositions
levied upon
or assessed against the Premises,
including but
not limited to,
assessments for sewer
or water,
within thirty (30) days after Landlord has furnished Tenant with
a
copy of the statement for the same; provided, however, that
Tenant
may, in its own name, dispute and contest
the same, and in
such
case, disputed
items shall be paid
under protest until
finally
adjudicated to be
valid. At the conclusion of any such contest,
Landlord shall
reimburse Tenant 100% of any reduction and Tenant
shall pay Landlord 100% of
any increase. All court costs, interest and penalties relating
to
any such dispute shall be paid by Tenant.
If any assessment is payable in installments or separate
parts over a period of
two (2) or more years, only the part which
becomes due in a particular year shall be payable according to
the
provisions of this Lease agreement.
(d) UTILITIES.
Landlord, at
Landlord's expense,
shall
cause all utilities serving the Premises to be separately
metered.
No splitting mechanism or private meters may be used. Tenant
shall
make arrangements for
all utilities serving the Premises to bill
Tenant directly for monthly usage charges during the Term of
this
Lease. Tenant agrees
to pay all charges made against the Premises
during Tenant's
occupancy of the Premises for utility usage,
including electricity,
gas, heat, water, and all other utilities
as and when due during the Term of this Lease
and any renewals
thereof.
6.
QUIET
POSSESSION.
(a) POSSESSION. Provided Tenant
complies with the terms of this
Lease, Landlord
represents, warrants
and guarantees
to Tenant
quiet and undisturbed possession of the Premises for the Term,
and
further represents and
warrants to Tenant that Landlord has full
right and lawful authority to enter into
this Lease, and is
lawfully seized of the
Premises, free and clear of all tenancies,
liens and encumbrances superior in rights to
this Lease, except
for real estate taxes
not yet due and payable, and the exceptions
described on Exhibit D attached hereto which have been approved
by
Tenant
(collectively
the "Permitted
Exceptions").
Landlord
represents and
warrants that the Permitted Exceptions do not
prohibit or adversely affect in any way the Tenant's Intended
Use,
or the other provisions of this Lease.
Landlord warrants and
agrees to defend the title to the Premises,
and will
indemnify,
hold harmless
and defend Tenant
against any damage and
expense
which Tenant may
suffer by reason of any defect in the title or
description of the Premises.
(b)
APPLICABLE LAW. The
Premises are subject to applicable
statutes, ordinances and regulations which Landlord represents
and
warrants do not prohibit or adversely affect the Intended
Use of
the Premises,
including, without limitation, the Outdoor Display
Area, and the other display areas described on the Site Plan.
(c) CERTIFICATE OF OCCUPANCY. Landlord
covenants and agrees that
following completion
of the Building and
improvements,
Landlord
shall obtain, at
Landlord's expense, a certificate of occupancy
permitting occupancy
of the Premises for
Tenant's Intended
Use
issued by
the appropriate governmental authority having
jurisdiction over
the Premises, and the original shall be
delivered to Tenant.
Landlord represents and warrants to Tenant
that the Premises, when completed, and the
Intended Use,
shall
comply with
the requirements of all governmental authorities
applicable to
the Premises, including, without limitation,
planning and
zoning rules and
regulations, and Building, health
and fire codes and any requirements of the
Required
Approvals.
Landlord acknowledges
that Tenant's obligation to pay rent
hereunder is contingent upon issuance of an acceptable
certificate
of occupancy and Landlord's compliance with the other
requirements
set forth in Exhibit E. Notwithstanding anything contained in
this
Lease to
the contrary,
provided
Tenant operates the Premises as
contemplated by
the approved plans and specifications,
and in
accordance with the
Required Approvals, if Tenant is restricted
from operating
Tenant's business as contemplated by this Lease,
including use of the Outdoor Display Area and other display
areas
designated on
the Site Plan, then
Tenant may, upon
thirty (30)
days prior written
notice to Landlord, terminate this Lease, in
which event,
Tenant shall satisfy all obligations
through the
termination date
and shall then be relieved of any further
obligations.
(d) SUBORDINATION; ATTORNMENT;
NONDISTURBANCE. At the option of
any first mortgagee of the Premises, this Lease shall be
subordinate at all times to the lien of such mortgage or
deed of
trust existing or that
may hereafter be placed upon the Premises,
and to any and all advances made
thereunder, provided that such
subordination shall
not become effective
unless and
until the
proposed
mortgagee or
beneficiary
shall have executed and
delivered to
Tenant the Subordination, Non-Disturbance and
Attornment Agreement
attached hereto as
Exhibit G (hereinafter
referred to as the "Nondisturbance Agreement").
In
the event Landlord has
not furnished Tenant with an
executed
Nondisturbance Agreement from any existing mortgagee or
beneficiary within
sixty (60) days from the date of this Lease,
Tenant shall
have the right to
terminate this Lease
by written
notice to Landlord, and immediately receive from Landlord any
and
all prepaid
rents, deposits and
other sums paid
by Tenant on
account of this Lease.
(e) ADA COMPLIANCE.
Landlord covenants and agrees that at its own
expense, and without
any right of reimbursement from Tenant, it
shall complete
construction
of the Building and related
improvements, and take such other actions as shall be necessary
to
cause the
Premises, to fully and timely comply with the
requirements of
all governmental
authorities applicable
to the
Premises, including, without limitation, planning and zoning
rules
and regulations,
Building, health and fire codes, the "American
with Disabilities
Act" of 1990 as amended and the Federal
regulations
promulgated thereunder
(the "Disabilities Act");
provided, however, that, with respect to the Disabilities Act,
the
parties agree as follows:
(i) Each party shall have
responsibility under the Disabilities
Act for
its own standards, criteria, policies, practices, and
procedures.
(ii) Tenant
shall have the responsibility for the provision of
auxiliary
aids and services" (as such term is
used in the
Disabilities Act) to its customers, if and to the extent
required
in
connection with its operation of its business on the Pre
